Police v Cargill No. Scgrg-00-795

[2000] SASC 336

[2000] SASC 336

POLICE V CARGILL

Magistrates Appeal: Criminal (Ex Tempore)

1................ LANDER J...... The respondent was charged on complaint with four offences, all of which were said to have been committed at the same time, on 28 January 2000. First, that he drove a motor vehicle whilst he was under the influence of intoxicating liquor, contrary to s 47 of the Road Traffic Act 1961; secondly, that he drove a motor vehicle whilst there was present in his blood, the prescribed concentration of alcohol; thirdly, that he drove a motor vehicle in contravention of a condition endorsed upon his licence pursuant to s 81A of the Motor Vehicles Act 1959; namely that whilst driving the said motor vehicle there was present in his blood, the prescribed concentration of alcohol as defined in s 81A(1)(a) of the Motor Vehicles Act; fourthly, that he drove the motor vehicle without due care.

1. The respondent appeared in the Magistrates Court unrepresented. He has also appeared on this appeal unrepresented.

2. In the Magistrates Court the Prosecutor asked the Magistrate for the first and third charges to be read, intending on the respondent pleading guilty to those charges, to withdraw counts two and four. The learned Magistrate said at that stage that count three should not be read, because it was duplicitous. Count one was read and the respondent pleaded guilty. The Magistrate then convicted the defendant on that count and fined him $1,200 and disqualified him from holding or obtaining a driver’s licence for a period of three years, the licence disqualification to commence forthwith. The Prosecutor then withdrew counts two and four, but informed the Magistrate that she did not seek leave to withdraw count three on the complaint. The Magistrate then dismissed count three.

3. The appellant appeals against the Magistrate’s dismissal of count three on the complaint.

4. At the time that the respondent committed the offence to which he pleaded guilty, namely driving a vehicle on a road whilst under the influence of intoxicating liquor, the respondent was the holder of a provisional licence. It was a condition of that licence that he not drive a motor vehicle, or attempt to put a motor vehicle in motion whilst the prescribed concentration of alcohol was present in his blood, s 81A(1)(ca). The prescribed concentration of alcohol was defined in s 81A(1)(a) of the Motor Vehicles Act, which means any concentration of alcohol in the blood.

5. The clear intention of the legislation is that the holder of a provisional licence should drive with no blood alcohol in his system and if tested, record a zero blood alcohol reading, otherwise be in contravention of a condition of the licence.

6. Section 81A(5) of the Motor Vehicles Act makes it an offence to contravene a condition of a provisional licence and provides for a maximum penalty of $1,250.

7. Section 81B(2) of the Motor Vehicles Act requires the Registrar of Motor Vehicles, on becoming aware of a provisional licence holder contravening a prescribed condition of his licence (which includes a condition referred to in s 81A) to give that provisional licence holder a notice that the person is disqualified from holding or obtaining a licence for a period of six months.

8. Section 81B(3) of the Motor Vehicles Act provides that following a contravention for an offence against s 81A(5) of the Act, the Registrar of Motor Vehicles may require the person concerned to attend a lecture conducted pursuant to the Regulations. Without a conviction under s 81A, s 81B(2) and s 81B(3) cannot operate, because there has been no offence of contravening a prescribed condition.

9. The appellant submits that anyone who commits a breach of s 47 of the Road Traffic Act would necessarily breach a condition of a provisional licence granted under s 81A. That submission is unanswerable.

10. In this case, in my opinion, the learned Magistrate was wrong to refuse to summarily dismiss the third count.  The learned Magistrate should have allowed the third count to be read to the respondent and required him to plead; s 67(1) Summary Procedure Act. In fact, the respondent was prepared at that stage to plead guilty to that third count.

11. The third count would not amount to punishing the respondent for the same offence in the first count. Section 47 of the Road Traffic Act deals with the manner of driving. Section 81A of the Motor Vehicles Act deals with the right to drive. A conviction under s 47 of the Road Traffic Act on the one hand, and s 81A(5) of the Motor Vehicles Act on the other, does not involve convicting a person of two offences in respect of the same conduct: Samuels vYoung (1978) 19 SASR 406 at 408. The gravamen of each offence is different: R v O’Loughlinex parte Ralphs (1971) 1 SASR 219 per Wells J at 261.

12. It is the commission of the offence referred to in s 81A(1)(ca) of the Motor Vehicles Act which in turn gives rise to the offence of contravening a condition of the provisional licence. That in turn obliges the Registrar to take the steps in s 81B(2) and allows the Registrar to require the offender to attend the lecture in s 81B(3).

13. That s 81A(5) of the Motor Vehicles Act is intended to create a separate offence from the offence which contravenes the condition of the licence can be seen by reference to the condition in s 81A(1)(b). A person who is subject to a provisional licence and who drives at more than 10 km/h above the speed limit would ordinarily not be disqualified from holding a licence for six months. A speeding offence of 80 kms in a built up area for example might attract a short disqualification. However, s 81B(2) would operate, because the speeding offence was itself a contravention of a prescribed condition and the provisional licence holder would be disqualified from holding or obtaining a licence for six months: s 81B(2)(c).

14. If it was otherwise, it would mean that a person who has contravened a prescribed condition of a licence under s 81A(1) of the Motor Vehicles Act would never be called upon, if convicted of the offence which gave rise to the contravention, to the consequences provided for in s 81B(2) and s 81B(3) of the Motor Vehicles Act.

15. In my opinion, Parliament intended a contravention of the provisional licence condition under s 81A(5) of the Motor Vehicles Act to be a separate and distinct offence from the offence which causes the contravention. The contravention of s 81A may be compared to an offender who, whilst driving under the influence, is also driving whilst disqualified from holding or obtaining a licence. A conviction on the first offence does not mean that the offender cannot be convicted of the second. The offences are quite different, even though they were committed simultaneously.

16. Parliament has shown by the enactment of s 81A of the Motor VehiclesAct that provisional licence holders are to be treated differently from other licence holders and that in addition to any penalty which a person might incur, as a result of the contravention of the Road Traffic Act, those persons are also liable to a penalty under the Motor Vehicles Act; the penalty being the pecuniary penalty in s 81A(5), the loss of the licence in s 81B(2), and the liability to attend a lecture if required by the Registrar of Motor Vehicles in s 81B(3). The loss of a licence provided for in s 81B(2) shows that provisional licence holders are to be treated differently to ordinary licence holders; so also the potential liability to attend a lecture under s 82B(3) evidences the fact that Parliament intended that provisional licence holders be treated differently to other licence holders.

17. There is no doubt that a conviction for both the first and second counts would amount to punishing the respondent for the same offence. But in my opinion, the Magistrate erred in determining that the first and third counts would give rise to the same result: R v O’Loughlin ex parte Ralphs (supra).

18. This appeal raises a matter of principle and a matter of importance and, in my opinion, the appeal should be allowed and the order dismissing the third count should be set aside.

19. I said at the outset that the respondent appeared on this appeal unrepresented. Before the appeal commenced I asked him if he would wish to get legal assistance. He indicated that he had attempted to obtain legal aid, but had been unsuccessful. He was not in a position to retain a lawyer from his own resources.

20. In those circumstances, I raised with Mr Nicholas, who appeared on behalf of the appellant, whether in the circumstances of this case the appellant might be satisfied simply with the appeal being allowed and the matter remitted to a Magistrate and the appellant undertaking when the matter was remitted to the Magistrate, not to tender any evidence.

21. There is no doubt that this appeal raises matters of importance for the appellant. There is equally no doubt that the respondent was at all times prepared to plead guilty to the third count. The respondent thereby has been put to considerable inconvenience by the Magistrate’s summary dismissal of the third count and this appeal.

22. Immediately after Mr Nicholas completed his submissions, he obtained instructions to request me, if I was to allow the appeal, to hear the third count and if I was to do so he would tender no evidence. He has done that and in those circumstances, the orders of the court will be:

    1)..... The appeal will be allowed.

    2)     The order of the learned Magistrate dismissing count 3 set aside.

    3)..... On the appellant tendering no evidence the third count is dismissed.

    4)     No order as to costs.