Sims v Pultchen - [2019] NTSC 16

CITATION:Sims v Pultchen [2019] NTSC 16
PARTIES:SIMS, Erica Ann

v
PULTCHEN, Steven

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:12 of 2019 (21842137)
DELIVERED:  13 March 2019
HEARING DATE:  13 March 2019
JUDGMENT OF:  Kelly J

CATCHWORDS:
Special case stated pursuant to Criminal Code s 408 - Traffic Act s 29AAN – Is a notice of immediate suspension and disqualification notice issued by a police officer pursuant to s 29AAN of the Traffic Act is sufficient to prove a charge of driving disqualified pursuant to s 31(1) of the Traffic Act? – answer no - a person can only be found guilty of the offence of driving disqualified pursuant to s 31(1) of the Traffic Act once a relevant charge has been determined by a court and a period of disqualification from obtaining a driver’s licence has been imposed
Traffic Act
Sanderson v TC [2018] NTSC 82 at [10] referred to

REPRESENTATION:
Counsel:
Complainant:  I Rowbottom
Defendant:M Aust
Solicitors:
Complainant:  Director of Public Prosecutions
Defendant:North Australian Aboriginal Justice Agency
Judgment category classification:    B
Judgment ID Number:  Kel1904
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Sims v Pultchen [2019] NTSC 16

No. 12 of 2019 (21842137)

IN THE MATTER of the Traffic Act
AND IN THE MATTER of a Special Case stated by the Local Court

BETWEEN:
ERICA ANN SIMS

Complainant
AND:
SEVEN PULTCHEN

Defendant

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 13 March 2019)
Background

On 29 September 2018, the defendant was stopped by police while driving, arrested and charged with driving with a high range breath alcohol content pursuant to s 21(1) of the Traffic Act (the ‘Act’) as well as some other charges. The high range drink driving charge is not disputed. The defendant has indicated that he intends to plead guilty to all the charges on that file.
Later on the same day the defendant was bailed and served with a “notice of immediate licence suspension and disqualification from driving” pursuant to s 29AAN of the Act (“the s 29AAN notice”).
On 6 October 2018 police again stopped the defendant while he was driving. He was arrested and charged with driving with a medium range breath alcohol content contrary to s 22(1) of the Act and driving a vehicle with a passenger under 16 years old who was not wearing a seatbelt contrary to s 266(1) of the Australian Road Rules. Again, neither charge is disputed by the defendant.
The defendant was further charged with driving while disqualified, contrary to s 31(1) of the Act as a result of his driving after having been issued with the s 29AAN notice. The defendant disputes that his conduct constituted “driving while disqualified” within the meaning of s 31(1). He contends that the only appropriate charge would have been “driving unlicensed”.
The question of law reserved
On 8 February 2019 at the request of parties, the following question of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sims v Pultchen

Details

AGLC: Sims v Pultchen [2019] NTSC 16
Case: [2019] NTSC 16
Decision Date: 13 March 2019

CaseChat Overview and Summary

Sims v Pultchen is a case where the respondent, Sims, was issued a notice of immediate suspension and disqualification notice by the police under section 29AAN of the Traffic Act. This notice was issued following Sims’s arrest for driving while disqualified. The case was brought before the court to determine the sufficiency of the notice issued by the police as evidence to support a charge of driving disqualified under section 31(1) of the Traffic Act.

The central legal issue in this case was whether the notice of immediate suspension and disqualification issued by a police officer under section 29AAN of the Traffic Act is sufficient to prove a charge of driving disqualified pursuant to section 31(1) of the Traffic Act. The court had to examine whether such a notice can be used as evidence in a trial without the need for a court to determine a relevant charge and impose a period of disqualification from obtaining a driver’s licence.

The court held that a notice of immediate suspension and disqualification issued by a police officer is not sufficient to prove a charge of driving disqualified under section 31(1) of the Traffic Act. The court reasoned that a person can only be found guilty of the offence of driving disqualified if a relevant charge has been determined by a court and a period of disqualification from obtaining a driver’s licence has been imposed. The court emphasised that the notice of immediate suspension and disqualification is not a substitute for a court’s determination and imposition of a disqualification period. This decision underscores the importance of judicial oversight in the enforcement of traffic laws and the need for a court to make a final determination before a person can be found guilty of driving disqualified.

Orders