SPRINGALL v Police - [2007] SASC 425

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SPRINGALL v POLICE
[2007] SASC 425
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Layton)
5 December 2007
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES - OTHER CASES
Appellant the holder of a New South Wales driver's licence which was suspended pending the determination of a traffic charge laid against her in New South Wales - appellant drove in South Australia while licence remained suspended - appellant convicted in South Australia of driving whilst suspended contrary to Motor Vehicles Act 1959 (SA) s 91 - appeal from magistrate to single judge who upheld conviction. Whether Motor Vehicles Act (SA) s 91 applies to a driver's licence suspended under an Act of another State or Territory - consideration of requirements for an interstate licence holder to drive in this State - whether s 91 requires the suspension of a licence to have occurred pursuant to an Act of the Parliament of South Australia.
Held: s 91 applies to interstate suspension of licences. Appeal dismissed.
Motor Vehicles Act 1959 (SA) s 91, s 97A; Road Transport (Safety and Traffic Management) Act 1999 (NSW) s 9(4)(a); The Road Transport (General) Act 1909 (NSW); Acts Interpretation Act 1915 (SA) s 4(1), referred to.

SPRINGALL v POLICE
[2007] SASC 425
Full Court: Duggan, Bleby and Layton JJ

DUGGAN J. The appellant was convicted in the Magistrates Court of a breach of s 91 of the Motor Vehicles Act 1959 (SA) (“the Act”). The complaint which was laid against her originally alleged that, on 18 February 2004, at Salisbury North the appellant drove a motor vehicle on Waterloo Corner Road while she was disqualified from holding or obtaining a driver’s licence.
The facts can be summarised as follows. The appellant was the holder of a driver’s licence issued in New South Wales. On 14 June 2001 she was charged with driving a motor vehicle on a public road in New South Wales while there was present in her blood a prescribed concentration of alcohol contrary to s 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW).
When charged, the appellant was served with a “Notice of Suspension and Confiscation of Driver’s Licence” pursuant to The Road Transport (General) Act 1909 (NSW) which had the effect of suspending her driver’s licence until the charge was determined by a magistrate.
The appellant appeared at the Broken Hill Local Court for the hearing of the charge and was remanded on bail for sentence to 11 March 2002. She failed to appear on this date and a warrant was issued for her arrest.
On 18 February 2004 the appellant was stopped by police while she was driving a vehicle on Waterloo Corner Road in South Australia. She produced her New South Wales driver’s licence to the police. As she had not been dealt with for the driving offence in New South Wales, her licence remained suspended. She was thereupon charged with the breach of s 91 of the Act.
The appellant appeared before the Elizabeth Magistrates Court to answer the charge on 30 March 2007. The facts summarised above were admitted, but the charge was contested. In her reasons for decision the magistrate referred to the fact that the appellant had been charged with driving whilst “disqualified”. However, she amended the charge to allege that the appellant drove while her licence was “suspended”. The magistrate then convicted the appellant of a breach of s 91 of the Act.
The appellant appealed against her conviction, but the appeal was dismissed by a single judge of this court. She now appeals to the Full Court against the decision of the single judge.
The argument presented by the appellant on appeal to the single judge and to this court was that, whereas s 91 makes it an offence to drive in South Australia while disqualified in another State or Territory of the Commonwealth, the section has no application to the present situation where the appellant’s driver’s licence was suspended in another State.
Section 91 of the Act provides as follows:
91 Effect of suspension and disqualification
(1)This section and section 93 apply to suspensions and disqualifications imposed under this or any other Act.
(2)While a licence or learner’s permit is suspended it has no force or effect.
(3)While a person is disqualified from holding and obtaining a licence or learner’s permit, any licence or learner’s permit held or obtained by that person has no force or effect.
(4)The Registrar must not issue a licence or learner’s permit to any person who is so disqualified.
(5)A person must not drive a motor vehicle on a road while his or her licence or learner’s permit is suspended or while disqualified in this State or another State or Territory of the Commonwealth from holding or obtaining a licence or learner’s permit.
Maximum penalty:
For a first offence – imprisonment for 6 months.
For a subsequent offence – imprisonment for 2 years.
In order to consider s 91 in the context of the present case it is appropriate to have regard to the circumstances in which motorists from other States on a temporary visit to South Australia are permitted to drive in this State.
Visiting motorists may drive a motor vehicle on roads in this State without holding a South Australian driving licence if the requirements prescribed by s 97A of the Act are met.
The first requirement enabling a person to drive a motor vehicle on roads in this State without holding a licence is that the person must hold “an interstate licence that authorises the person to drive a motor vehicle of the class to which that motor vehicle belongs” (s 97A (1)(a)(i)). It is appropriate to point out in passing that a driver’s licence which is suspended would not satisfy this requirement as the suspension has the effect of withdrawing the authorisation to drive.
The second requirement is that the person has not resided in this State for a continuous period of more than three months (s 97A(1)(b)(i)). There is an alternative to this requirement which is irrelevant for present purposes.
The third requirement is that the person is not disqualified from holding or obtaining an interstate licence in any State or Territory of the Commonwealth (s 97A(1)(c)(i)).
There was no need to deal specifically with the consequences of a suspension of licence in s 97A because, as I have said, a licence which has been suspended would not fulfil the first requirement referred to above.
It is not suggested by the appellant that visiting motorists are outside the application of s 91. However, it is argued that, if the prosecution relies on a suspension of licence to establish an offence contrary to s 91(5), the suspension must have been ordered or effected under the authority of an Act of the Parliament of South Australia. According to the argument, it follows that, as the suspension in the present case came into effect by the operation of an Act of the New South Wales Parliament, it could not provide a basis for the charge laid against the appellant.
This construction would lead to a curious result in the case of visiting motorists. Persons previously holding South Australian licences which had been suspended and all interstate and local motorists disqualified from holding or obtaining a driver’s licence would commit an offence under the section if they drove a motor vehicle on a road. However, a visiting motorist whose licence had been suspended under interstate legislation would not commit an offence. This would be so despite the fact that such a motorist was not entitled to drive in South Australia by reason of the suspension (s 97A)).
The first step in the appellant’s argument draws attention to s 91(1) which provides that the section applies to suspensions and disqualifications imposed under “this or any other Act”. The appellant argues that the words “any other Act” refer only to Acts of the South Australian Parliament.
Section 4(1) of the Acts Interpretation Act 1915 (SA) provides as follows:
(1)In this Act and in every other Act or statutory instrument, unless the contrary intention appears —
Act means —
(a) an Act of the Parliament of South Australia or an Act or ordinance of some earlier legislative authority in South Australia; or
(b) an Act of the Imperial Parliament that has been received into the law of South Australia or applies to South Australia by paramount force.
(emphasis added)
In my view, a contrary intention arises in the case of s 91.
Section 91(5) provides that an offence will be committed if a person drives while disqualified in this State or another State or Territory of the Commonwealth. A disqualification in another State or Territory would take place pursuant to the legislation of that State or Territory. The inevitable conclusion from this is that the phrase “or any other Act” in s 91(1) must include reference to the relevant legislation in the other States and the Territories. This conclusion is further supported by the fact that the words “licence” and “learner’s permit” when they are used in relation to disqualification in another State or Territory must refer to licences and learner’s permits which have been issued or might be issued in that State or Territory. There is no reason why the meaning of “licence” and “learner’s permit” should not bear the same meaning throughout the section. In the light of these considerations the unqualified reference in s 91(5) to a licence or learner’s permit being suspended includes a suspension imposed under an Act of another State or Territory of the Commonwealth.
In support of the argument for a more restricted construction of s 91(5) the appellant relies upon the grammatical form of s 91(5).
First, it is argued that the words “in this State or another State or Territory of the Commonwealth” refer to disqualification and not suspension. This step in the argument was conceded by the respondent before the single judge. In my view the concession was properly made. It is supported by the grammatical construction of s 91(5) and the fact that the phrase “from holding or obtaining a licence or learner’s permit” is used in the Act and elsewhere to describe the nature and effect of disqualification of licence.
The appellant then argues that an inference can be drawn from the fact that licence disqualification imposed in other jurisdictions is specifically dealt with in s 91(5), whereas there is no reference to extra-territorial suspension of licences. It is argued that this discloses an intention that suspensions in other States or Territories are not to be used as the basis for charges under the sub-section. In effect, the appellant relies on an expressio unius est exclusio alterius argument.
For the reasons which I have given, there would seem to be no reason why Parliament would have intended this result. Such an interpretation would be contrary to the apparent purpose of the legislation and the wording of the section. Section 91 deals in a general way with the consequences of driving under suspension or whilst disqualified. The use in the section of the terms “suspensions” and “suspended” is unqualified. In their ordinary meaning and in the sense in which they are used in the section they would encompass suspension of licences and permits which came into effect under the legislation of other States.
The section could have been more happily worded. However, it might also be said that the need to address the situation of interstate disqualifications of licence in the section is more obvious than in the case of interstate suspensions of licence. As has been pointed out, a suspension of licence by operation of the law of another State automatically excludes a person from the rights conferred by the visiting motorist provisions in s 97A of the Act. Upon suspension the person no longer holds an interstate licence authorising him or her to drive a motor vehicle of the relevant class. Accordingly, the first requirement of s 97A would not be met.
However, if a person is disqualified from holding or obtaining a licence in a State other than the State which issued the original licence, the question whether this would prevent that person from being authorised to drive in the State which issued the licence would depend upon the legislative provisions in that State. The desirability of dealing specifically in s 91 with the consequences of a disqualification in any State or Territory is evident.
It was not argued before this court that if, contrary to the appellant’s argument, interstate suspensions of licence do come within the section, it was not open to the magistrate to amend the charge in the manner referred to above before recording a conviction.
I would dismiss the appeal.
BLEBY J. I agree with Duggan J that the appeal should be dismissed for the reasons that he has given.
LAYTON J. I agree that the appeal should be dismissed for the reasons given by Duggan J.