SPRINGALL v Police - [2007] SASC 264

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SPRINGALL v POLICE
[2007] SASC 264
Judgment of The Honourable Justice David
20 July 2007
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - OTHER CASES OF AMENDMENT
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
Criminal law – Magistrates Appeal – driving while disqualified – driving while suspended – Motor Vehicles Act 1959 (SA) s 91 – amendment of Complaint – whether amendment had the effect of charging appellant with new offence – test is whether the “pith and substance of the charge” remains the same – whether s 91 of the Motor Vehicles Act 1959 (SA) creates an offence of driving in South Australia on a suspended interstate licence – statutory interpretation – it is an offence to drive in South Australia on a suspended interstate licence – appeal dismissed.
Motor Vehicles Act 1959 (SA) s 74(1), s 83, s 91, s 97A; Road Transport (Safety and Traffic Management) Act 1999 (NSW) s 9(4), referred to.
Crafter v McKeough (1943) SASR 371; Fred Wakefield Pty Ltd v Dowd (1979) 20 SASR 328; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Schultz v Pettitt (1980) 25 SASR 427; Surman v Police (1996) 65 SASR 421, applied.

SPRINGALL v POLICE
[2007] SASC 264
Magistrates Appeal
DAVID J.
Introduction

This is an appeal against conviction. The appellant was charged with driving a motor vehicle while disqualified, contrary to s 91 of the Motor Vehicles Act 1959 (SA) (hereinafter referred to as “the Act”). The appellant pleaded not guilty. Neither party called evidence and the matter proceeded by way of agreed facts and submissions. The appellant was found guilty. A conviction was recorded and the appellant was placed on a 12 month good behaviour bond. The appellant does not take issue with the penalty imposed.
Facts
The appellant held a New South Wales driver’s licence. On 14 June 2001 she was charged with driving a motor vehicle while there was present in her blood a high concentration of alcohol, contrary to s 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW). When apprehended the appellant was issued with a Court Attendance Notice to attend the Broken Hill Local Court for the hearing of the charge, as well as a Notice of Suspension of Driver’s Licence which applied pending the determination of the charge. The Notice of Suspension also required the appellant to surrender her driver’s licence to the Broken Hill Police Station within 24 hours (which she obviously did not do). The appellant initially appeared at the Broken Hill Local Court for the hearing of the charge and entered a bail agreement, but failed to attend for sentence on 11 March 2002 and a warrant was issued. Thus, on 18 February 2004, the original Notice of Suspension remained on foot pending the finalisation of the charge before the Broken Hill Local Court.
On 18 February 2004 the appellant was stopped by police while driving a motor vehicle in South Australia. The appellant produced her New South Wales driver’s licence by way of identification. The police determined that the appellant’s licence had been suspended and charged her with driving a motor vehicle while disqualified, contrary to s 91 of the Act.
The matter was heard in the Elizabeth Magistrates Court on 30 March 2007. The appellant admitted that her New South Wales driver’s licence had been suspended on 14 June 2001 and that she had driven a motor vehicle in South Australia on 18 February 2004. During argument, submissions were made regarding the particulars of the charge, namely that the appellant had been charged with driving whilst “disqualified” rather than driving while “suspended”. The magistrate reserved judgment.
On 13 April 2007 the magistrate delivered judgment, finding the charge proved. With respect to the particularisation of the charge, after discussion about the difference between “suspension” and “disqualification”, the magistrate said:
As far as the complaint is concerned I have noted that the prosecution alleged the defendant was driving disqualified when in fact she had been suspended. The section deals with both suspension and disqualification without any differentiation in the penalty. It was agreed that the defendant was suspended. I do not consider that an amendment to reflect that appropriate situation in any way prejudices the defendant and I intend to so amend the complaint to reflect the reality of her situation.
Arguments on Appeal
The appellant appeals against conviction on two grounds. The first ground is that the particulars of the Complaint should not have been amended from “disqualified” to “suspended”. The second ground is that s 91 does not create an offence of driving on a suspended interstate driver’s licence.
The appellant argues that the amendment of the Complaint from “disqualified” to “suspended” should not have been allowed because it had the effect of convicting the defendant of an entirely different offence from that with which she was charged, and that the time limit for making a new Complaint had expired.
The respondent correctly concedes that if the amendment did have the effect of charging the appellant with a new offence, it was out of time and would be in error.[1] Whether the amendment to the Complaint had the effect of charging the appellant with a new offence depends on whether the “pith and substance of the charge” remained the same.[2] The relevant section of the Act reads:
[1]    See Crafter v McKeough (1943) SASR 371, 375; Schultz v Pettitt (1980) 25 SASR 427, 433.
[2]    Crafter v McKeough (1943) SASR 371, 375; Schultz v Pettitt (1980) 25 SASR 427, 433; Fred Wakefield Pty Ltd v Dowd (1979) 20 SASR 328, 330-331; Surman v SA Police (1996) 65 SASR 421, 424.
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.
The real substance of s 91(5) is the prohibition on driving a motor vehicle without having the requisite authority to do so. “Suspension” or “disqualification” merely describe the circumstances by which a person may find themselves without the requisite authority. Therefore, when the Complaint was particularised as driving while “disqualified”, the pith and substance of the charge was that the appellant drove without having the requisite authority under the Act. When amended to driving while “suspended”, the pith and substance of the charge was still that the appellant drove without having the requisite authority to do so. As such, the amendment did not charge the appellant with a different offence and this ground of appeal must fail.
The second ground of appeal is that s 91 does not create an offence of driving on a suspended interstate driver’s licence. It was argued by the appellant that the appropriate section under which to charge a person for driving a motor vehicle in South Australia while his or her interstate licence is suspended, would be s 74(1) of the Act. This section reads:
74—Duty to hold licence or learner's permit
(1) Subject to this Act, a person who—
(a)drives a motor vehicle of a particular class on a road; and
(b)is not authorised to drive a motor vehicle of that class on a road but has previously been so authorised under this Act or the law of another State or a Territory of the Commonwealth,
is guilty of an offence.
Maximum penalty: $1,250.
…
It is conceded by the respondent that this section could have been used to charge the appellant. Indeed, the respondent argues that this section indicates an intention on behalf of Parliament to create an offence of driving while an interstate licence is suspended. However, the respondent maintains that s 91 also creates an offence of driving a motor vehicle while an interstate driver’s licence is suspended.
The appellant argues that a literal interpretation of s 91(5) of the Act reveals that it does not create an offence of driving while an interstate licence is suspended. It is argued that this section only creates offences of:
·driving while a South Australian driver’s licence or learner’s permit is suspended;
·driving while a driver is disqualified from holding or obtaining a driver’s licence or learner’s permit in South Australia; and
·driving while a driver is disqualified from holding or obtaining a driver’s licence or learner’s permit in another State or Territory of the Commonwealth.
This is said to be because of the position of the words “in this State or another State or Territory of the Commonwealth”. Indeed, the respondent concedes that this is grammatically correct. However, the respondent argues that the Court should look at the purpose of the legislation rather than reading the section literally.
The appellant argues that s 97A of the Act supports the contention that Parliament did not intend to create an offence of driving on a suspended interstate licence. That section states that:
97A—Visiting motorists
(1) Subject to this section, a person may drive a motor vehicle on roads in this State without holding a licence under this act if—
(a)the person holds—
(i)an interstate licence that authorises the person to drive a motor vehicle of the class to which that motor vehicle belongs; or
…
(c)the person is not disqualified from holding or obtaining—
(i)an interstate licence in any State or Territory of the Commonwealth; or
…
It is argued that it is inconsistent for s 91(5) to create an offence of driving a motor vehicle while an interstate licence is suspended if s 97A authorises a person to drive a motor vehicle provided they are not disqualified from holding or obtaining a licence. In considering this section, the respondent placed weight on the requirement to “hold” an interstate licence rather than on the requirement that a person not be “disqualified”. As such, the respondent argues that this section does not need to specifically refer to persons who are suspended from driving, as these persons do not “hold” licences.
The respondent referred to s 83 of the Act in support of the argument that the intention of Parliament was to create an offence of driving while an interstate licence is suspended. This section reads:
83—Action following disqualification etc outside State
(1) If a person is disqualified from driving a motor vehicle in another State or Territory of the Commonwealth, the Registrar must—
(a)if the person holds a licence or learner’s permit under this Act, cancel the licence or permit;
(b)refuse to issue a licence or learner’s permit to the person during the period of disqualification.
(2) If an order is made in another State or Territory of the Commonwealth that a person’s licence or learner's permit be suspended or modified—
(a)the Registrar must, if the person holds a licence or learner’s permit under this Act, suspend or modify the licence or permit in accordance with the order;
(b)the Registrar must, in the case of an order that a licence or learner’s permit be suspended, refuse to issue a licence or learner’s permit to the person during the period of suspension;
(c)the Registrar may, in the case of an order that a licence be modified, refuse to issue a licence to the person, or to modify a licence held by the person, during the period of operation of the order, as the Registrar considers appropriate having regard to the terms of the order.
…
It is argued that this section clearly indicates that the intention of Parliament is not to let persons drive on South Australian roads when their interstate licences are either disqualified or suspended. It is suggested that it therefore follows that s 91(5) is intended to include an offence of driving while an interstate licence is suspended, even though this is not evident upon a strict grammatical reading of the section.
The role of the Court is to apply the ordinary, grammatical meaning of legislative provisions, unless it is clear that such application would defeat the purpose of the legislation.[3] As counsel for the respondent pointed out, this Act is analogous to a “patchwork quilt”. It has been amended on numerous occasions since its enactment. In its original form the section read:
[3]    Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382.
91—Effect of suspension and disqualification
(1)     This section and sections 92, 93, 94, and 95, apply to suspensions and disqualifications imposed under this or any other Act.
(2)     While a licence is suspended it shall be of no force or effect.
(3)     While a person is disqualified from holding and obtaining a licence, any licence held or obtained by that person shall be of no force or effect.
(4)     The Registrar shall not issue a licence to any person who is so disqualified.
(5)     A person shall not drive a motor vehicle on a road while his licence is suspended or while he is disqualified from holding and obtaining a licence.
Penalty: Imprisonment for six months.
It is apparent that, at that time, the section only created offences relating to disqualifications and suspensions of South Australian licences.[4] This was presumably because, at that time, there was no provision in the Act allowing persons holding interstate driver’s licences to drive in South Australia. It is also apparent that Parliament intended that persons driving while suspended were to be treated the same as persons driving whilst disqualified.[5]
[4] Motor Vehicles Act 1959 (SA) s 91(1).
[5] Motor Vehicles Act 1959 (SA) s 91(5).
The Act, including s 91(5), was later amended to make provision for persons holding interstate licences to drive in South Australia. Logic suggests that these amendments would have been intended to make interstate drivers, driving on South Australian roads, subject to the same conditions as drivers holding South Australian licences. A reading of the Act as a whole supports this contention. It would be absurd to suggest that persons who cannot legally drive interstate because of suspension of their licence should be allowed to drive in South Australia. It is equally absurd to suggest that persons suspended in South Australia cannot drive in South Australia, while persons suspended interstate can.
As a literal interpretation of s 91(5) would lead to an absurd outcome, the Court must interpret the section according to the intention of Parliament. Review of the Act as a whole, and of the Second Reading Speeches for the original Act and the amending Acts, suggests that Parliament’s intention was to give interstate drivers the right to drive on South Australia roads, subject to the same conditions as South Australian licence holders. As such, s 91(5) must be interpreted to create an offence of driving while an interstate licence is suspended. Therefore, the second ground of appeal must also fail.
Conclusion
As the Complaint was correctly amended and s 91(5) creates an offence of driving on a suspended interstate driver’s licence, the appeal must be dismissed.