Tasmania v Shaw
[2012] TASSC 62
•13 September 2012
[2012] TASSC 62
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Shaw [2012] TASSC 62
PARTIES: TASMANIA, State of
v
SHAW, Roberta
FILE NO/S: 41/2011
DELIVERED ON: 13 September 2012
DELIVERED AT: Hobart
HEARING DATE: 11, 12 and 13 September 2012
RULING OF: Wood J
[Edited version of reasons for ruling delivered orally]
CATCHWORDS:
Criminal Law – Particular offences – Property offences – Other frauds and impositions – Fraud – Conspiracy – Conspiracy to defraud – Deflection of public officers from public duties – What public duties can be foundation of charge.
Criminal Code 1924 (Tas), s297(1)(d).
Vehicle and Traffic Act 1999 (Tas), ss22, 23.
Monetary Penalties Enforcement Act 2005 (Tas), ss20, 40.
Tasmania v Lin [2011] TASSC 14, referred to.
Aust Dig Magistrates [2397]
REPRESENTATION:
Counsel:
Crown: C Robinson
Accused: C J Gibson
Solicitors:
Crown: Director of Public Prosecutions
Accused: Charmaine Gibson
Judgment Number: [2012] TASSC 62
Number of paragraphs: 25
Serial No 62/2012
File No 41/2011
STATE OF TASMANIA v ROBERTA SHAW
REASONS FOR RULING WOOD J
Edited version of reasons for ruling delivered orally 13 September 2012
The accused has pleaded not guilty to one count of conspiracy, contrary to the Criminal Code, s297(1)(d). The indictment alleges that she "conspired with Stuart Gordon Shaw to defraud the Registrar of Motor Vehicles". Her trial is in progress, having reached the stage that the defence has closed its case, and counsel are yet to embark on closing addresses. I have raised with counsel a question relating to the nature of the duty vested in the Registrar of Motor Vehicles. This is my ruling with respect to the question.
The indictment is in the following terms:
"CONSPIRACY - Contrary to Section 297(1)(d) of the Criminal Code.
PARTICULARS
ROBERTA SHAW at Launceston in Tasmania and Melbourne in Victoria, between the 10th of November 2008 and the 18th of November 2008, conspired with Stuart Gordon Shaw to defraud the Registrar of Motor Vehicles for the time being administering the Vehicle and Traffic Act 1999 by agreeing that Stuart Gordon Shaw would declare on Notice of Demand No 010545016635 that Roberta Shaw was the driver at the relevant time, resulting in Traffic Infringement No 010140790386 being issued to Roberta Shaw, which would be subsequently paid, in order to prevent or deflect the Registrar of Motor Vehicles from acting in accordance with the duties vested in him, namely to record demerit points against Stuart Shaw on the Demerit Points Register."
As can be seen, one of the particulars is that the agreement was "to prevent or deflect the Registrar of Motor Vehicles from acting in accordance with the duties vested in him, namely to record demerit points against Stuart Shaw on the Demerit Points Register". The basis of the State's case is that Stuart Shaw was the driver at the time of a traffic infringement, involving an offence of exceeding the speed limit. In view of the fact that the registered operator of the motor vehicle he was driving was a body corporate, Cormel Pty Ltd, a notice of demand was issued to the company requiring that it provide, by statutory declaration, details of the driver at the time the offence was committed. Subsequently, a fail to comply with notice of demand was issued which afforded another opportunity to complete a statutory declaration nominating the driver. It is the State's case that Roberta Shaw agreed with her brother, Stuart Shaw, to take the demerit points for him, and that agreement was reached that he would falsely represent that she was the driver. Stuart Shaw completed a statutory declaration on the fail to comply with notice of demand document stating that Roberta Shaw was the driver and providing her details, such as her address and licence number. In consequence, a traffic infringement notice was issued to Roberta Shaw. That notice was paid and the applicable demerit point was recorded against Roberta Shaw. The State's case is that the Registrar's duty was to record demerit points against the driver at the material time of the traffic infringement on the demerit points register, the driver being Stuart Shaw.
The simple point that arises focuses on the Registrar's duty and the nature of it.
The ruling given by Blow J in Tasmania v Lin [2011] TASSC 14 related to conspiracy to defraud, and the public duty of the Minister administering the Living Marine Resources Management Act, 1995 and/or the Secretary responsible to the Minister. Relevant propositions of law regarding conspiracy to defraud were summarised in that ruling. I refer to some of those propositions:
· Fraud can be constituted by the actual or possible deflection of the public officer from carrying out his or her public duty; R v Turner (No 4) (2001) 10 Tas R 81; R v Turner (No 7) (2001) 10 Tas R 219 (par[1]).
· An agreement to engage in certain conduct that might have the effect of depriving the Minister and/or the Secretary of information could not amount to a conspiracy to defraud unless that conduct would or could result in the Minister and/or the Secretary being deflected from the performance of one or more public duties. It is that deflection or potential deflection that is an essential ingredient of the relevant species of fraud. As McHugh J put it in Peters v R (1998) 192 CLR 493 at 525, "… a conspiracy to defraud may be established if the defendants agree to deceive a person into acting or refraining from acting contrary to his or her public duty" (par[9]).
· In one sense, the duty of a public officer to exercise a statutory power or a statutory function in a particular manner, or with a particular objective in mind, might be described as a public duty. However the words "public duty" are used in a different sense in the cases concerning the species of fraud that the Crown alleges in this case. In those cases, the words are used to refer to an executive or administrative function of a public nature (par[14]).
· The essential nature of the fraud is that it causes, or could cause, a public officer to act in a way that he or she would not otherwise have acted in discharging an executive or administrative function (par[25]).
It is inherent in the State's contentions and central to the way in which the indictment is particularised, that the Registrar had a duty to record the true offender, being the driver, Stuart Shaw. That is, the Registrar had a duty to record accurate information. If the duty was merely to record the information on the traffic infringement notice, regardless of accuracy, as occurred in this case, there could not be said to be a deflection or an agreement to deflect the Registrar.
Submissions on behalf of the Crown relied on s23(1) and (2) of the Vehicle and Traffic Act 1999, particularly the definition of "relevant information" in s23(2) that includes the "offender". Section 23 provides in part:
"23 Recording of demerit points
(1) If –
(a) a Tasmanian court awards demerit points in respect of a traffic offence that attracts demerit points; or
(b) demerit points are to be awarded following the service of a traffic infringement notice; or
(c) the Registrar is notified by a driver licensing authority under a corresponding law that a person who holds a driver licence under this Act, or a person who does not hold an Australian driver licence but is a resident of Tasmania –
(i)has been convicted by a court, in the jurisdiction of the corresponding law, of an offence in respect of which demerit points are prescribed in the national schedule of demerit points or the schedule of recognised interstate demerit points offences; or
(ii)has committed such an offence in the jurisdiction of the corresponding law and has been dealt with under a procedure corresponding to the traffic infringement notice procedure –
the Registrar must record or transmit the relevant information as required in this section.
(2) The relevant information is –
(a) the name and address of the offender; and
(b) the nature of the offence and the date of its commission; and
(c) whether the offence was dealt with by a court or a traffic infringement notice or a similar procedure under the law of another jurisdiction.
…
(4) Information is to be recorded or transmitted as follows:
(a) if the person holds a driver licence under this Act (or is a resident of Tasmania who does not hold an Australian driver licence)– the Registrar must record the date of commission of the offence, and the number of demerit points awarded, in the demerit points register;
(b) if the person holds an Australian driver licence issued under the corresponding law of another State or a Territory (or is a resident of another State or a Territory who does not hold an Australian driver licence) – the Registrar must, as soon as practicable, transmit the relevant information to the driver licensing authority for the relevant State or Territory.
…
(6) Demerit points are to be recorded in the demerit points register even though the person who has incurred the demerit points, and against whom they are to be recorded, does not hold (or has never held) an Australian driver licence."
It was submitted that the duty of the Registrar is to record the "offender" on the register, as set out in subs(2)(a), as part of the "relevant information". The submission was that the Registrar was deflected from that duty by reason of the dishonest means.
While the meaning of "relevant information" certainly encompasses the information about the "offender", the obligation set out in subs(1) is for the Registrar to record or transmit the relevant information "as required by the section". I emphasise those words, "as required by the section".
Because of the way the indictment is framed the concern is with the Registrar's duty to record information on the register. That duty is set out in subs(4)(a). That subsection requires only that the Registrar is to record the date of commission of the offence and the number of demerit points. The requirement in subs(4)(a) does not relate to recording the "offender". The information regarding the name and address of the offender, set out in subs(2)(a), does not flow on to the requirement in subs(4)(a).
It may be noted that subs(4)(b), which relates to the obligation to transmit information for interstate purposes, embraces "relevant information" and all of that which is set out in subs(2). By contrast subs(4)(a) is more restrictive.
If the contrary is the case, and "offender" details are to be included for the purposes of subs(4)(a) in the demerit points register, the question arises as to the meaning of the word "offender". It is evident from the words of s23, and the scheme of the Vehicle and Traffic Act, as well as other related legislation, that "offender" does not mean the true offender, being the driver at the relevant time, in an exclusive sense.
Having regard to s23 and the recording of demerit points, it seems evident that the Registrar is not concerned with whether the recording of demerit points in the register is against the true offender. Rather, the Registrar's role is to record them against the person who has accrued them, see s23(1) and (6).
There are various means by which a person may have demerit points awarded against them. The statutory pathways include possibilities that legitimately do not involve the person being the offender.
The Vehicle and Traffic Act, s22(1), provides:
"22 Award of demerit points on traffic infringement notice
(1) Where a traffic infringement notice relating to a traffic offence that attracts demerit points has been served on the person alleged to have committed the offence and –
(a) the notice has not been withdrawn; and
(b)the person is taken to have been convicted of that offence in accordance with section 20 of the Monetary Penalties Enforcement Act 2005 –
the number of demerit points prescribed in respect of that offence is to be awarded against that person."
The Monetary Penalties Enforcement Act 2005, s20(1) and (2), provides:
"20 Offender taken to have been convicted
(1) If an alleged offender –
(a) pays a penalty in part or in full; or
(b) applies to the Director or to the issuing authority for a variation of payment conditions; or
(c) takes no action under section 15(1)(a), (b) or (c) or section 17(1)(a), (b) or (c) or is refused an application under section 15(1)(b) or section 17(1)(b) and does not elect to have the infringement notice heard and determined by a court within the time allowed –
he or she is taken to have been convicted of the offence.
(2) If a person pays a sum of money to the Director in respect of a specific infringement notice, the offender is taken to have been convicted of the offence or offences specified in that infringement notice."
It can be seen that there are pathways by which a person would be taken to have been convicted of the offence and yet not be the true offender. They include paying the money in respect of an infringement notice, and taking no action with respect to the notice within the timeframes set out in the legislation. These people will legitimately have demerit points awarded against them.
The legislative scheme with regard to the awarding of demerit points encompasses people who are not the true offenders. A consequence of the scheme is that the Registrar is to record demerit points against a multitude of people who are not offenders.
The scheme is pragmatic. If a person is taken to have been convicted, but was not the offender, and wishes to have the conviction set aside there are statutory obstacles designed to preserve the status quo with respect to their status as a person taken to have been an offender, s40 of the Monetary Penalties Enforcement Act.
The Registrar's duty is to record demerit points that have been awarded against an individual on the register regardless of how they have accrued. It must be the case that the Registrar is unconcerned with the question of whether the person is the offender in the sense of the person who committed the offence. There is no duty to investigate.
If this is not the case and the Registrar has a duty to record the true offender on the register, it could be said that for a person who is not the offender, but who allows demerit points to be awarded against themselves, undermines the Registrar's duty. There is no suggestion that that could be the situation.
Given the scheme of the legislation it is evident that "offender" in s23(2) means the person who has accrued demerit points.
As an aside, I note the comments of Blow J in Tasmania v Lin are coincidentally apposite. His Honour stated:
"There has never been anything in the relevant legislation to require the Minister to obtain or act upon accurate information. Obtaining and acting upon accurate information would no doubt have been an excellent idea at all times, but there was no legal duty in relation to accurate information."
The consequence of the ruling in this case does not mean that people can be deceitful in their representations with respect to traffic infringement documentation. Swearing a false statutory declaration is a crime, s113 of the Criminal Code. The Code also provides for accessorial liability.
I conclude that it was not the public duty of the Registrar of Motor Vehicles to record demerit points against the true offender being the driver. The agreement could not be one to defraud the Registrar of Motor Vehicles by preventing or deflecting him from carrying out a public duty vested in him, namely to record a demerit point or points against Stuart Shaw on the demerit points register.
The jury will be directed that they must acquit.
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