Tay v Director of Public Prosecutions (NSW)

[2014] NSWCA 267

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Tay v Director of Public Prosecutions (NSW) [2014] NSWCA 267

Hearing dates:

29 July 2014

Decision date:

15 August 2014

Before:

McColl JA at [1];
Basten JA at [2];
Macfarlan JA at [18]

Decision:

Summons dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ADMINISTRATIVE LAW - judicial review - applicant convicted of two offences of driving whilst licence suspended - whether District Court erred in declining to set aside second conviction - employment and business exigencies did not constitute an excuse for committing the offences - relevance of basis for suspension of driver's licence - no jurisdictional error established

TRAFFIC LAW - licensing of drivers - automatic suspension of driver licence on accrual of demerit points - offence of driving whilst licence suspended - defences of honest mistake and business exigencies rejected by trial court and on appeal - whether jurisdictional error by District Court

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 63
District Court Act 1973 (NSW), s 176
Fines Act 1996 (NSW), s 23A
Road Transport (Driver Licensing) Act 1998 (NSW), ss 14, 16, 25A
Road Transport (Driver Licensing) Regulation 2008 (NSW), r 78; Sch 1
Road Transport (General) Act 2005 (NSW), ss 179, 230
Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 57
Supreme Court Act 1970 (NSW), s 69, 69C

Cases Cited:

Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
Roads and Maritime Services v Porret [2014] NSWCA 30
Tay v Director of Public Prosecutions (NSW) [2014] NSWCA 53

Category:

Principal judgment

Parties:

Joseph Tay (Applicant)
Director of Public Prosecutions (NSW) (First Respondent)
District Court of NSW (Second Respondent)

Representation:

Counsel:
Applicant (Self-represented)
A M Mitchelmore (First Respondent)
Submitting Appearance (Second Respondent)
Solicitors:
Applicant (Self-represented)
Solicitor for Public Prosecutions (First Respondent)
Crown Solicitor's Office (Second Respondent)

File Number(s):

CA 2013/360431

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-11-21 00:00:00

Before:

Arnott DCJ

File Number(s):

DC 2012/368179

Judgment

1. McCOLL JA: I agree with Macfarlan JA's reasons and the orders his Honour proposes.

1. BASTEN JA: On two consecutive days, being 25 and 26 November 2012, the applicant was charged by police with the offence of driving whilst his driver licence was suspended, contrary to s 25A(2)(a) of the Road Transport (Driver Licensing) Act 1998 (NSW). On 5 August 2013 the charges were heard by Magistrate Huntsman, the applicant being convicted on each. The offences carried a mandatory disqualification of his licence for a period of 12 months.

1. On the same day, namely 5 August 2013, the applicant lodged appeals to the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) (the "Appeal and Review Act"). Pursuant to s 63 of the Appeal and Review Act, the lodging of the appeal stayed the operation of the suspension of licence following from the conviction on 5 August 2013, although not the suspension which was in force immediately prior to those convictions (if any): s 63(2A).

1. The appeals were heard on 21 November 2013 by Arnott DCJ. By judgment delivered on the same day, Judge Arnott set aside the conviction with respect to the first offence on the basis of an honest and reasonable mistake as to the effect of correspondence between the applicant and the Roads & Traffic Authority. The judge concluded, however, that no such defence could arise with respect to the offence committed on the following day and the appeal with respect to that offence was dismissed.

1. At that point, the suspension of the disqualification flowing from the conviction on 5 August 2013 was lifted.

1. The applicant had no right of appeal from the judgment of the District Court. He did, however, have a right to seek judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). On 29 November 2013, some eight days after the decision of Judge Arnott, the applicant commenced proceedings by way of summons in this Court.

1. The decision of the District Court was subject to a privative clause protecting it from removal by any order of this Court: District Court Act 1973 (NSW), s 176. It is well-established that the effect of that provision is to prevent proceedings by way of judicial review for error of law on the face of the record of the District Court, thus limiting available grounds of review to jurisdictional error. The summons filed by the applicant raised three complaints, but none capable of qualification as jurisdictional error.

1. The first complaint referred to the letter which was said to give rise to confusion. Judge Arnott dealt with that letter and the reliance placed upon it as a basis for a defence of honest and reasonable mistake. That defence depended upon favourable findings of fact, which were made in respect of the offence committed on 25 November but not that committed on 26 November because the applicant was on notice from his communications with police on the previous day that his licence was suspended. The judge rejected the defence on the facts, a conclusion which was not merely open to him, but almost inevitable. In any event, it raised no question of law, let alone a jurisdictional error.

1. The second complaint which may be gleaned from the somewhat discursive notes attached to the summons was that the person who had agreed to drive the van for the applicant on the day of the second offence withdrew at the last moment and he had, in effect, no alternative but to drive himself. That did not provide a defence, factual or otherwise.

1. The third complaint involved a challenge to the original suspension as a result of an offence committed on 24 November 2011. Following that offence, the applicant was advised on 2 March 2012 that his licence was suspended for eight months from 6 April 2012 until 6 December 2012. That suspension resulted from incurring three demerit points by the offence on 24 November 2011. The applicant contended that he had not committed an offence on 24 November 2011 and therefore had not incurred demerit points on that occasion. Having not incurred those points, his licence was not lawfully suspended.

1. The existence or otherwise of an offence committed on 24 November 2011 was not in issue before Arnott DCJ. Accordingly, this ground raised no question of law, let alone jurisdictional error, which could form a ground for the present application. It follows that the summons must be dismissed.

1. As the applicant appeared at the hearing to harbour some resentment based on perceived injustice, it is desirable to say why there was no injustice involved. On 24 November 2011, the applicant's vehicle was captured on camera driving through a red light. At that time the applicant held his licence subject to good behaviour; if he incurred two or more demerit points his licence would be suspended automatically: Road Transport (Driver Licensing) Act, s 16(9). That conduct constituted a breach of r 59 of the Road Rules 2008 for which, on conviction, a penalty by way of demerit points was imposed, pursuant to s 14 of the Road Transport (Driver Licensing) Act. Schedule 1 to the Road Transport (Driver Licensing) Regulation 2008 (NSW) specified a penalty of three demerit points.

1. The applicant asserted that he had a defence, namely that he was in effect required to go through the red light in order to get out of the way of an ambulance displaying a flashing light. That obligation, set out in r 78 of the Road Rules 2008 was said to apply "despite any other rule of these Rules": r 78(3). It followed, the applicant submitted, that he was entitled, indeed required, to do what he did and thus committed no offence.

1. Although the relevant papers are not before this Court, it may be assumed that he received a "penalty notice" with respect to the offence. The offence was a "designated offence" for the purposes of s 179 of the Road Transport (General) Act 2005 (NSW) because it was a "camera recorded offence". It was a camera recorded offence because it was a traffic light offence as defined in s 57 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW). Although with respect to such an offence the person who is "the responsible person for the vehicle" is taken to have been guilty of the offence unless a defence is raised, the actual offender is entitled to raise any defence to the prosecution available to him or her: s 179(1)(a)(ii). The applicant, on his own account, had an available defence and could have raised it in proceedings in the Local Court, as indeed he sought to do with respect to the offences of 25 and 26 November 2012.

1. The law provides an opportunity for any person charged with an offence, including a traffic offence, to defend the charge in a court of competent jurisdiction: Fines Act 1996 (NSW), s 23A. If a defence is proffered but rejected, the person will be convicted; if no defence is offered, conviction is virtually inevitable. From a conviction, there is usually a right of appeal or a right of judicial review. Those rights are generally time limited. A person who is convicted is not entitled to act as if he or she were innocent of the offence and can therefore ignore the consequences which flowed under the law. However, that is the position which the applicant has sought to adopt. He is wrong in law to take that position. If he did not avail himself of an opportunity to defend a particular charge, he must abide by the consequences which follow in accordance with the law.

1. Finally, it is desirable to note that, on his application, this Court declared that the period of disqualification did not run from the date on which proceedings were commenced in this Court until the proceedings were determined, pursuant to s 69C of the Supreme Court Act: Tay v Director of Public Prosecutions (NSW) [2014] NSWCA 53. It follows that the effect of the judgment of 21 November 2013 having been stayed for all but a period of days to the date of this judgment, the applicant will be liable immediately to the operation of the order, including his disqualification from holding a driver licence, for a period in excess of 11 months.

1. The Director of Public Prosecutions sought an order that the application should be dismissed with costs. That order should be made.

1. MACFARLAN JA: By Summons filed in this Court on 29 November 2013, Mr Joseph Tay commenced proceedings under s 69 of the Supreme Court Act 1970 (NSW) for judicial review of part of a decision of the District Court dated 21 November 2013. In that decision, Arnott DCJ dealt with appeals by Mr Tay against his conviction in the Local Court on 5 August 2013 of two offences of driving a motor vehicle whilst his licence was suspended, contrary to s 25A(2)(a) of the then operative Road Transport (Driver Licensing) Act 1998 (NSW) ("the Driver Licensing Act"). Mr Tay seeks to have Arnott DCJ's decision to confirm one of the convictions set aside. His Honour set aside the other conviction.

The factual circumstances

1. Prior to 24 November 2011 Mr Tay incurred sufficient driver demerit points to warrant the service on him by the relevant authority, the Roads and Traffic Authority (now Roads and Maritime Services) ("the Authority"), of a Notice of Suspension of his driver's licence. Rather than accepting an automatic suspension of his licence, Mr Tay, as he was entitled to do under s 16(8) of the Driver Licensing Act, elected to be of good behaviour for a period of 12 months, as an alternative to undergoing the suspension. That period was unexpired as at 24 November 2011.

1. On that date, Mr Tay incurred three further demerit points as a result of disobeying a traffic light. In accordance with the requirement to do so in s 16(9) of the Driver Licensing Act, the Authority on 2 March 2012 gave Mr Tay a notice suspending his licence for twice the period that would have applied if he had not made the election referred to above. This period was eight months, commencing on 6 April 2012. A certificate under s 230 of the Road Transport (General) Act 2005 (NSW) proving due service by post of the notice was in evidence before the Local and District Courts.

1. On 19 May 2012 Mr Tay was, when driving, stopped by police and given a reminder notice that his licence was suspended. This led him to contact a solicitor, who forwarded to the Authority a statutory declaration of Mr Tay relating to the circumstances of the offence that had occurred on 24 November 2011. In it, Mr Tay said that his disobedience to the traffic light was caused by him pulling his vehicle over to let an ambulance pass.

1. On 18 July 2012, the Office of State Revenue sent a letter to Mr Tay's solicitor referring to enforcement orders concerning Mr Tay. The evidence before the District and Local Courts did not indicate whether these enforcement orders (presumably for fines incurred by Mr Tay) related in whole or in part to the offence of 24 November 2011. The letter indicated that the enforcement orders were stayed until 24 August 2012 to allow Mr Tay to provide information requested by the State Debt Recovery Office. The letter did not suggest that Mr Tay's driver's licence was no longer suspended.

1. The period of suspension of Mr Tay's licence had not expired when on 25 November 2012 he was stopped for a random breath test and police ascertained that the licence was suspended.

1. Mr Tay's conduct in driving on this occasion was the subject of one of the Local Court convictions referred to above. Arnott DCJ set aside this conviction because he accepted that on that date Mr Tay honestly and on reasonable grounds considered that he was able to drive, even though that was not in fact the case.

1. On the very next day, 26 November 2012, Mr Tay was again stopped by police whilst driving a motor vehicle. The excuse that Mr Tay proffered for driving whilst his licence was suspended was that a driver that he had engaged, in the course of his employment as a courier, to deliver newspapers had let him down. Mr Tay said that after he received a message from the driver that he was unavailable, he made the "hard decision" to himself drive the vehicle. Mr Tay's conduct on this occasion gave rise to the conviction that Arnott DCJ declined to set aside. His Honour said that on this occasion Mr Tay "was fully aware that his licence was suspended and he could have been under no doubt that he was not able to drive" (Judgment p 5). Mr Tay seeks review of this aspect of his Honour's decision.

Resolution of the proceedings

1. In light of the privative provisions in s 176 of the District Court Act 1973 (NSW), this Court may only grant the relief by way of judicial review that is sought if it is satisfied that the District Court committed jurisdictional error (Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531). For reasons that follow, Mr Tay has not shown that Arnott DCJ committed any error, much less any jurisdictional error, in his decision of 21 November 2013.

1. Mr Tay relied on two matters.

1. The first was that he did not commit the offence of driving on 26 November 2012 whilst his licence was suspended because he had no choice but to drive, it being important for the purposes of his employment that he do so. However, this does not constitute an excuse for the commission of the offence. Business and employment exigencies do not justify disobedience to the laws regulating conduct on the State's roads.

1. The other matter put by Mr Tay was that there was no justification for him incurring demerit points on 24 November 2011 because his disobedience to the traffic light resulted from him complying with his obligation to give way to an ambulance. Whether Mr Tay's excuse was a good one need not, and indeed, on the limited evidence before this Court, cannot, be determined. It was open to Mr Tay, when served with the penalty notice relating to this incident, to elect to have the matter dealt with by a court, in which case he would not have incurred demerit points (and his licence would not therefore have been suspended) except as a result of the court's decision (Fines Act 1996 (NSW), s 23A). There is however no evidence that he made such an election. As a result, he incurred three demerit points and his licence was suspended. It was still suspended when he was stopped by police on 26 November 2012. Whether or not its underlying basis was well-founded, the suspension took effect and remained on foot at the relevant time. As Roads and Maritime Services v Porret [2014] NSWCA 30 at [28]-[36] demonstrates, even if the imposition of three demerit points in respect of the conduct on 24 November 2011 could still now be set aside, Mr Tay's licence would nevertheless have remained suspended until that occurred and therefore would have been in a state of suspension on 26 November 2012 when he was stopped by the police.

1. On the previous day, even if not earlier, Mr Tay had become aware that his licence was suspended. He nevertheless chose to drive again on 26 November 2012 and committed the offence of which he was convicted. The District Court did not err in declining to set aside that conviction.

1. The Summons should be dismissed with costs.

**********

Decision last updated: 15 August 2014