WALKER v Police
[2014] SASC 32
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WALKER v POLICE
[2014] SASC 32
Judgment of The Honourable Justice Blue
13 March 2014
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - OBLIGATORY AND DISCRETIONARY PROVISIONS - OTHER PARTICULAR CASES - WHERE SUBSTANTIAL COMPLIANCE WITH DEGREE OF SUBSTANTIALITY NECESSARY
CRIMINAL LAW - PROCEDURE - LIMITATION OF TIME FOR PROSECUTION
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against refusal by a Magistrate of application for summary dismissal of complaint as being out of time.
On 12 March 2012, an expiation notice was issued to the defendant for exceeding the speed limit and breaching his provisional licence. The expiation notice showed that he had 32 days to pay. The defendant elected to be prosecuted.
On 21 September 2012, the Police filed a complaint in the Magistrates Court.
The defendant argued that the expiation notice was invalid because section 6(1)(c) of the Expiation of Offences Act 1996 (SA) requires an expiation notice to specify that the expiation fee is to be paid within 28 days and the notice specified 32 days. If the expiation notice was invalid, section 52(1)(a) of the Summary Proceedure Act 1921 (SA) required the complaint to be filed within six months of the date of the offence and the complaint was filed out of time.
A Magistrate refused the summary dismissal application.
Held (dismissing the appeal):
1. Assuming that the expiation notice breached the requirement imposed by section 6(1)(c), on the proper construction of the Act, such a breach does not render an expiation notice void (at [24]-[29]).
2. There was substantial compliance with the requirements of section 6(1)(c) given that the expiation notice allowed an additional four days for payment of the expiation fee (at [30]-[32]).
3. Appeal dismissed (at [34]).
Australian Road Rules r 20; Controlled Substances Act 1984 (SA) s 45A; Expiation of Offences Act 1996 (SA) ss 4, 5(1), 6(1), 8, 8A, 9,11, 11A, 12, 13, 14, 15, 16(1)(b), 16(2), 16(3), 16(5), 16(6), 16(7); Expiation of Offences Regulations 2011 (SA) Sch 1, Cl 1(1)(e); Magistrates Court Act 1991 (SA) s 42(1a)(c); Motor Vehicles Act 1959 (SA) s 81A(13), s 145(1)(n) ; Road Traffic Act 1961 (SA) ss 47G, 176(1a)(j); Summary Procedure Act 1921 (SA) ss 52, 52(1)(a), referred to.
Lloyd v Police [2004] SASC 278; (2004) 89 SASR 383, discussed.
WALKER v POLICE
[2014] SASC 32Magistrates Appeal: Criminal
BLUE J:
This is an appeal against an interlocutory judgment dismissing an application for summary dismissal of a complaint on the ground that it was filed out of time.[1]
[1] Summary Procedure Act 1921 (SA) s 52(1)(a)(ii).
On 21 September 2012, a complaint was filed in the Magistrates Court by the Police against the defendant Shane Walker. The complaint alleged that on 12 March 2012 the defendant exceeded the speed limit[2] and thereby breached his provisional licence[3]. When pulled over by police officers, the defendant was issued with an expiation notice (“the Expiation Notice”). The time limit for the commencement of criminal proceedings in the Magistrates Court was six months from the date of the alleged offence or, if an expiation notice was issued to the defendant, six months from the expiation period specified in the notice.[4]
[2] Australian Road Rules r 20.
[3] Motor Vehicles Act 1959 (SA) s 81A(13).
[4] Summary Procedure Act 1921 (SA) s 52(1)(a).
The defendant argued before the Magistrate that the Expiation Notice was invalid and accordingly the proceedings were required to be instituted by 12 September 2012 and they were out of time.
The Magistrate rejected the defendant’s contention and dismissed his application.
I granted permission to the defendant to appeal from the interlocutory judgment without opposition by the Police.[5]
[5] Magistrates Court Act 1991 (SA) s 42(1a)(c).
The reasoning of the Magistrate
The defendant contended before the Magistrate that the Expiation Notice did not comply with section 6(1)(c) of the Expiation of Offences Act 1996 (SA) (“the Act”) because that provision requires an expiation notice to specify that the expiation fee is to be paid within 28 days from (and including) the date of the notice. The defendant contended that strict compliance with this requirement was necessary and any failure to comply with the provision rendered a purported expiation notice null and void. The Expiation Notice issued to the defendant on 12 March 2012 stipulated the due date for the payment of the expiation fee as 12 April 2012, which was 32 days from (and including) the date of the notice. The defendant contended that, because the expiation period exceeded 28 days, the Expiation Notice was invalid and there was no expiation notice issued to him within the meaning of section 52(1)(a)(i) of the Summary Procedure Act 1921 (SA) (“the Summary Procedure Act”). Consequently, the time limit within which criminal proceedings could be commenced as prescribed by section 52(1)(a)(ii) of the Summary Procedure Act was six months from the date of the alleged offence.
The Magistrate rejected the defendant’s first contention that the Expiation Notice did not comply with section 6(1)(c). The Magistrate had regard to the definition in section 4 of “expiation period”, section 11 which requires the issue of a reminder notice and section 12 which permits acceptance of late payment. The Magistrate held that an expiation notice is valid provided that it specifies a period for payment of not less than 28 days from the date of the notice.
It appears that the Magistrate also rejected the defendant’s second contention, holding that, to the extent that the Expiation Notice was defective in specifying a period longer than 28 days, that would not render it null and void.
The structure of the Act
The Act applies an expiation regime to offences in respect of which any Act, regulation or bylaw which creates the offence fixes an expiation fee.[6] Expiation fees apply to a diverse range of offences such as road traffic offences,[7] motor vehicle offences[8] and simple cannabis offences.[9]
[6] Expiation of Offences Act 1996 (SA) s 5(1).
[7] Road Traffic Act 1961 (SA) s 176(1a)(j).
[8] Motor Vehicles Act 1959 (SA) s 145(1)(n).
[9] Controlled Substances Act 1984 (SA) s 45A.
Section 6 governs when and to whom expiation notices may be issued as well as their form and content. Section 6(1) at material times[10] provided:
[10] The Act was amended with effect from 3 February 2014 by the Statutes Amendment (Fines Enforcement and Recovery) Act 2013 (SA).
(1) An expiation notice—
(a) may relate to up to 3 alleged offences arising out of the same incident (ie if they are committed contemporaneously, or in succession, one following immediately upon another); and
(b) must be in the prescribed form; and
(c) must specify that the expiation fee is to be paid within 28 days from (and including) the date of the notice; and
(d) must specify to whom the expiation fee is payable; and
(e) cannot be given after the expiry of the period of 6 months from the date on which the offence was, or offences were, alleged to have been committed; and
(f) cannot be given to a person if a prosecution has been commenced against the person for the alleged offence or offences; and
(g) cannot (except where some other Act provides otherwise) be given to a child; and
(h) cannot, if the regulations or some other Act so provides in relation to a particular offence, be given to a person under the age of 18 years; and
(ha) should not be issued in respect of a trifling offence; and
(i) if a vehicle is involved in the commission of the alleged offence or offences and is found unattended—may be addressed to the owner or driver of the vehicle without naming or otherwise identifying him or her; and
(j) may be given—
(i) personally or by service on an employee or agent of the alleged offender; or
(ii) by post addressed to the alleged offender's last known place of business or residence; or
(iii) if a vehicle is involved in the commission of the alleged offence or offences and is found unattended—by affixing or placing the notice on that vehicle; and
(k) must be accompanied by a notice in the prescribed form by which the alleged offender may elect to be prosecuted for the offence or any of the offences to which the expiation notice relates.
Note—
Certain other Acts (eg the Local Government Act 1934 section 789D and the Road Traffic Act 1961 section 174A) require that an expiation notice given to the registered owner of a motor vehicle must be accompanied by a notice relating to the question of whether the owner was the driver at the time of the alleged offence.
A recipient of an expiation notice may:
1. pay the amount shown in the expiation notice and thereby expiate the offence, with the consequence that the recipient not be prosecuted for the expiated offence, has not admitted guilt and cannot be sentenced for any other offence by reference to the expiated offence;[11]
2. apply to the issuing authority for a review on the ground that the offence is trifling;[12]
3. apply to the Registrar for an extension of time in which to pay the fee including by instalments;[13]
4. elect to be prosecuted;[14]
5. in the case of a parking or traffic offence, send a statutory declaration identifying the driver or that the registered owner was not the driver at the relevant time;[15] or
6. take no action.
[11] Expiation of Offences Act 1996 (SA) s 15.
[12] Ibid at s 8A.
[13] Expiation of Offences Act 1996 (SA) s 9 (since 3 February 2014 applications are to be made to a ‘Fines Enforcement and Recovery Officer’).
[14] Expiation of Offences Act 1996 (SA) s 8.
[15] Expiation of Offences Act 1996 (SA) s 6(1) Note; Expiation of Offences Regulations 2011 (SA) sch 1 cl 1(1)(e) and Note.
If the recipient of an expiation notice takes no action, or provides a statutory declaration which the issuing authority does not accept as a defence, the issuing authority is required to issue an expiation reminder notice[16] or expiation enforcement warning notice[17] respectively before taking enforcement action. The prescribed reminder/warning notice fee is to be added to the unpaid expiation fee upon issue of such a notice. The issuing authority cannot take enforcement action until 14 clear days have elapsed from the date of the reminder/warning notice.[18]
[16] Expiation of Offences Act 1996 (SA) s 11.
[17]Ibid at s 11A.
[18] Expiation of Offences Act 1996 (SA) ss 11(2) and 11A(3) (since 3 February 2014 s 13(2)(a)(i)).
After the requisite time from the date of the reminder/warning notice has expired, if payment of the expiation fee is not made, the issuing authority may enforce the expiation notice by sending a certificate to the Registrar.[19] The Registrar is empowered to make an enforcement order[20] which is taken to be a conviction of the relevant offence with the imposition of a fine equivalent to the unpaid expiation fee. The person liable under an enforcement order has a right to apply to the relevant court for a review of the order upon specified grounds.[21]
[19] Expiation of Offences Act 1996 (SA) s 13 (since 3 February 2014 certificates are to be sent to a ‘Fines Enforcement and Recovery Officer’).
[20] Expiation of Offences Act 1996 (SA) s 13 (since 3 February 2014 an ‘enforcement determination’).
[21] Expiation of Offences Act 1996 (SA) s 14.
The issuing authority may withdraw an expiation notice if it decides that the alleged offender should be prosecuted, notwithstanding that payment has been made, but cannot do so if more than 60 days have elapsed since the date of the notice or if an enforcement order has been made.[22] The issuing authority must withdraw an expiation notice if the alleged offender did not receive the notice before the expiration of the expiation period as a result of error on the part of the authority or failure of the postal system, unless the expiation fee has been paid or partly paid.[23] There are three other defined circumstances in which the issuing authority may withdraw an expiation notice. Section 16(1) provides:
(1) The issuing authority may withdraw an expiation notice with respect to all or any of the alleged offences to which the notice relates if—
(a) the authority is of the opinion that the alleged offender did not commit the offence, or offences, or that the notice should not have been given with respect to the offence, or offences; or
(ab) the authority receives a statutory declaration or other document sent to the authority by the alleged offender in accordance with a notice required by law to accompany the expiation notice or expiation reminder notice; or
(ac) the notice is defective; …
[22] Ibid at ss 16(1)(b), (2), (3), (5).
[23] Ibid at ss 16(6)-(7).
The time limit for the commencement of a prosecution for a summary offence under section 52 of the Summary Procedure Act is enacted in harmony with the Act. Section 52 provides:
(1) Subject to any provision of an Act to the contrary, if a person is to be prosecuted for a summary offence, the proceedings must be commenced within the following time limits:
(a) in the case of an expiable offence—
(i) if an expiation notice was given to the person—the proceedings must be commenced within 6 months of the expiry of the expiation period specified in the notice;
(ii) if an expiation notice was not given to the person—the proceedings must be commenced within 6 months of the date on which the offence is alleged to have been committed;
(b) in the case of an offence that is not expiable—the proceedings must be commenced within 2 years of the date on which the offence is alleged to have been committed.
(2) For the purposes of subsection (1), an expiation notice is to be taken into account despite its subsequent withdrawal except if the notice of withdrawal specifies that it is withdrawn because—
(a) the issuing authority has received a statutory declaration or other document sent to the authority by the alleged offender in accordance with a notice required by law to accompany the expiation notice or expiation reminder notice; or
(b) it has become apparent that the alleged offender did not receive the notice until after the expiation period, or has never received it, as a result of error on the part of the authority or failure of the postal system,
(in which case the withdrawn expiation notice is to be disregarded).
Compliance with the Act
The defendant contends that, on its proper construction, section 6(1)(c) of the Act requires an expiation notice to specify that the expiation fee is to be paid within neither more nor less that 28 days from (and including) the date of the notice. Thus, an expiation notice which specifies that the expiation fee is to be paid within 32 days[24] from the date of the notice does not comply with that provision. The defendant also refers to the references in sections 11, 14 and 16 of the Act to the “expiation period” which is defined by section 4(1) to mean:
the period specified in an expiation notice for payment of the expiation fee.
The defendant contends that, on its proper construction, the term “expiation period” is used in each of those substantive sections to mean the period of 28 days from the date of the notice as required by section 6(1)(c) and not any other date which might be actually specified in a particular expiation notice.
[24] Both parties made submissions on the basis that both the first and last days in the period of 28 days are to be counted. Section 27(1) of the Acts Interpretation Act 1915 (SA) provides generally that the time prescribed for doing anything will be taken not to include the day of the act from which the time is to be calculated but to include the day on which the thing is to be done. It seems that section 6(1)(c) of the Act otherwise provides. As nothing turns in the present case on whether the date specified in the Expiation Notice was 31 or 32 days from the date of the notice, I refrain from reaching a conclusion on this question and proceed in accordance with the assumption made by the parties.
The Police contend that, on its proper construction, section 6(1)(c) requires specification of a date which is not less than 28 days from the date of the notice but permits specification of a later date and, where a later date is so specified in the notice, the “expiation period” for the purposes of sections 11, 14 and 16 does not expire until that later date.
When first enacted, section 6(1)(c) did not refer to 28 days. It referred to either 30 or 60 days depending upon the amount of the expiation fee. This perhaps explains why the definition of “expiation period” in section 4 refers to the period specified in the notice instead of simply to the 28 days.[25]
[25] Cf the Expiation of Offences Act 1987 (SA) which merely referred to 60 days and did not need to use or define the term “expiation period”.
On the one hand, the literal wording of section 6(1)(c) connotes that the date for payment of the expiation fee must be precisely 28 days. On the other hand, the evident purpose of section 6(1)(c) is to ensure that the recipient is given at least 28 days in which to pay the expiation fee or otherwise respond to the notice and there is no apparent reason why the issuing authority should be prevented from allowing a greater time.[26]
[26] The defendant observes that this would have the consequential effect of delaying the expiration of the limitation period prescribed by section 52 of the Summary Offences Act. For the reason given in [20], I do not need to consider the effect or weight of this consideration.
Ultimately, it is not necessary to resolve this apparent conflict. I assume in favour of the defendant that both section 6(1)(c) and the definition of “expiation period” are to be construed as referring to a specific period of 28 days rather than a period of not less than 28 days.
The defendant makes a subsidiary contention that the “issue date” shown on the Expiation Notice does not comprise the “date of the notice” within the meaning of section 6(1)(c). I reject that contention. Normally the issue date shown in an expiation notice will be the date of the notice. In the present case the Expiation Notice was created, dated and given to the defendant on 12 March 2012 and the issue date recorded on the notice was 12 March 2012. This is the “date of the notice” within the meaning of section 6(1)(c).
Invalidity
The defendant contends that, on the proper construction of the Act, strict compliance with section 6(1)(c) is required for validity of an expiation notice and any non-compliance (such as the notice specifying a period which is 29 days) renders the notice invalid. The Police contend that strict compliance is not necessary for validity and it is sufficient if there is substantial compliance.
It is common ground that the principles to be adopted in determining whether strict, substantial or any compliance is required for validity are as summarised by Debelle J (Doyle CJ agreeing) in Lloyd v Police[27] as follows:
[27] [2004] SASC 278; (2004) 89 SASR 383.
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 and in particular at paras [91] - [93], the High Court considered the question whether failure to observe conditions precedent to the exercise of a statutory power will result in invalidity. The following principles can be extracted from that decision:
1. An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition: para [91]
2. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects and the consequences for the parties of holding void every act done in breach of the condition: para [91]
3. The traditional and elusive distinction between conditions which are mandatory and those which are directory, and the division of directory acts into those which have substantially complied with the statutory command and those which have not, have outlived their usefulness: para [93]
4. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid: para [93]
In that decision, the High Court followed and applied the reasoning of the Court of Appeal in New South Wales in Tasker v Fullwood [1978] 1 NSWLR 20. The principles identified in Tasker v Fullwood at 23-24 which are applicable in this case are (the citations are omitted):
1. The question of invalidity is to be determined by construction of the relevant statute;
2. The task of construction is to determine whether the legislature intended that a failure to comply with a stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance;
3. The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute; and
4. The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the pre-condition, its place in the legislative scheme and the extent of the failure to observe its requirement.
Thus, it is necessary to have regard to the object of the statutory provision and determine the importance of the condition in attaining that object. In some cases, a stipulation may be of such importance that its non-observance cannot be excused while, in others, non-compliance with the stipulation may not prejudice the objects of the legislation: see the discussion by Stephen J in Victoria v Commonwealth (1975) 134 CLR 81 at 179-180.[28]
[28] Ibid at [14].
Some of the paragraphs of section 6(1) require strict compliance for validity. They include the provisions precluding the issue of an expiation notice more than six months after the date of the alleged offence, after a prosecution has been commenced or to persons under 16 years or 18 years as applicable.[29] However, not all paragraphs must be construed such that non-compliance gives rise to the same consequences. On its proper construction, section 6(1)(c) does not require strict compliance for validity of an expiation notice. Whilst section (6)(1)(c) uses mandatory language in the word “must”, the use of such language is consistent with the consequences of non-compliance being something other than invalidity.
[29] Expiation of Offences Act 1996 (SA) ss 6(1)(e)-(h).
The best guide to the legislature’s intention in this case is to consider the context of section 6(1) in the Act as a whole, the object of the Act and the consequences of holding void every expiation notice which does not comply with paragraph (c).
The object of the Act is to provide a simple and expedient alternative to the institution of prosecution proceedings for relevant summary offences. This provides advantages to the issuing authority in avoiding the time and expense of instituting criminal proceedings. It provides advantages to alleged offenders of avoiding the time, expense, distraction and emotional cost of being involved in criminal proceedings and it also avoids any finding of guilt being made or conviction being recorded against the alleged offender. It provides advantages to the Government in that it reduces the resources otherwise committed to and expenses otherwise incurred in a larger court system to deal with prosecutions for all summary offences.
The object of the Act strongly suggests that the legislature did not intend that the mere fact that an expiation notice might stipulate a period in excess of 28 days within which the expiation fee is to be paid would render the expiation notice void. If such a consequence were intended, it would have the effect that subsequent steps based upon the expiation notice, and in particular enforcement orders made on the basis of such an expiation notice, would themselves be rendered void. Such a consequence would operate to the disadvantage of alleged offenders by rendering their expiation of the alleged offence void and exposing them to the risk of prosecution[30] leading to a conviction which they sought to avoid by expiation.
[30] Assuming that the error in specification of the expiation date is discovered within 6 months of the offence.
The defendant contends that, if non-compliance does not render a notice invalid, an alleged offender given say 32 days to pay the fee could be subjected to a late payment fee if paying more than 28 days after the date of the notice but within 32 days.[31] However, the legislature would have anticipated that in this event the issuing authority would waive any late payment fee (in the unlikely event it had issued the reminder notice before payment were received) and that any other exercise of the discretion would be manifestly unreasonable.
[31]Ibid at s 11(3).
It was foreseeable by the legislature that human error is likely to lead to the insertion in expiation notices of payment dates which are not precisely 28 days from (and including) the date of the notice. It is unlikely that the legislature intended that the drastic consequence of invalidity would follow from a prosaic human error in entering the payment due date onto expiation notices.
Substantial compliance
The defendant contends that, if substantial compliance with section 6(1)(c) is sufficient to avoid invalidity, nevertheless there was no substantial compliance in the present case.
In Lloyd v Police, Debelle J addressed what amounts to substantial compliance in the context of the requirements imposed by section 47G of the Road Traffic Act 1961 (SA) in relation to blood alcohol tests. Debelle J (Doyle CJ agreeing) said:
… This is an instance of a stipulation that is capable of degrees of non-compliance without necessarily causing prejudice to the substantial object of the Act, namely, properly informing a driver of his rights. …
This is not, therefore, a case where the object of this legislation requires a complete or total observance of subs (2a) and reg 9 or, expressed another way, where any degree of non-observance cannot be excused. Instead, this is an instance of a stipulation that is capable of some degree of non-compliance without necessarily causing prejudice to the object of the Act, namely, properly informing a driver of his rights. It is sufficient if there is substantial compliance with the requirement to read the oral advice correctly. The question then to be determined is what constitutes substantial compliance.
It is not possible to prescribe a test of what constitutes substantial compliance which will have a universal application. Plainly, much will depend on the facts and circumstances of each individual case. In some cases, there may be a wholesale departure from the terms of the oral advice. In other cases, it might be no more than a minor or inconsequential omission from the text or variation of the text of the kind already indicated.[32]
[32] (2004) 89 SASR 383 at [24]-[26].
In the present case, the date for payment written onto the Expiation Notice was 32 days, rather than 28 days, from (and including) the date of the notice. This is a minor or inconsequential departure from the requirement imposed by section 6(1)(c) which would not prejudice the purpose of the legislature in imposing the requirement.
Conclusion
The Expiation Notice was valid. The complaint was laid within time. The Magistrate correctly dismissed the defendant’s application.
I dismiss the appeal.
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