Weller, Office of Fair Trading v El Homsi

[2009] NSWSC 282

Reported Decision: 74 NSWLR 443

New South Wales

Supreme Court

CITATION:	Weller, Office of Fair Trading v El Homsi & Anor [2009] NSWSC 282
HEARING DATE(S):	14/04/09
JUDGMENT DATE :	17 April 2009
JURISDICTION:	Common Law Division
JUDGMENT OF:	Kirby J
DECISION:	I make the following orders in respect of the appeals in relation to Charges 2, 5 and 7. (1) Pursuant to s 59(2) of the Crimes (Appeal and Review) Act, I set aside the orders made at the Parramatta Local Court on 12 September 2008, dismissing charges against the defendant of interfering with the odometer of a motor vehicle, contrary to s 47A(1) of the Motor Dealers Act 1974. (2) I declare that the Magistrate erred in law in determining that the absence of written approval of the Director-General or a prescribed person was a necessary element of an offence under s 47A of the Motor Dealers Act 1974, and that the prosecutor was required to prove that element before the offence was made out. (3) I order that the proceedings be remitted to the Local Court at Parramatta to be heard and determined according to law. (4) I order the defendant to pay the costs of the Department of these proceedings, but grant to the defendant a Certificate under s 6 of the Suiters’ Fund Act 1951.
CATCHWORDS:	CIVIL LAW - appeal against Magistrate's decision dismissing charges under Motor Dealers Act 1974 - allegation of interference with odometer - statutory construction - interpretation of s 47A(3) of the Motor Dealers Act - ONUS - whether element or exception - error of law - onus on defendant to prove exception.
LEGISLATION CITED:	Motor Dealers Act 1974 Crimes (Appeal and Review) Act 2001 Crimes Act 1900 Motor Car Act 1951 (Vic) Occupational Health & Safety Act 1985 (Vic)
CATEGORY:	Principal judgment
CASES CITED:	Nimmo v Alexander Cowan & Sons Limited [1968] AC 107 Exparte Ferguson: re Alexander (1944) 45 SR (NSW) 64 Vines v Djordjevitch (1955) 91 CLR 512 R v Edwards [1975] 1 QB 27 R v Hunt [1987] 1 AC 352 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Darling Island Stevedoring and Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 DPP v Belani [2005] NSWSC 1013; (2005) 64 NSWLR 319 Dowling v Bowie (1952) 86 CLR 136
PARTIES:	Tracie Weller, Office of Fair Trading (Pl) Mohamad El Homsi (1st Def) Her Honour Magistrate Russell (2nd Def)
FILE NUMBER(S):	SC 2008/15346
COUNSEL:	B Baker (Pl) In Person (1st Def)
SOLICITORS:	I V Knight (Pl) Unrepresented (1st Def) I V Knight (2nd Def)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Russell LCM
LOWER COURT DATE OF DECISION:	12/09/08

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Friday 17 April 2009

2008/15346 Tracie WELLER, OFFICE OF FAIR TRADING v Mohamad EL HOMSI

JUDGMENT

1 KIRBY J: This is an appeal by a prosecutor, the public officer of the Department of Fair Trading (“the Department”), against orders made by a Magistrate on 12 September 2008 at the Parramatta Local Court, dismissing charges by the Department against Mohamad El Homsi (“the defendant”). Mr El Homsi was charged with seven offences against the Motor Dealers Act 1974 (“the Act”). Each charge was dismissed.

2 The Department appeals against the dismissal of Charges 2, 5 and 7. A prosecutor may appeal to the Supreme Court against an order dismissing a prosecution, but only “on a ground that involves a question of law alone” (s 56(1)(c) Crimes (Appeal and Review) Act 2001). According to the Department, the error arose from her Honour’s construction of s 47A(3) of the Act and her determination that the onus in respect of the matter referred to in that section was upon the Department, not the defence.

3 Let me first describe the charges and findings made by her Honour. I will then consider whether there was error.

The charges.

4 Mr El Homsi received a Court Attendance Notice in respect of each charge. Each notice provided a description of the offence and particulars. The description of each offence, the subject of this appeal, was the same, and was as follows: (Exhibit A: pp 9, 12 and 14)

“The defendant, not being a person with the written approval of the Director-General or a prescribed person or a person of a prescribed class or description to alter the reading on an odometer or replace an odometer in accordance with the terms of that approval, did interfere with the odometer of a motor vehicle.”

5 The particulars which accompanied Charge 2 were as follows:

Time & Date of Offence:	Between 23 November 2004 and 26 November 2004
Place of Offence:	Revesby, in the State of New South Wales
Short Particulars:	On 23 November 2004 the defendant purchased a 1998 Nissan Pulsar with Registration No. AA 93 XW (“the motor vehicle”) from Amer Haddad trading as Shak Motors for $5,600 with an odometer reading of 199,256 kms. On 26 November 2004 the defendant sold the motor vehicle to John Vitocco for $8,000 with an odometer reading of 131,750 kms. The discrepancy is approximately 67,506 kms.

6 The particulars in respect to Charge 5 were as follows:

Time & Date of Offence:	Between 7 June 2005 and 11 June 2005
Place of Offence:	Revesby, in the State of New South Wales
Short Particulars:	On 7 June 2005 the defendant purchased a 1995 Hyundai Excel with Registration No. MG 9674, previously TGM 947 (“the motor vehicle”) from Auto Group Auctions Pty Ltd for $2,000 with an odometer reading of 213,817 kms. On 11 June 2005 the defendant sold the motor vehicle to Matthew Ginns for $3,900 with an odometer reading of 113,000 kms. The discrepancy is approximately 100,817 kms.

7 The particulars for Charge 7 were in these terms:

Time & Date of Offence:	Between 26 June 2006 and 18 August 2006
Place of Offence:	Revesby, in the State of New South Wales
Short Particulars:	On 26 June 2006 the defendant purchased a 1991 Toyota Camry with Registration No. RWS 726 (“the motor vehicle”) from Lansvale Autos for $1,000 with an odometer reading of 314,235 kms. On 18 August 2006 the defendant sold the motor vehicle to Khalil Ayshan for $2,600 with an odometer reading of 178,000 kms. The discrepancy is approximately 136,235 kms.

The Magistrate’s determination.

8 The hearing began on 16 April 2008 and continued the next day. It resumed on 12 June 2008, when certain charges were dismissed, which are not the subject of this appeal. The prosecution closed its case and the defendant called no evidence. Submissions were made on 18 July 2008. Her Honour reserved her decision, which she gave on 12 September 2008. She dismissed all charges, including Charges 2, 5 and 7. In respect of those charges, her Honour accepted that Mr El Homsi had acquired the vehicles identified by the particulars. She accepted that he had, in each case, sold the vehicle, and at the time of sale the odometer reading was less than at the time of purchase. She therefore found, in accordance with the presumption in s 47A(4), that Mr El Homsi had interfered with the odometers of each motor vehicle, reducing in each case the number of kilometres.

9 It was at this point that the issue concerning the proper construction of s 47A(3) arose. The section is in these terms:

“s 47A Odometer offences

(1) A person shall not interfere with the odometer of a motor vehicle.
Maximum penalty: 100 penalty units.
(1A) A person must not fit to a motor vehicle a device capable of rendering the odometer of the motor vehicle inoperative or inaccurate.
Maximum penalty: 100 penalty units.
(2) For the purposes of subsection (1), a person interferes with an odometer if the person:
(a) alters the reading on the odometer,
(b) removes or replaces the odometer, or
(c) renders the odometer inoperative or inaccurate by any means whatsoever.
(3) A person may, with the written approval of the Director-General or of a prescribed person or a person of a prescribed class or description, alter the reading on an odometer, or replace an odometer, in accordance with the terms of that approval.
(4) If in proceedings for an offence under subsection (1) it is proved that the defendant had possession of the motor vehicle and that, during the time it was in the possession of the defendant, or shortly after the time it ceased to be in the possession of the defendant, the odometer reading was less than the odometer reading at the time the defendant acquired possession of the vehicle, it shall be presumed, in the absence of proof to the contrary, that the defendant interfered with the odometer of the vehicle.
(5) In any proceedings for an offence under subsection (1) it shall be a defence for the defendant to prove:
(a) that the action was not taken by the defendant with the intent of enhancing the apparent value of the motor vehicle for the purpose of sale, and
(b) that the action was not taken by the defendant for any other fraudulent purpose.”

10 Her Honour drew attention to the general principle; that the prosecution must prove the defendant’s guilt, subject to the defence of insanity (which obviously had no relevance) and subject to statutory exceptions. The issue was whether the words of s 47A(3) constituted a statutory exception, such that the onus was upon Mr El Homsi. Her Honour, in that context, referred to s 417A of the Crimes Act 1900, which she set out in her judgment and which is as follows:

“s 417A Proof of exceptions
(1) Any exception, exemption, proviso, excuse or qualification to the offence (whether or not it is in the same provision with a description of an offence in an Act or statutory rule or document creating the offence) need not be specified or negatived in an indictment or other process commencing proceedings.
(2) The exception, exemption, proviso, excuse or qualification may be proved by the accused person.
(3) If the exception, exemption, proviso, excuse or qualification is specified or negatived in the indictment, court attendance notice or other process commencing proceedings, the prosecutor is not required to prove it.”

11 That provision did not resolve the issue. It simply determined the consequences where the provision, as a matter of construction, was an exception. The question remained, whether s 47A(3) should be characterised as “an exception”. That question, as her Honour observed, was to be answered by the ordinary process of statutory construction. Her Honour said this: (Exhibit A: p 221 – Judgment p 12)

“ ... The question is whether there is to be discerned a legislative intention to impose upon the accused the ultimate burden of bringing himself within the provision, that is in the joint judgment at 257 ( Chugg v Pacific Dunlop) citing the DPP v United Telecasters Sydney Ltd (1990) 168 CLR 594.”
(parenthesis added)

12 Her Honour made the following observation, which she acknowledged suggested that s 47A(3) was an exception, rather than an element of the offence. She said this: (Exhibit A: p 222 – Judgment p 13)

“One indication the matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different subject matter from the rule. Such is ordinarily the case where, in the terms used in R v Edwards [1975] QB 40, there is a prohibition on the doing of an act save in specified circumstances or by persons of specified classes or specified qualification or with the licence or permission of specified authorities; that is cited in Chugg ... That is the case with respect to subs (3) nonetheless the issue is to be determined upon considerations of substance not of form, Darling v Bowie (1952) 86 CLR 136 at 148.”

13 Her Honour rejected the submission by the prosecution that characterising s 47A(3) as an exception would make prosecutions “overly complex, lengthy and difficult”. It would not, she believed, impede or frustrate the purpose or objective of the Act.

14 Ultimately, the matter which persuaded her Honour that s 47A(3) was not an exception, but an element of the offence, was s 47A(5), which provided a defence. Her Honour said this: (Exhibit A: p 222 – p 13)

“In the case of s 47A the legislature has within the section specified a defence, proof of which lies with the defendant. The fact that the legislature did not in that context in the same section specify that the subject matter of subs (3) is a defence or that it is for the defendant to prove is, in my view, a powerful argument for the proposition that the matters in subs (3) are to be proved in the negative by the prosecution. Where the new matter is a matter peculiarly within the knowledge of the defendant that may be a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.
The approval required under subs (3) to take a person altering or replacing an odometer outside the prohibition in subs (1) is the approval of the Director-General. Subsection (4) (sic) provides that the Director-General means the Director-General of the Department of Fair Trading or of a prescribed person or a person of a prescribed class or description. The fact that such an approval exists or does not exist is not a matter peculiarly within the knowledge of the defendant.”
(emphasis added)

15 Her Honour thereafter stated her conclusion: (Exhibit A: p 223 – Judgment p 14)

“ ... It is also true that these were not issues raised by counsel for the defence but I cannot avoid giving consideration to these matters in determining what are the elements of the offence. In my opinion the matters in subs (3) are matters on which the prosecution bears the onus of proof.”

16 Her Honour added: (Exhibit A: p 224 – Judgment p 15)

“There being no evidence that the defendant did not have the written approval the charges laid under s 47A are dismissed.”

Relevant authorities.

17 In a careful judgment, the learned Magistrate discussed a number of cases. The issue was whether the provision, in this case s 47A(3), was an element of the offence, in which case the onus was upon the prosecution, or an exception, in which case it must be proved by the defence. In the words of Lord Wilberforce in Nimmo v Alexander Cowan & Sons Limited [1968] AC 107 at 130, “exceptions are to be set up by those who rely upon them”.

18 The rule of construction was stated by Jordan CJ in Exparte Ferguson: re Alexander (1944) 45 SR (NSW) 64, in these words: (at 66/7)

“If the offence were defined as consisting of a single concatenation of facts all were regarded as necessary ingredients of the offence, whether they were positive or negative in their nature; but, if the definition were twofold, in the sense that after a definition of the offence there was a distinct and separate provision exempting from liability in a certain event, only the first part was regarded as defining the ingredients of the offence and the second was regarded as a matter of confession and avoidance available by way of a defence.”

19 In 1955, the High Court in Vines v Djordjevitch ((1955) 91 CLR 512) considered a provision in the Motor Car Act 1951 (Vic) where a right of action was given against the Nominal Defendant in respect of injuries or death negligently inflicted by the driver of a motor vehicle. The action was available in circumstances where the identity of the negligent driver could not be ascertained. The section, however, included a proviso, which required the person bringing the action to give notice to the Minister of an intention to make a claim immediately after it had been recognised that the identity of the driver could not be ascertained. The Court determined that a condition precedent to the cause of action was imposed by the proviso. Proof of compliance rested upon the person bringing the action.

20 The Court (Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ) said that resolving the issue ultimately depended upon the intention to be ascribed to the legislature. The manner in which the section had been expressed was important. The Court said this: (at 519)

“ ... When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. ... ”

21 The Court then dealt with legislation which introduced an exception, to be proved by the defendant. The Court said this: (at 519/20)

“On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter. ... ”
(emphasis added)

22 Here, the Department says these words are apposite, in the context of s 47A of the Act.

23 In R v Edwards [1975] 1 QB 27, the English Court of Appeal provided a useful rule in determining whether a particular issue was an element or an exception. Lawton LJ (on behalf of the Court) said this: (at 39/40)

“In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely upon the exception. ”
(emphasis added)

24 Again, that was a passage emphasised by the Department in its submissions. Lawton LJ added the following comment, again relevant to the construction of the provision under consideration. He said: (at 40)

“In our judgment its application does not depend upon either the fact, or the presumption, that the defendant has peculiar knowledge enabling him to prove the positive of any negative averment. As Wigmore pointed out in his great Treatise on Evidence (1905), vol 4, p 3525, this concept of peculiar knowledge furnishes no working rule. If it did, defendants would have to prove lack of intent. ... ”

25 In R v Hunt [1987] 1 AC 352, Lord Griffiths in the House of Lords, described the formula in R v Edwards as “an excellent guide to construction” (at 375). However, he added that, in the final analysis, each case must turn upon the construction of particular legislation (at 375).

26 The High Court dealt with the issue again in Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249. The case concerned a prosecution under the Occupational Health & Safety Act 1985 (Vic). Dawson, Toohey and Gaudron JJ (Brennan and Deane JJ agreeing) said this: (at 257)

“For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an ‘exception’), which serves to take a person outside the operation of a general rule. See Vines v Djordjevitch ... The distinction does not depend on the rules of formal logic: Dowling v Bowie... Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention ‘to impose upon the accused the ultimate burden of bringing himself within it’: Director of Public Prosecutions v United Telecasters Sydney Ltd ... The intention may be discerned from express words or by implication. See Reg v Edwards ... and Reg v Hunt ... ”
(references omitted)

27 Having then considered the Victorian equivalent of s 417A of the Crimes Act, their Honours added: (at 258/9)

“ ... if a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof.
Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined ‘upon considerations of substance and not of form’: Dowling v Bowie ... And, of course, the necessity to have regard to substantive and not merely formal considerations is emphasized by the words of s 168(1) of the Magistrates (Summary Proceedings) Act and like legislative provisions which make it clear that a matter may be classified as a statutory exception ‘whether it does or does not accompany the description of the offence’.
One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. See Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen ... , per Dixon J. Such is ordinarily the case where, in the terms used in Reg v Edwards ... , there is a prohibition on the doing of an act ‘save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities’. See Reg v Hunt ... , where Lord Griffiths considered the statement from Reg v Edwards ... ‘an excellent guide to construction’. If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.”
(references omitted)

Submissions of the Department.

28 Ms Baker, appearing for the Department, asserted in helpful written submissions, that in form and substance s 47A(3) of the Act was classically an exception, not an element of the offence. She pointed to six features. They were:

· First, the text of the provision (Chugg at 258). Section 47A(1) established the offence: “a person shall not interfere with the odometer of a motor vehicle”. Subsection (2) was a definition section, identifying three ways in which a person may interfere. Subsection (3), however, was a separate provision, creating an exception. It was not part of the statement of the general rule (Chugg at 258) (cf s 9 of the same Act).

· Secondly, the approval referred to in s 47A(3) takes the person “outside the operation of (the) general rule” specified by s 47A(1), namely, the unlawfulness of altering the odometer (Chugg at 257). Section 47A(3) therefore “assumes the existence of the general or primary grounds from which the liability or right arises, but denies the right or liability in a particular case by reason of additional or special facts” (Vines v Djordjevitch (supra) at 519).

· Thirdly, as her Honour recognised, s 47A(3) “sets up some new or different matter from the subject of the rule” (Chugg at 258, citing Darling Island Stevedoring and Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635, per Dixon J at 644).

· Fourthly, the subject matter of s 47A(3) concerned permission of a specified authority being given (namely, the Director-General or a prescribed person) (Chugg at 258; R v Edwards (supra) at 40; R v Hunt (supra) at 357; and DPP v Belani [2005] NSWSC 1013; (2005) 64 NSWLR 319 at 332).

· Fifthly, whilst the existence of the approval was not a matter within the exclusive knowledge of the defendant, it was a matter in respect of which the defendant had peculiar knowledge, having sought and obtained approval from the Director-General or his delegate prior to altering the odometer (Chugg at 258).

· Finally, it was submitted that interpreting s 47A(3) as an exception would advance the objects of the Act. It is unlikely that the legislature intended the prosecution to prove the absence of approval from the Director-General or his delegate. Such a requirement, according to the Department, would result in prosecutions which were unnecessarily complex and lengthy.

29 I accept that each of the matters identified suggests that s 47A(1) establishes the rule, and s 47A(3) an exception, rather than an element of the offence. The learned Magistrate expressly rejected the view that the construction she favoured would significantly add to the length and complexity of trial. I will return to that issue below, in the context of another provision of the Act.

30 However, as explained, the matter which ultimately persuaded her Honour that s 47A(3) was an element and not an exception, was s 47A(5), which provided a defence. The subsection made it clear that the onus was upon the defendant. Her Honour reasoned that, had the legislature intended the onus in s 47A(3) to be on the defendant, it would surely have said so, as it had in subsection (5).

31 The Department answered that argument in a number of ways. First, it was important in construing subsection 47A(3) to read the Motor Dealers Act 1974 as a whole. The draftsman had used the classic formulation of the rule in s 47A(1) and the exception in s 47A(3). Other provisions in the Act reinforced that impression. In contrast to s 47A, s 9 combined in the one provision the rule and the exception, signalling that the prosecution bore the onus on every matter, including the matter of exemption. The section is in these terms:

“9. Offences
(1) A person (other than an exempted person) shall not:
(a) carry on, or advertise that the person carries on or is willing to carry on, the business of a dealer unless the person is the holder of a dealer’s licence, ... ”

32 Attention was drawn to Dowling v Bowie (1952) 86 CLR 136, where Dixon CJ said this: (at 139/40)

“The argument treats the case as governed by the common law doctrine that where a statute having defined the grounds of some liability it imposes proceeds to introduce by some distinct provision a matter of exception or excuse, it lies upon the party seeking to avail himself of the exception or excuse to prove the facts which bring his case within it. The common law rule distinguishes between such a statutory provision and one where the definition of the grounds of liability contains within itself the statement of the exception or qualification, and in the latter case the law places upon the party asserting that the liability has been incurred the burden of negativing the existence of facts bringing the case within the exception or qualification. ... ”

33 According to the Department, had Parliament intended that the onus should be on the prosecution in respect of the matter dealt with separately in s 47A(3), it could have framed the offence in the same manner as s 9, namely, “a person other than a person who has the written approval of the Director-General ... ”. Instead, it stated the rule and separately stated the exception.

34 Secondly, s 47A was one of a number of provisions introduced by an Amending Act of 1985. The same Act introduced s 56A, allowing certificates to facilitate the proof of matters where the Department had the onus to prove the negative (as in s 9). Section 56A is in these terms:

“ 56A Evidence as to certain matters relating to licences

A certificate of the Director-General certifying that, on a date or during a period specified in the certificate:

(a) a person specified therein was or was not the holder of a licence,

(b) a place specified therein was or was not a place at which the holder of a licence was authorised to carry on the business to which the licence relates,

(c) a person specified therein was or was not an exempted person,

(d) a motor vehicle specified therein was or was not an exempted motor vehicle, or

(e) a person specified therein was or was not a registered motor vehicle salesperson,

is admissible in evidence in proceedings before any court or tribunal and is prima facie evidence of the matters stated therein.”

35 That section does not deal with the issues created by s 47A(3). Yet they are similar to the matters in s 56A. Had Parliament intended the prosecution to prove the matters in s 47A(3), you would have expected its inclusion in s 56A. The absence of such a provision, according to the Department, reinforces the impression that the onus in respect of s 47A(3) is on the defendant.

36 Further, the prosecution, if it were an element, would need to prove the negative. The sources of written approval identified in s 47A(3) extend beyond the Director-General to “prescribed persons, or persons of a prescribed class or description”. Inevitably, that adds a level of complexity to the trial.

37 Finally, the Department submitted that s 47A(5) was of no assistance in construing s 47A(3), and determining whether it was an exception or an element. Section 47A(5) concerned a very different subject matter, namely, the mens rea of the defendant who had been found to have interfered with an odometer of a motor vehicle. Section 47A(3), in contrast, concerned the granting of approval by the Director-General or a prescribed person to interfere with the odometer of a motor vehicle. When examining the language used in the Act, the appropriate comparison was between s 47A(3) and s 9(1), rather than s 47A(3) and s 47A(5). The Department’s advocate said this: (T 10)

“ ... That is because section 9 deals with a subject matter which is very similar to the subject matter which is being considered in the present case, namely an approval of the Director-General, which enables the person to do things they otherwise couldn't do.
Subsection 5, on the other hand, is dealing with a very different situation. Subsection 5 is dealing with whether or not the defendant had fraudulent intent.
That question of fraudulent intent is intrinsically connected to the subject matter of the offence in subsection 1 in a way that the approval of the Director-General is not.”

38 I accept the arguments of the Department. I am persuaded that s 47A(3) is an exception. It is not part of the rule in s 47A(1). It is not an element of the offence. The onus is not upon the prosecution. It is upon the defendant to establish (as a matter of probability) that he had written approval from the Director-General or a prescribed person to interfere with the odometer. I am satisfied, therefore, that her Honour was in error in her construction of s 47A(3) and in the orders she made in consequence, dismissing Charges 2, 5 and 7.

Order.

39 I therefore make the following orders in respect of the appeals in relation to Charges 2, 5 and 7:

(1) Pursuant to s 59(2) of the Crimes (Appeal and Review) Act , I set aside the orders made at the Parramatta Local Court on 12 September 2008, dismissing charges against the defendant of interfering with the odometer of a motor vehicle, contrary to s 47A(1) of the Motor Dealers Act 1974.

(2) I declare that the Magistrate erred in law in determining that the absence of written approval of the Director-General or a prescribed person was a necessary element of an offence under s 47A of the Motor Dealers Act 1974, and that the prosecutor was required to prove that element before the offence was made out.

(3) I order that the proceedings be remitted to the Local Court at Parramatta to be heard and determined according to law.

(4) I order the defendant to pay the costs of the Department of these proceedings, but grant to the defendant a Certificate under s 6 of the Suiters’ Fund Act 1951.

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