DPP (NSW) v McDougall [2003] NSWCCA 217

Reported Decision : 57 NSWLR 489

New South Wales Court of Criminal Appeal

CITATION : DPP (NSW) v McDougall [2003] NSWCCA 217 HEARING DATE(S) : 31 July 2003 JUDGMENT DATE : 31 July 2003

JUDGMENT OF : Ipp JA at 28; Studdert J at 1; Hulme J at 29 DECISION : The question posed in paragraph 4 of the stated case is answered in the affirmative.

CATCHWORDS : Information - offence of "negligent driving" - whether offence sufficiently described. Criminal Appeal Act, s 5B LEGISLATION CITED : Road Transport (Safety and Traffic Management) Act 1999, s 42 Justices Act, ss 145A, 145B Ex parte O'Sullivan (1944) 61 WN 197 CASES CITED : John L Pty Limited v Attorney General (1987) 163 CLR 508 Stanton v Abernathy (1990) 19 NSWLR 656 Hedberg v Woodhall (1913) 15 CLR 531 PARTIES : Director of Public Prosecutions (NSW) v Muir McDougall FILE NUMBER(S) : CCA 60072/03 COUNSEL : D.C. Frearson (Appellant) In person (Respondent) SOLICITORS : S.E. O'Connor (Appellant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/22/0186 FILE NUMBER(S) : LOWER COURT Armitage QC DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60072/03

IPP JA STUDDERT J HULME J

Thursday 31 July 2003 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v MUIR McDOUGALL Judgment 1 STUDDERT J: This matter comes before the Court pursuant to s 5B of the Criminal Appeal Act. 2 The respondent, Muir McDougall, was convicted at the Parramatta Local Court on 7 June 2002 for an offence of negligent driving. 3 On appeal to the District Court, his Honour Judge Armitage QC quashed the conviction and consequential orders, having determined that the information did not disclose an offence and was therefore invalid. 4 At the appellant's request, his Honour submitted for the determination of this Court the question as to whether he had erred in law in concluding that the information did not disclose an offence. 5 The information naming the respondent, his address, birth date and licence number was in these terms: " INFORMATION ROAD TRANSPORT (SAFETY AND TRAFFIC MANAGEMENT) ACT 1999 SECTION 42(1)(c) AND SECTION 75B JUSTICES ACT 1902. BE IT REMEMBERED THAT on the 30TH DAY OF JULY, 2001, at Parramatta, in the State of New South Wales, JACK SMITH, being an appropriate officer (hereinafter called the Informant) of the NSW Police Service, appeared before me, the undersigned, one of Her Majesty's Justices duly assigned to keep the Peace of our Lady the Queen in and for the State, and informed me that on the 29TH DAY OF APRIL, 2001, at KENTHURST in the said State one MUIR MCDOUGALL, (hereinafter called the Defendant), NEGLIGENT DRIVING FURTHER PARTICULARS VEHICLE NO.: MMO900 TIME: 1.10PM ROAD/AREA: KENTHURST ROAD ADDITIONAL INFORMATION: COLLIDE WITH STATIONARY VEHICLE IPB CODE: 3661" 6 It appears from the case stated that when the appeal was called in the District Court the learned judge expressed concern at the form of the information and thereafter the respondent's representative submitted to the court that the information was invalid because it did not specify all the elements of the offence. The information referred to "Negligent Driving", when it should have stated either "Did drive negligently on a road" or "Did drive negligently on a road related area." It was further submitted on behalf of the respondent that the "Further Particulars" in the information did not form part of the information. 7 Contrary arguments were presented by the appellant. 8 In upholding the respondent's submissions, the District Court judge determined "that the information did not disclose an offence and was therefore invalid. The information did not specify that the respondent was driving the vehicle negligently. It was not sufficient for the prosecution to exhibit an information alleging 'negligent driving'. 9 Further, whilst not forming an integral part of his determination, the judge also concluded that the information as laid should have stated either "road" or "road related area", not both. 10 Was there error in his Honour's conclusion that the information did not disclose an offence? 11 Section 42(1)(c) of the Road Transport (Safety and Traffic Management) Act 1999, referred to in the information, provided as follows: "(1) A person must not drive a motor vehicle negligently on a road or road related area. Maximum penalty: …………….. (c) if the driving does not occasion death or grievous bodily harm – 10 penalty units." 12 As at 29 April 2001 when the offence was allegedly committed, and as at the time that the information was later laid on 30 July 2001, s 145A(1) of the Justices Act read as follows: "(1) The description of any offence in the words of the Act, or any order, by-law, regulation, or other document creating the offence, or in similar words, shall be sufficient in law…" 13 Section 145B provided, at times relevant to the offence alleged and the laying of the information: "(2) For the purposes of this or any other Act, a summary offence…shall, in any information, … be deemed to be sufficiently stated or described if it is stated or described by the use of: (a) an expression prescribed in relation to the offence, or (b) an expression that is substantially the same as the prescribed expression, but nothing in this section affects any other method of stating or describing an offence. (3) An expression referred to in sub-section (2)(a) may be prescribed by a regulation made by this Act or under the Act creating the offence concerned, or under any Act authorising the issue of a penalty notice for the offence concerned. The regulation-making powers conferred by Acts other than this Act are extended accordingly." 14 The Road Transport (General) (Short Descriptions and Penalty Notice Offences) Regulation 1999 prescribed in clause 5 "Short description of offences" for the purposes of s 145B of the Justices Act. Clause 5(1) reads: "(1) For the purposes of section 145B of the Justices Act 1902, the prescribed expression for an offence created by a provision specified in Column 1 of Schedule 2 consists of: (a) if one or more IPB codes are set out in relation to the offence in Column 2 of Schedule 2, any of those IPB codes together with: (i) the text set out in relation to the offence in Column 3 of Schedule 2, or (ii) if a choice of words is indicated in that text, the words remaining after the omission of the words irrelevant to the offence, or (b) if no IPB code is set out in relation to the offence in Column 2 of Schedule 2: (i) the text set out in relation to the offence in Column 3 of Schedule 2, or (ii) if a choice of words is indicated in that text, the words remaining after the omission of the words irrelevant to the offence."