DPP v Greene [2003] NSWSC 613

Reported Decision : 58 NSWLR 252

New South Wales Supreme Court

CITATION : DPP v Greene [2003] NSWSC 613 HEARING DATE(S) : 30/06/03 JUDGMENT DATE : 8 July 2003

JUDGMENT OF : James J at 1 DECISION : Appeal dismissed

CATCHWORDS : Justices Act - appeal from as Justice - person whose driver licence is cancelled LEGISLATION CITED : Road Transport (Driver Licensing) Act 1998 PARTIES : Director of Public Prosecutions v Kevin Alfred Greene FILE NUMBER(S) : SC 11178/03 COUNSEL : D Frearson - Plaintiff H Dhanji - Defendant SOLICITORS : SE O'Connor - Plaintiff Douglas Humphreys - Defendant

LOWER COURT Local Court JURISDICTION : LOWER COURT V5827 18/03 BS-F1 FILE NUMBER(S) : LOWER COURT B Maloney LCM JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

Tuesday 8 July 2003

11178/03 THE DIRECTOR OF PUBLIC PROSECUTIONS v GREENE

JUDGMENT 1 HIS HONOUR: In these proceedings the plaintiff the Director of Public Prosecutions claims an order pursuant to s 109 of the Justices Act quashing an order by a magistrate dismissing an information laid against the defendant Kevin Alfred Greene pursuant to s 25A(3)(a) of the Road Transport (Driver Licensing) Act for an offence of driving a motor vehicle on a road whilst his licence was cancelled. The plaintiff also claims certain associated relief. 2 The statement of grounds in the plaintiff's summons was in the following terms:- "(i) On 8 July 1997 the Defendant's driver's licence was cancelled for non-payment of fines pursuant to section 18C of the Traffic Act , 1909 (as it then was). That licence was due to expire on 4 August 1998. (ii) On 26 July 2002 the Defendant was apprehended by Police and charged with the offence of 'drive on road when licence cancelled' pursuant to section 25A(3)(a) of the Road Transport (Driver Licensing) Act , 1998. (iii) The matter was listed for hearing before Mr B. Maloney, Local Court Magistrate, at Fairfield Local Court on 29 January 2003. (iv) There was in evidence before the Magistrate a certificate pursuant to section 46 of the Road Transport (General) Act which indicated that: (a) The driver's licence of the Defendant was cancelled as from 8 July 1997. (b) The Defendant had been notified by letter from the Roads and Traffic Authority of the cancellation. (c) The Defendant had not since been issued with a New South Wales driver's licence. (d) The driver's licence of the Defendant remained cancelled as at the date of the offence, being 26 July 2002. 2. The solicitor for the Defendant submitted to the Magistrate that as the driver's licence in question of the Defendant had in fact expired on 4 August 1998 it could not be a cancelled licence, as at the date of the offence, but was an expired licence. Therefore, it was said, the Defendant was an unlicensed driver at the date of the offence, not a driver whose driver's licence had been cancelled. The consequence was that the Defendant had been charged with the wrong offence. 3. It was not in dispute that the Defendant had not obtained another driver's licence subsequent to the cancellation in question. 4. The Magistrate agreed with the submissions of the Solicitor for the Defendant and concluded that, as the cancelled licence had expired, the Defendant was an unlicensed driver as at the date of the offence not a driver whose licence had been cancelled. Accordingly he dismissed the information for the offence of 'drive whilst licence cancelled'. 5. On the hearing of the summons it will be contended that the Magistrate erred in law in concluding that the driver's licence of the Defendant was not cancelled as at the date of the offence. 6. The appeal is from the whole of the decision of the Court below". 3 It is convenient to refer at this stage to some relevant statutory provisions. 4 Section 25A(3)(a) of the Road Transport (Driver Licensing) Act provides, so far as is relevant:- "A person… whose driver licence is cancelled must not: (a) Drive on a road a motor vehicle of the class to which the cancelled licence… related without having subsequently obtained a driver licence for a motor vehicle of that class". 5 Section 25A was inserted in the Road Transport (Driver Licensing) Act by the Road Transport Legislation Amendment Act 1999 No.19. An explanatory note to the Bill which became the Amendment Act stated that the Bill "re-enacts the provisions… of s 6 and s 7A of the Traffic Act 1909 as in force immediately before their repeal". 6 Section 7A of the Traffic Act 1909 as in force immediately before its repeal provided in part:- "Where… (a person's) driver's licence is… cancelled… and he… (c) After such cancellation… drives upon a public street a motor vehicle of the class to which the licence so cancelled… related without having subsequently obtained a driver's licence for a motor vehicle of that class" the person is liable to a penalty. 7 The Road Transport Legislation Amendment Act also inserted a new section 25 in the principal Act. The new s 25(1) provides that "a person must not, unless exempted by the regulations, drive a motor vehicle on any road… without being licensed for that purpose". 8 Section 26 of the Road Transport (General) Act 1999 No. 18 provides in part:- "If, as a consequence of being convicted of an offence by a court under the road transport legislation a person is disqualified… from holding a driver licence, the disqualification operates to cancel, permanently, any driver licence held by the person at the time of his or her disqualification". 9 Clause 33 of the Road Transport (Driver Licensing) Regulation provides "that a driver licence expires at the end of the day that is recorded in the driver licence register as the licence expiry date". 10 The present appeal is brought pursuant to Pt 5 of the Justices Act. Under s 104(2) in Div 2 of Pt 5 of the Act an informant may appeal to the Supreme Court against an order made by a magistrate in summary proceedings dismissing an information but only "on a ground that involves a question of law alone". 11 The powers of the Supreme Court in determining such an appeal are set out in s 109 of the Act. 12 A submission made by counsel for the defendant in written submissions was that, the appeal having been instituted out of time, I should not grant an extension of time in which to appeal, was not pressed at the hearing and I make an order extending the time for instituting this appeal. 13 As appears clearly from the statement of grounds in the summons, the substantive question to be determined by me is whether the magistrate erred in law in holding that as at 26 July 2002 the defendant was not a person "whose driver licence is cancelled" within the meaning of that expression in s 25A(3) of the Road Transport (Driver Licensing) Act. 14 Various submissions were made by counsel for the plaintiff in support of the general contention that as at 26 July 2002 the defendant was a person "whose driver licence is cancelled" within the meaning of that expression in s 25A(3) of the Road Transport (Driver Licensing) Act. 15 It was submitted that, according to the ordinary meaning of the words, the defendant as at 26 July 2002 was a person "whose driver licence is cancelled". 16 It was submitted that the explanatory note for the Road Transport Legislation Amendment Bill made clear that the proposed s 25A was intended simply to re-enact the corresponding provision of the Traffic Act, without making any substantive change, and that the section of the Traffic Act corresponding to s 25A (s 7A) provided that where a person's driver licence was cancelled it was an offence for him to drive a motor vehicle on a public street "after such cancellation", that is, it was submitted, at any time after such cancellation, without having subsequently obtained a licence. 17 Counsel for the plaintiff submitted that the words in s 25A(3) "whose driver licence is cancelled" could not be limited in their application to the period between the date of the cancellation and the date on which the licence, if it had not been cancelled, would have expired, because if a licence is cancelled it no longer makes any sense to speak of the licence "expiring" or of there being a date on which the licence would expire or would have expired. 18 It was submitted by counsel for the plaintiff that the interpretation adopted by the magistrate would lead to anomalies, because of the different penalties for driving while a person's licence is cancelled (which carries a more severe penalty) and driving while a person is unlicensed. It was submitted that the interpretation adopted by the magistrate would also lead to anomalies between the position of a person whose licence is cancelled early in the term of the licence and a person whose licence is cancelled late in the term of the licence. 19 Reliance was placed by counsel for the plaintiff on the terms of s 26 of the Road Transport (General) Act, which provides that, if as a consequence of being convicted of an offence by a court a person is disqualified from holding a driver licence, the disqualification operates to cancel "permanently" any driver licence held by the person at the time of the disqualification, thus suggesting that a licence which has been cancelled can be regarded as "cancelled", even after the licence, if it had not been cancelled, would have expired. 20 Counsel for the defendant submitted that the magistrate had been correct in his interpretation of s 25A(3) of the Road Transport (Driver Licensing) Act. 21 A licence is issued for a limited time only. It was submitted by counsel for the defendant that any cancellation of a licence endures only for the remainder of the term of the licence up to what would have been the expiry date of the licence, if it had not been cancelled. A licence cannot be a "cancelled" licence, after it has expired or would have expired. Counsel submitted that, notwithstanding that a licence has been cancelled, it still makes sense to speak of the date on which the licence would have expired, if it had not been cancelled. 22 It was submitted by counsel for the defendant that the provisions of s 7A of the Traffic Act did not assist the plaintiff and that the task of this Court was to interpret s 25A(3) of the Road Transport (Driver Licensing) Act. 23 Counsel for the defendant submitted that the word "permanently" in s 26 of the Road Transport (General) Act simply meant for the whole of the remainder of the term the licence would have had, if it had not been cancelled. 24 Counsel finally submitted that, if there was any ambiguity in the terms of s 25A(3) of the Road Transport (Driver Licensing) Act, I should prefer an interpretation which would be favourable to a criminal defendant. 25 In my opinion, the magistrate did not error in his interpretation of the words "whose driver licence is cancelled" in s 25A(3) of the Road Transport (Driver Licensing) Act. 26 A driver licence expires at the end of the day that is recorded in the driver licence register as the licence expiry date (Road Transport (Driver Licensing) Regulation cl 33). 27 I see no absurdity, or even difficulty, in saying of a licence which has been cancelled that, if it had not been cancelled, it would have expired on a particular date, being the date recorded in the driver licence register as the licence expiry date. If before the licence expiry date the licence is cancelled, then for the remainder of the period up to the licence expiry date recorded in the driver licence register the person who held the licence can appropriately be described as a person "whose driver licence is cancelled" and s 25A(3) of the Road Transport (Driver Licensing) Act can be applicable. However, after the licence expiry date, being the date on which the licence would in any event have ceased to have effect, the person who held the cancelled licence can no longer appropriately be described as "a person whose driver licence is cancelled" and s 25A(3) can no longer be applicable. After the licence expiry date the person who held the licence is simply an unlicensed driver. 28 Even if s 25A(3) of the Road Transport (Driver Licensing) Act is to be regarded as merely a re-enactment of s 7A of the Traffic Act, without it being intended to make any substantive change, a similar question of statutory interpretation as the question which has arisen in the present case would have arisen in relation to s 7A. 29 The alleged anomalies which counsel for the plaintiff submitted would flow from the magistrate's interpretation of s 25A(3) do not appear to me to be such as to lend any real support to the interpretation contended for by counsel for the plaintiff. 30 The use of the word "permanently" in s 26 of the Road Transport (General) Act can be explained on the basis that the legislature wished to overcome the effect of the decision of Levine J in Ryan v Stoffberg (unreported 21 October 1994). In Ryan v Stoffberg Levine J held, in relation to s 10AA of the Traffic Act as it then stood, that, if a person was disqualified from holding a driver's licence, the deemed cancellation of the person's driver's licence pursuant to s 10AA(1)(a) of the Act would last only for the period of the disqualification. The intended effect of s 26 of the Road Transport (General) Act is that, if a person is disqualified from holding a driver licence, the disqualification will operate to cancel any driver licence held by the person at the time of his or her disqualification, not merely for the period of the disqualification, but for the whole of the remainder of the term of the licence. 31 The conclusion I have come to about the proper interpretation of s 25A(3) of the Road Transport (Driver Licensing) Act does not, of course, mean that there is any lacuna in the road transport legislation. Although I have held that the defendant could not be charged with an offence under s 25A(3)(a) of the Road Transport (Driver Licensing) Act, the defendant could still have been charged with the offence of being an unlicensed driver. 32 In my opinion, the appeal from the decision of the magistrate should be dismissed and I make an order accordingly. I was informed at the hearing that the parties had agreed that, whatever the outcome of the appeal each of them should pay his own costs of the appeal and consequently I do not make any order as to costs.