Reported Decision : 67 NSWLR 250 New South Wales Supreme Court CITATION : DPP (NSW) v Hudson [2006] NSWSC 436 HEARING DATE(S) : 24 April 2006 JUDGMENT DATE : 28 April 2006 JURISDICTION : Common Law Division JUDGMENT OF : Studdert J DECISION : 1. An order as sought in para 1 of the summons. 2. An order remitting the matter to the Local Court to be dealt with according to law. 3. An order that the respondent pay the plaintiff's costs on the summons. The respondent is, however, to have a certificate under the Suitors Fund Act in relation to the costs of the appeal. Fines Act LEGISLATION CITED : Road Transport (General) Act Suitors Fund Act Lansdell v O'Brien (1995) 22 MVR 341 CASES CITED : Taylor v Hutchings (1997) 25 MVR 559 Valentine v Eid (1992) 27 NSWLR 615 PARTIES : Director of Public Prosecutions (New South Wales) (Plaintiff) Robert Lee Hudson (Respondent) FILE NUMBER(S) : SC 2006/10239 COUNSEL : G. Rowling (Plaintiff) A. Radojev (Respondent) SOLICITORS : Office of Director of Public Prosecutions (Plaintiff) LOWER COURT JURISDICTION : Local Court LOWER COURT JUDICIAL OFFICER : P. Russell LOWER COURT DATE OF DECISION : 09/27/2005 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION STUDDERT J Friday 28 April 2006 2006/10239 DIRECTOR OF PUBLIC PROSECUTIONS (NEW SOUTH WALES) v ROBERT LEE HUDSON JUDGMENT 1 HIS HONOUR: The Director of Public Prosecutions has applied to this Court by way of summons for an order setting aside an order of the Queanbeyan Local Court. On 27 September 2005 the Local Court dismissed proceedings against the respondent to this summons, Robert Lee Hudson, who was charged with driving whilst his licence was suspended. 2 In the proceedings before the magistrate, evidence was given by Constable Aichinger. On 23 January 2005 Constable Aichinger and another police officer were patrolling Queanbeyan and came upon the scene of an accident, there observing a damaged sedan. The police officer interviewed the respondent on the following day and he admitted that he was the driver of one of the two vehicles involved in the collision. The police officer took notes of his conversation with the respondent, and the respondent signed the notebook under the last relevant entry. 3 Subsequently Constable Aichinger obtained a certificate from the Roads and Traffic Authority recording that as from 19 January 2005 the respondent's C class unrestricted licence was suspended for fine defaults. That certificate was placed before the Local Court and was relied upon as evidence that as at 23 January 2005, the time of the collision, the respondent was driving whilst his licence was suspended. 4 Apart from the certificate upon which the prosecution relied, there were also introduced into evidence the original penalty notice attracting what the prosecution claimed to be the unpaid fine which in turn led to the suspension of the licence. The penalty notice fixed as the date for the payment of the fine 8 November 2004. On 5 January 2005 a document headed "Notice of suspension of licence" was addressed to the respondent at his residential address. In that notice the respondent was advised that he must not drive after 19 January 2005. On 19 January 2005 a further notification was addressed to the respondent advising, inter alia: "The State Debt Recovery Office (SDRO) directed the Roads and Traffic Authority (RTA) to suspend your driver's licence and not to conduct certain driving licence and vehicle registration business with you because you did not pay outstanding fines as required by the SDRO in the recent enforcement order [identified] notice it sent to you. Details of business restrictions are listed overleaf. Your driver's licence has been suspended to its expiry date." 5 The magistrate gave the following reasons for dismissing the information against the respondent: "The defendant is charged with driving at a time when his licence was suspended, which was on 23 January 2005. A submission is made on behalf of the defendant that the prosecution has not established beyond a reasonable doubt that the offence has been committed. The submission was originally made as a no prima facie case submission, and, whether rightly or wrongly, I took the view that s 46 of the Road Transport (General) Act meant that there was evidence that the defendant's licence was suspended. There is a question about whether there was evidence that the licence was lawfully suspended, and it may be that I should have found that there was no prima facie case. But the submission is repeated as a submission at the end of the prosecution case, that the prosecution has not established beyond reasonable doubt that the offence has been committed. The evidence for the prosecution is that the defendant was sent a document headed 'Notice of suspension of licence' by the State Debt Recovery Office, that document is dated 5 January 2005. And the defendant was sent by the Roads & Traffic Authority on 19 January 2005 a notice purported incompliance with the Fines Act 1996 suspending his driver's licence. That notice was a consequence of a direction to the Roads and Traffic Authority by the State Debt Recovery office as a result of the defendant not paying fines on an enforcement order it was said. That enforcement order was numbered 247216761. Section 65 of the Fines Act 1996 provides relevantly that 'Enforcement action is to be taken against a fine defaulter under this division if the fine defaulter has not paid a fine as required by the notice of the fine enforcement order served on a fine defaulter.' Subsection (2) of that section provides that 'The Roads & Traffic Authority is to take that enforcement action when it is directed by the State Debt Recovery Office to do so.' Section 67 of the Fines Act , subs 1, provides that 'The Roads & Traffic Authority must, without further notice, suspend any driver licence of a fine default against whom it is required to take enforcement action for the balance of the period of the licence.' It was said on behalf of the defendant that there is no evidence that the statutory preconditions for that enforcement action have been taken. There is no evidence that a penalty notice enforcement order was sent to the defendant, that is, a penalty notice enforcement order that complies with the s 43 of the Fines Act . It is the case that there is no such document in evidence in these proceedings. There is no evidence, therefore, that the defendant has not paid a fine as required by the notice of the fine enforcement order served upon him IN THOSE CIRCUMSTANCES, IN MY VIEW, THE PROSECUTION CANNOT PROVE ITS CASE BEYOND A REASONABLE DOUBT AND I DISMISS THE INFORMATION." 6 It is to be observed from the statement of reasons that the magistrate was influenced in the course taken by the provisions of the Fines Act. Part 3 of the Fines Act deals with penalty notices and Pt 3 Div 4 deals with penalty notice enforcement orders. Section 40 defines a penalty notice enforcement order as an order made by the SDRO for the enforcement of the amount payable under a penalty notice. Section 42 makes provision for the circumstances in which a penalty notice enforcement order may be made. Section 43 makes provision for what is to be specified by a penalty notice enforcement order. 7 Part 4 addresses fine enforcement action. Section 59 requires service of notice of a fine enforcement order and s 60 addresses the requirements of the notice to be given to the fine defaulter. Under s 61 notice of a fine enforcement order may be served personally or by post or by the document exchange or by facsimile transmission or such other means as may be prescribed by regulation. 8 Section 65 addresses the circumstances in which enforcement action may be taken against a fine defaulter. These include the situation where the fine defaulter has failed to pay a fine as required by the notice given to the fine defaulter. Section 65(2) provides for the Roads and Traffic Authority to take enforcement action when directed by the SDRO to do so. 9 Section 66 makes provision for the suspension or cancellation of drivers' licences, and s 66(1) provides: "The Roads and Traffic Authority must, without further notice, suspend any driver's licence of a fine defaulter against whom it is required to take enforcement action for the balance of the period of the licence." 10 Section 69 enables a person to apply to the Roads and Traffic Authority for restoration or reinstatement of a driver's licence which has been suspended in the circumstances specified in the section. 11 I do not consider it necessary to review more closely the provisions of the Fines Act. The issue presented on this appeal is a narrow one and it really concerns the effect to be given to s 46(5) of the Road Transport (General) Act 1999. Section 46 addresses the evidentiary value of certificate evidence. Section 46(5) provides: "The court must accept the documents as proof of the facts stated in them if there is no evidence to the contrary." 12 The relevant certificate here is in these terms: "Certificate issued in accordance with section 46 of the Road Transport (General) Act 1999 Name and address, details of holder of licence number 13340967 Name: Robert Lee Hudson Address: 3212 Jerangle Road, Captains Flat, NSW, 2623 …… The Class 3 unrestricted licence in the name of Robert Lee Hudson was suspended on and from 19 January 2005 for fine defaults. The notice of fine default suspension was posted on 5 January 2005 addressed to: Robert Lee Hudson 3212 Jerangle Road, Captains Flat, NSW, 2623" 13 The above is expressed to be certified pursuant to s 46 of the relevant statute by a senior clerk in charge of records. 14 It is common ground that the magistrate was required by s 46 of the Road Transport (General) Act 1999 to accept the certificate as proof of the suspension of the licence from the date specified, but Mr Radojev pointed to the qualification in s 46(5). The sub-section gives a certificate a probative value "if there is no evidence to the contrary". What was here relied upon by the respondent was certain of the content of the police officer's notebook earlier mentioned and certain of the evidence of the police officer given in cross examination before the Local Court. 15 There is recorded in the police officer's notebook the following question and answer as part of the conversation he had with the respondent: "I have since learnt that your New South Wales driver's licence No. 13340967 has been suspended as of 5 January. What can you tell me about this? A. I didn't even know. I haven't received anything to tell me it's suspended." 16 Then, in cross examination, the police officer was asked these questions and gave these answers, referring to the notice of suspension of licence dated 5 January 2005 and the subsequent letter of 19 January 2005 (see above): "Q. Exhibit 4 is two letters from - I think the first one's from the State Debt Recovery Office, dated 5 January? A. Yes. Q. Is that what you would regard as a Penalty Notice Enforcement Order? A. No it's - I don't know if I would call it that, it's perhaps more of an advice that the person's licence is to be suspended. Q. So the answer is you're not sure whether that's a Penalty Notice Enforcement Order under the Fines Act, or not? A. From reading this, no I don't get that impression. Q. Do you know whether a Penalty Notice Enforcement Order was sent to the defendant? A. No, I'm not aware of that." 17 It is to be observed that the response which the respondent gave to the police officer was self-serving, and it is to be observed that the evidence which the police officer gave that he was unaware as to whether a penalty notice enforcement order was sent to the respondent is no proof that no such notice was sent. However, in deciding that the information should be dismissed, it is plain from the statement of the reasons of the magistrate that that decision was taken in the absence of evidence that the respondent received a penalty notice enforcement order complying with s 43 of the Fines Act. The magistrate ruled that the absence of such evidence was fatal to the prosecution. 18 The magistrate had earlier ruled that there was a prima facie case and, of course, no evidence was called on behalf of the respondent. It seems to me that there is inconsistency in the approach taken but, in any event, I am of the opinion that the magistrate fell into error in determining that it was necessary for the prosecution to prove that a penalty notice enforcement order was duly served upon the respondent. In so ruling, the magistrate failed to give due recognition to the effect of s 46(5) of the Road Transport (General) Act 1999. What the prosecution had to prove was that on 23 January 2005 the respondent drove at a time when his licence was suspended. Through Constable Aichinger and the admissions which the respondent made to that police officer, the prosecution proved that the respondent drove a motor vehicle on 23 January 2005. The effect of s 46(5) was to prove that as at 23 January 2005 the respondent's licence was suspended. There was no evidence to the contrary, and hence the court was required to accept the certificate as proof of the fact that the respondent was unlicensed. 19 The decision of Grove J in Valentine v Eid (1992) 27 NSWLR 615 is in point. In this case the information laid charged the respondent with driving a motor vehicle whilst her licence was cancelled. The prosecution relied upon a certificate issued under s 12 of the Traffic Act stating that all the respondent's licences were cancelled as from a specified date, but the magistrate determined that the certificate was not probative that notification of cancellation had been given to the respondent and that the notification was a precondition to cancellation. On appeal, the magistrate was held to be in error. Section 12 of the Traffic Act is not in terms identical with s 46 but it is to similar effect: "12. (2) A certificate purporting to be signed by a prescribed officer certifying that on any date or during any period specified in the certificate, the particulars set forth in the certificate as to any of the matters specified in sub-section (1) did or did not appear on or from such records shall, in all courts and upon all occasions whatsoever, without proof of the signature or of the official character of the person purporting to have signed the certificate and without the production of any record or document upon which the certificate is founded, be prima facie evidence of the particulars certified in and by the certificate…" 20 Grove J held that it was unnecessary to prove due postage of the notification of cancellation. His Honour said at 618: "In my opinion, proof of the circumstances of the postage is in any event surplus to what is required to prove a breach of s 7A(2)(c). I recognise that s 21 of the Act makes despatch of notice mandatory and provides a procedure which establishes the date for the commencement of cancellation. However, the critical facts, cancellation and absence of subsequent grant, are evidenced by the certification. It would, of course, be open to call other evidence against a conclusive finding in any given case but there is no need to prove the mechanism whereby cancellation occurred ." (Emphasis added) 21 Likewise, it seems to me there is no need for the prosecution here to prove the mechanism leading to the suspension of the respondent's licence. 22 See also the decisions of the Supreme Court of Western Australia in Lansdell v O'Brien (1995) 22 MVR 341 and Taylor v Hutchings (1997) 25 MVR 559. 23 It follows that the order of the magistrate should be set aside and that the matter should be remitted to the Local Court to be dealt with according to law. 24 The respondent should pay the plaintiff's costs of the summons and is to be granted a certificate under the Suitors Fund Act. Formal orders 1. An order as sought in para 1 of the summons. 2. An order remitting the matter to the Local Court to be dealt with according to law. 3. An order that the respondent pay the plaintiff's costs on the summons. The respondent is, however, to have a certificate under the Suitors Fund Act in relation to the costs of the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.