Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Firth v Director of Public Prosecutions [2013] NSWCA 403 Hearing dates: 22 November 2013 Decision date: 22 November 2013 Before: Emmett JA at [1] and at [28] Leeming JA at [2] Sackville AJA at [27] Decision: 1. The proceedings be dismissed. 2. The plaintiff pay the costs of the first defendant. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CRIMINAL LAW - appeals from convictions in Local Court to District Court of traffic offences - judicial review of dismissal of appeals - judicial review of refusal to submit question of law to Court of Criminal Appeal - no judicially reviewable error - summons dismissed TRAFFIC LAW - suspension of driver's licence following laying of charge - charge subsequently withdrawn - withdrawal of charge no defence to further charge of driving while licence suspended Legislation Cited: Criminal Appeal Act 1912 Criminal Procedure Act 1986 Director of Public Prosecutions Act 1986 District Court Act 1973 Road Transport (Driver Licensing) Act 1998 Road Transport (General) Act 2005 Road Transport (Safety and Traffic Management) Act 1999 Supreme Court Act 1970 Cases Cited: Garde v Dowd [2011] NSWCA 115; 80 NSWLR 620 Landsman v Director of Public Prosecutions [2013] NSWCA 369 Mahmoud v Sutherland [2012] NSWCA 306 Muldoon v Church of England Children's Homes Burwood (2011) 80 NSWLR 202 Category: Principal judgment Parties: William Firth (Plaintiff) Director of Public Prosecutions (First Defendant) District Court of New South Wales (Second Defendant) Representation: Counsel: In person (Plaintiff) Carol Webster SC (First Defendant) Solicitors: In person (Plaintiff) Solicitor for Public Prosecutions (First Defendant) File Number(s): 2013/98566 Decision under appeal Date of Decision: 2012-06-26 00:00:00 Before: Payne DCJ File Number(s): 2010/340224 2011/19900 Judgment 1EMMETT JA: I invite Leeming JA to give the first judgment. 2LEEMING JA: By amended summons filed 25 March 2013 the applicant, Mr William Firth, claims these orders: "1) Quash all Lower Court judgements. 2) Costs of Lower Court fines, court costs, representation costs & transcriptions. 3) Damages in, and from, miscarriages of justice." 3Although the applicant was legally represented in the Local Court and the District Court, his amended summons appears to have been drafted by him without legal assistance and he has appeared today in person. His written submissions confirm that he wishes to challenge two judgments of the District Court made on 1 August 2011, being appeals from two driving offences of which he was convicted in the Local Court on 28 January 2011 and sentenced on 7 March 2011, as well as the refusal by Payne DCJ to state a case pursuant to s 5B of the Criminal Appeal Act 1912. 4Proceedings were commenced against the applicant by Court Attendance Notice dated 8 October 2010 for refusing to undergo a breath test, failing to undergo breath analysis, and driving while under the influence of alcohol. On the same day he was issued with a "Notice of Suspension of Authority to Drive in NSW" with effect on and from 8 October 2010 until the charges had been heard and determined. He refused to sign that notice, something to which I will return. 5There was a hearing in the Tamworth Local Court on 1 December 2010, which was not completed and was stood over for further hearing on 28 January 2011. At the conclusion of the hearing the Magistrate said: "so the Court Attendance Notice is to continue, but so is the suspension of your entitlement to drive, so don't drive anything between now and 28 January, OK." 6On 18 January 2011 the applicant was charged with driving while suspended, and on 24 January Mr Firth entered a plea of guilty to that charge. On 28 January 2011 Mr Firth was convicted of the charge of failing to undergo a breath test contrary to s 13(2) of the Road Transport (Safety and Traffic Management) Act 1999. The prosecutor withdrew the charge of failing to undergo breath analysis, and the charge of driving under the influence was dismissed. 7On 7 March 2011, when the proceedings returned for sentence, the Magistrate refused leave to withdraw Mr Firth's guilty plea to the charge of driving while suspended. Mr Firth was fined $200 and $400 respectively and disqualified for 12 months. 8Mr Firth appealed from the charges of which he had been convicted to the District Court by Notice of Appeal dated 4 April 2011. He also sought leave to appeal from the conviction for driving whilst suspended, to which he had pleaded guilty. Leave to appeal was granted. The appeal was heard in the Tamworth District Court on 1 August 2011 and the challenge to each conviction was heard and determined separately by her Honour Payne DCJ on 1 August 2011. 9In relation to the conviction under s 13(2) of the Road Transport (Safety and Traffic Management) Act, Mr Firth evidently adduced medical evidence directed to his being unable to undertake the breath test. Her Honour said: "I have looked at the medical evidence and I've looked at the totality of the evidence. I accept that he may not have understood the effect of the beta blocker but it was all of his behaviour on this night that raises concerns about his veracity in terms of undertaking the test. The onus is on the appellant in terms of the defendant satisfying the Court that he was unable to do so on medical grounds and the Court has a report. That is on the balance of probabilities. The highest the report says, "It therefore may" - and I emphasise "may", interfere with Mr Firth's forced exhalation of air to complete a demand to exhale a certain volume of air continuously." It does not say it will, or would have, it may. In all the circumstances of this case I am not - and I know that he gave sworn evidence that that was the position - but I am not satisfied, even on the balance of probabilities, and find him guilty of the offence." 10In relation to the conviction of driving while suspended, contrary to s 25A(2) of the Road Transport (Driver Licensing) Act 1998, her Honour rejected the argument that because the prosecutor had withdrawn the offence of refusing breath analysis there was no valid suspension of his licence, with the consequence that when Mr Firth drove during the suspension period there could be no offence. Her Honour said: "With respect to him, that just cannot be so. He was charged with the offence pursuant to s 205 of the Road Transport (General) Act 2005 and immediate suspension came into play. He was properly suspended and remained suspended until the matter was dealt with by a court or otherwise. As I understand it, he drove before it was withdrawn." 11Following a request by Mr Firth, her Honour revised both judgments and issued them on 27 September 2011. However, not until 26 June 2012 did Mr Firth, now without the benefit of legal representation, apply for her Honour to state a case pursuant to s 5B of the Criminal Appeal Act 1912. His application was in these terms: "A Stated Case is sought as in: A. There was error in law in not applying the dual criteria of Section 141 - Evidence Act to the opinion provided in the Doctor's Certificate. B. There was error in law in citing the procedural provisions of Sect 205 [Road Transport (General) Act 2005] * to hold that a certified breath concentration of alcohol existed. * to hold that certification under Sect 14 and Sect 32 - Road Transport (Safety & Traffic Management) Act 1999 - was in evidence. * to hold that the suspension by the police officer was lawful. * to hold that the suspensions by the lower court were lawful. each under the Road Transport (Safety & Traffic Management) Act 1999." 12That application was heard on 26 June 2012, after which Payne DCJ delivered an ex tempore judgment. At the outset her Honour said, "The applicant for the stated case is unrepresented and I bear this strongly in mind." Her Honour rejected the submission that the application was vexatious, saying that: "I believe Mr Firth in his own mind is convinced he has been dealt with unjustly and has done his best as an unrepresented person to bring the matter before the Court." However, her Honour found that his application did not disclose a question of law, and further considered that it was baseless. She concluded: "I further add that I am of the view that the Court of Criminal Appeal would refuse to grant an extension of time but that is only one of the factors. In my view, to bring this matter before the Court of Criminal Appeal would indeed be an abuse of process, and despite the genuineness with which Mr Firth comes before the Court and the difficulties of unrepresented persons, I am of the view that the application for the stated case should be refused." 13Mr Firth's summons in this Court was filed on 28 January 2013 in materially identical terms to his amended summons, which also joins the District Court in addition to the Director of Public Prosecutions. 14No appeal lies to this Court from a decision of the District Court in the exercise of its criminal jurisdiction, for the appeal is not an "action" within the meaning of s 127 of the District Court Act 1973 (see Muldoon v Church of England Children's Homes Burwood (2011) 80 NSWLR 202 at [11]). Nor do the rights of appeal conferred by ss 5 and 5AA of the Criminal Appeal Act 1912, (which apply to convictions in the District Court either on indictment or in its summary jurisdiction) extend to decisions of the District Court on appeals against convictions by the Local Court. However, this Court's supervisory jurisdiction remains, subject to the effect of s 176 of the District Court Act. 15Further, there has long been held to be an obligation upon a Judge of the District Court to submit a question of law to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912. Macfarlan JA has recently collected the provisions and authorities in Landsman v Director of Public Prosecutions [2013] NSWCA 369 at [15]-[18] and noted that because no appeal lies, the ability and duty of a District Court Judge to submit a question of law in an appeal to that Court in its criminal jurisdiction is of considerable importance. As that case shows, that duty is enforceable in the exercise of this Court's supervisory jurisdiction. It is this Court's supervisory jurisdiction that Mr Firth has invoked by his amended summons. Because Mr Firth seeks to review the decision of a Judge of the District Court, his proceeding is assigned to the Court of Appeal: see s 48 of the Supreme Court Act). 16However, Mr Firth must fail unless he can establish judicially reviewable error on the part of Payne DCJ on 1 August 2011 or 26 June 2012. It is sufficient for present purposes to put entirely to one side the lengthy, and unexplained, delays that occurred prior to the application to state a case, and prior to commencing proceedings in this Court. Mr Firth's summons can be readily determined on its merits. 17First, in relation to the dismissal of the appeal against the conviction for failure to undergo a breath test, her Honour with respect correctly stated that the onus lay upon Mr Firth to satisfy that he was "unable on medical grounds at the time the defendant was required to do so, to undergo a breath test." Her Honour examined the evidence and formed the view that he had failed to discharge that onus. Mr Firth today said that there were no reasons, or alternatively no adequate reasons. I disagree. Her Honour's reasons disclose no judicially reviewable error. They merely disclose her Honour making a finding of fact based on the evidence before her. Indeed, so far as I can see, they disclose no error at all. The real gravamen of Mr Firth's complaint is that her Honour erred in not being satisfied that there was a reasonable doubt as to whether on medical grounds he was not required to take the test. That submission must be rejected: section 13(3) places the burden upon the defendant to make out this defence. There were other attacks made against the decision in Mr Firth's written submissions, which were not developed orally. They included that her Honour was biased, failed to accept expert evidence, and erred as to the meaning of onus. I am not being exhaustive, but giving those three examples. None of those have any foundation based on the material before this Court. 18In relation to her Honour's second decision on 1 August 2011, Mr Firth advances, in written submissions and orally, quite elaborate arguments, all of which pre-suppose either that his suspension was at all times void, or alternatively was withdrawn with retrospective effect when the failure to undergo the breath analysis charge was withdrawn on 28 January 2011. In Court today he has referred to that being a purported charge. He has referred to the charge being done unlawfully. He has said that there was no such charge at law. He has also referred to the fact that he refused to sign the Notice of Suspension of Authority to Drive in NSW. That, in my view, adds nothing to the argument that he wishes to advance. 19In written submissions he has said: "There was no antecedent to match up with the said "withdrawal" which cannot itself invent an offence to then become a lawful basis for a charge. Withdrawal of a charge must carry with it any presumed basis for suspension. Any such withdrawal must be retroactive. It cannot gather validity for suspension along the way. Suspension cannot be live without lawful supporting offence." 20He has, in addition, relied upon s 7(2)(b) of the Director of Public Prosecutions Act. That, with respect to Mr Firth, has nothing to do with the matter. Orally, he has said that the laying of the charge was an abuse of process and caused a miscarriage of justice. All of those submissions must be rejected. Counsel for the DPP told us, and there is nothing in the material as far as I can see that undermines what we were told, that the question whether the officer serving the Court Attendance Notice had failed to have the requisite suspicion that Mr Firth had committed a charge, had not been agitated in the courts below. 21Much was made by Mr Firth of s 172(2) of the Criminal Procedure Act 1986. The difficulty that Mr Firth has is that s 205 of the Road Transport (General) Act in subs (7) provides: "For the purpose of this section: (a) A person is charged with an offence when particulars of the offence are notified in writing to the person by a police officer." 22That is what occurred. There was no dispute that that occurred in any of the courts below. It followed that s 205(1)(b) was engaged. It further followed that the Magistrate was, with respect, right to tell Mr Firth on 1 December 2010 that his suspension continued in force, which is also the plain wording of the notice, which provided: "YOUR NSW DRIVER LICENCE ... IS SUSPENDED ON AND FROM 8/10/2020 ... UNTIL THE CHARGE AS SHOWN ABOVE IS HEARD AND DETERMINED BY A COURT OR UNTIL THE CHARGE IS WITHDRAWN (if that should happen). YOU MUST NOT DRIVE ON A ROAD OR ROAD RELATED AREA DURING THE PERIOD OF SUSPENSION." 23As I have said, s 205 of the Road Transport (General) Act 2005 empowers a police officer "at any time within 48 hours after the person has been charged, give the person a suspension notice". The pre-condition to that statutory power is that the person has been charged by a police officer with one of the offences listed in s 205(1)(a) or (b). One of those offences is an offence under s 15(4) of the Road Transport (Safety and Traffic Management) Act 1999. The availability of the power does not turn upon the person being convicted of the offence with which he or she has been charged. It turns upon his or her having been charged. That is what occurred in this case. It is not necessary for the purposes of this proceeding to consider the status of the suspension notice if a charge has been made but withdrawn, yet not formally dismissed. The charge which enlivened the power had not been withdrawn when on 18 January 2011 Mr Firth was charged with driving while suspended. Her Honour was, in my view, unquestionably correct to dismiss the appeal. 24In relation to the third decision, to refuse to submit a question of law to the Court of Criminal Appeal, it is plain that her Honour (a) decided the matter on the merits rather than on the lengthy and unexplained delay, (although her Honour also referred to that delay) and (b) approach the proposed stated case charitably having regard to Mr Firth's lack of representation. In my view no error is disclosed by her Honour forming the view that what was proposed was baseless, nor is any error disclosed in her Honour's view that bringing the matter before the Court of Criminal Appeal would be an abuse of process. 25For those reasons, no judicially reviewable error is shown in any of her Honour's decision. It is not necessary to address the further obstacle faced by Mr Firth, s 176 of the District Court Act, although as was pointed out by the first respondent, it has long been held that that provision requires jurisdictional error to be demonstrated: see Garde v Dowd [2011] NSWCA 115; 80 NSWLR 620 at [10]; Mahmoud v Sutherland [2012] NSWCA 306 at [7]-8] and [51]; and Landsman at [13] and [37]. 26For those reasons I propose that the amended summons dated 25 March 2013 be dismissed. Although charged and convicted of criminal offences, the applicant has invoked this Court's civil jurisdiction and there is nothing to displace the ordinary rule in civil litigation that costs follow the event. I therefore proposed that the amended summons be dismissed with costs. 27SACKVILLE AJA: I agree with the reasons given by Leeming JA and with the orders that his Honour proposes. I will only add this comment. It is perhaps possible that if the police officer laying the charge that provided the basis for the suspension notice issued under s 205(1) of the Road Transport (General) Act 2005 did not hold a genuine suspicion that the offence had been committed, the laying of the charge might not have sustained the suspension notice. However, as Leeming JA has explained, the issue of whether the police officer had the requisite suspicion was never in contest in the proceedings in the Local Court or the District Court. 28EMMETT JA: For the reasons given by Leeming JA and the observation made by Sackville AJA, I agree that the proceedings should be dismissed with costs. The orders of the Court are these: (1) The proceedings be dismissed. (2) The plaintiff pay the costs of the first defendant. 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. Decision last updated: 28 November 2013