GREEN CJ The respondent was charged with one count of driving a motor vehicle whilst she was under the influence of intoxicating liquor to such an extent as to be incapable of having proper control of the vehicle contrary to the Road Safety (Alcohol and Drugs) Act 1970, s.4(a), a second count of driving a motor vehicle whilst alcohol was present in her body being a person to whom s.6(3) of that Act applied contrary to s.6(2) of that Act, a third count which is not material for present purposes and a fourth count of driving a motor vehicle whilst alcohol was present in her blood in a concentration greater than the prescribed concentration of 0.05 grams of alcohol in 100 mls. of blood namely 0.234 grams of alcohol in 100 mls. of blood contrary to s.6(1) of that Act. The offences charged in counts 1, 2 and 4 arose out of the same act of driving and were committed at the same time and on the same streets. The respondent pleaded guilty to all four charges.

2. Upon the first count the respondent was convicted, fined, disqualified from holding or obtaining a driver's licence and ordered to attend a prescribed course. Count 3 was adjourned sine die. Counts 2 and 4 were dismissed on the basis of the application of a principle which the learned magistrate at one stage characterised as "the principle ... of autrefois convict" but which his reasons for judgment make clear was in fact the wider principle applied in the cases to which I refer below.

3. This is a notice to review the dismissal of counts 2 and 4 on the ground that:

"the learned Magistrate erred in law in ruling that having

been convicted and sentenced upon charge 1 of the said

complaint alleging an offence under Section 4(a) of the Road

Safety (Alcohol and Drugs) Act 1970 the Respondent could not

upon the same facts be convicted and sentenced upon charges

2 and 4".

4. In Wemyss v. Hopkins (1875) LR 10 QB 378 the appellant was convicted of causing hurt and damage to the respondent by striking a horse ridden by the respondent and was fined. A few weeks later in a different court the appellant was convicted of assaulting the respondent. The offences were created by different statutes but the facts relied upon to constitute the offence in each case were the same. The Court of Queen's Bench held that the first conviction was a bar to the second. At p 381 Blackburn J said:

"I think the fact that the appellant had been convicted by

justices under one Act of Parliament for what amounted to an

assault is a bar to a conviction under another Act of

Parliament for the same assault. The defence does not arise

on a plea of autrefois convict, but on the well-established

rule at common law, that where a person has been convicted

and punished for an offence by a Court of competent

jurisdiction, transit in rem judicatam, that is, the

conviction shall be a bar to all further proceedings for the

same offence, and he shall not be punished again for the

same matter; otherwise there might be two different

punishments for the same offence."

5. The other two members of the court expressed themselves to be of the same opinion.

6. The decision in Wemyss v. Hopkins (supra) was applied by the Supreme Court of Victoria in Falkner v. Barba [1971] VicRp 39; (1971) VR 332, the Supreme Court of South Australia (In Banco) in R. v. O'Loughlin; Ex Parte Ralphs (1971) 1 SASR 219 and the Federal Court of Australia in Travers v. Wakeham [1991] FCA 109; (1991) 54 A Crim R 205 and has been applied or cited with approval in a number of other cases which are referred to by Bray CJ in O'Loughlin's case at p 224.

7. Although the precise juridical nature and limits of the principle cannot be said to have been authoritatively settled the decisions in Falkner v. Barba (supra), O'Loughlin's case and Travers v. Wakeham (supra) do define its essence.

"The principle I gather from Wemyss v. Hopkins is that,

irrespective of the legal connection between the charges,

and in particular irrespective of whether or not one charge

is an aggravated form of the other or one of the legal

ingredients of the other, a man shall not be convicted of

two different offences in respect of the same or

substantially the same set of facts."

9. In the same case Wells J referring to Wemyss v Hopkins (supra) said at p 261:

"In short, the ancient principle that a man should not have

his life placed in peril twice for the same crime was seen

by the Court to have given way to the more comprehensive but

amorphous rule affirmed by Blackburn J.

It appears to me to follow that this decision would impose

upon a court, faced with the accused's objection that he is

being twice vexed for the same cause, an obligation to view

the ingredients of the two offences, respectively, and the

issues raised in the circumstances of the two prosecutions.

If the court forms the opinion that the gravamen of each

offence is virtually the same the objection must be upheld."

10. Sangster J agreed with the statements of principle of Bray CJ and Wells J. However there was some difference between the members of the court as to the foundations of the principle. In particular Wells J was of the view that the court possesses a discretionary power "to prevent an abuse of their process by seeking to have an accused person convicted and punished more than once for what, in substance, is the same criminal conduct", whilst Bray CJ after observing at p 224 that there was not "the faintest trace in the judgments of the three learned Judges in Wemyss' case of any suggestion that they were exercising a discretion rather than applying a principle of law" said at p 229:

"I think, though it is not free from doubt, that the

preferable view is that there is a discretion in the court

to stop a second prosecution when the case does not fall

within the rules of law relating to the effect of previous

convictions and acquittals, but I think it unwise to express

any opinion on the scope of such discretion except to say

that it can only be invoked when there is something which

savours of an abuse of process. But I think the principle

applied in Wemyss v Hopkins is a principle of law and not

merely an example of the exercise of a judicial discretion."

11. In Travers v. Wakeham (supra) Jenkinson J, with whose reasons the other members of the court agreed, having cited with approval the above passage from p 225 of the judgment of Bray CJ observed at p 211:

"It can be seen from a reading of the reasons for judgment

in (O'Loughlin's case) that there may be room for difference

of opinion as to the juristic foundations of those

principles. But in my opinion one of those foundations is

undoubted. That is that the object sought to be achieved by

the application of the principles is avoidance of curial

imposition of a sentence in punishment of conduct which had

previously been the subject of curial imposition of a

sentence in punishment."

12. The applicant did not deny the existence of such a principle but submitted that it had no application to the charges faced by the respondent.

13. I do not find it necessary for the determination of this notice to review to attempt to resolve the questions raised in O'Loughlin's case about the precise nature and limits of the principle. The test I apply is whether there was such identity between the conduct which the magistrate would have been obliged or entitled to take into account had he imposed sentences in respect of counts 2 and 4 and the conduct which he had already taken into account when he imposed sentence in respect of count 1 that it could be said that the imposition of a sentence in respect of counts 2 or 4 would have resulted in the respondent being punished twice or three times for what was virtually or substantially the same conduct. In determining that issue I have regard to those aspects of the respondent's conduct which constituted the elements of each offence and to which the magistrate was therefore obliged to have regard and any surrounding circumstances which the magistrate was entitled to take into account in determining sentence.

14. The elements of the offence charged in count 1 were that:

1. the respondent

2. drove a motor vehicle

3. whilst she was under the influence of intoxicating liquor

4. to such an extent that she was incapable of having proper

control of the vehicle.

15. The elements of the offence charged in count 2 were that:

1. the respondent

2. drove a motor vehicle

3. whilst alcohol was present in her body

4. and whilst she did not hold an authority to drive a motor

vehicle.

16. The first two elements of each offence were identical and element 3 of each offence coincided with each other to a limited extent in that both involved the ingestion of alcohol. The effect which the alcohol which the respondent had consumed had upon her was an element of the offence charged in count 1 but was not an element of the offence charged in count 2 but was arguably capable of being regarded as a circumstance relevant to the proper sentence for that offence. However the learned magistrate quite properly did not take into account the fact that the respondent did not hold an authority to drive when he was determining the sentence to be imposed upon count 1. Not only was that fact not an element of the offence charged in count 1 but by virtue of the principle referred to in R v. De Simoni [1981] HCA 31; (1981) 147 CLR 383 that no one should be punished for an offence of which he has not been convicted the magistrate would have been positively precluded from taking it into account. In my view it is clear that in view of that difference between the matters which the magistrate was entitled to and actually took into account in determining penalty upon count 1 and the conduct which the magistrate would have been obliged or entitled to take into account had he imposed sentence upon count 2, it would not have been the case that the imposition of a sentence in respect of count 2 would have resulted in the respondent being punished for substantially or virtually the same conduct as that for which she had already been punished in respect of count 1.

17. The learned magistrate gave as one of his reasons for dismissing count 2 that "count 2 is completely subsumed in terms of its seriousness into count 1". No doubt it is the case that the offence charged in count 1 was a good deal more serious than that charged in count 2 but that does not entail the conclusion that the respondent's liability to be sentenced in respect of count 2 should be regarded as having merged in the sentence imposed in respect of count 1.

18. I hold that there was not such identity between the elements of the offences charged or the circumstances which were or could properly have been taken into account in imposing sentence in respect of counts 1 and 2 as to justify the dismissal of count 2.

1. the respondent

2. drove a motor vehicle

3. whilst alcohol was present in her blood in a

concentration which exceeded the prescribed concentration.

20. Two of the elements of the offence charged in count 4 were identical to the first two elements of the offence charged in count 1. Both offences also involved the ingestion of alcohol. The only difference between the elements of the two offences was that the offence charged in count 1 involved proof that the respondent was under the influence of liquor to the requisite degree whilst the offence charged in count 4 only required proof that the respondent had more than a certain amount of alcohol in her blood but did not require proof of its affect upon her. However the amount of alcohol in the respondent's blood was relevant to the determination of sentence upon count 1 because it was relevant to the determination of the extent to which the respondent was under the influence of alcohol. Thus when he was considering penalty in respect of count 1 it was proper for the learned magistrate to take into account as he did that the respondent was "very substantially affected by the consumption of intoxicating liquor" and that her breathalyser reading "was a high one and ... the effect upon (her) was plainly quite extreme". Subsequently in his reasons the magistrate said:

"I take the facts that I've just mentioned with the

exception of the breathalyser reading itself, into account

in accessing the appropriate penalty to be imposed on the

driving under the influence."

21. This appears to contradict the earlier statement to the effect that the magistrate did take the breathalyser reading into account. It may be that the two statements can be reconciled if one regards the second passage as simply meaning that the magistrate did not take the precise reading into account when determining penalty under count 1. However be that as it may it is clear that the magistrate did take the reading into account at least to the extent of using it to reach the conclusion that it was in the category of "high" readings. I am satisfied that virtually all the elements and surrounding circumstances which would have been relevant to the determination of sentence upon count 4 were properly taken into account by the magistrate when he imposed penalty in respect of count 1. I hold therefore that by virtue of the principle referred to in the cases I have cited the learned magistrate did not err in dismissing count 4.

22. I allow the notice to review in part. I order that the order dismissing count 2 be set aside. I order that insofar as it relates to count 2 the complaint be reheard by a magistrate.