Appellant v Respondent

Mr D Trapnell, Senior Counsel, with Ms D Karamicov of counsel

1 This is an application by the respondent, Mr Johnstone, to amend the orders which I made in this proceeding on 18 December 2008.

2 The background facts in this matter were set out in my judgment in Johnstone v Matheson[1] as follows:

"2. In November 2005, Senior Constable Scott Matheson charged Peter James Johnstone with an offence under s 49(1)(b) of the Road Safety Act 1986 ('the Act') of driving a motor vehicle with more than the prescribed concentration of alcohol in his breath. At the same time Senior Constable Matheson also charged Mr Johnstone with an offence under s 49(1)(f) of the Act. Relevantly, such an offence is committed when a person furnishes, within three hours of driving a motor vehicle, a sample of breath for analysis by a breath analysing instrument and the result of analysis indicates that more than the prescribed concentration of alcohol is present in the person's breath. In relation to each charge, the reading alleged was 0.091 grams per 210 litres of exhaled air, based on a single breath test and a single result of analysis. The prescribed concentration is 0.05 grams per 210 millilitres [scil. 201 litres] of exhaled air. (For brevity and simplicity I will hereafter refer to all concentrations of alcohol in percentage terms, despite the inaccuracy of such shorthand.)

1. Mr Johnstone was subsequently found guilty of both offences in the Magistrates' Court. However, over opposition from the prosecution, the magistrate dismissed the charge under s 49(1)(f) and proceeded to deal with Mr Johnstone by reference to the charge under s 49(1)(b) only. On the basis of expert evidence she 'read back' the result of analysis to 0.067% as at the time of driving. She then exercised in Mr Johnstone's favour the discretion which is conferred by s 50(1AB) of the Act not to interfere with an offender's licence where (so far as relevant) it appears to the court that 'at the relevant time' the concentration of alcohol in the breath of the offender was less than 0.07%. No such discretion would have been available to the magistrate had she sentenced Mr Johnstone by reference to the charge under s 49(1)(f), because the 'relevant time' for that offence is the time of the test.
2. The principal question in this case is whether the magistrate truly had the power to dismiss the charge under s 49(1)(f) in order to avoid sentencing Mr Johnstone by reference to that charge... " (citations omitted).

3 I allowed the appeal of the Director of Public Prosecutions ("DPP") (on behalf of Senior Constable Matheson) and made an order in the following terms:

1. The order made by the Magistrates' Court on 1 November 2006 whereby Mr Johnstone was fined $600 without conviction in respect of the charge against him under s 49(1)(b) of the Road Traffic Act 1986 [sic] be set aside.
2. The order made by the Magistrates' Court on 1 November 2006 whereby the charge against Mr Johnstone under s 49(1)(f) of the Road Traffic Act 1986 [sic] was dismissed be set aside.
3. The case be remitted to the Magistrates' Court for the hearing of a plea and the imposition of a penalty on Mr Johnstone in accordance with law in relation to the finding made on 1 November 2006 that he was guilty of an offence under s 49(1)(f) of the Road Traffic Act 1986 [sic], and also for the Magistrates' Court to deal as it sees fit with the matter of the further finding made on 1 November 2006 that Mr Johnstone was guilty of an offence under s 49(1)(b) of the Road Traffic Act 1986 [sic].
4. Mr Johnstone pay the appellant's costs of the appeal."

4 As mentioned in the judgment, I made paragraph 4 of my order, remitting the matter back to the Magistrates' Court rather than passing sentence myself, on the urging of Mr Johnstone's counsel, who said he was concerned to preserve his client's right to appeal to the County Court on the merits and on sentence.

5 Some two years have elapsed since I made the order. During that time, my judgment was the subject of an application by Mr Johnstone to the Court of Appeal for leave to appeal.[2] The decision of the Court of Appeal, by which leave to appeal was refused, was in turn the subject of an unsuccessful application to the High Court by Mr Johnstone to bring a special leave application out of time.[3]

6 Having failed in the Court of Appeal and in the High Court, Mr Johnstone now returns to this Court seeking amendments to the order that I made on the basis of "unintended" and "grossly unfair" consequences that Mr Johnstone says would flow from that order if it were allowed to stand.

Consequences of the Magistrates' finding and the Supreme Court's order

7 It now appears that as a consequence of the finding of guilt made by the Magistrate on 1 November 2006 in relation to the s 49(1)(b) offence Mr Johnstone incurred 10 demerit points under s 25 of the Road Safety Act 1986 and under the Road Safety (Drivers) Regulations 1999.[4] These points were added to 6 demerit points Mr Johnstone had previously accumulated from unrelated offences, pushing Mr Johnstone up to and beyond the 12 point threshold for full driver licence holders set by s 25(3)(a) of the Act. In accordance with the machinery prescribed by s 25, Mr Johnstone was then sent a "demerit point option notice." The notice gave Mr Johnstone a choice of either accepting a 4 month licence suspension or extending the demerit point period. Had Mr Johnstone chosen the second option, he would have been entitled to continue driving. However, he would have then run the risk of an 8 month licence suspension if he had subsequently incurred one or more additional demerit points in the 12 months period commencing on the date specified in the notice.[5] As it happens, Mr Johnstone chose the first option and his licence was suspended for 4 months. This 4 month suspension expired in April 2007. There is no evidence before me as to the extent to which Mr Johnstone was actually inconvenienced by the suspension.

8 Both the DPP's appeal and Mr Johnstone's own appeal against the Magistrate's decision were commenced before Mr Johnstone had served much, if any, of his 4 month suspension. He did not apply for a stay of the Magistrate's orders. However his then solicitor, Mr Jack Sher, was ill with cancer at that time and Mr Johnstone says he had difficulty obtaining legal advice from him as a result. Mr Johnstone also says that he told Mr Sher about the demerit point situation and assumed (wrongly as it later transpired) that Mr Sher would have passed on this information to counsel briefed in the appeals.

9 Mr Johnstone correctly submits that if this matter is now dealt with by the Magistrates' Court pursuant to my remittal order, the Magistrate will have no choice but to convict Mr Johnstone of the s 49(1)(f) offence and to impose the mandatory penalty of licence cancellation and disqualification for at least 6 months. The Magistrate will not be able to reduce the period of disqualification below 6 months on account of the 4 month licence suspension that Mr Johnstone has already undergone. The 4 month licence suspension has now been served and cannot be undone. Consequently, if the matter were remitted to the Magistrates Court, Mr Johnstone will end up "off the road" for a total period of at least 10 months.[6]

10 In contrast, had the Magistrate convicted Mr Johnstone of the s 49(1)(f) offence in the first place, as I held her Honour ought to have done, Mr Johnstone submits that the penalty would have been a licence cancellation and disqualification for a period of 6 months only, and that he would not have incurred any demerit points as a result of the drink-driving episode.[7]

11 Mr Johnstone therefore submits that the order I made on 18 December 2008, if it were to stand, would lead to the unintended and unjust consequence of Mr Johnstone being unable to drive for a total period 10 months rather than 6 months.[8]

The alleged error or slip in the 18 December 2008 order

12 It appears that Mr Johnstone's counsel was not aware of the demerit point situation until April 2010. Accordingly, Mr Johnstone's counsel did not bring the matter to my attention at the trial of the proceeding in 2008.

13 Mr Johnstone submits that had the demerit point situation been brought to my attention in 2008, I would not have made the order that I made. However, Mr Johnstone's counsel had some difficulty in specifying exactly what I could and would have done differently.

14 The relief that Mr Johnstone initially sought in his summons was:

"1. That specific directions be given by the Supreme Court of Victoria to the Magistrates' Court of Victoria as to sentencing of Mr Johnstone herein, arising out of the Orders of the Supreme Court of Victoria on 18 December 2008;

1. That the Supreme Court of Victoria substitutes its own decision as to sentencing of the Appellant in lieu of that of the Magistrates' Court of Victoria."[9]

15 However, at the hearing of the application Mr Johnstone's counsel seemed to concede that if Mr Johnstone was to be sentenced for the s 49(1)(f) offence, whether by the Magistrates' Court or by this Court, the sentencing court would have no alternative but to impose the mandatory minimum penalty of licence cancellation and suspension for 6 months.[10]

16 Ultimately Mr Johnstone submitted that the appropriate course of action back in 2008 would have been to allow the appeal but leave the Magistrate's orders undisturbed. Accordingly, Mr Johnstone sought an amending order in the following terms:

"1. Paragraphs two, three and four of the Orders made in the Appeal dated 18 December 2008 are set aside.

1. The case is otherwise not to be remitted to the Magistrates' Court for further hearing."

17 Mr Johnstone's application raises two main issues for consideration:

(a) Had Mr Johnstone's demerit point situation been brought to my attention at the trial of the proceeding, would it have been within my power to make the order that Mr Johnstone now says I would then have made?

(b) If so, is the making of the order now sought by Mr Johnstone within power, and appropriate, now?

Power at the trial of the proceeding to make the orders now sought

18 I note that the orders now sought by Mr Johnstone, while purportedly permitting paragraph 1 of my original order ("The appeal be allowed") to stand, call for the setting aside of paragraphs 2, 3 and 4. The effect would be that the orders made by the Magistrates' Court would be retrospectively restored. This would be tantamount to a dismissal of the DPP's appeal, at least in terms of the relief sought by the DPP in relation to Mr Johnstone's case itself.

19 The very point of my original decision was that the Magistrate had no power or discretion to take steps designed to avoid the operation, effect or application of the mandatory minimum penalty provisions contained in s 50(1A) of the Road Safety Act 1986. One might seriously doubt whether this Court (in an appeal on a question of law) had any greater power or discretion in that regard than the Magistrates' Court had.

20 However, I will assume without deciding that this Court would have had power at the trial in 2008 to make the orders now sought by Mr Johnstone.

21 Mr Johnstone relies on two sources of power to make the amendments he seeks. First, Mr Johnstone relies on s 412 of the Criminal Procedure Act 2009.[11] It is common ground[12] that that section is potentially applicable in this case in that it has retrospective application to orders made before the commencement of the Criminal Procedure Act 2009.[13] Second, Mr Johnstone also relies on the Court's inherent jurisdiction to correct errors or slips in its orders.[14] Mr Johnstone does not submit that the power conferred by s 412 of the Criminal Procedure Act 2009 is any wider than the inherent power.

22 The DPP strongly denies that I have power now to make the amendments sought by Mr Johnstone. The DPP submits that such amendments would effectively "get rid of the effective and substantive part" of my judgment and deprive the DPP of its remedy and of the fruits of its judgment.[15] The DPP submits that neither s 412 nor the inherent power extends so far. The DPP further submits that the position is a fortiori where, as here, the judgment in question has been the subject of an unsuccessful application for leave to appeal.

23 It unnecessary to decide whether, as a matter of principle, this Court has power to make amendments of the fundamental kind sought by Mr Johnstone. Without expressing any view on the matter, I will assume in Mr Johnstone's favour that the Court does have such power, even where there has been an unsuccessful application for leave to appeal.

24 And I will further assume in favour of Mr Johnstone, without deciding the point, that the law with respect to the revisitation of earlier final, or effectively final,[16] orders is as liberal as it is stated to be in New South Wales in the decision of the Court of Appeal in Newmont Yandal Operations Pty Ltd v J Aron Corp.[17] That is a decision to which the DPP's counsel referred me without submitting that there was any aspect of that judgment that was unduly liberal, or inapplicable in Victoria. However, I note that Newmont declined to follow the decision of the Full Court of this Court in Brew v Whitlock (No 3).[18] I also note that in Newmont the New South Wales Court of Appeal acknowledged that the situation in New South Wales in 2007 may have been different from the then situation in Victoria because of s 56 of the Civil Procedure Act 2005 (NSW).[19] Section 56 relevantly provides that the overriding purpose of that Act, and of the rules of court in their application to civil proceedings, is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings".[20] Section 56 and its exhortations seem to have had a liberalising or expanding influence on the reasoning of the Court of Appeal in Newmont.[21]

25 I express no view as to whether Newmont represents the law in Victoria. Certainly I am not to be taken as preferring Newmont to Brew v Whitlock, if there is any relevant distinction. Rather, I am simply assuming in Mr Johnstone's favour that the law is as liberal in Victoria as it was stated to be in New South Wales in Newmont, because the law in Victoria can certainly be no wider. Mr Johnston's counsel did not submit otherwise.

26 In Newmont the Court of Appeal of New South Wales held that an application of the present kind will succeed only if it is "beyond controversy" that the correction sought would have been made by the original judge "at once" had the matter been adverted to at that stage.[22]

27 In the present case it is certainly not the position that if I, or, in my view, any other judge in my place, had been made aware at the original trial of the facts and the law concerning Mr Johnstone's demerit point situation that I, or that other judge, would "at once" have exercised the power that I have assumed would have been available to allow the orders of Magistrates' Court to stand. Nor can such a course be described as being "beyond controversy" or as being "so obvious that it goes without saying".[23]

28 First, as I have already indicated, it is seriously doubtful that it would have been even open to the Court to fashion orders designed to avoid the mandatory penalty. At the very least, any such orders would have produced an outcome contrary to the normal operation of s 50(1A) of the Act and therefore an outcome out of harmony with the intention and policy of the Act, namely that a driver found guilty of a charge under s 49(1)(f) with an alcohol reading of 0.07 or more should spend at least 6 months, not merely 4 months, off the road.

29 Second, there is a significant difference between a mere licence suspension under the demerit point regime and a licence cancellation and disqualification under s 50(1A). The latter has more serious ramifications.

30 Third, the demerit point based suspension was not caused wholly by the finding of guilt on the s 49(1)(b) charge but rather by:

(a) an accumulation of a total of 16 demerit points within 3 years by Mr Johnstone, including 6 points from unrelated offences; and

(b) Mr Johnstone's own choice to accept the imposition of a suspension of 4 months instead of the so-called "double or nothing" alternative which was made available to him pursuant to s 25 of the Road Safety Act.[24]

31 This is a case where, far from it being obvious that Mr Johnstone would have succeeded in avoiding the orders that were actually made had these matters been drawn to my attention, my present view is that it is highly unlikely that I would have considered it appropriate to exercise my (assumed) power in his favour.

Present discretion to refuse to make amendments sought by Mr Johnstone

32 To the extent that there is a present discretion to refuse an amendment which might otherwise be warranted, it would count against Mr Johnstone that his summons in this Court was not issued until October 2010 and it has now been some two years since my decision was given. Further, my decision has been through the process of application for leave to appeal in the Court of Appeal and an application for an extension of time in the High Court, both of which failed. The principle of finality of judicial decisions would be substantially infringed if the matter were to be re-opened now.

33 This is a case where Mr Johnstone is a very long way from success in endeavouring to invoke the inherent jurisdiction of the court or s 412 of the Criminal Procedure Act 2009 to set aside the orders made in December 2008.

34 Ironically, there was a true "slip" in my original orders. It contained references to the (non-existent) "Road Traffic Act 1986" rather than the Road Safety Act 1986. It is common ground that my original order should be amended to remove that error.

35 Otherwise, Mr Johnstone's summons will be dismissed. Mr Johnstone must pay the DPP's costs.

[1] [2008] VSC 567; (2008) 21 VR 570.

[2] Johnstone v DPP (Unreported, Supreme Court of Victoria, Court of Appeal, Neave JA and Williams AJA, 20 March 2009).

[3] Johnstone v DPP (on behalf of Matheson) [2010] HCA Trans 28.

[4] These regulations were revoked and replaced by the Road Safety (Drivers) Regulations 2009.

[5] See s 25(3B).

[6] Transcript 10-11. Respondent's written submission, [5].

[7] Ibid. These submissions assume that the Magistrate would have imposed the minimum penalty for the s 49(1)(f) offence and that the Magistrate would have dismissed the s 49(1)(b) charge because of the rule against double punishment. I will proceed on the basis of these assumptions, without expressing any view as to their correctness.

[9] Respondent's summons filed on 19 October 2010.

[13] See Criminal Procedure Act 2009 sch 4, cl 14.

[16] As to "effectively final" orders, I refer to what I said in Booth v Ward [2007] VSC 364; (2007) 17 VR 195, 204-205, [39]. The order made in December 2008 in the present case was at least "effectively final".

[17] [2007] NSWCA 195; (2007) 70 NSWLR 411 ('Newmont').

[18] [1968] VicRp 63; [1968] VR 504, 506-507.

[19] Newmont [2007] NSWCA 195; (2007) 70 NSWLR 411, [24]-[28], [196].

[20] Compare s 1 of the Civil Procedure Act 2010 (Vic) which will commence on 1 January 2011.

[24] This remains true notwithstanding that Mr Johnstone was apparently unable to obtain comprehensive and timely legal advice from his solicitor, Mr Jack Sher in 2006-2007.