Assan v Meredith [2007] NTSC 12

Appellant: North Australian Aboriginal Justice Association

Respondent: Office of the Director of Public Prosecutions

Assan v Meredith [2007] NTSC 12

IN THE MATTER OF the Traffic Act

AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Katherine

[1] On 15 March 2006 the appellant was convicted of the offence of driving a motor vehicle on 9 February 2006 while disqualified contrary to s 31(1) of the Traffic Act. He has appealed against his conviction. The grounds of appeal are:

1. That the finding of guilty was unsafe and unsatisfactory;
2. That the learned magistrate erred in law as to the interpretation of s 20A of the Traffic Act (NT);
3. That the learned magistrate erred in admitting the s 20A Traffic Act (NT) notice into evidence.

[2] The principal issue in the appeal is, did the presiding magistrate err in his interpretation of s 20A (2) and (3) of the Traffic Act? In particular, was the appellant disqualified from driving under s 20A(4) of the Traffic Act or, contrary to the finding of the presiding magistrate, was the giving of the notice under s 20A(2) ineffective and without force because the appellant was not given a copy of the charge sheet signed by a member of the police force before he was given the notice under s 20A(2) of the Traffic Act?

[3] In my opinion the presiding magistrate erred in his interpretation of s 20A(2) and (3) of the Traffic and as a result the appellant was wrongly convicted of driving while disqualified. The appellant was not disqualified from driving under s 20A(4) of the Traffic Act because a mandatory precondition to the giving of the notice under s 20A(2) had not been complied with by the police. The appellant was not charged before he was given the notice under s 20A(2) of the Traffic Act because he had not been given a copy of the relevant charge sheet signed by a member of the police force before he was given the notice under s 20A(2) of the Traffic Act.

Section 20A of the Traffic Act

[4] Section 20A of the Traffic Act is in the following terms:

(1) In this section, "immediate suspension offence" means -

(a) a second or subsequent offence against section 19(1) or (2);

(b) an offence against section 19(2) for which the penalty is that specified in section 19(3)(a)(ii); or

(c) an offence against section 20.

(2) If a person is charged with an immediate suspension offence, any member of the Police Force may, after charging the person but before the charge is determined by a court, give to the person a notice in the form approved by the Director informing the person that he or she is disqualified from driving a motor vehicle until the charge is determined and requiring the person to surrender immediately to the member giving the notice any licence document held by the person.

(3) For the purposes of this section a person is charged with an immediate suspension offence when a copy of the charge signed by a member of the Police Force is given to the person.

(4) Immediately on the giving of the notice under subsection (2) the accused person is by force of this section disqualified from driving a motor vehicle and any licence held by the person is suspended until the charge is determined by a court.

(5) A member of the Police Force who gives a notice under subsection (2) shall cause notice of that fact to be sent immediately to the Registrar.

(6) A person who, without just cause or excuse (the onus of proving which lies on the person), refuses or fails to surrender a licence document as required by a notice under subsection (2) is guilty of an offence.

(7) If a person is disqualified under this section from driving a motor vehicle, the person is, during the period of disqualification, disqualified from holding or obtaining a further licence.

(8) A person shall not, while he or she is disqualified from obtaining a licence, apply for a licence.

(9) A person to whom a notice is given under subsection (2) may appeal against the notice to the Local Court.

(10) A person who appeals under subsection (9) shall give 14 days written notice of the appeal to the Registrar and to the clerk of the Local Court setting out the particulars of the alleged exceptional circumstances justifying the cancellation of the notice.

(11) In determining the appeal the Local Court shall hear any relevant evidence tendered by the applicant and by or on behalf of the Registrar and any evidence of a medical practitioner required by the court.

(12) On an appeal under subsection (9) the Local Court may make an order

(13) The Local Court shall not make an order under subsection (12)(b) unless it is satisfied that exceptional circumstances exist which justify the making of the order.

(14) An order of a Local Court under subsection (12) is final and conclusive and has effect accordingly.

[5] On 4 February 2006 the appellant was arrested in Katherine and placed in police custody in relation to an offence of driving a motor vehicle with a concentration of alcohol in his blood exceeding 0.08%. On that day the shift supervisor at the Katherine Police Station prepared a charge sheet in respect of the offence, a notice of immediate disqualification under s 20A(2) of the Traffic Act and a bail sheet. The shift supervisor handed those documents to the next shift supervisor, Acting Sergeant Payne, at the end of his shift. Acting Sergeant Payne attended upon the appellant while he was still in the cells at the Katherine Police Station. He read to the appellant the charge sheet, explained it to him and answered questions regarding his blood alcohol content reading. He then showed the s 20A(2) notice to the appellant and explained that to him. At that time he did not show the charge sheet to the appellant nor did he give the appellant a copy of the charge sheet or the notice under s 20A(2) of the Traffic Act. Instead Acting Sergeant Payne placed the copy of the charge sheet and the s 20A(2) notice with the appellant's property which at that time was in the custody of the police.

[6] The appellant was still in custody at the time that Acting Sergeant Payne left the cells at the Katherine Police Station and placed the copy of the charge sheet and the s 20A notice with the appellant's property. Acting Sergeant Payne did not ask the appellant to hand over his driver's licence.

[7] The appellant was released from custody on bail later the same morning, his property was returned to him and along with his property he was given a copy of the charge sheet and the s 20A notice for the first time. The sequence in which the appellant was given the copy of the charge sheet and the s 20A(2) notice was not established by the evidence before the Court of Summary Jurisdiction. It is likely that the appellant was given both documents at the same time.

[8] The appellant was observed to be driving his motor vehicle on 9 February 2006. He was arrested for driving whilst disqualified pursuant to the s 20A notice and he was prosecuted in the Court of Summary Jurisdiction.

[9] The fact that the appellant was driving on 9 February 2006 was not in issue during the summary hearing in the Court of Summary Jurisdiction. The challenge was to the efficacy of the s 20A notice. The issue during the summary hearing was defined by the submissions of counsel for the appellant as follows:

"The question for determination is whether the failure of Acting Sergeant Payne to give the appellant a copy of the charge as opposed to placing the charge into the appellant's property has the consequence that there has been a failure to comply with s 20A(3)."

[10] The presiding magistrate found that there had been compliance with s 20A(2) and (3) of the Traffic Act. His reasons for doing so were as follows:

HIS HONOUR: Yes this is really on a voir dire into the admissibility of a video tape of Sergeant - Acting Sergeant Payne in the watchhouse of the Katherine Police Station and the notice of license disqualification, referred to a 20A notice. The defence submission is that the, I should reject the admission of the evidence on the basis that the requirements of the 20A of the Traffic Act weren't strictly complied with and that if I find that the acts require, or the process required under 20A wasn't complied with that I should reject the evidence in my discretion on what has been referred to as a public policy grounds and I was referred to a decision Nova Chick v Cooper of the Supreme Court of the Australian Capital Territory in the Australian Capital Reports, 1 ACTR at 99.

I was referred to page 110 where it states: 'The success of the appeal as results from a defect in the statutory qualifications of the police constable who administered the breath test. It was not suggested that Constable Thompson was incompetent to administer and evaluate the test, but the legislature in framing these provisions to deal with a grave social evil has properly had regard to the preservation of the liberty of the subject by laying down strict procedural requirements for the conduct and proof of breath tests. If any of these procedural climates is not observed the law and indeed the public interest requires the accused to be acquitted. One of these requirements is that the officer administering the test should have undergone a course of instruction to the satisfaction of the Commissioner where not satisfied of this and the appeal therefor succeeds.

That case was used and it is suggested that although it's not on the same point that in this case there was a failure to follow the procedure set down under 20A of the Traffic Act, specifically I was referred to subsection 3 of 20A which reads 'for the purposes of this section a person is charged would an immediate suspension offence when a copy of the charge signed by a member of the police force is given to the person'.

We saw a videotape of what occurred in the watchhouse and have heard evidence from Sergeant Payne. It is clear he had documents which were in his person in which he's given evidence of having been prepared by the officer in charge previous to him coming on duty. He informed the defendant that he had been charged with exceed 08 offence and document which he placed into the defendants property after informing the defendant that he had been charged with a point 08 offence. He told the defendant that he was immediately disqualified from driving, was shown to show a document to the defendant which is evidence of, and which is put into evidence as a 20A notice and that also was placed with the other sheets which was the property of the defendant.

The argument of the defence seems to be a technical one that without physically putting the charge sheet into hands, into the physical hands of the defendant, that the defendant wasn't so charged and that in effect the 20A notice procedure under subsection 2 wasn't complied with. I don't agree with that proposition. I do find there is a question of fact that he was charged prior to being informed of the notice and being given the notice by way of putting it into his property.

So my finding is that there was strict compliance, even if I am wrong with that I cannot see there is any public policy argument as to why the - I should exclude the evidence. It would seem to me to be a nuisance to have to go through one procedure, physically hand something over then back and then go through another process of giving another document after, for example, someone was released from custody and they were going to obtain the physical right to control the paper.

So my finding is simply is I believe there was strict compliance, but even if I'm wrong with that, I don't believe there - on the argument of Mr Woodroofe that would, if he is right, that that would justify the exercise at my discretion, but I don't think he is right. So given that ruling the evidence is admitted, I will say that, just as a comment that it has been my view for a long time that this section is and should, sorry, the section should, if the not the section, something in police standing orders should impose on the police some responsibility to verbally explain to them the content of the notice.

As I stated before a large proportion of the people to which the notice applies cannot read or write at all, I don't know if that's the case with this defendant. I'm not saying this specifically to this case, but it is a question, situation that there are a number of things in the notice. One thing informs him that they are immediately suspended; another thing informs them that if they don't surrender their licence then they could be committing an offence. Another thing informs them they have a right to appeal against that decision, if they wish to appeal against that decision. None of those things would be known to a person who can't read, by merely handing them a piece of paper, so I do think there is good grounds for having some onus on the police to fully explain those things. But that is clearly not required by the law and according to my reading of the act the police don't have to explain anything it's within the document.

[11] In so reasoning the presiding magistrate erred in law. That is not to say that a person should not be properly informed by a police officer of the nature of the charge against him or her and the effect of any such additional notice that he or she is given by police. Such matters should be explained.

[12] For the purposes of s 20A of the Traffic Act an accused person is disqualified from driving a motor vehicle and his licence is suspended where a notice is given to him under s 20A(2). Such a notice may only be given where the person has been charged with an immediate suspension offence. By operation of s 20A(3) a person is so charged "when a copy of the charge signed by a member of the police force is given to the person".

[13] From the words of S 20A of the Traffic Act it is clear that what must be given to the person are the physical documents, being the signed copy of the charge sheet and the s 20A(2) notice. A document is not given to another by reading it or paraphrasing it as occurred in this case.

[14] It is only when a person has been charged with an immediate suspension offence that the person may be given "a notice in the form approved by the Director" informing the person of his or her disqualification. Again it is clear that the physical form must be given to the person. The requirement is not that the person merely be informed of the charge and the notice of disqualification but, rather, the requirement is to give to the person a copy of the charge sheet and then the notice in the specified sequence. That did not occur on this occasion.

[15] This approach is consistent with that adopted by Gleeson CJ, McHugh, Gummow and Heydon JJ in their majority in WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; (2004) 210 ALR 190. The court there addressed the meaning of the word "give" in the context of a subsection which required of the Refugee Review Tribunal that it "must give the applicant and the secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made". In the joint judgment it was said (par 37):

"At the relevant time, the word 'give' used in s 430D(2), the applicable provision in this case, was not defined. Accordingly, it is the ordinary meaning of the word, understood in its context that must be considered. The context is that the RRT must give the applicant a copy of the written statement. In that setting, to give a document ordinarily requires its physical delivery, not some act of constructive delivery of possession which, at general law, may suffice to transfer property in a chattel. It will not be enough to communicate to the applicant orally that the document has arrived or to communicate the gist of the document, or even to read the document to the applicant. What is required is that the written statement be physically given to the applicant."

[16] In the context of the present matter the requirement of the legislation is that the physical documents be provided to the relevant person on each occasion in the prescribed sequence. It is not enough to communicate to the person orally that the document is present or the gist of the document. The actions of Acting Sergeant Payne in reading or explaining the documents to the appellant did not satisfy the requirements of the section. Nor was it enough to place the documents with the appellant's property which at that time was in the possession of the police. What is required is that the documents be physically given to the person in accordance with the prescribed sequence. That did not occur.

[17] It is a very serious matter to suspend a person's driving licence in such a summary manner and Parliament has been deliberately prescriptive in the wording of s 20A of the Traffic Act. I accept the submissions of the appellant that Parliament intended that a failure to comply with the preconditions to the giving of a s 20A(2) notice would invalidate the giving of the notice. The issuing of an immediate disqualification notice cuts across ordinary criminal procedure. Parliament was aware of this and consequently adopted the mandatory approach referred to above in its formulation of s 20A of the Traffic Act. A person must be properly charged before a person is given a s 20A(2) notice.

[18] It has often been said by this court that it is a basic obligation of a police officer to be aware of the limitations of his or her powers to arrest: R v Grimley [1994] NTSC 64; (1994) 121 FLR 236 at 253. Likewise it is a basic obligation to ensure that provisions such as s 20A of the Traffic Act are properly understood and complied with by police officers.

[19] In my experience it is not normal police procedure for a person who has been arrested by police to be charged in the cells of a police station. This is not a practice that should be encouraged.

[20] In view of the above reasons it is not necessary to deal with the other grounds of appeal. They were largely without merit.

[21] I make the following orders:

1. The appeal is allowed.

2. The appellant's conviction for driving while disqualified on 9 February 2006 is quashed.

3. The appellant is acquitted of the charge of driving while disqualified on 9 February 2006.

[22] I will hear the parties further as to costs and as to any ancillary orders.