Aziz v Saliba [2013] ACTSC 2

Crimes Act 1914 (Cth), s 8A

Crimes Act 1900 (ACT), ss 99, 99A

Legislation Act 2001 (ACT), ss 139, 141, 191

Magistrates Court Act 1930 (ACT), pt 3.10, s 208(1)(b)

Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 (ACT)

Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 19, 22, 23, 24, 35

Road Transport (Driver Licensing) Act 1999 (ACT), s 32

Road Transport (General) Act 1999 (ACT), ss 61A, 61B, 61C, 64, 65, div 4.2

Crimes Act 1900 (NSW), ss 61E(2), 71, 78

Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 28 October,

ACT Director of Public Prosecutions, Prosecution Policy (Canberra, 1991)

Explanatory Statement, Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2010 (ACT)

Chow v Director of Public Prosecutions (1992) 28 NSWLR 593

Clyde Engineering Co Ltd v Cowburn [1926] HCA 6; (1926) 37 CLR 466

Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130

Gault v Lawson [2001] ACTSC 104; (2001) 127 A Crim R 1

Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478

Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1

Hoffman v Chief of Army [2004] FCAFC 148; (2004) 137 FCR 520

Hume v Palmer [1926] HCA 50; (1926) 38 CLR 441

Lane v Lane [2011] ACTSC 53; (2011) 249 FLR 86

Lawson v Gault [2002] FCAFC 191; (2002) 125 FCR 1

McCready (1985) 20 A Crim R 32

McIntosh v Webster (1980) 30 ACTR 19

McNeill v The Queen [2008] FCAFC 80; (2008) 168 FCR 198

Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Livestock Corporation (No 2) [1980] FCA 38; (1980) 44 FLR 455

Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129

Rose v Hvric [1963] HCA 13; (1963) 108 CLR 353

R v Loewenthal; Ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338

R v Teys [2001] ACTSC 29; (2001) 161 FLR 44

Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1

Smith v The Queen [1994] HCA 60; (1994) 181 CLR 338

Weston (1980) 2 Cr App R (S) 391

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The conviction and sentence imposed on Wissam Aziz on 14 November 2011 are set aside.

3. A verdict of acquittal is entered on the charge of, as a first offender, driving on 18 May 2011 while his licence was suspended by law.

1. On 1 December 2010, the Australian Capital Territory implemented new provisions designed, so the Minister for Police and Emergency Services said in the Presentation Speech to the original Bill, "to protect other road users and to reinforce that a consequence of drink driving is loss of the privilege of holding a driver's licence". The effect was, the Minister said, "Immediate licence suspension by police for high-range offenders" (Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 28 October 2010, 5237 (Simon Corbell)).

2. The Minister noted that similar provisions had been in place in other jurisdictions. These comments were repeated when a Bill with substantial amendments was later presented. Those amendments did affect these provisions. The Bill was passed and became the Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 (ACT).

3. The provisions of that Act included amendments to the Road Transport (General) Act 1999 (ACT) (the General Act), inserting a new div 4.2. In that Division appeared

s 61B which was in the following terms so far as now relevant:

61B Immediate suspension of licence

(1) If a police officer believes on reasonable grounds that a person has committed an immediate suspension offence, the police officer must give the person an immediate suspension notice for the offence.

...

(3) A suspension notice takes effect as soon as it is served on the person.

(4) The following provisions apply if a person is served with a suspension notice:

(a) if the person is the holder of a driver licence - the person's licence is suspended;

(b) if the person is the holder of an interstate driver licence or an external driver licence - the person's right to drive in the ACT is suspended;

(c) the person must surrender to a police officer the person's driver licence or, if the person is unable to do so at the time, the person must surrender the licence as soon as practicable in accordance with the requirements of the suspension notice;

(d) if the person is the holder of a driver licence - the person must not drive a vehicle;

(e) if the person is the holder of an interstate driver licence or an external driver licence - the person must not drive a vehicle in the ACT;

(f) the person is not entitled to apply for, or be issued with, a restricted licence during the suspension period.

(5) A suspension notice ceases to have effect if -

(a) the Magistrates Court orders a stay of the notice; or

(b) the proceeding for the suspension offence for which the notice was issued is withdrawn or discontinued; or

(c) the suspension offence for which the notice was issued is found proved, dismissed or taken into account by a court; or

(e) 90 days have elapsed since the day the notice was served and an event mentioned in paragraph (a), (b) or (c) has not happened in relation to the notice.

4. Immediate suspension offences, referred to in s 61B(1), are defined in s 61A of the General Act and include offences under ss 19, 22, 23 and 24 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act) and other offences specified by regulation. The specified offences comprise, in summary, driving with the prescribed concentration of alcohol or under the influence of intoxicating liquor or a drug and refusing to provide a blood sample or undergo a blood test.

5. These provisions were also supported by penal provisions. A new s 61C was inserted into the General Act as follows:

61C Drive while suspension notice in effect

(1) A person commits an offence if -

(a) the person has been served with an immediate suspension notice; and

(b) the notice has not ceased to have effect; and

(c) the person contravenes section 61B (4) (d) or section 61B (4) (e), whichever applies.

Maximum penalty: 20 penalty units.

(2) An offence against this section is a strict liability offence.

6. On 24 February 2011, the appellant, Wissam Aziz, was issued with a notice (an "immediate suspension notice") under s 61B of the General Act because a police officer believed on reasonable grounds that he was driving with the prescribed concentration of alcohol in his blood or breath. The material in the appeal papers does not enable me to make any further findings about this incident; none are necessary for the appeal.

7. On 18 May 2011, Mr Aziz was seen driving a motor vehicle in the suburb of Florey. There was no passenger in the vehicle at the time. He was followed but stopped the vehicle and another person was seen walking to it. The police drove past and then made a U-turn and returned towards the vehicle. The vehicle then continued being driven and was stopped by police, who noticed that Mr Aziz was not driving but was in the passenger seat. The driver told police that he "had been driving the vehicle the whole time".

8. Mr Aziz gave his name to police, though he had no photographic identification with him at the time. Police ascertained that Mr Aziz's licence had been suspended on 24 February 2011 by the service of the immediate suspension notice.

9. Mr Aziz was arrested and charged, not with an offence under s 61C of the General Act, but an offence contrary to s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (the Driver Licensing Act), namely that, as a first offender, he drove while his licence was suspended by law.

10. Section 32 of the Driver Licensing Act is in the following terms:

(2) A person whose Australian driver licence is suspended by a court in Australia or under the law of any jurisdiction must not_ - _

(a) drive a motor vehicle on a road or road related area during the period of suspension except in accordance with a restricted licence issued to the person; or

(b) apply for a driver licence during the period of suspension and in, or in relation to, the application omit to mention the suspension.

Maximum penalty:

(a) for a first offender - 50 penalty units, imprisonment for 6 months or both; or

(b) for a repeat offender - 100 penalty units, imprisonment for 1 year or both.

...

(5) If a court convicts a person of an offence against subsection (1), (2) or (3), the person is automatically disqualified from holding or obtaining a driver licence -

(a) for a first offender - for 12 months or, if the court orders a longer period, the longer period; or

(b) for a repeat offender - for 24 months or, if the court orders a longer period, the longer period.

11. Mr Aziz pleaded not guilty to the offence when he appeared in Court on 31 May 2011. After a number of adjournments, the proceedings were listed for hearing on 14 November 2011.

12. At that hearing, Mr Aziz defended the charge on the basis that he was not in fact driving but that the police had been mistaken and that the other person who was driving when police stopped the vehicle had been driving all along. The learned Magistrate did not accept the defence case and convicted Mr Aziz of the offence.

13. Before the hearing had commenced, Mr Aziz's lawyer, Mr T Sharman, applied for a stay of the proceedings on the ground that the offence charged was wrongly brought as he should have been charged under s 61C of the General Act. The learned Magistrate rejected the application.

14. At the end of the hearing, the learned Magistrate convicted Mr Aziz, fined him $1,000 with court costs of $65 and a criminal injuries compensation levy of $50. He noted that, by force of the legislation, Mr Aziz was disqualified from holding or obtaining a driver licence for 12 months.

15. On 22 November 2011, Mr Aziz appealed against the conviction and sentence on the following two grounds:

1. His Honour's findings of fact on the hearing were erroneous.

2. His Honour erred in declining to grant a permanent stay of proceedings.

16. The appeal came on for hearing before me on 17 September 2012. Mr T Sharman again appeared for Mr Aziz. Mr T Jackson appeared for the respondent.

17. Mr Sharman abandoned the argument that the conviction should be set aside on the grounds that the learned Magistrate had made erroneous findings of fact. In effect, he accepted that the finding that Mr Aziz was the driver of the vehicle at the relevant time was open to his Honour as the judge of the facts.

18. He sought, however, that the conviction and sentence should be set aside on the grounds that the wrong charge had been brought.

19. At the hearing, I raised a number of issues with counsel and Mr Jackson sought an opportunity to make additional written submissions. I directed that any such submissions should be filed and served by 2 October 2012 and that Mr Aziz could file written submissions in reply by 9 October 2012. No such submissions were filed within those dates. Subsequent submissions were filed, but no leave was sought to do so, nor was an extension of time sought to that end. I have no regard to the submissions.

20. This Court's jurisdiction to hear and determine appeals from the Magistrates Court in criminal matters is to be found in pt 3.10 of the Magistrates Court Act 1930 (ACT). In particular, s 208(1)(b) gives this Court jurisdiction to hear and determine appeals from convictions such as that entered against Mr Aziz.

21. For cases where the Court is required to evaluate the evidence that was before the Magistrates Court, the appeal is by way of rehearing. I have set out the principles in Lane v Lane [2011] ACTSC 53; (2011) 249 FLR 86 at 88-90; [14]-[18].

22. In this case, however, the issue is a question of law as to whether Mr Aziz could have been convicted of the offence at all.

23. Mr Sharman for Mr Aziz submitted that the proceedings were an abuse of process and for that reason the stay should have been granted.

24. That the refusal to grant a stay was an interlocutory decision in the hearing is a proper basis for its reconsideration on appeal against the conviction, namely, the final order. This was so held in Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 at 483; [6].

25. The basis of the submission was that the prosecution of Mr Aziz under s 32 of the Driver Licensing Act, instead of s 61C of the General Act, would expose Mr Aziz to penalties that were excessive or discriminatory because they would amount to a "double penalty" proscribed by s 191 of the Legislation Act 2001 (ACT).

26. As I understood it, the argument ran that the interaction with various legislative provisions deprived Mr Aziz of relief from penalties and it was this that amounted, it was said, to a double penalty.

27. Under s 35(2) of the Alcohol and Drugs Act, a person to whom an immediate suspension notice has been issued is entitled to have, on conviction for the offence with which they had been charged and which led to the issue of the notice, that period of immediate suspension imposed by the immediate suspension notice taken into account in reduction of the disqualification which is imposed either automatically or by the Court on conviction.

28. As noted above (at [5]), a conviction of an offence under s 61C of the General Act renders the offender only liable for a monetary penalty. There is no licence suspension or disqualification in addition. Such a conviction, however, deprives the offender of the benefit of s 35 of the Alcohol and Drugs Act.

29. This deprivation, however, does not depend on a conviction for an offence which would have the effect of proving that the person drove contrary to the suspension notice. The terms of sub-s 35(3) are relevant:

[S]ubsection (2) does not apply if, on hearing the charge for the immediate suspension offence, a court is satisfied that the person did not comply with the immediate suspension notice.

That would include proof that the person drove (see s 61B(4)(d), (e)) whether or not convicted of an offence for doing so but also other obligations, such as failure to surrender a licence to a police officer (see s 61B(4)(c)).

30. Thus, Mr Sharman submitted, there was an effective penalty for failing to comply with the immediate suspension notice in addition to the monetary penalty, being the deprivation of the reduction of the mandatory disqualification period (on conviction for the immediate suspension offence). If the person was prosecuted under s 61C of the General Act, that would be the sum total of the penalty of suspension. In the case of a prosecution under s 32(2) of the Driver Licensing Act, however, there would, in addition to the deprivation of the benefit of s 35 of the Alcohol and Drugs Act, be an additional mandatory licence disqualification under s 32 (see [10] above). It was this, Mr Sharman submitted, that was the double penalty.

31. In response, Mr Jackson submitted that this argument was misconceived. There was only one charge before the Court, that under s 32(2) of the Driver Licensing Act. That the finding of guilt on that charge may have had other statutory consequences could not render the charge an abuse of process.

32. He also submitted that the imposition of the suspension as a result of the issuing of an immediate suspension notice was not a penalty. It was, he submitted, a public safety measure, relying on the following statements in the Explanatory Statement for the Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2010 (ACT), which became the Act introducing the regime (at 45):

The importance of an immediate sanction was highlighted in the discussion paper on the Road Transport (Alcohol and Drugs) Act 1977 released in mid-2008 and which stated as follows:

The effectiveness of immediate licence suspension is also supported by a recent study of drivers in 46 US states, which has shown that immediate suspension of licence has a strong deterrent effect on repeat offenders. In particular, drivers with BAC [blood alcohol concentration] levels just above the prescribed limit who had had their licences suspended were 5% less likely than those who had not to be involved in a fatal accident. Conversely, drivers who did not have their licence suspended were much more likely to be convicted of a further drink driving offence.

The study concluded that:

the effectiveness of a deterrence policy appears to be more strongly affected by ... the speed by which punishment is applied after the offending behaviour.

33. Despite the reference to "punishment" from the American study, in the quotation in that extract from the Explanatory Statement, Mr Jackson submitted that suspension was not a penalty. Again, he relied on what was said in the Explanatory Statement as follows (at 44-5):

It should be noted that the power to issue a suspension notice is not discretionary: the language in section 61B (1) directs a police officer to issue the notice once the officer has formed a reasonable belief as to the existence of certain facts.

The power to issue a suspension notice is an administrative sanction, in that it does not depend upon on judicial determination of guilt. That determination is reserved for the hearing of the substantive charge, and the determination of the sentence to be applied if the accused if found guilty. Similar administrative powers of immediate licence suspension for intermediate to high-range drink driving offenders are found in road safety legislation in Victoria, New South Wales and South Australia, while Queensland is reviewing its immediate licence suspension provisions with a view to applying them to offenders with a blood alcohol concentration of 0.1g or more.

There are many other provisions in the road transport legislation that also provide for a suspension or cancellation of a driver licence or other right, permit, authority or entitlement other than by order of a court, as an administrative sanction for noncompliance with a condition of the road transport legislation. Examples of these provisions include:

• demerit point suspensions under section 18 of the Road Transport (Driver Licensing) Act 1999;
• driver licence or vehicle registration suspension for non-payment of infringement notice penalties under section 44 of the Road Transport (General) Act 1999;
• suspension of a driver licence on medical grounds under section 87 (1) (d) or (e) of the Road Transport (Driver Licensing) Regulation 2000.

Immediate licence suspension addresses a road safety risk by removing a driver from the road immediately (rather than having the person continue to drive until the matter is dealt with by the court) and delivers an immediate consequence of drink-driving to the offender. It will also reduce any incentive for the offender to delay having the matter dealt with by the court and would, in fact, provide an incentive to have the matter dealt with at least within the minimum disqualification period for the particular offence. It should be noted that the any period of suspension under an immediate licence suspension is 'discounted' from the term of disqualification imposed after conviction - the effect is to bring forward the disqualification period that must be served under section 26 of the Road Transport (Alcohol and Drugs) Act 1977 if the person is convicted so that it is served in advance.

34. Despite references to "administrative sanction", it is clear to me that, applying the principles enunciated by the High Court in Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 at 143-7; [26]- [38], the suspension of licence is clearly a penalty, even as an "administrative sanction".

35. I then raised with both counsel the question of whether the legislative intention was to limit prosecutions for breach of the prohibition from driving after service of an immediate suspension notice to the offence under s 61C of the General Act, and not to that under s 32 of the Driver Licensing Act.

36. Mr Jackson submitted that the prosecution had an unfettered right to rely on whichever offence was applicable to the facts. He relied on the decision of the Federal Court of Australia in Lawson v Gault [2002] FCAFC 191; (2002) 125 FCR 1, where the Court held that the prosecution was entitled to prosecute a person for theft on indictment under

s 99 of the Crimes Act 1900 (ACT), notwithstanding that the value of the property the subject of the theft was alleged to be less than $1,000 where s 99A of that Act enacted a provision for the summary prosecution of a person for theft where the value of the property did not exceed $1,000.

37. Mr Jackson referred to the principle that it is for the prosecution to choose the charges properly to be laid and, apart from the application of any of the principles relating to abuse of process, the Court has no role in that. I agree. So much is abundantly clear from what Dawson and McHugh JJ said in Maxwell v The Queen (1996) 184 CLR 501 at 512-14. See also at 534 per Gaudron, Gummow JJ.

38. There is no doubt that the prosecution has a wide discretion as to the charge that is to be laid against a person. As Young CJ, with whom McGarvie and Ormiston JJ agreed, said in McCready (1985) 20 A Crim R 32 at 39:

[I]t is I think clear that it is for the Crown to decide upon what offences an accused person is brought to trial by way of presentment or indictment, and, although the Court unquestionably has power to prevent an abuse of its process, it is not for the Court to decide, speaking generally, upon what offence the Crown should proceed.

See, to the same effect, Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 604-5. These comments were approved by Gaudron and Gummow JJ in Maxwell v The Queen at 534.

39. In my view, this appeal is not concerned with that issue. Whatever the view of the Court as to the appropriate charge, it is ultimately a matter for the Director of Public Prosecutions in the exercise of his statutory discretion. What is of concern to this Court, and is the subject of this decision, is whether the charge preferred by the police and then prosecuted by the Director was one available on the facts.

40. There is no doubt that there are a number of circumstances in criminal legislation where the same facts can constitute more than one offence. Indeed, it is not uncommon for what amounts to be the same or virtually the same offence to appear in two manifestations, one as a summary offence and one as an indictable offence.

41. An example of that is the situation dealt with in Lawson v Gault where Mr Gault was charged with a number of indictable offences of theft of cash from a bank under

s 99 of the Crimes Act even though each amount stolen was less than $1,000.

Mr Gault's counsel sought a stay of the proceedings because Mr Gault had not been, and it was contended should have been, charged with summary offences under s 99A of the Crimes Act of theft of property the value of which does not exceed $1,000.

42. In Lawson v Gault, the Full Court of the Federal Court of Australia, then the appellate court from this Court, upheld an appeal from a decision of the Supreme Court (Gault v Lawson [2001] ACTSC 104; (2001) 127 A Crim R 1) which had overturned the Magistrate's refusal to grant a stay and had stayed the proceedings.

43. The Court, in setting aside the decision of the Supreme Court and confirming the decision of the Magistrate to dismiss the stay application, said (at 8; [21]-[23]):

The question is whether the amendment was intended to vary the meaning of s 99 so as to exclude from its operation, theft of property, the value of which did not exceed $1,000. It is difficult to see why such an intention should be inferred. No great inconvenience would flow from the fact that the same conduct might, in certain circumstances, be prosecuted summarily or on indictment at the election of the prosecuting authority. In s 477 the value of the relevant property was already used as a criterion for summary prosecution before a magistrate, with consequential reductions in maximum penalties. However the defendant's consent was necessary. The primary purpose of the amendment appears to have been to avoid jury trial where the amount of property in question was small.

...

The amendment simply inserted s 99A to follow s 99. If the intention was to exclude minor thefts from the ambit of operation of s 99, then it is virtually certain that the legislature would have said so expressly.

For those reasons we consider that conduct caught by s 99A may also be charged pursuant to s 99. As we have said, we see no great practical difficulty in that outcome, although it is true that a decision by the prosecuting authority to follow one course rather than the other might potentially have significant consequences for the accused person. To the extent that a decision to prosecute on indictment might expose him or her to more substantial penalties, the discretion of the sentencing judge would be a sufficient safeguard against abuse. On the other hand, a decision to proceed summarily might relieve the accused person of exposure to substantially higher penalties. This would be particularly so where he or she had a substantial criminal history or had been charged with numerous similar offences, each involving property having a value below the limit prescribed by s 99A. Such a discretion might invite corruption or inappropriate plea-bargaining. However the power to make decisions as to prosecutions inevitably involves such risks. Judges have traditionally drawn attention to any apparent irregularity in the exercise of that power, providing an effective safeguard against abuse.

44. A similar approach had been taken by Miles CJ in R v Teys [2001] ACTSC 29; (2001) 161 FLR 44.

Interaction between Similar Offence Provisions: The Question of Implied Repeal

45. The question, however, of the interaction between similar or relevantly identical offence provisions, especially if enacted at different times, is a difficult one and requires careful consideration of the statute or statutes involved and the legislative context, including the legislative history.

46. The principle of statutory construction that a specific, later provision may implicitly repeal an earlier general provision to the extent of any overlap between them which shows inconsistency has a long history. It was referred to by Griffith CJ in Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 7.

47. More recently, in the area of the criminal law, it was considered in Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1. There, the accused was convicted of three counts of committing an act of indecency upon a person under 16, contrary to s 61E(2) of the Crimes Act 1900 (NSW) (the NSW Crimes Act). The acts were alleged to have been committed between 8 April and 3 November 1983, but the prosecution was not commenced until 1987. The evidence led, in respect of two counts, amounted also to evidence of indecent assault under s 61E(1) and, in respect of the third count, unlawful carnal knowledge under s 71. The accused could not have been prosecuted for offences under those latter provisions, however, for s 78 of the NSW Crimes Act, required such prosecutions to be commenced within 12 months from the date of the alleged offences. The accused challenged the convictions on the ground that charges could not be brought under s 61E(2) when the conduct relied on was that encompassed within ss 61E(1) and 71.

48. There was no dispute that the conduct complained of in the counts charged would, in the ordinary meaning of "act of indecency" as judicially interpreted, constitute that conduct. It was submitted, however, that in the context of the NSW Crimes Act, conduct which fell within the terms of ss 61E(1) and 71 was not comprehended in that proscribed by s 61E(2), especially because of the different limitations on the commencement of the proceedings.

49. McHugh J, with whom Toohey J agreed, thus summarised his opinion upholding the appeal of the accused (at 23):

Two considerations persuade me that in the present case 'the ordinary meaning' of the words 'act of indecency' in s 61E(2) is not their literal meaning. The first is that, when one has regard to the history of s 61 E(2), it is clear that the purpose of Parliament in enacting s 76A, the predecessor of s. 6IE(2), was to deal with cases which did not constitute indecent assaults. The second is the rule that, when a statute specifically deals with a matter and makes it the subject of a condition or limitation, it excludes the right to use a general provision in the same statute to avoid that condition or limitation.

The Act makes it an offence for a person to have carnal knowledge of or to indecently assault a girl under the age of sixteen. But if the girl is over fourteen years of age, the Act requires the prosecution to be instituted within twelve months of the commission of the offence. It is difficult to accept that, when Parliament enacted s 61E(2) and authorized the institution of prosecutions for acts of indecency under s 61E(2), it intended that general power to be used to circumvent the limitation which s 78 placed on ss 61E(1), 71 and 72 of the same Act. To use the words of Gavan Duffy CJ and Dixon J in Anthony Hordern & Sons Ltd [(1932) 47 CLR at 7], the enactment of ss 61E(1), 71, 72 and 78 'excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power'. Accordingly, in my opinion, the context of s 61E(2) indicates that Parliament did not intend the words 'an act of indecency' to cover conduct which constitutes an indecent assault or carnal knowledge. And as s 34 of the Interpretation Act makes plain, 'the ordinary meaning' of a legislative provision in New South Wales can be ascertained only after taking account of its context in the Act.

50. Gaudron J, the other member of the majority, arrived at the same conclusion but her Honour's reasoning was as follows (at 17-18):

It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v Attorney-General (Vict) [(1961) [1961] HCA 32; 106 CLR 268 at 276], per Fullagar J, and [at 290] per Windeyer J. More particularly, an intention to affect the earlier provision will not be implied if the later is of general application (as is the provision by which indecent dealing is constituted an offence under the Act) and the earlier deals with some matter affecting the individual (as does the limitation provision in s 78). Nor will an intention to affect the earlier provision be implied if the later is otherwise capable of sensible operation ...

If s. 61E(2) of the Act has the meaning for which the respondent contents, it necessarily derogates from the protection earlier afforded by s 78. So much may be seen from the present case for, although, by force of s. 78, the applicant could not be charged with carnal knowledge and indecent assault, his prosecution under s 61E(2) required him, as a matter of practical reality, to answer those very charges. In my view s 61E(2) has neither the meaning nor effect for which the respondent contends.

51. It is relevant, however, to note the arguments on which the dissenting justices relied. Dawson J said (at 14-15):

[S]exual offences are of their very nature progressive rather than mutually exclusive, so that the more serious offence includes the elements of the less serious offence. For the legislature to have sought to exclude from an act of indecency offences which otherwise would have included the act of indecency would have been to depart from the approach hitherto adopted by the law. Moreover, whilst the object of the legislature in creating the offence of committing an act of indecency appears to have been to close a gap which it perceived in the law, it does not follow that it chose to close that gap in a way which would give rise to incongruous results.

If the applicant's argument is correct, a person charged only with committing an act of indecency would be able to defeat that charge by proving by way of defence that he had in fact committed an indecent assault or unlawful carnal knowledge. If the defence were successful, he could not, upon the principles which I have endeavoured to explain, be subsequently convicted of either of the more serious offences whether or not the time for the commencement of prosecution had expired. But more than that, even if the jury were satisfied beyond reasonable doubt that an act of indecency (in the ordinary sense and not the confined sense contended for as a matter of construction) had been committed, if they entertained a doubt whether the accused was guilty of indecent assault or unlawful carnal knowledge - that is, if they considered that he might have committed those offences - it may be they must acquit upon the charge of committing an act of indecency (in the confined sense) because they would necessarily entertain a doubt whether what he had done amounted only to the commission of the latter offence ...

52. Deane J agreed with Dawson J, noting (at 4) that there were "compelling practical reasons" why a statutory provision into which conduct otherwise falls should not be construed as inapplicable to circumstances where its terms are aggravated by some circumstances which makes the conduct a more serious offence under another provision. His Honour added (at 5):

Common sense, the efficient working of the administration of criminal justice, and the presumption that the Legislature intends that its words be given their ordinary meaning, combine to dictate that, in the absence of an identified legislative intent to the contrary, a general statutory provision which makes specified conduct an offence should be construed in accordance with its terms and should not be confined so as to be inapplicable to a case where, in its context within a single transaction or course of action, the designated conduct also constitutes an element of a more serious offence. In such a case, the offender is guilty of both the basic offence and the more serious offence notwithstanding the fact that, as a matter of basic principle, he cannot be convicted of them both.

53. Unlike here, however, Saraswati v The Queen did not involve identical offences with differing penalties. Nothing their Honours said, however, suggested that differing penalties did not render offences inconsistent. Indeed, that does appear to me to amount to a "condition" in the sense of which it was used by McHugh J.

54. That the penalties are different has certainly been considered to render two offence provisions inconsistent: Hume v Palmer [1926] HCA 50; (1926) 38 CLR 441 at 462; R v Loewenthal; Ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338 at 347. Thus, as Isaacs J pointed out in Clyde Engineering Co Ltd v Cowburn [1926] HCA 6; (1926) 37 CLR 466 at 489:

The infallible test of whether in so providing there is inconsistency is said for the respondent to be whether the two provisions of deduction on the one hand and extra payment on the other could both be obeyed. No doubt the employer could obey both, that is physically. ... If an Act of Parliament, for instance, prescribed 25 lashes for robbery under arms and a later Act prescribed that such an offender should be punished with 20 lashes, it could, of course, with equal truth be said that both provisions could be obeyed, and therefore, applying the suggested test, the offender must receive 45 lashes. But surely the vital question would be: Was the second Act on its true construction intended to cover the whole ground and, therefore, to supersede the first? If it was so intended, then the inconsistency would consist in giving any operative effect at all to the first Act, because the second was intended entirely to exclude it. The suggested test, however useful a working guide it may be in some cases or, in other words, however it may for some cases prove a test, cannot be recognized as the standard measuring rod of inconsistency. If, however, a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field (emphasis in original).

55. One conventional method of resolving the inconsistency is to construe the general provision as subject to the specific provision. This was explained by Deane J in Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Livestock Corporation (No 2) [1980] FCA 38; (1980) 44 FLR 455 at 468-9 as follows:

As a matter of general construction, where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions. 'The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative ...' (per Romilly MR: Pretty v Solly [(1859) [1859] EngR 249; 26 Beav 606 at 610; [1859] EngR 249; 53 ER 1032 at 1034]). Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter.

56. In Smith v The Queen [1994] HCA 60; (1994) 181 CLR 338, Mason CJ, Dawson, Gaudron and McHugh JJ said (at 348):

[W]here there is a conflict between general and specific provisions, the specific provision prevails (generalia specialibus non derogant). That principle is based upon the presumed intention of Parliament and has, we think, a particular application where the conflict arises from different sections in the same Act. ... It is but common sense that Parliament having before it two apparently conflicting sections at the same time cannot have intended the general provision to have deprived the specific provision of effect. (footnotes omitted)

57. Thus, in Hoffman v Chief of Army [2004] FCAFC 148; (2004) 137 FCR 520, the Full Court of the Federal Court of Australia held that where conduct constituted the elements of two offences and one of the offence provisions provided for a lesser penalty and had a time bar, the more serious general offence could not be charged where the other was a specific charge. Of course, here there is no time bar, though there is a significant difference in penalty.

58. More recently, the Full Court of the Federal Court of Australia summarised the principles in McNeill v The Queen [2008] FCAFC 80; (2008) 168 FCR 198 at 210; [63] where the Court said:

Where an enactment is not expressly repealed by a later enactment, the previous enactment will nonetheless be impliedly repealed where the later enactment is so inconsistent with the previous enactment that the two enactments cannot stand together. The language of the later enactment must be such that the previous enactment is repealed by necessary implication: Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 10 per Barton J. There is a presumption that the legislature intends both enactments to operate in their terms. The implied repeal of an enactment is a 'comparatively rare phenomenon': Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268 at 275 per Fullagar J; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at 14.

59. Their Honours then cited part of the passage from the judgment of Gaudron J in Saraswati v The Queen to which I have referred to above (at [50]), and also referred to Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130.

60. The principle of implied repeal has been applied in relation to different Acts in this Territory in McIntosh v Webster (1980) 30 ACTR 19 at 29, when the Court held that the amendment of s 8A of the Crimes Act 1914 (Cth) in 1960 had impliedly repealed

s 18(e) of the Police Ordinance 1927 (ACT). The Court accepted that the "doctrine of implied repeal is not one favoured by the courts". The Court noted that the general "approach will be to see whether the two provisions can operate together".

61. Here, this is, of course, an alleged inconsistency between sections in different Acts. There is, however, a degree of unity in the various Acts that comprise what is referred to as "the road transport legislation", especially where offending is concerned. See, for example, ss 64 and 65 of the General Act. The clear intention is to read the various road transport Acts together.

62. In my view, the following three matters are of significance when considering the interaction between s 61C of the General Act and s 32 of the Driver Licensing Act.

63. I have referred to the general background above (at [1]-[3]).

64. The original Bill had no sanction provision such as s 61C. It would appear, though, no reference was made to it, that a breach of the notice would be punishable under s 32 of the Driver Licensing Act.

65. Section 61B was also in different terms and it obviously became apparent between the presentation of the Bill on 28 October 2010 and the debate on it on 18 November 2010, that the provision did not apply to drivers from interstate who did not hold an ACT licence but who, of course, were permitted to drive here by virtue of any licence they held from a State or other Territory ("interstate drivers").

66. Thus, amendments were made and there included the insertion of provisions s 61B(4)(b) and (e) to apply to interstate drivers and amendments to what became s 61B(4)(a) and (d) to limit to persons holding ACT licences. The amendments also inserted s 61C. They did not amend s 32 of the Driver Licensing Act.

67. Section 61C was thus introduced as a component of div 4.2 of the General Act which made provision for the issuing of immediate suspension notices but also, in the same Division, for relevant sanctions, including s 61C. It is a specific provision for a specific circumstance.

68. It is notable that in the Supplementary Explanatory Statement issued for the Bill, there was a recognition of the existence of s 32 of the Driver Licensing Act and an express differentiation. The Statement provides (at 3):

Proposed new section [61C]

This Government amendment inserts new section [61C], which creates a new offence of 'drive while suspension notice in effect.' The offence is committed if the person has been given an immediate suspension notice that is still in effect and the person drives in contravention of the notice. The penalty for the offence is 20 penalty units. This penalty is lower than the maximum penalty for the section 32 offence of driving while suspended. That offence carries a higher maximum penalty because it can apply where a driver's licence has been suspended by order of a court. Disobeying a court order is viewed as more serious than disregarding a notice, direction or order made by a non-judicial officer. The penalty in proposed section [61C] is the same as the penalty for the offence of 'driving while a person's right to drive is suspended'. That offence is found in section 44 (6) of the Road Transport (General) Act 1999, but applies only in relation to non-payment of infringement penalties. The proposed offence is a strict liability offence. It is similar to other strict liability offences in the Bill and in the road transport legislation that involve failing to comply with directions or orders given by police or authorised persons. The use of strict liability in this context is justified, given the road safety objectives that underpin the introduction of the provisions for immediate suspension orders.

69. There are good reasons for a specific offence to deal with the breach of an immediate suspension notice otherwise than by prosecution under s 32 of the Driver Licensing Act.

70. Thus, not only is it directed to the specific circumstance, the Supplementary Explanatory Statement recognises that the circumstances are quite different from the other circumstances of suspension. These include where a court has suspended a person, in which case there must have been a finding of guilt. They also include the suspension under the demerit scheme referred to above (at [64]). Again, there will have been either an acceptance of responsibility by the driver in respect of an offence or a failure to address the offence.

71. With an immediate suspension notice, it may be that the driver is acquitted of the immediate suspension offence which, while not denying statutory justification for its issuance, nevertheless means that the penal aspect of it is rather provisional.

72. It is also noteworthy that the two offences are both summary offences. That is to say, the legitimate approach of having offences that can be prosecuted summarily or on indictment (as recognised in Lawson v Gault) does not apply here nor does it justify the existence of both offences.

73. The legislature has, through s 139 of the Legislation Act required the courts to prefer an interpretation of legislation that best achieves the purpose of the Act. In doing so, s 141 of that Act permits the courts to have regard to material that does not form part of the Act, what is commonly referred to extrinsic material. Commonly, such extrinsic material includes the Explanatory Statement (and, here any Supplementary Explanatory Statement) and sometimes the debates in the legislature.

74. An inspection of this material shows that s 61C of the General Act was prompted by a need to ensure that interstate drivers were also subject to the sanctions regime. There was, also, specific reference to the differential penalties and the reason for them.

75. Thus, the Supplementary Explanatory Statement provided an overview of the relevant provisions and, in relation to these provisions, stated (at 1):

OVERVIEW

...

Government Amendments 2 to 11 relate to the provisions dealing with immediate suspension notices.

The existing offence in section 32 of the Road Transport (Driver Licensing) Act 1999 of 'drive while suspended' (the section 32 offence) may apply to an ACT driver whose licence is suspended by an immediate suspension notice given under proposed new section 61B of the Road Transport (General) Act 1999. ... However, ACT legislation can only suspend an interstate or external licence holder's right to drive in the ACT. Therefore, the section 32 offence would not apply to interstate or external licence holders, because it is not possible for an ACT enactment to suspend an interstate or external drive licence. If an interstate or external licence holder drives in contravention of an immediate suspension, notice, the driver is not, technically speaking, driving 'while suspended'.

The proposed Government amendments will ensure that immediate suspension notices can be enforced effectively in relation to these interstate and external licence holders by suspending their right to drive in the ACT and by ensuring that there is a specific offence of driving while a suspension notice is in effect. (footnote omitted)

76. In relation to the provision itself, I have set out above (at [68]), the explanation for the rationale. This does not refer to it being limited to interstate drivers but seems, in my opinion, to make it a specific offence for breaching the obligations where the immediate suspension notice, including but not limited to driving contrary to the notice.

77. There was specific reference in the debate to this provision. For example, Mr Jeremy Hanson, a member of the opposition, indicated that the Bill, including additional amendments (see [3] above), was supported. In reference to cl 131 of the Bill, which introduced the new division (that is, including ss 61B and 61C), he said:

I foreshadow that the Liberals will be supporting the amendments to be made to clause 131 of the bill. These amendments that the government is forced to make today are to fix a gap in the bill that would have meant that the police, in pulling over the holder of an interstate licence and finding that the person had a high-range alcohol reading, would have been unable to immediately suspend that person's licence. They would have been unable to suspend the licence, even though ACT licence holders would have had their licences suspended.

Australian Capital Territory, Parliamentary Debates, Legislative Assembly,

18 November 2010, (Jeremy Hanson) 5715. In my view, it is tolerably clear that Mr Hanson was referring to the whole Division, as his reference to "would have been unable to suspend the licence [of the holder of an interstate licence]" makes clear. That is to say, he clearly recognised that the Division is a package to address this issue. The gap was not limited to an inability to prosecute under s 32 of the Driver Licensing Act.

78. At the detailed stage of consideration, the Minister for Transport, though not the Minister who had introduced the Bill, appeared to have carriage of the Bill on behalf of the government. He said:

Amendment 7 inserts new section [61C]. The amendment creates a new offence of 'drive whilst suspension notice in effect'. Although there is an offence under section 32 of the Road Transport (Driver Licensing) Act of 'drive while suspended', that applies to an ACT driver whose licence is suspended by a court or by a territory law. That offence does not apply to interstate or external drivers. Accordingly, to ensure that immediate suspension notices can be enforced against interstate and external licence holders, it is necessary to create a specific offence of driving while a suspension notice is in effect.

Australian Capital Territory, Parliamentary Debates, Legislative Assembly,

79. These statements are not free from ambiguity, but they do assist in identifying the two key issues. Firstly, the unamended regime did not allow for suspension of the right of the holder of an interstate driver licence to drive by issuing a suspension notice; the original version of the amendment referred to the suspension notice suspending the person's driver licence, which would not have enabled it to apply to the holder of an Australian licence other than one issued by the Territory. Secondly, the proposed offence section, which did not appear in the original Bill, was specifically designed to provide a lesser penalty because, it was said, there had been no determination of the alleged offence which gave rise to the suspension and there was a differential in culpability, represented by the difference in penalty.

80. The references to s 32 of the Driver Licensing Act do not, in my view, indicate that no implied repeal was intended. There are, indeed, some indications that such repeal was intended in the legislative provisions themselves. Thus, s 61C is not limited to the holders of an Australian driver licence other than an ACT licence, as would perhaps have been expected if that were the "gap" that was to be filled. Further, if the intention had been merely to ensure that such holders of licences other than ACT licences liable to the same sanctions, it would have been easy enough to amend s 32 of the Driver Licensing Act instead to include either those whose right to drive in the ACT had been suspended (s 61B(4)(b)) or to add those who had been served with an immediate suspension notice and which had not ceased to have effect. The offence was a specific one tailored to the specific circumstances of the relevant Division.

81. It was also odd that there was express reference to the differential penalty and the reason for that, while, if there was no implied repeal, there was no reference to what would amount to leaving ACT drivers exposed to the more severe penalty even though the culpability of both would be exactly the same, especially as there would be no discretion in the court to ameliorate the penalty to provide appropriate consistency with other offenders, which was noted in Lawson v Gault (at 8; [23]) to be available in that situation.

82. Though the extrinsic material may suggest some ambiguity, it seems to me that a careful analysis of the inevitable inferences of what is said makes it clear that what was being introduced was a complete regime which, for the offence of driving while subject to an immediate suspension notice, was impliedly a repeal pro tanto of s 32 of the Driver Licensing Act.

83. The difference in penalties is significant. The fact that the penalty for an offence under s 32 of the Driver Licensing Act is mandatorily in one respect greater than can be imposed on the offence under s 61C of the General Act is of great significance in this context for, as the Federal Court observed in Lawson v Gault in the passage quoted above (at [43]), "the discretion of the sentencing judge would be sufficient safeguard against abuse." Of course, in that circumstance, the only difference between the two sections was in the value of the goods. That is, of course, a very relevant factor in sentencing for theft (Weston (1980) 2 Cr App R (S) 391 at 392) and would moderate the sentencing effect of a prosecution on indictment for the more serious offence notwithstanding that the value of the goods meant that the penal outcome may not be so different if appropriate on the facts despite the choice of charge made by the prosecutor. That could not be achieved here.

84. A conviction of an offence against s 32 brings a mandatory suspension of licence for at least 12 months. A conviction of an offence against s 61C may result in no disqualification at all, unless the Court imposes one under s 64 of the General Act, and then there is a complete discretion as to the length of the disqualification. Any impropriety of the prosecutorial discretion in choosing charges or even merely an inappropriate choice by the prosecution cannot, therefore, be protected against in the way suggested in Lawson v Gault. This is relevant when one considers the likely prosecutorial approach.

85. The ACT Director of Public Prosecution's Prosecution Policy (Canberra, 1991), dealing with choice of charges, states (at [2.12]):

The charges laid will usually be the most serious available on the evidence. However, it is necessary to make an overall appraisal of such factors as the strength of the evidence, the probable lines of defence to a particular charge ...

86. If that were to be followed, it is difficult to see when an offence under s 61C would ever be prosecuted for breach of an immediate suspension notice caused by driving by the holder of an ACT driver licence for such offences would always constitute an offence against s 32, the most serious charge available.

87. I note that the Court in Lawson v Gault pointed (at 8; [23]) to the risk of "corruption or inappropriate plea of bargaining". Their Honours accepted that this was always a risk in giving the power the legislature has to prosecutors. So far as I am aware, it has not resulted in problematic abuse to date. Part of the reason for that is that in the case there under consideration, the wide sentencing discretion meant that the power to choose a charge was not a choice of a pre-determined outcome.

88. Here, like mandatory sentencing, the outcome is to some extent mandated. This may not lead to corruption but will put inappropriate pressure on prosecutors to choose a charge on the basis that personal factors become relevant. That is a powerful factor pointing away from the respondent's contentions. It is entirely unclear how and on what basis the prosecutor would choose to prosecute under s 61C instead of s 32 for an ACT driver, especially in a transparent and accountable way, unless, in effect, prescribing the sentencing outcome. The legislature must be taken to have appreciated this and not intended such a result.

89. I accept that an implied repeal should not lightly be concluded by the courts as the response to inconsistency in statutory provisions. I accept, also, that the legislative intention should be clear before having such a conclusion.

90. That intention will, of course, rarely be express. Indeed, as Kitto, Taylor and Owen JJ observed in Rose v Hvric [1963] HCA 13; (1963) 108 CLR 353 at 360, "[e]x hypothesis there is no negation in words, but there must be a negation as a matter of meaning".

91. It seems to me quite clear that the intention of the legislature was to provide s 61C of the General Act for prosecution of breaches of immediate suspension notices and that s 32(2) of the Driver Licensing Act was repealed to that extent. It may be more properly expressed that the general provision, s 32(2) of the Driver Licensing Act, gives way to the specific provision in s 61C of the General Act. Whichever way it is expressed, I consider that s 32(2) is not an offence available for the offence for which the appellant was charged.

92. I am aware that in coming to this decision I am in disagreement with a recent decision by Magistrate Mossop in Reynolds v McTernan [2012] ACTMC 7. With the greatest of respect to his Honour, I am not persuaded that the legislature intended that both provisions stand and that ACT drivers be mandatorily exposed to an inevitably more severe penalty than those drivers in the ACT who do not hold an ACT licence. In my view, the legislative history, the purpose of the legislation and a careful analysis of the provisions requires otherwise.

93. Section 32 of the Driver Licensing Act does not apply to the breach of a suspension of person's right to drive contrary to an immediate suspension notice.

94. As a result, the conviction should be set aside and a verdict of acquittal entered instead.

I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the respondent: ACT Director of Public Prosecutions