Cobiac v Liddy

Cobiac v Liddy - [1969] HCA 26 - HCA 1969 case summary — Zoe

[22]

The remaining question is whether there was sufficient material to justify the exercise by the learned magistrate of the discretionary powers conferred by s. 4 (1) I of the Offenders Probation Act. His Worship took into account the facts that, while the appellant's record as a car driver was far from good, he was a man of good character; that he was seventy-two years of age; and that he had to care for his sister who was eighty-seven years old and who lived with him. There is room at least to doubt whether this last consideration was relevant either on the question of character or antecedents: but the case was not at any stage presented in argument on the footing that the learned magistrate took into account extraneous or irrelevant considerations in exercising his discretion. The only point taken on appeal, in argument and dealt with in the judgments below was that there was no material upon which he could exercise his discretion under s. 4 (1) I. But at least the appellant's age was undoubtedly a fact which the magistrate was entitled to consider. Age in this context is a relative matter, relative to all the circumstances which exist or are about to exist. The expediency which the magistrate is required to consider is not limited to the age itself, although age is one of the factors which give rise to the question whether it is expedient in all the circumstances to exercise the powers given by the sub-section. In our opinion, the magistrate was entitled to consider whether, having regard to the age of the appellant in the circumstances which included the penalties which he had resolved to impose on the other charges, penalties which included the fact that he would be disqualified for the rest of his life from driving a motor car, and having regard also to the fact that to send the appellant to gaol would subject him to distress by reason of his being thereby prevented from caring for his aged sister, it was expedient to take the course described in s. 4 (1) I rather than to convict him. In our opinion, there was material on which the magistrate could exercise his discretion in the manner in which he did.

[25]

I think that the order of the magistrate dismissing the first count of the complaint is contrary to s. 47 (4) of the Road Traffic Act and the order of the Full Court of the Supreme Court is therefore right. The proceedings were heard and determined summarily pursuant to s. 164 of the Road Traffic Act. The magistrate was a court of summary jurisdiction within the meaning of the Offenders Probation Act. He made the order in question on application by counsel for the defendant, appellant in this Court, to extend clemency to him under s. 4 (1) of the latter Act. I think there were grounds for clemency which could be based on the provisions of s. 4 (1) if s. 47 (4) of the Road Traffic Act did not deny the magistrate the power to make an order in favour of the appellant in respect of punishment. The application for the order was made upon the magistrate's announcing that he found that the prosecution had proved beyond any reasonable doubt that the defendant was guilty. By s. 30 of the Acts Interpretation Act, the word "Penalty" in s. 47 indicates that a contravention of the section is an offence against the Road Traffic Act and is "punishable upon conviction" by a penalty or punishment not less than the minimum nor more than the maximum set out in s. 47. The application was made on the footing that even though the magistrate announced in effect at the conclusion of the trial that he found the defendant guilty, he did not "convict" him within the meaning of s. 69 of the Justices Act. Section 47 (4) applies to forbid reduction or mitigation of punishment which is "prescribed by this section", except only as permitted by the proviso. It is argued that because according to s. 30 of the Acts Interpretation Act the word "Penalty" in s. 47 means that a contravention of this section is punishable upon conviction with the penalty or punishment set out in s. 47, sub-s. (4) of this section was no obstacle to the exercise by the magistrate of the discretion conferred by s. 4 (1) of the Offenders Probation Act. It is clear that this could not be the case as regards sub-ss. II or III of s. 4 (1). The decisions cited by Mr. Cox show that the word "conviction" is not unequivocal. A question is what does the word mean in s. 30 of the Acts Interpretation Act. No doubt the word includes a summary conviction. The Acts Interpretation Act itself does not provide a statutory definition of "conviction".

[29]

It is said that the magistrate erred in law, that the course he took was not open to him. Two different reasons were advanced for this conclusion. One was that the offence of driving a motor vehicle under the influence of drink was one to which s. 4 (1) of the Offenders Probation Act could not lawfully be applied. The provisions of the Road Traffic Act had, it was said, abrogated its application in such a case. The other proposition was that even if the powers given by the general provisions of s. 4 (1) of the earlier Act did survive the special provisions of the later Act and were applicable to the particular offence, nevertheless the facts necessary for the exercise of the power of dismissal of a complaint did not exist in this case. Each of these propositions found both adherents and dissentients among their Honours in the Supreme Court. The lack of unanimity there, in result and in reasoning, leads me to approach the matter afresh for myself. The first question, which is independent of the facts of the particular case, was aptly described as "technical" by the learned Chief Justice of South Australia. It is, I think, to be decided not by any assumptions of what Parliament's purpose was, but by its intention as expressed in the language it has used. I do not think that it is of much help to notice, as we were asked by counsel for the Crown to do, that the penalties for the offence of drunken driving have over a period been made more and more severe. It was urged that this shewed that the legislature has taken a grave view of this offence, and a determination that it should be suppressed. That obviously is so. And any court that has power to extend mercy to such an offender ought gravely to hesitate and weigh the matter well before doing so. Certainly a charge of driving when drunk could seldom be dismissed on the ground that the offence was of a "trivial nature", although the Road Traffic Act, s. 47 (4), does speak of a first offence as capable of being "trifling". But, recognizing the offence as serious, and that a conviction of it must bring a heavy penalty upon the offender, is not to say that such an offender can never be dealt with under the Offenders Probation Act. The proposition that that Act has been supplanted by the rigorous provisions of the later Act was put to us as an example of the contrast between the general and the special - the provisions of the Road Traffic Act being regarded as the special. So put, the proposition is the obverse of the maxim generalia specialibus non derogant, because the so-called special provisions come after the general enactment. What is said is really specialia generalibus derogant: but whether a later Act has taken away a discretionary power given by an earlier Act must depend upon a comparison of the actual language of each, to see whether they do stand together or whether the latter has, pro tanto, abrogated the former. The question is not answered by maxims.

[47]

Leaving now old learning about the common law meaning of the words "convict" and "conviction", I turn back to the words of the Offenders Probation Act. The first thing to observe is the contrast between s. 4 (1), which deals with proceedings before a court of summary jurisdiction, and s. 4 (2) (as amended in 1963), which relates to courts other than courts of summary jurisdiction. The language of the Act at this point shews that the old meaning of conviction was in the mind of the draftsman. If, on a trial on indictment, the jury finds a verdict of guilty, the trial judge cannot say there was not a conviction. He is, however, empowered by s. 4 (2), in circumstances similar to those mentioned in s. 4 (1), to bind over the person convicted to be of good behaviour, or to come up for sentence if called upon, instead of sentencing him to a term of imprisonment. Section 4 (2) it will be noticed relates only to cases of offences punishable by imprisonment. These are offences which, generally speaking, are more serious than many that are ordinarily dealt with in courts of summary jurisdiction. Section 4 (1) gives a wider discretion to courts of summary jurisdiction. And it is, I think, important to remember that it is now sixty years since Lord Alverstone C.J. said that this discretion, given to magistrates, "ought not to be too strictly or narrowly construed": Dunning v. Trainer [4] ; and this has never been disputed. If in the exercise of his discretion a magistrate, notwithstanding that he thinks an offence proved, decides that, having regard to the matters the statute mentions, he will not convict the offender and will dismiss the complaint, then the result must be to free the offender of the immediate legal consequences of his having committed the offence. The phrase "dismiss the information or complaint" accords with its context. The word "dismiss", used in this way, is said to have come originally into the law by way of the Court of Chancery, where it was used of ordering a removal of a proceeding from the court without further hearing - a result formally expressed as that the plaintiff's bill "do stand dismissed out of this Court". The word has passed from Chancery to common law also. It has a well established meaning.

[55]

That brings me to the next question. Were there in this case any facts which could justify the magistrate exercising his discretion by declining to convict and dismissing the complaint? In the Supreme Court their Honours were unanimous in thinking that there were not. On the basis that the discretion given by the Offenders Probation Act had not been abrogated by the Road Traffic Act, they thought that nevertheless the magistrate had in the circumstances of this case abused his discretion. I am far from satisfied that this was so. The question is not whether any of us in this Court, or any of their Honours in the Supreme Court, would himself have taken the course that the magistrate took. The question is not what we would do, but what could he lawfully do. The discretion was his. He could exercise it as he thought expedient, provided that in the circumstances it was open to him to exercise it at all. The statutory conditions for its exercise were that he should be "of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged it is expedient to exercise" the power. That means, I think, that the magistrate must be of opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. One of these by itself, or several of them taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits. The Act speaks of the court exercising the power it confers "having regard to" the matters it states. I read that as meaning more than merely noticing that one or more of them exists. Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence. In the instant case the magistrate's decision, according to his notes, was that:

[56]

in view of the defendant's age, his previous good character (apart from his driving record) the circumstances of his aged sister being dependent on him - the provisions of s. 4 should and in the exercise of my discretion, will be applied. I see nothing in that which shews that the magistrate took into consideration any matters that he ought not to have done. He had heard all the charges in the complaint. He had resolved to convict the accused of the offences alleged in the second and third counts of the complaint and to deprive him of his driving licence. He had not believed parts of his testimony, given in explanation of his conduct on the night in question. He could in consequence have thought, as I think I would have, that a man who was prepared to tell lies when on oath, in an attempt to excuse himself, was certainly not of blameless character. But it was for him, the magistrate, to weigh the offender's worthiness. In doing so he was not obliged to put his false swearing heavily into the scale. The position of his aged sister was perhaps a matter which went more to the expediency of not sending him to gaol, and thus leaving her uncared for, than a matter comprehended by the statutory list of things which were to be regarded. But I see no reason for excluding from his "antecedents" the fact that he was living with and caring for his sister, a woman of eighty-six years. His "antecedents" were to be considered along with his "character". The word "antecedents" was said by Davidson J. in Re Stubbs [1] , to be "an ambiguous word, which may refer either to previous history or to the parents of the offender and their conduct in his upbringing". I would not say anything to suggest any restriction of the breadth of meaning of a word which is commonly used today by social workers and probation officers. As used in s. 4 (1), it refers I think primarily to the offender's previous history and past record. It is a word which it seems came into use in English in this sense from its use in French law. A person's antecedents in that sense may tell for or against him. In R. v. Vallett [1] , Lord Goddard C.J. said: the word "antecedents" is as wide as can be conceived. On considering the appellant's antecedents it was found that she was a married woman living with a man who was not her husband, that she had been put in a position of trust, and that she had used the information she had so obtained to carry out persistent and wholesale thefts. If bad behaviour of that kind can count for ill as a person's antecedents, I cannot see that the present offender's good behaviour to his sister should not count in his favour as among his antecedents. I am unable to agree with the view taken in the Supreme Court that, on the material before him, the magistrate could not exercise his discretion as he did. I add only that had I taken that view of the facts I would have thought the conclusion of Bright J. was correct. 1. (1947) 47 S.R. (N.S.W.) 329, at p. 338. 2. [1951] 1 All E.R. 231, at p. 232.

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