1 HIS HONOUR: This is an appeal from the Local Court in which a Court Attendance Notice, for an offence of driving whilst disqualified under s 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998 was dismissed. The proceedings in the Local Court were prosecuted by a police officer. The plaintiff has taken over the proceedings pursuant to s 9 of the Director of Public Prosecutions Act 1986 and instituted and conducted the appeal on behalf of the Prosecution.
2 The plaintiff seeks an order pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 that the order of the Local Court dismissing the charge against the defendant be set aside and other ancillary relief.
3 Neither the facts nor, in the result, the law is in controversy and the defendant consents to the orders sought by the plaintiff.
4 The facts may be shortly stated. The defendant exceeded the speed limit on 19 July 2007. At that time it appeared that he was disqualified from holding a driver's licence for five years from 6 June 2006 to 6 June 2011 by virtue of s 199 of the Road Transport (General) Act 2005 (the Act) which is in the following terms:
"Declaration of persons as habitual traffic offenders
(cf former Act, s 28)
199. A person is, by this section, declared to be an habitual traffic offender if:
(a) a court in this State convicts the person of a relevant offence, and
(b) the person has, in the period of 5 years before the conviction, also been convicted of at least 2 other relevant offences committed on different occasions."
5 The three offences which had led to the defendant being declared a habitual traffic offender were identified as driving whilst unlicensed, never having held a licence, on a second occasion within the period of five years from an earlier offence, and two offences of driving with a prohibited concentration of alcohol. These three offences were committed within a period of five years of his conviction for exceeding the speed limit on 19 July 2007.
6 There was no controversy in the Local Court that the PCA offences were "relevant" within the meaning of s 199 of the Act. The question, however, is whether the first offence was a relevant offence. If it was not, he was not an habitual traffic offender and was not, therefore, driving while disqualified.
7 "Relevant offence" is defined in s 198 of the Act in the following terms:
"Relevant offences
(cf former Act, s 27)
(1) In this Division, a " relevant offence " means:
(a) any of the following offences committed after the commencement of this Division of which a person has been convicted by a court in this State:
(i) a major offence,
(ii) a prescribed speeding offence,
(iii) an offence under section 25(3) of the Road Transport (Driver Licensing) Act 1998,
(iv) an offence under section 25A(1), (2) or (3) of the Road Transport (Driver Licensing) Act 1998, or
(b) an offence committed after the commencement of this Division of which a person has been convicted by a court in another State or Territory that would be an offence of the kind referred to in paragraph (a) if it had been committed in this State, or
(c) a relevant offence within the meaning of section 10EA of the Traffic Act 1909 as in force immediately before its repeal.
(2) A relevant offence includes an offence of the kind referred to in subsection (1) (a) in respect of which the charge is found proven, or a person is found guilty, (but without proceeding to a conviction) under section 10 of the Crimes (Sentencing Procedure) Act 1999, or section 556A of the Crimes Act 1900, if the offence would, if it were a relevant offence, give rise to the declaration of the person under this Division as an habitual traffic offender. In that case, a reference in this Division to the conviction of the person for a relevant offence includes a reference to the making of an order with respect to the person."