Director of Public Prosecutions (NSW) v Kmetyk

Court of Appeal (NSW)|2018-07-06|Before: Meagher JA, Leeming JA

Background

For present purposes, there are no facts in issue, although, regrettably, the form of the orders made in the Local Court and the District Court is far from clear, and it will be necessary to address the evidence which was tendered as to those orders.
On 21 September 2017, Ms Kmetyk was convicted in the Local Court for driving a vehicle while her licence was suspended, contrary to s 54(3) of the Road Transport Act 2013 (NSW). It was her first offence of that character. It was accepted that, by reason of the accumulation of demerit points, Ms Kmetyk's licence had been suspended for a three month period commencing on 1 August 2017 and until 31 October 2017.
The orders as entered in JusticeLink record the following: "A plea of guilty is accepted. The offender, ALISON LEE KMETYK, is ordered to pay the following: Fine $450.00. The court disqualified the offender ALISON LEE KMETYK from holding a driver's/rider's licence for 12 months."
Section 193 of the Criminal Procedure Act 1986 (NSW) provides that if an accused person pleads guilty and does not show sufficient cause why he or she should not be convicted, and the court accepts the plea, then "the court must convict the accused person". It may be inferred from the first annotation that that is what occurred.
There was no issue that a fine of $450 was ordered. The disqualification recorded in the third annotation was much more problematic. A document from the Local Court file, headed "COURT ORDERS" had a handwritten annotation of "12 [months] from 21/9" next to the word "Disqualification".

The nature of Ms Kmetyk's appeal to the District Court

Ms Kmetyk filed an appeal against sentence on the following day, 22 September 2017, in the exercise of the right conferred by s 11(1) of the CAR Act, which provides: "Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both)."
Section 11(1A) provides, relevantly, that subsection (1) does not apply to an appeal against conviction if the person was convicted following a plea of guilty (in such a case, s 12 authorises an appeal but only by leave of the District Court). Nothing suggests that Ms Kmetyk ever sought to appeal against her conviction, or sought leave to do so.
Appeals are creatures of statute. One consequence is that "it is always important, where a process called 'appeal' is invoked, to identify the character of the appeal and the duties and powers of the court or tribunal conducting it": Walsh v Law Society of New South Wales (1999) 198 CLR 73; [1999] HCA 33 at [50]. Here, notwithstanding that they are conferred by the same provision, s 11(1), the right to appeal against conviction is distinct from the right to appeal against sentence. The former is governed by s 18 while the latter is governed by s 17. Both are appeals "by way of rehearing", such that the District Court is bound to decide according to the facts and the law as they stand at the time the court makes its order: Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 at [29].
However, there are important procedural differences between the two. 1. There are differences in the evidence on the basis of which that rehearing will be conducted, in that there are different powers as to the admission of fresh evidence (contrast s 17 with s 18(2)). 2. In the case of an appeal against conviction, but not in the case of an appeal against sentence, there is power in certain circumstances to direct that testimonial evidence be given in person (s 19). 3. Most importantly, there are different grants of power to the District Court to determine the two classes of appeals. Section 20 provides: "20 Determination of appeals (1) The District Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by dismissing the appeal, or (c) in the case of an appeal made with leave under section 12 (1) - by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the District Court. (2) The District Court may determine an appeal against sentence: (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal."
Some care must be taken in construing the references in the CAR Act, including s 20, to "sentence" and "varying the sentence". "Sentence" is defined in s 3 to mean any of a wide range of orders made by the Local Court in respect of a person as a consequence of its having convicted the person of an offence, including "any order or direction with respect to restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege", and "any order made by the Local Court in respect of a person under section 10 or 11 of the Crimes (Sentencing Procedure) Act 1999 on finding the person guilty of an offence." Subsections (3) and (3A) provided: "(3) In this Act, a reference to varying a sentence includes: (a) a reference to varying the severity of the sentence, and (b) a reference to setting aside the sentence and imposing some other sentence of a more or less severe nature. (3A) Without limiting subsection (3), a power conferred on an appeal court under this Act to vary a sentence includes the power to make an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 and, for that purpose, to set aside a conviction made by the original Local Court (without setting aside the finding of guilt on which the conviction is based) to enable the order to be made."
Hence, the power to "vary a sentence" when determining an appeal against sentence includes the power to set aside a conviction and make an order under s 10 of the Crimes (Sentencing Procedure) Act. Section 10 empowers a court which finds a person guilty of an offence to make various orders "without proceeding to conviction", including orders that the person enter into a good behaviour bond. It will be necessary to return to the parties' submissions about the effect of (3) and (3A) expanding the meaning of "sentence" and "varying the sentence".
It was common ground that the filing of Ms Kmetyk's appeal engaged s 63 of the CAR Act. Section 63(1) and (2) of the CAR Act relevantly provided: "63 Stay of execution of sentence pending determination of appeal (1) This section applies to: (a) any sentence, and (b) any penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege that arises under an Act as a consequence of a conviction, in respect of which an appeal or application for leave to appeal is made under this Act. (2) The execution of any such sentence, and the operation of any such penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege, is stayed: (a) except as provided by paragraphs (b) and (c), when notice of appeal is duly lodged ..."
Paragraphs (b) and (c) of s 63(2)(a) are not relevant. Section 63(2A) displaces the operation of subsection (2) to the suspension or disqualification of a driver licence in certain circumstances, but these too are not presently relevant.
It will be seen that the execution of the sentence imposed by the Local Court (the fine of $450) was stayed upon the filing of the appeal against sentence by s 63(1)(a) and s 63(2). The parties proceeded on the basis that the operation of the disqualification effected by s 54(8) of the Road Transport Act was stayed by s 63(1)(b) and s 63(2). It will be necessary to return to this aspect of s 63 at the end of these reasons. For present purposes, the most important aspect of s 63 is the point already flagged: no differently from ss 54(8) and (10) of the Road Transport Act, s 63 of the CAR Act distinguished between the punishment imposed in the discretion of the court which had found her guilty of the offence, and the sanction imposed automatically, by operation of statute.

The hearing of Ms Kmetyk's appeal

Ms Kmetyk's appeal was heard by the primary judge on 4 December 2017. The transcript records that the focus of submissions was upon the disqualification, rather than the fine, and in particular upon amendments effected by the Road Transport Amendment (Driver Licence Disqualification) Act 2017 (NSW), which had commenced on 28 October 2017. That statute repealed subsections 54(8)-(10), and made different provision for statutory disqualification following convictions for, inter alia, offences contrary to s 54(3). New s 205A was inserted in the following terms: "205A Disqualification for certain unauthorised driving offences (1) A person who is convicted of an offence against this Act specified in the Table to this section: (a) is automatically disqualified from holding a driver licence for the default period of disqualification specified in the Table in respect of that offence, or (b) if the court that convicts the person thinks fit to order a shorter or longer period of disqualification (but not shorter than the minimum period of disqualification specified in the Table in respect of that offence) - is disqualified from holding a driver licence for the period specified in the order. (2) Any disqualification under this section is in addition to any penalty imposed for the offence."
The Table provides, in the case of a first offence contrary to s 54(3), a default period of disqualification of 6 months, and a minimum period of disqualification of 3 months. That may be contrasted with the automatic disqualification of 12 months imposed by (former) s 54(8).
On behalf of Ms Kmetyk, it was said: "Your Honour, this is a situation where in a court below [she] got the automatic or mandatory period of disqualification for twelve months and since that time, your Honour, the law has been altered such that the automatic period - HIS HONOUR: She can get three months. MACKIE: - is six or can be reduced to three".
The Crown said in response, reflecting what may have been an altered approach to a common class of appeals to the District Court, that: "it is now the position of my office that the District Court does not have jurisdiction to disturb a licence disqualification period where the Local Court imposed that sentence before 28 October 2017."
The Crown referred to s 71 of the CAR Act, which is relevant to ground 2 of the summons, and which provides: "71 Variation of sentences of Local Court (1) An appeal court may not vary a sentence so that the sentence as varied could not have been imposed by the Local Court. (2) An appeal court may not make an order or impose a sentence that could not have been made or imposed by the Local Court. (3) Any sentence varied or imposed by an appeal court, and any order made by an appeal court under this Act, has the same effect and may be enforced in the same manner as if it were made by the Local Court."
During argument, the primary judge expressed the view that, contrary to the Crown's submission, s 71 did not prevent the District Court from imposing a sentence which could have been imposed in December 2017 by the Local Court. The primary judge was alert to the fact that Ms Kmetyk's licence had already, prior to her conviction, been suspended until 31 October 2017, and so, if the new legislative provisions applied, the three month period would commence on 1 November 2017.

The reasons and orders of the primary judge

The hearing was brief (it occupies 4 pages of transcript). The entirety of his Honour's ex tempore judgment (as revised) was as follows. "The appeal is upheld. The orders of the magistrate are quashed but, having set aside all the orders of the magistrate, she is convicted. She is fined $300 and disqualified for a period of three months. I indicate that the disqualification should date from 1 November, which is the expiration of a previous suspension and indicate that the disqualification will expire on 31 January, meaning that she would be eligible to get her licence back on 1 February but she will have to go to the RMS in order get that licence back on that date."
There are discrepancies between (a) the orders as stated in his Honour's (revised) judgment, (b) a document obtained from the file, which is signed by his Honour, and (c) the orders as entered on JusticeLink.
On the version on the file signed by the primary judge, the orders are formulated as follows: "In relation to the count of Drive motor vehicle while licence suspended, the appeal is upheld and the orders of the Local Court are quashed. In lieu, the offender is convicted and fined $300.00 with 28 days to pay. The appellant is disqualified for a period of 3 months TDF 01/11/2017 to expire on 31/01/2018."
On JusticeLink, the form of the orders is as follows: "Sentence Appeal Upheld - Order Varied In relation to the count of Drive motor vehicle while licence suspended, the appeal is upheld and the orders of the Local Court are quashed. (ID 40407513) The offender, ALISON LEE KMETYK, is ordered to pay the following: Fine $300.00. (ID 40407664) The court disqualified the offender Alison Lee Kmetyk from holding a driver's/rider's licence from 1 November 2017 until 31 January 2018."
The orders recorded in JusticeLink do not record a conviction imposed by the District Court, although that was what was pronounced in Court and recorded in the document signed by his Honour.
Both parties proceeded on the basis that the order in the form signed by the primary judge was the best evidence of the order which was made. That submission was candidly acknowledged by Mr Moutasallem, who appeared for Ms Kmetyk, to be necessary to his argument, which turned upon the conviction in the Local Court being set aside.
It will not be necessary finally to resolve the discrepancy between the orders pronounced by the primary judge and in the document signed by his Honour and in the form recorded on JusticeLink. That said, the orders in the form signed by the judge and placed with the file are the most authoritative, which accords with provision in the rules relating to the entry of any judgment or order, signed by the Judge, on the appropriate court file: District Court Rules 1973, Part 53 r 12.

The decision discloses jurisdictional error

No further appeal lies from the District Court in the exercise of its appellate jurisdiction to this Court. However, it is well-settled that this Court's supervisory jurisdiction is available, and that it is necessary (in light of s 176 of the District Court Act 1973 (NSW)) to establish jurisdictional error: see (by way of recent example) Ghaderi v Director of Public Prosecutions (NSW) [2018] NSWCA 119 at [7] and [11]. Further, mere error of law on the face of the record of the District Court is not jurisdictional error: see for example Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245 at [4] and [72].
If (as the primary judge pronounced and as is recorded in the signed document on the file) his Honour quashed all of the orders made in the Local Court, including Ms Kmetyk's conviction, and then reconvicted her on 4 December, then that discloses jurisdictional error. The District Court's jurisdiction was governed by the CAR Act. The Court had jurisdiction to hear and determine her appeal against sentence. No challenge was made to her conviction and there was no authority to set it aside or reimpose it. Section 20(2) of the CAR Act conferred no power to set aside the conviction, while s 20(1) was not available, the appeal being an appeal against sentence.
Ms Kmetyk sought to defend what had occurred by pointing to the power in a sentence appeal to vary a sentence by setting aside a conviction and making an order under s 10 of the Crimes (Sentencing Procedure) Act. Of course, that is not what occurred in the present case. However, Ms Kmetyk submitted that that power, as contained in s 3(3) and (3A) of the CAR Act, was but one instance given in the statute, referring to the inclusive definition in subsection (3) and the words "without limiting subsection (3)" with which subsection (3A) commences. Hence it was submitted that there was a more general power to quash a conviction when determining an appeal against sentence. That submission cannot be accepted. Regard must be had to the limiting words in (3A) "for that purpose". The extension in (3A) of the power to vary a sentence to include power to set aside a conviction is limited to those circumstances where, in the exercise of the power to vary a sentence, the District Court is minded to make an order under s 10 of the Crimes (Sentencing Procedure) Act. There was nothing to suggest that such an order was ever even sought, and indeed the conviction and (reduced) fine that was imposed on appeal are inconsistent with such an order.
The submissions based on the inclusive language in these provisions must also be rejected. The operative provision in subsection (3A) is limited in its terms to cases where an order under s 10 is made. The opening words in (3A) do not qualify that subsection. Rather, they are directed to fending off a construction that subsection (3) is somehow limited by subsection (3A). True it is that subsection (3) is an inclusive definition, but the two included paragraphs are in terms limited to altering a "sentence", and that bears its ordinary meaning of a penalty imposed as a consequence of the person's conviction, which is conceptually and temporally distinct from the conviction itself.
Ms Kmetyk also relied upon the decision of the District Court constituted by Yehia SC DCJ in Usama Razzaq v R (unreported, 19 February 2018). The contrary view had previously been reached by Bennett DCJ in Yousef Helwah v R (unreported, 12 December 2017). Her Honour relied upon the power to make an order setting aside a conviction in a sentence appeal for the purpose of making an order under s 10 of the Crimes (Sentencing Procedure) Act, rejected a submission based on s 71, and relied on statements in the extrinsic materials to the effect that the amendments were directed to the penalties being "fairer and more effective in reducing recidivism". While it is true that s 71 had little to do with the issue, with respect, her Honour did not have regard to the limitation attending the power to set aside a conviction for the purpose of making an order under s 10 of the Crimes (Sentencing Procedure) Act, and did not address the fact that in other cases the conviction of an appellant in a sentence appeal remained that entered in the Local Court. Further, generally expressed statements of the purpose of the amendments do not assist in resolving the question whether they apply to a person who does not appeal from his or her conviction which conviction was imposed under the previous legislative regime: see Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [6] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [11] and [51].
For completeness, the position which obtains if (as the JusticeLink records suggest) the primary judge did not interfere with Ms Kmetyk's conviction should be considered. In that case, then a period of disqualification of 12 months was imposed by dint of (former) s 54(8). There was no power on the part of the District Court to make an order reducing the effect of the statutory disqualification. It was not suggested by any party that the fact that s 54(8) had been repealed made any difference to that position, nor could it be. Persons who had been convicted of offences contrary to s 54(3) in the twelve months prior to October 2017 did not, when s 54(8) was repealed, thereupon become relieved of the 12 month disqualification effected by that subsection. To the contrary, s 30(1)(b) of the Interpretation Act 1987 (NSW) provides that the repeal of an Act does not affect the previous operation of the Act or anything duly suffered, done or commenced under the Act. The imposition of the 12 month disqualification was something which was "duly suffered" under the Act before it was repealed. There are no specific transitional provisions in the Road Transport Amendment (Driver Licence Disqualification) Act 2017 displacing the general provision of s 30(1)(b).
The foregoing reflects the substance of grounds 1 and 3 of the Director's summons, which were the Director's primary grounds. In fairness to the primary judge, it should be said (as Ms Kmetyk emphasised in this Court), that those arguments appear not to have been advanced to his Honour.
Ground 2 of the summons relied on s 71 of the CAR Act. Although s 71 was invoked before the primary judge, that section had nothing to say about the statutory disqualification effected upon Ms Kmetyk being convicted. Once again, in fairness to his Honour, the Crown's reliance on s 71 may have served to distract him from the distinction which mattered, which was that the statutory disqualification, which was a consequence of Ms Kmetyk's conviction, could not be altered by the District Court which only had before it an appeal against sentence. It is not necessary for present purposes to consider the construction of s 71. Even if it may be inferred (from what was said during the brief hearing, because the Court's reasons are silent) that the Court proceeded on an incorrect view of its legal meaning, that would not of itself amount to jurisdictional error.

Orders

Any order made by the District Court quashing Ms Kmetyk's conviction was vitiated by jurisdictional error. The order made purporting to reduce the period of her disqualification for a period expiring on 31 January 2018 is likewise vitiated by jurisdictional error. The District Court being an inferior court, those orders are nullities: Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19. The statutory disqualification for a 12 month period commencing 1 November 2017 was unaffected by the repeal of s 54(8). It is not contended that any error attended the reduction in the fine.
The only outstanding question is the interaction between the 12 month statutory disqualification effected by s 54(8), the automatic stay effected by s 63 of the CAR Act and a related provision, s 207(6) of the Road Transport Act, which provides: "Any period for which a stay of execution is in force under section 63 of the Crimes (Appeal and Review) Act 2001 is not to be taken into account when calculating the length of a period of disqualification under this Division."
When the appeal was heard, the parties appeared to proceed on the common basis that (a) s 63(1)(b) read with s 63(2) had the effect of staying the operation of the automatic disqualification of Ms Kmetyk's licence while her appeal to the District Court was pending, and (b) s 207(6) meant that some or all of those approximately 10 weeks were to be disregarded for the purposes of calculating the period of disqualification imposed upon her.
The Court raised with the parties the unlikelihood that statute would on the one hand automatically impose a period of disqualification with a stay during the pendency of an appeal, but on the other hand would then provide that irrespective of the outcome of the appeal, time continued to run. If that were the proper construction, then there would be an incentive to bring meritless appeals and to prolong them to take advantage of the automatic stay during which period time continued to run, directly contrary to the statutory purpose of imposing a sanction independently of the sentencing process. The Court gave both parties the opportunity to be heard further on that construction, and written submissions were received on 10 and 12 July 2018.
The Director submitted, by reference to Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151, that s 207(6) should be construed as applying in its entirety to all disqualifications made as a consequence of a person being convicted, with the result that the period from 1 November 2017 until 4 December 2017, during which the stay effected by s 63 was in force, should be disregarded. The result was, according to the Director, that Ms Kmetyk's period of disqualification would not end until 4 December 2018.
Ms Kmetyk agreed that s 207(6) "precludes the absurd outcome of one filing an appeal, having the benefit of the stay of the disqualification period and never having to serve the driving disqualification for the period of time the appellant had the benefit of the stay." She agreed with the construction propounded by the Director.
In light of the way the issue emerged during the hearing, it is understandable that the parties' supplementary submissions were directed to the construction of s 207(6). However, it may be that the key to the effect of these two provisions is to consider s 63(1) in its terms, and in particular to notice the easily overlooked words "in respect of which" in s 63(1) and "any such sentence" and "any such ... disqualification or loss or suspension of a licence" in s 63(2). It is convenient to reproduce the provisions again, emphasising those words: "63 Stay of execution of sentence pending determination of appeal (1) This section applies to: (a) any sentence, and (b) any penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege that arises under an Act as a consequence of a conviction, in respect of which an appeal or application for leave to appeal is made under this Act. (2) The execution of any such sentence, and the operation of any such penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege, is stayed: (a) except as provided by paragraphs (b) and (c), when notice of appeal is duly lodged ..."
The relative pronoun "which" and the relative adjective "such" both require reference to an antecedent noun which has appeared previously in the provision. In each case, there is some subtlety in parsing the language.
First, the words "in respect of which" in s 63(1) plainly apply distributively, to each of the cases mentioned in paragraphs (a) and (b). In cases where s 63(1)(a) applies, the antecedent of "which" is "sentence". In cases where s 63(1)(b) applies, the antecedent of "which" is potentially ambiguous. As a matter of grammar, it is necessarily a noun in paragraph (b), but it could refer to the "conviction"; alternatively, it could refer to the "penalty, restitution etc" earlier in paragraph (b). However, the statute must be read as a whole, and it makes provisions for and distinguishes between appeals against conviction and appeals against sentence. It is tolerably clear, having regard to the nature of appeals (which are against conviction or sentence) and the structure of the subsections, that the word "which" must refer, in a case to which paragraph (b) applies, to the "conviction".
Secondly, s 63(2) does not apply to every sentence and every statutory penalty, restitution, etc to which an appellant is subject. That is because of the words "such" in subsection (2). The word "such" can give rise to debate, in part because it is used in a number of senses, some of which are less than precise, as has long been recognised: see In re Godfrey [1921] SASR 148 at 152. However, the symmetry between paragraphs (a) and (b) in s 63(1) with the words following each instance of "such" in s 63(2) means that the words following "such" in subsection (2) correspond with the "sentence" in (1)(a) and the "penalty ... disqualification or loss or suspension of a licence" in (1)(b). The force of "such" is that s 63(2) only applies to (i) a particular sentence, in the case of paragraph (a) being made applicable, or (ii) to a particular penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension, in the case of paragraph (b) being made applicable.
Importantly, s 63(1) only applies when the sentence, penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension is one "in respect of which an appeal or application for leave to appeal is made".
Contrary to what appears to have been the shared assumption of the parties, the stay effected by s 63(2) appears not to operate upon all penalties, disqualifications, losses or suspensions of a licence imposed upon a person who has filed an appeal. The stay effected by s 63(2) appears to apply only upon the sentences, penalties, disqualifications, losses or suspensions of a licence to which the section applies, namely, "such" sentences or "such" penalties, disqualifications, losses or suspensions of a licence as are made applicable by s 63(1), which is to say, those in respect of which an appeal, or application for leave to appeal, has been brought.
Ms Kmetyk appealed against her sentence. It is clear that the execution of the fine imposed by the Local Court was "the execution of any such sentence" and was stayed while her appeal remained undetermined.
To the extent that the Local Court ordered that she be disqualified for a period of 12 months as a result of her conviction, that too is part of the sentence imposed by the Court, and was stayed while her appeal remained undetermined. For the reasons already stated, such an order was not authorised and misapprehended the operation of s 54(8). As Fagan J observed in Director of Public Prosecutions (NSW) v Armstrong at [13], "The making of the order did not displace or alter the operation of the statute; the order was simply redundant".
However, although the statutory disqualification effected by former s 54(8) upon Ms Kmetyk being convicted readily answers the description of a "disqualification or loss or suspension of a licence", it does not follow that it is a disqualification or loss or suspension of a licence in respect of which her appeal had been made. The better view appears to be that it is not. When a person appeals his or her sentence, but not his or her conviction, and a disqualification is automatically imposed by statute upon the conviction, then it would seem to follow that the disqualification in not one "in respect of which" the appeal has been made. To the contrary, the person has chosen not to appeal against conviction, and that choice carries with it the consequence of not appealing against the automatic consequences statute attaches to that conviction.
If the construction propounded above is correct, then what follows is this. 1. In the case of an appeal against conviction, a disqualification arising under the Act upon the conviction is "any such ... disqualification or loss or suspension of a licence or privilege" to which s 63(2) applies. Accordingly, the operation of the disqualification is stayed while the appeal is pending. 2. In the case of an appeal against sentence, the execution of the sentence is stayed while the appeal is pending. However, a disqualification arising under the Act is not relevantly a "sentence" and not the consequence of a conviction in respect of which there is an appeal, or application for leave to appeal. Accordingly, the operation of the disqualification is not stayed while the appeal is pending.
On that construction, it also follows that the construction of s 207(6) does not arise in this appeal, for there was no relevant stay of execution under s 63. The unlikely consequences mentioned above do not arise in this case, although it may not have been appreciated at the time that the disqualification remained in force while the sentence appeal was pending.
There remain some difficulties with the construction indicated above. One is how it operates when there is an appeal against sentence and the appellant seeks a s 10 order. Another is reconciling the above with the "permanent" disqualification effected by s 207(1). There may be others. I am also conscious that the parties seem to have proceeded upon an assumption that s 63 operates more expansively, and have not been heard as to the construction outlined above.
In those circumstances, it is appropriate to make final orders in respect of those issues as to which the parties have been fully heard, and permit either party to be heard further as to the operation of s 63 read with s 207(6).
There is no need to quash orders made by the District Court which are nullities. However, that does not prevent their being set aside, as occurred in Morgan v District Court of New South Wales, and doing so will, as the Director submits, make the position clearer. Declaratory relief is also available, and appropriate, in light of the complex way in which the statutory regime operates. Although it is clear that Ms Kmetyk was and is subject to a 12 month period of disqualification, whether that period expires on 1 November 2018 or 4 December 2018 depends upon a construction of s 63, read with s 207(6), as to which the parties have not been heard. The declaration framed below makes it clear that the disqualification is presently in force, but leaves open the question as to which the parties have not been heard.
Although costs were sought in the Director's summons, no submissions were advanced, either orally or in writing, in support of an order for costs. The Director's summons in this Court is a civil proceeding, to which the general rule in UCPR r 42.1 applies. However, there is good reason to displace the general rule, because the Director's success is based upon submissions which were not made to the primary judge.
For her part, Ms Kmetyk sought a certificate under the Suitors' Fund Act 1951 (NSW). There have been inconsistent decisions as to the availability of a certificate in proceedings, such as these, in the nature of judicial review: see (without being exhaustive) Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350; [2013] NSWCA 305 at [110] and Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480 at [57]. However, it was Ms Kmetyk who had invited the primary judge to adopt the course which he did, which brought about the need to file these proceedings. Further, she sought to defend that position in this Court, rather than consenting to the orders sought by the Director. The position resembles that considered in Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [48]. This is not an appropriate case for a certificate.
The appropriate order is that there be no order as to costs, with the intention that each party bear his or her own costs.
I propose the following orders:
Set aside the orders of the District Court made on 4 December 2017, and in lieu thereof, order that the appeal against sentence be allowed, set aside the fine of $450 imposed by the Local Court and in lieu thereof order that Ms Kmetyk be fined $300 with 28 days to pay.
Declare that Ms Kmetyk was convicted in the Local Court on 21 September 2017 of an offence of driving while suspended contrary to s 54(3) of the Road Transport Act 2013, and that by operation of s 54(8) of that Act she was disqualified from holding a driver licence for a period of 12 months from 1 November 2017.
Grant leave to either party to apply, within 14 days, to be heard in support of any further orders as may be appropriate in light of the operation of s 63 of the Crimes (Appeal and Review) Act 2001 and s 207(6) of the Road Transport Act.
No order as to costs, with the intention that the parties bear their own costs.
SACKVILLE AJA: I agree with the orders proposed by Leeming JA and with his Honour's reasons.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 July 2018

Road Transport Amendment (Driver Licence Disqualification) Act 2017(NSW)

Suitors' Fund Act 1951(NSW)

rt of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19 Regina v Sirocic [2000] NSWCCA 325 Roads and Traffic Authority of New South Wales v Papadopoulos (2010) 77 NSWLR 189; [2010] NSWSC 33 Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151 Usama Razzaq v R (District Court (NSW), Yehia SC DCJ, unreported, 19 February 2018) Walsh v Law Society of New South Wales (1999) 198 CLR 73; [1999] HCA 33 Yousef Helwah v R (District Court (NSW), Bennett DCJ, unreported, 12 December 2017) Texts Cited: Nil Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Applicant) Alison Lee Kmetyk (First Respondent) District Court of NSW (Second Respondent) Representation: Counsel: A Mitchelmore (Applicant) A Moutasallem (First Respondent)

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Legislation Cited (9)

Cases Cited (22)

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