Director of Public Prosecutions v Sadler [2013] NSWSC 718 | Case summary

Judgment (5 paragraphs)

[1]

Mifsud v Campbell (1990) 21 NSLWLR 725 Mitchell v Nestle Australia Limited (1988) 36 A Crim R 199 Nimmo v Alexander Cowan and Sons Limited [1968] AC 107 Office of Fair Trading v El Homsy and anor (2009) 74 NSWLR 443; [2009] NSWSC 282 Pettitt v Dunkley [1971] 1 NSWLR 376 R v Edwards [1975] 1 QB 27 R v Hunt [1987] 1 AC 352 R v Pham [2005] NSWCCA 94 R v Thompson (2005) 156 A Crim R 467 Roads and Traffic Authority of NSW v Baldock [2007] NSWCCA 35 Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151 Roads and Traffic Authority of NSW v Bourke [2010] NSWSC 559 Soulmezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 246Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 Warner (aka Jeremy Pachenko) v R [2013] NSWCCA 10 Category: Principal judgment Parties: Plaintiff - Director of Public Prosecutions (NSW) Defendant - Scott Sadler Representation: Ms A M Mitchelmore - Plaintiff Mr B D Eurell - Defendant XXX File Number(s): 2012 / 310872 Decision under appeal Date of Decision: 2012-06-18 00:00:00 Before: Magistrate G Hiatt

[2]

The Magistrate's decision 19The Magistrate gave an ex tempore judgment in which he concluded that no prima facie case had been made out in respect of any of the charges brought against the defendant. I have set out the relevant aspects of the Magistrate's decision below when considering the submissions of the parties. THE APPROACH OF THE PARTIES 20Counsel for the plaintiff approached the matter on the basis that error was demonstrated in respect of the conclusions reached by the Magistrate in respect of each charge. It is therefore convenient to adopt that same approach by separately considering each charge and the reasons for dismissal. Before doing so however, it is necessary to make reference to one aspect of the approach which counsel for the defendant submitted should be adopted in determining the matter. 21Counsel for the defendant filed lengthy written submissions, in the course of which he argued that the errors asserted by the plaintiff had not been made out. However, counsel further argued that even if I came to the view that there was error, I should not remit the matter to the Local Court and I should conclude that on the evidence, the Magistrate's decision that no prima facie case was established was the correct one. Such an approach would involve, amongst other things, an interpretation of particular aspects of the legislation pursuant to which the defendant was charged, and the making of findings of fact. 22For the reasons I have set out more fully below, and in the circumstances of this particular case, I do not regard that course as being an appropriate one. Accordingly, my consideration of the submissions advanced by the defendant is limited to those which responded to the plaintiff's assertions of error. THE CHARGE UNDER THE VEHICLE REGISTRATION ACT The Magistrate's reasons 23The Magistrate identified what he considered to be the principal issue (at T21 L29 ff): "I note insofar as the matter is concerned that the principal issue is in relation to the nature of whether it is found to be a vehicle which is a vehicle within the definition of the Act, which is required to be registered or whether it is a bicycle or a pedal-assisted bicycle with the supplementary or secondary auxiliary motor attached to it, which in that particular circumstance is under a particular wattage which is then caught by the exemption in respect to the registration of vehicles." (my emphasis) 24It will be noted that the Magistrate articulated the issue in the alternative. This is an important matter, to which I will return. 25His Honour then made reference to a decision in Matheson v Director of Public Prosecutions [2008] NSWSC 550 which he concluded was distinguishable on the following basis (at T21 L39 ff): "Quite clearly, the Court is, in respect to the matter it is presently dealing with, is caught in a different situation to that of Matheson because insofar as Matheson is concerned, the evidence before the Court was led in such a way that there was, in the prosecution case, evidence as to the specification of the subject motor vehicle which would give a basis or a commencement of starting point in regard to the nature of the motor attached to it and the particular wattage that then flows from that particular motor itself." 26His Honour then went on to say (at T21 L46 ff): "I note insofar as this particular case is concerned, all the court has is an assertion made by the police officer that the nature of the motor is such that the wattage exceeds 200 watts, notwithstanding what might be relied upon in a prosecution case as to what may have been said by the accused in relation to the cc of the motor-the engine itself - being at 49cc. That is still not, in the Court's view, sufficient evidence in which the Court could, as a starting point, even at a prima facie level, say that there is a case for the accused to answer insofar as the matter concerned." 27His Honour proceeded to observe that in circumstances where photographs of the engine on the bicycle had been tendered before him, the "way forward" would have been for the prosecution to have some further investigation undertaken concerning the engine capacity of the bicycle. In particular, his Honour observed (at T22 L14 ff): "One would have thought insofar as the investigation by the prosecution is concerned, that some efforts would have been made to source material in regard to that engine itself and particularly in regard to the specifications as a position that the prosecution would have then relied upon insofar as the grounding of its case." 28His Honour then concluded (at T22 L20): "Ultimately insofar as the matter is concerned, I cannot be satisfied at a prima facie level, particularly in regard to the issue of the output of the motor which was then attached to the bicycle or the mountain bicycle which was then being ridden or, as the prosecution would say, driven by the accused on 3 October and ultimately, I am not satisfied that there is a prima facie case in regard to the fact that it was a registrable vehicle within the meaning of the Act..." (my emphasis) The submissions of the parties 29Counsel for the plaintiff made three principal submissions in support of the proposition that the Magistrate's dismissal of the charge under the Vehicle Registration Act reflected error. 30Firstly, counsel submitted that the terms in which his Honour articulated what he saw as the principal issue reflected a conflation of two separate questions: the first being whether the defendant's vehicle was a "registrable vehicle", and the second being whether the vehicle fell within the statutory exception contained in s. 18(2) of the Vehicle Registration Act. 31Secondly, counsel submitted that in applying his focus to the second of those questions, his Honour had failed to give proper consideration to the question of who bore the onus of proof with respect to the statutory exception. Counsel submitted that this led his Honour to erroneously conclude that the exception was an element of the offence, and that the relevant onus was on the prosecution. It was further submitted that this error demonstrated, and perhaps confirmed, what was said to be his Honour's initial conflation of the two questions referred to in [30] above. 32Thirdly, counsel submitted that his Honour's reasons were not in accordance with the approach which was applicable at the close of the prosecution case. It was submitted that at that point, his Honour was firstly required to determine whether the defendant's bicycle was a "registrable vehicle" within the meaning of the Vehicle Registration Act. It was only if his Honour came to that view that he would then have been required to give consideration to the second question of the applicability of the exception. In this respect, counsel submitted that the Magistrate's reasons reflected an error in approach because he had proceeded directly to consider the second question, without giving consideration to the first. 33Counsel for the defendant submitted that no error had been made out. In advancing that proposition counsel made two principal submissions. 34Firstly, counsel submitted that although the Magistrate had not stated it in unambiguous terms, a fair reading of his reasons as a whole made it plain that he had correctly identified the principal issue applicable to all four charges. Counsel submitted that there had been no conflation in the Magistrate's reasons and that, on the contrary, specific consideration had been given to the primary issue of whether or not the defendant's vehicle was a registrable vehicle. 35Secondly, counsel submitted that a proper construction of the legislative provisions made it clear that the provisions of s. 18(2) of the Vehicle Registration Act were not to be regarded as an exception to the provisions of s.18(1). Consideration and conclusion 36In order to consider the submissions of the parties, it is necessary for me to set out the relevant statutory provisions. 37Section 18 of the Vehicle Registration Act, which created the offence with which the defendant was charged, is in the following terms: (1)A person must not use an unregistered registrable vehicle on a road or on a road related area. 38The term "registrable vehicle" is defined in s. 4 of the Vehicle Registration Act as meaning (inter alia): "any heavy vehicle or motor vehicle". 39The term is further defined in s. 18(4) of the Vehicle Registration Act as including a partially constructed vehicle and the remains of a vehicle. 40The term "vehicle" and the term "motor vehicle" are also defined in s. 4 of the Vehicle Registration Act. "Vehicle" is defined to mean (inter alia): "any description of a vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway". 41"Motor vehicle" is defined to mean: "a vehicle that is built to be propelled by a motor that forms part of the vehicle". 42It follows that if a vehicle is a "motor vehicle" it is also a "registrable vehicle". Accordingly, pursuant to s. 18(1) such a vehicle must be registered if it is to be used on a road or road related area. 43However, s. 18(2) makes provision of an exception to the operation of s. 18(1) in the following terms: (2)Subsection (1) does not apply to the use of a registrable vehicle on a road or road related area if: (a) the vehicle belongs to a class of vehicle prescribed by a regulation referred to in section 16 as a vehicle to which this Act does not apply, or (b) the use is otherwise permitted by this Act or under the regulations. (3) Subsection (1) does not apply to a registrable vehicle that was left standing on a road or road related area: (a) within the period of 15 days after the date on which that vehicle ceased to be registered or to be exempted from being registered, or (b) with the consent of the responsible person for the road or area. (3A) If the Authority cancels the registration of a vehicle under section 16C, subsection (1) does not apply in relation to the vehicle until the day on which the registered operator of the vehicle is given notice by the Authority of the cancellation. 44Section 16 of the Vehicle Registration Act relevantly provides as follows: 16 Regulations may exclude registrable vehicles from this Act (cf Cth Act s 18) (1) The regulations may provide that this Act does not apply to a registrable vehicle, or registrable vehicles of a kind, identified in the regulations. (2) The regulations may allow the Authority to exempt a registrable vehicle from the requirement to be registered subject to compliance with conditions specified in the regulations. 45Clause 3(1) of schedule 1 to the Road Transport (Vehicle Registration) Regulation 2007 is in the following terms: 3 Application of section 18 (1) of Act to Part 2 vehicles (1) The use of an unregistered registrable vehicle on a road or road related area is permitted under this Regulation for so long as the vehicle is a vehicle to which the registration provisions do not apply by reason of any provision of Part 2. (2) Without limiting subclause (1), such use of such a vehicle ceases to be permitted under this Regulation if at any time the registration provisions become applicable to the vehicle because the vehicle does not comply with an applicable condition or requirement of Part 2. 46Clause 15 of Part 2 is in the following terms: Power-assisted pedal cycles The registration provisions do not apply to any registrable vehicle comprising a pedal cycle to which is attached one or more auxiliary propulsion motors having a combined maximum power output not exceeding 200 watts. 47Leaving aside the issue of whether the exception to which I have referred was properly regarded as an element of the offence, the parties were in agreement that an offence under s. 18(1) otherwise incorporated the following elements: (i)that there was use; (ii)of a registrable vehicle; (iii)which was not registered; (iv)on a road or road related area. 48The legal principles which the Magistrate was bound to apply at the close of the prosecution case were set out by Garling J in Director of Public Prosecutions v Elskaf [2012] NSWSC 21 at [47] - [48]. In the circumstances of the present case, those principles bear repeating: (a) At the end of the prosecution evidence, it is open to a defendant to make a "no case" submission, which is determined by the Court as a matter of law: Cox v Salt (1994) 12 WAR 12 at 14; Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32; 122 A Crim R 166 at [48]-[50] per Ipp AJA (Powell and Giles JJA agreeing); (b) the standard of proof to be applied in a no case submission is proof beyond a reasonable doubt: R v Murphy (1985) 4 NSWLR 42 at 69B; (c) the question to be determined is whether on the evidence, the defendant could be lawfully convicted of the offence charged: May v O'Sullivan [1955] HCA 38; 92 CLR 654 at 658; R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101 at [127] per Dunford J (Greg James J agreeing); (d) the determination of a no case submission is based upon all of the prosecution's evidence, if accepted, and (i)taken at its highest and strongest: DPP v Lee [2006] NSWSC 270 at [31]; Wunderwald at [28]; (ii)even if it is tenuous, inherently weak or vague: Doney v The Queen [1990] HCA 51; 171 CLR 207 at 214-5; (iii)unless the evidence is inherently incredible: Haw Tua Tau v Public Prosecutor [1982] 1 AC 136 at 151; and (iv)unless the evidence is manifestly self-contradictory or the product of a disorderly mind: R v Bilick (1984) 36 SASR 321 at 337; Cox at 15; Marsden at [50]. (e) a no case submission should not be rejected even if the prosecution case is a weak one, because the finding that there is a prima facie case, calls upon the defendant to make answer to that case. There is no reason why a weakness in the prosecution case may not be eked out by something in the case for the defence: Zanetti v Hill [1962] HCA 62; 108 CLR 433 at 442-443 per Kitto J; Wunderwald at [26]; (f) a no case submission is to be kept distinct from any subsequent decision involving a question of fact, namely whether to accept the evidence of the prosecution witnesses or any of them, beyond a reasonable doubt. This distinction is no empty formality: DPP v Lee at [32]. [48] After proper consideration and determination of a no case submission, the hearing of any summary proceedings follows these steps: (a) if the determination is that there is no case to answer, then the proceedings must be dismissed; (b) if the determination is that there is a case to answer, then each of these steps may follow: (i)first, it may be open to the defendant to invite the presiding magistrate to give himself or herself, a "Prasad" direction: R v Prasad (1979) 23 SASR 161 at 163, and thereafter proceed in accordance with that authority: Commonwealth Director of Public Prosecutions v Acevedo [2009] NSWSC 653. However this is an approach which should be resorted to sparingly: Acevedo at [43]. In resorting to this approach, it is necessary that the magistrate give full and proper reasons: Acevedo at [43(d)]; (ii)second, the magistrate should invite a defendant to indicate whether he (or she) intends to call any witnesses to give evidence or else to tender any further evidence. This calls for a discrete decision and a process separate from the no case to answer stage; (iii)third, assuming that the defendant does not go into evidence or tender any evidentiary material then, assisted by appropriate submissions, the magistrate proceeds to a determination of the kind envisaged in May v O'Sullivan at 658, namely whether as a matter of fact, on the whole of the evidence before the Court, the magistrate is satisfied beyond reasonable doubt of the guilt of the defendant. There is no necessary inconsistency between a court deciding that the defendant has a case to answer, and then proceeding to hold, in the absence of any further evidence, that the case for the prosecution does not warrant a conviction: May v O'Sullivan at 659; and (iv)fourth, assuming that the defendant does go into evidence, and once all the evidence (including evidence in reply from the prosecution, if any) is concluded and submissions have been taken, then the magistrate determines whether he (or she) has been satisfied having regard to all of the evidence, beyond a reasonable doubt that a conviction ought follow. 49In my view, the Magistrate's identification of the principal issue as being "whether (the defendant's bicycle) was found to be a vehicle ..... within the definition of the Act ..... which is required to be registered or whether it is a bicycle or a pedal-assisted bicycle ...... which is then caught by the exemption" is reflective of error for a number of reasons. 50Firstly, it was the Magistrate's function, at the close of the prosecution case, to determine whether there was evidence upon which the defendant could lawfully be convicted. That task involved a determination of whether there was evidence (inter alia) to support the conclusion that the vehicle was a registrable vehicle. The Magistrate, as I have outlined, expressed the issue in the alternative. That was not a correct approach. In expressing the primary issue in that way, the Magistrate did conflate two questions. The matters he identified were not alternative issues. Potentially, they were both issues, depending upon how the first of them was resolved. 51Secondly, the focus applied by the Magistrate to the second question reflects an unwarranted emphasis upon the output of the bicycle. It is apparent from that passage of his Honour's reasons set out at [28] above that a lack of proof of the output of the bicycle led him to conclude that no prima facie case had been made out. There was no consideration, much less any determination, of whether there was evidence capable of establishing firstly that the bicycle otherwise fell within the definition of a "registrable vehicle". That determination was part of the Magistrate's function and in my view, he failed to perform it. 52Thirdly, and although there was no express reference to the question, there are a number of aspects of the Magistrate's reasons which make it apparent that he regarded the statutory exception as being an element of the offence. For example, he made reference to: (i) the "investigation .... to source material in regard to that engine itself (see [27] above); (ii)the fact that he could not be "satisfied at a prima facie level, particularly in regard to the issue of the output of the motor which was then attached to the bicycle ...." (at [28] above); (iii)the fact that "all the court has is a an assertion made by the police officer that the nature of the motor is such that the wattage exceeds 200 watts" (at [26] above); and (iv)the fact that he could not be "satisfied at a prima facie level, particularly in regard to the issue of the output of the motor which was then attached to the bicycle ....." (at [28] above). 53Section 417A of the Crimes Act 1900 (NSW) is in the following terms: 417A Proof of exceptions (1) Any exception, exemption, proviso, excuse or qualification to the offence (whether or not it is in the same provision with a description of an offence in an Act or statutory rule or document creating the offence) need not be specified or negatived in an indictment or other process commencing proceedings. (2) The exception, exemption, proviso, excuse or qualification may be proved by the accused person. (3) If the exception, exemption, proviso, excuse or qualification is specified or negatived in the indictment, court attendance notice or other process commencing proceedings, the prosecutor is not required to prove it." 54Whether a provision in a statute is properly regarded is an element of the offence (such that the onus is on the prosecution) or an exception (in which case it is a matter to be established by the defendant) is a matter of statutory construction. In Office of Fair Trading v El Homsy and anor (2009) 74 NSWLR 443; [2009] NSWSC 282, Kirby J (commencing at [17]) reviewed the authorities which provide guidance as to the resolution of such an issue. Having made reference to the observation of Lord Wilberforce in Nimmo v Alexander Cowan and Sons Limited [1968] AC 107 that "exceptions are to be set up by those who rely upon them" his Honour commenced his review of the authorities by reference to the rule of construction stated by Jordan CJ in Ex parte Ferguson; re Alexander (1944) 45 SR (NSW) 64 at 66-67: "If the offence were defined as consisting of a single concatenation of facts all were regarded as necessary ingredients of the offence, whether they were positive or negative in their nature; but, if the definition were twofold, in the sense that after a definition of the offence there was a distinct and separate provision exempting from liability in a certain event, only the first part was regarded as defining the ingredients of the offence and the second was regarded as a matter of confession and avoidance available by way of a defence." 55His Honour then made reference to the decision of the High Court in Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 at 519 where the court said: " ... When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. ... " 56The High Court went on to say (at 519 and following): "On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter. ... " (my emphasis). 57Kirby J then made reference to the decision of Lawton J in the English Court of Appeal in R v Edwards [1975] 1 QB 27 (at 39 and following): "In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely upon the exception." (my emphasis in each case) 58Lawton LJ went on to say: "In our judgment its application does not depend upon either the fact, or the presumption, that the defendant has peculiar knowledge enabling him to prove the positive of any negative averment. As Wigmore pointed out in his great Treatise on Evidence (1905), vol 4, p 3525, this concept of peculiar knowledge furnishes no working rule. If it did, defendants would have to prove lack of intent. ... " 59Kirby J noted that in R v Hunt [1987] 1 AC 352, Lord Griffiths in the House of Lords described (at 375) the formula in Edwards (supra) as "an excellent guide to construction" but added that in the final analysis, each case must turn upon the construction of particular legislation. 60Kirby J then made reference to the further consideration of the issue by the High Court in Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 where Dawson, Toohey and Gaudron JJ (with whom Brennan and Deane JJ agreed) said (at 257, citations omitted): "For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an 'exception'), which serves to take a person outside the operation of a general rule. See Vines v Djordjevitch ... The distinction does not depend on the rules of formal logic: Dowling v Bowie... Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention 'to impose upon the accused the ultimate burden of bringing himself within it': Director of Public Prosecutions v United Telecasters Sydney Ltd ... The intention may be discerned from express words or by implication. See Reg v Edwards ... and Reg v Hunt ... " 61Their Honours proceeded (at 258 and following, citations omitted): " ... if a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof. Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined 'upon considerations of substance and not of form': Dowling v Bowie ... And, of course, the necessity to have regard to substantive and not merely formal considerations is emphasized by the words of s 168(1) of the Magistrates (Summary Proceedings) Act and like legislative provisions which make it clear that a matter may be classified as a statutory exception 'whether it does or does not accompany the description of the offence'. One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. See Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen ..., per Dixon J. Such is ordinarily the case where, in the terms used in Reg v Edwards ..., there is a prohibition on the doing of an act 'save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities'. See Reg v Hunt ..., where Lord Griffiths considered the statement from Reg v Edwards ... 'an excellent guide to construction'. If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof." 62Kirby J then proceeded (commencing at [28]) to consider the submissions made by the plaintiff in that case by reference to the principles he had cited. Adopting the same approach in the circumstances of the present case, the following matters emerge in support of the conclusion that the provision in s. 18(2) of the Vehicle Registration Act is properly regarded as an exception rather than an element of the offence. 63Firstly, the text of s. 18(1) of the Vehicle Registration Act establishes the offence, whereas s. 18(2) is a separate provision. That separate provision does not form part of the statement of the general rule contained in s. 18(1) (see Chugg (supra) at [60] above). 64Secondly, the provisions of s. 18(2) take a person outside of the operation of the general rule in s. 18(1), namely the unlawfulness of using a registrable vehicle on a road or on a road related area. Section 18(2) therefore "assumes the existence of the general or primary grounds from which the liability arises, but denies the liability in a particular case by reason of additional or special facts" (see Vines (supra) at [55] and [56] above). 65Thirdly, s. 18(2) sets up a new and different matter, which is separate and distinct from the subject of the general rule expressed in s. 18(1) (see Chugg (supra) at [60] above. 66Fourthly, whilst the circumstances which would attract the exception (namely the output of the bicycle) were not a matter within the defendant's exclusive knowledge, they were matters in respect of which the defendant had a particular knowledge (see Chugg (supra) at [61] above). 67In view of the foregoing, it is my view that the provisions of s. 18(2) of the Vehicle Registration Act are to be regarded, not as an element of the offence in respect of which the onus is on the prosecution, but as an exception in respect of which the onus is upon the defendant. 68Although he did not expressly deal with the issue, it is evident from those passages in the Magistrate's reasons which I have extracted in [52] above that he took the view that the statutory exception was in fact an element of the offence, in respect of which the prosecution bore the onus. That, in my view, was an error. THE CHARGE UNDER THE COMPENSATION ACT The Magistrate's reasons 69Having dismissed the charge under the Vehicle Registration Act the Magistrate proceeded to immediately dismiss the charge under the Compensation Act saying: "Likewise sequence 3 which is use uninsured motor vehicle is also dismissed". 70This passage represents the totality of his Honour's reasons with respect to the charge under the Compensation Act. One is left to assume, from his Honour's use of the word "likewise", and from the fact that his dismissal of this charge came immediately upon his dismissal of the charge under the Vehicle Registration Act, that his Honour concluded that the defendant's bicycle was not a registrable vehicle. Accepting that to be the case, one is left to further assume that his Honour reached this conclusion, at least in part, on the basis of the same reasoning as that which he adopted in dismissing the charge under the Vehicle Registration Act. The submissions of the parties 71Counsel for the plaintiff pointed out that his Honour gave no reasons for the dismissal of this charge. However, proceeding on the assumptions to which I have referred, counsel for the plaintiff essentially relied upon her submissions in respect of the dismissal of the charge under the Vehicle Registration Act. In particular, counsel submitted that his Honour's conclusion was affected by the same errors as those which she relied upon in respect of his dismissal of the charge under the Vehicle Registration Act. 72Counsel for the defendant also followed a similar course and relied upon his submissions made in respect of the dismissal of the charge under the Vehicle Registration Act. In respect of the issue of the adequacy of his Honour's reasons, counsel submitted that although the reasons were not extensive, it was unnecessary for them to be so. Counsel emphasised the need to bear in mind that the Magistrate's reasons were given in the context of a busy Local Court and that it was sufficiently clear from the reasons given that the Magistrate was not satisfied that a critical element of the offence had been established. Consideration and conclusion 73Section 8 of the Compensation Act is in the following terms: 8 Offence of using uninsured motor vehicle on road (cf s 8 (1) and (2) MAA) (1) A person who: (a) uses a motor vehicle that is not an insured motor vehicle on a road, or (b) causes or permits another person to use such a motor vehicle on a road, is guilty of an offence. Maximum penalty: 50 penalty units. (2) It is a defence to proceedings for an offence against this section if the defendant establishes that at the time the motor vehicle was used on the road the defendant had reasonable grounds for believing and did in fact believe that the motor vehicle was an insured motor vehicle. 74Section 9 of the Compensation Act is in the following terms: 9 Exception from compulsory insurance (cf s 8 (3) MAA) This Part does not apply to a motor vehicle that is used on a road if: (a) the motor vehicle may lawfully be used on the road although not registered, or (b) the motor vehicle is a trailer, or (c) the motor vehicle is a vehicle of a kind, and is used in the circumstances (if any), prescribed by the regulations. 75Section 3 of the Compensation Act defines the term "motor vehicle" as follows: "motor vehicle" means a motor vehicle or trailer within the meaning of the Road Transport (General) Act 2005. 76It is noted that the definition of the term "motor vehicle" which appears in the Road Transport (General) Act is in the same terms as that which appears in the Vehicle Registration Act. 77When a Magistrate determines to dismiss a charge, whether on the ground that there is no prima facie case or because on all of the evidence the Magistrate is not satisfied beyond reasonable doubt of the guilt of the accused person, there is an obligation, which Judges of this Court have emphasised, to give reasons for that decision (see Wililo (supra) at [54]; (see for example Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402 at 408 per Johnson J). 78Some allowance must, of course, be made for the circumstances in which ex tempore reasons are delivered (see Acuthan v Coates (1986) 6 NSWLR 472 at 485 per Mahoney JA). The Court of Criminal Appeal has consistently said that an overly critical approach should not be taken where ex tempore reasons are given in a busy list, immediately following submissions (see for example Rose v R [2013] NSWCCA 71 at [41] citing Gommesen v R [2012] NSWCCA 226 per Garling J at [37] - [38], McClellan CJ at CL and McCallum J agreeing; see also Warner (aka Jeremy Pachenko) v R [2013] NSWCCA 10 per S Campbell J at [33], Hoeben CJ at CL and Davies J agreeing). Whilst such observations have generally been made in the context of appeals following sentencing proceedings in the District Court, I accept that they are no less applicable when considering ex tempore reasons delivered in a busy list in the Local Court. 79In the present case, the Magistrate gave no consideration at all to the provisions of s. 8 of the Compensation Act pursuant to which the defendant was charged, and provided no reasons for his decision. His use of the word "likewise" immediately prior to formally dismissing the charge under the Compensation Act may tend to indicate that he dismissed that charge on the same basis as that upon which he dismissed the charge under the Vehicle Registration Act. If that be the case, it follows that his decision to do so similarly involved error. 80Moreover, and even when full weight is given to the observations set out in [78] above, the Magistrate's failure to provide any reasons at all for his decision constitutes error. It has been observed that it is not satisfactory for an appellate court to be left to undertake an analysis of exchanges between the bench and counsel during submissions in an attempt to ascertain a Magistrate's reasons for making a particular determination (see Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (supra) at [19] per Johnson J citing R v Pham [2005] NSWCCA 94; R v Thompson (2005) 156 A Crim R 467). The position is no more satisfactory when, as in the present case, the court is left to ascertain the basis of the Magistrate's decision from his use of the word "likewise", and from reasons given in respect of the dismissal of another charge. 81In respect of the submission made by counsel for the defendant that extensive reasons were not necessary I accept, as a general proposition, that the extent of the duty to give reasons depends upon a number of factors including the nature of the decision, the circumstances in which it is made, and the purpose that the statement of reasons is intended to serve (see Mifsud v Campbell (1990) 21 NSWLR 725). However, at the very least, reasons must be such as to enable a proper understanding to be gained of the basis upon which the decision has been reached (see Pettitt v Dunkley [1971] 1NSWLR 376 per Asprey JA at 382, cited in Soulmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257). In my view, the reasons given by the Magistrate in the present case in dismissing this charge fell short of that requirement. 82Further, I am unable to accept the proposition advanced by counsel for the defendant that it was sufficiently clear from the Magistrate's reasons that he was not satisfied that a critical element of the offence had been established. That submission overlooks the inadequacies in the reasons which I have identified. 83For these reasons, I am satisfied that further error has been made out. THE CHARGE UNDER THE DRIVER LICENCING ACT The Magistrate's reasons 84Having dismissed the charges under the Vehicle Registration Act and the Compensation Act, his Honour proceeded to deal with the charge under the Driver Licencing Act. He said (at T22 L34): "That then gives rise to the fact because it is not a motor vehicle within the definition of the Act, that the court cannot find insofar as sequence 1 is concerned that the accused drove a motor vehicle on a road-related area during a period of disqualification." 85His Honour proceeded to dismiss the charge under the Vehicle Registration Act. The submissions of the parties 86The respective positions adopted by the parties in relation to this charge were essentially the same as I have previously outlined. Counsel for the plaintiff relied upon her submissions in relation to his Honour's dismissal of the charge under the Vehicle Registration Act which, she submitted, also affected his dismissal of this charge. Counsel for the defendant relied on his previous submissions, namely that the Magistrate had properly identified the issue and that there was no error made out. Consideration and conclusion 87His Honour's reference to the fact that the court was not able to find that the defendant drove a motor vehicle "because it is not a motor vehicle within the definition of the Act" is some indication of the basis of his Honour's conclusion. At the same time, his Honour did not articulate why he came to that view. 88I am left to conclude that his Honour's finding in that regard stemmed from his conclusion in respect of the charge under the Vehicle Registration Act. Accepting that to be the case, and in view of the reasons I have previously expressed, further error is made out. THE CHARGE UNDER THE ROAD RULES The Magistrate's reasons 89Having dismissed the first three charges, his Honour said (at T 22 L 42): "I note insofar as sequence 4 is concerned, it charges motor bike rider alone, not wear secure, fitted approved helmet. ACCORDINGLY, INSOFAR AS THAT SEQUENCE IS CONCERNED, IT MUST ALSO BE DISMISSED". 90This passage represents the totality of the Magistrate's reasons for dismissing the charge under the Road Rules. The submissions of the parties 91Counsel for the plaintiff submitted that his Honour's reasons were simply inadequate. She submitted that such inadequacy was illustrated by the fact that this court was left to somehow extrapolate the basis upon which his Honour reached his conclusion that the charge should be dismissed, and that this was indicative of error. 92Counsel further submitted that to the extent that it might be inferred that his Honour dismissed this charge on the basis that he did not consider the defendant's bicycle to be a "motor vehicle", it might also be inferred that he did so on the basis of the same reasoning as he had adopted in relation to (inter alia) the dismissal of the charge under the Vehicle Registration Act. In this regard, counsel relied upon her previous submissions in relation to the dismissal of the first three charges. She submitted that if a view were reached that the dismissal of those charges was the result of erroneous legal reasoning, it would follow that the Magistrate's dismissal of the charge under the Road Rules was affected by the same error. 93Counsel for the defendant relied upon his fundamental submission that there was no erroneous reasoning on the part of the Magistrate. Consideration and conclusion 94In my view, bearing in mind the principles to which I referred at [77] the Magistrate's reasons are wholly inadequate. The Magistrate did no more than state the terms of the rule under which the defendant was charged. No reasoning process is disclosed and it is simply not possible to discern the basis on which the Magistrate reached his decision. 95In these circumstances, error is made out. THE APPROPRIATE ORDERS 96Section 56(1)(c) of the Crimes (Appeal and Review) Act 2001 ("the Review Act") is in the following terms: "56(1) The prosecutor may appeal to the Supreme Court against: ... (c) an order made by the Local Court dismissing the matter a matter the subject of any summary proceedings" 97The order sought by the plaintiff setting aside the orders of the Magistrate is pursuant to s. 59(2) of that same Act which is in the following terms: "59(2) The Supreme Court may determine an appeal against an order referred to in section 56(1)(b), (c), (d) or (e) or 57(1)(b) or (c): (a)by setting aside the order and making such other order as it thinks just; or (b)by dismissing the appeal. 98Counsel for the plaintiff submitted that in the event that error was established, the appropriate course would be to remit the matter to the Magistrate in order for it to be determined in accordance with my reasons. As I have previously noted, counsel for the defendant submitted that even if I came to the conclusion that the Magistrate had erred in the manner for which the plaintiff contended, I should not remit the matter. In this regard, Counsel for the defendant submitted that it was open to me not to remit the matter and that I should take that course on the basis that on the evidence, the Magistrate was correct to dismiss the charges. This proposition was based upon what counsel submitted was the correct interpretation of the relevant statutory provisions. 99Counsel for the defendant further submitted that to remit the case would not be a sensible use of judicial resources and would involve further time and cost to the parties. In support of this submission counsel cited the decision of Johnson J in Matheson (supra) at [73]. 100At the conclusion of the hearing I invited both counsel to provide me with any authorities which dealt with this issue. I received considerable assistance from Ms Mitchelmore, who appeared for the plaintiff, and who provided me with a number of authorities accompanied by further written submissions. It is apparent from reading those authorities that there are differing views surrounding the question of whether, in the event that error is found in a case such as the present, this court retains a discretion not to remit the matter to the Local Court. 101In Director of Public Prosecutions v Wunderwauld [2004] NSWSC 182 Sully J (at [36]), without deciding the point, was not persuaded that s. 59(2) of the Review Act conferred an overriding discretion not to remit the matter in the event that error was made out. In Roads and Traffic Authority of NSW v Bourke [2010] NSWSC 559, Rothman J concluded (at [28]) that it may be the case that the court did have such a discretion but that in the circumstances of that case he was not minded to exercise it. 102In Wililo (supra) Johnson J (at [139] and following) dealt with a submission that there was no discretion and that if error were found, the matter must be remitted. In the circumstances of that case, his Honour determined that the appropriate course was to remit the matter and that it was not necessary to decide the question of discretion as no basis for the exercise of any discretion had been demonstrated (at [147]). 103For the reasons I have set out, I am satisfied that the Magistrate erred in the present case. It has been observed on several occasions that in such circumstances, the making of an order for the matter to the remitted to the Local Court is an approach consistent with the proper relationship between the Supreme Court and the Local Court in statutory appeals with respect to criminal matters (see for example Wililo (supra); Council of the City of Lake Macquarie v Morris [2005] NSWSC 387; (2005) 63 NSWLR 263; Director of Public Prosecutions v Belani [2005] NSWSC 1013; (2005) 64 NSWLR 319; Mitchell v Nestle Australia Limited (1988) 36 A Crim R 199; Downes v Director of Public Prosecutions [2000] NSWSC 1054). 104In Matheson (supra) the plaintiff failed in respect of her appeal against a conviction recorded by the Magistrate, but succeeded in demonstrating error in respect of the sentence which was imposed. Johnson J concluded that the correction of the error would inevitably lead to an order being made pursuant to s. 10 of the Crimes (Sentencing Procedure) Act 1999 and that accordingly, the matter should not be remitted to the Local Court. It was in this context that his Honour made reference to the sensible use of judicial resources. The particular circumstances of the present case are far removed from those in Matheson. In my view, that decision provides no support for the submission advanced by counsel for the defendant. 105It is not necessary for me to determine whether, having found error, I have a discretion not to remit the matter to the Local Court. This is because in the circumstances of the present case, I do not regard the course which was urged by counsel for the plaintiff to be appropriate. Whether the evidence is sufficient to establish a prima facie case against the defendant will be a matter for the Magistrate to determine, on the application of the proper principles, at the resumed hearing. If the Magistrate concludes that a prima facie case is made out, it will then be a matter for him to determine whether he is satisfied beyond reasonable doubt of the guilt of the defendant in respect of any of the charges having regard to all of the evidence, including any evidence the defendant himself may choose to give. These are not, in my view, matters for this court to determine on a limited statutory appeal (see Council for the City of Lake Macquarie v Morris (supra) at [61]). COSTS 106Counsel for the plaintiff informed the court that in the event that the plaintiff was successful, costs were sought and invited me to make an order granting the respondent a certificate pursuant to the Suitors Fund Act 1951 ("the Suitors Act"). In doing so, counsel indicated that if I was to take that course, her instructions were that any costs which would be sought to be recovered from the defendant would be limited to those to which he was entitled under the Suitors Act. 107Counsel for the defendant submitted that even in the event that the plaintiff was successful, an order should be made requiring the plaintiff to pay the defendant's costs. Counsel submitted that there existed a proper basis for such an order because the issues raised in the present appeal have received very limited judicial consideration. 108In support of this submission counsel for the defendant relied upon the decision in Roads and Traffic Authority v Baldock [2007] NSWCCA 35. In that case, Spigelman CJ (with whom Bell and Howie JJ agreed) made an order that the appellant pay the respondent's costs because of (inter alia) what his Honour described as the "test case" aspect of those proceedings (at [55]). A similar course was taken in Roads and Traffic Authority v Higginson [2011] NSWCA 151 at [72]. 109For the reasons I have outlined at length, the issues in these proceedings concerned whether or not the Magistrate had erred in the manner alleged by the plaintiff. There is no "test case" aspect at all. Accordingly, this is not an appropriate case in which to make an order that the plaintiff pay the defendant's costs. 110Counsel for the defendant submitted in the alternative that in the event that I was minded to made an order for costs in favour of the plaintiff, and in the further event that I was minded to order that a certificate be issued to the defendant under the Suitors Act, I should take the step of issuing a second certificate to the defendant under that Act in respect of the costs payable by the defendant to his own representatives. 111Section 6 of the Suitors Act is in the following terms: 6 Costs of certain appeals (1) If an appeal against the decision of a court: (a) to the Supreme Court on a question of law or fact, or (b) to the High Court from a decision of the Supreme Court on a question of law, succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal. (2) Where a respondent to an appeal has been granted an indemnity certificate, the certificate shall entitle the respondent to be paid from the Fund: (a) an amount equal to the appellant's costs of: (i) the appeal in respect of which the certificate was granted, and also (ii) where that appeal is an appeal in a sequence of appeals, any appeal or appeals in the sequence that preceded the appeal in respect of which the certificate was granted, ordered to be paid and actually paid by the respondent ..... 112Section 6(1) of the Suitors Act confers the power to grant an indemnity certificate. The entitlement conferred by that certificate is, pursuant to s. 6(2)(a)(i), an entitlement for the defendant to be paid an amount equal to the plaintiff's costs of the appeal. In my view, the Act does not contemplate the issue of a certificate to the defendant conferring an entitlement to the payment of an amount to him in respect of his own costs. 113Finally, in terms of any costs order, I note that these proceedings were originally listed for hearing on 27 March 2013. On that day, the defendant's solicitor appeared and filed a motion in court seeking a vacation of the hearing date. Little or no prior notice had been given to the plaintiff that such an application would be made. The affidavit which was filed in support of the notice of motion made reference to the fact that the solicitor for the defendant was acting on what he described as an "amicus" basis. It also made reference to the difficulties which had been experienced in retaining counsel, as reasons for the defendant not being in a position to proceed with the hearing. When the application was made to vacate the hearing date, counsel for the plaintiff did not oppose the application, nor did she consent to it. For the reasons I gave on that day, and although the position was far from satisfactory, I determined that the hearing date should be vacated and reserved the question of costs. I also made an order allowing the service of further affidavit material by the defendant on that question 114When the hearing was concluded, counsel for the defendant sought, and was granted, leave to file in court an affidavit of Craig Robinson sworn on 2 May 2013, the contents of which I have read. Mr Robinson's affidavit went to the reasons for the vacation of the hearing date. 115Leaving aside the use of the term "amicus" to describe the nature of Mr Robinson's retainer, the fact is that the hearing had been set down by the registrar on 27 November 2012, some four months prior to 27 March. The plaintiff was ready to proceed on that day and had complied with all of the orders previously made, including an order for the filing of written submissions. 116There is nothing in the affidavit material provided by the defendant which persuades me that the costs order I propose to make in favour of the plaintiff should not include the costs thrown away by the vacation of the hearing date. ORDERS 117I therefore make the following orders: (1)the appeal is allowed; (2)the orders of Magistrate Hiatt made at the Campbelltown Local Court on 18 June 2012 dismissing the charges against the defendant of: (i)use an unregistered registrable vehicle; (ii)use an uninsured vehicle; (iii)drive whilst disqualified; and (iv)ride motor bike without approved motor bike helmet, are set aside. (3)the proceedings are remitted to Magistrate Hiatt at the Campbelltown Local Court to be heard conformably with this judgment; (4)the defendant is to pay the plaintiff's costs of the proceedings, including the costs thrown away as a consequence of the vacation of the hearing date of 27 March 2013; (5)the defendant is granted a certificate pursuant to s. 6(1) of the Suitors Fund Act 1951.

Director of Public Prosecutions v Sadler

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