Firth v Director of Public Prosecutions

Judgment 1EMMETT JA: I invite Leeming JA to give the first judgment. 2LEEMING JA: By amended summons filed 25 March 2013 the applicant, Mr William Firth, claims these orders: "1) Quash all Lower Court judgements. 2) Costs of Lower Court fines, court costs, representation costs & transcriptions. 3) Damages in, and from, miscarriages of justice." 3Although the applicant was legally represented in the Local Court and the District Court, his amended summons appears to have been drafted by him without legal assistance and he has appeared today in person. His written submissions confirm that he wishes to challenge two judgments of the District Court made on 1 August 2011, being appeals from two driving offences of which he was convicted in the Local Court on 28 January 2011 and sentenced on 7 March 2011, as well as the refusal by Payne DCJ to state a case pursuant to s 5B of the Criminal Appeal Act 1912. 4Proceedings were commenced against the applicant by Court Attendance Notice dated 8 October 2010 for refusing to undergo a breath test, failing to undergo breath analysis, and driving while under the influence of alcohol. On the same day he was issued with a "Notice of Suspension of Authority to Drive in NSW" with effect on and from 8 October 2010 until the charges had been heard and determined. He refused to sign that notice, something to which I will return. 5There was a hearing in the Tamworth Local Court on 1 December 2010, which was not completed and was stood over for further hearing on 28 January 2011. At the conclusion of the hearing the Magistrate said: "so the Court Attendance Notice is to continue, but so is the suspension of your entitlement to drive, so don't drive anything between now and 28 January, OK." 6On 18 January 2011 the applicant was charged with driving while suspended, and on 24 January Mr Firth entered a plea of guilty to that charge. On 28 January 2011 Mr Firth was convicted of the charge of failing to undergo a breath test contrary to s 13(2) of the Road Transport (Safety and Traffic Management) Act 1999. The prosecutor withdrew the charge of failing to undergo breath analysis, and the charge of driving under the influence was dismissed. 7On 7 March 2011, when the proceedings returned for sentence, the Magistrate refused leave to withdraw Mr Firth's guilty plea to the charge of driving while suspended. Mr Firth was fined $200 and $400 respectively and disqualified for 12 months. 8Mr Firth appealed from the charges of which he had been convicted to the District Court by Notice of Appeal dated 4 April 2011. He also sought leave to appeal from the conviction for driving whilst suspended, to which he had pleaded guilty. Leave to appeal was granted. The appeal was heard in the Tamworth District Court on 1 August 2011 and the challenge to each conviction was heard and determined separately by her Honour Payne DCJ on 1 August 2011. 9In relation to the conviction under s 13(2) of the Road Transport (Safety and Traffic Management) Act, Mr Firth evidently adduced medical evidence directed to his being unable to undertake the breath test. Her Honour said: "I have looked at the medical evidence and I've looked at the totality of the evidence. I accept that he may not have understood the effect of the beta blocker but it was all of his behaviour on this night that raises concerns about his veracity in terms of undertaking the test. The onus is on the appellant in terms of the defendant satisfying the Court that he was unable to do so on medical grounds and the Court has a report. That is on the balance of probabilities. The highest the report says, "It therefore may" - and I emphasise "may", interfere with Mr Firth's forced exhalation of air to complete a demand to exhale a certain volume of air continuously." It does not say it will, or would have, it may. In all the circumstances of this case I am not - and I know that he gave sworn evidence that that was the position - but I am not satisfied, even on the balance of probabilities, and find him guilty of the offence." 10In relation to the conviction of driving while suspended, contrary to s 25A(2) of the Road Transport (Driver Licensing) Act 1998, her Honour rejected the argument that because the prosecutor had withdrawn the offence of refusing breath analysis there was no valid suspension of his licence, with the consequence that when Mr Firth drove during the suspension period there could be no offence. Her Honour said: "With respect to him, that just cannot be so. He was charged with the offence pursuant to s 205 of the Road Transport (General) Act 2005 and immediate suspension came into play. He was properly suspended and remained suspended until the matter was dealt with by a court or otherwise. As I understand it, he drove before it was withdrawn." 11Following a request by Mr Firth, her Honour revised both judgments and issued them on 27 September 2011. However, not until 26 June 2012 did Mr Firth, now without the benefit of legal representation, apply for her Honour to state a case pursuant to s 5B of the Criminal Appeal Act 1912. His application was in these terms: "A Stated Case is sought as in: A. There was error in law in not applying the dual criteria of Section 141 - Evidence Act to the opinion provided in the Doctor's Certificate. B. There was error in law in citing the procedural provisions of Sect 205 [Road Transport (General) Act 2005]