CRIMINAL LAW - Road Transport Legislation - Drive whilst suspended - Whether s 72 evidentiary certificate admissible - Whether breach of legislative conditions invalidates driver licence suspension - no evidence to answer submission

Road Transport (General) Act 1999 s 3, 17, 44A, 47, 47A and 72

Road Transport (Offences) Regulation 2005 s 16J

Road Transport (Safety and Traffic Management) Act 1999 s 25

Public Sector Management Act 1994 s 18 and 20

Australian Capital Territory (Self-Government) Act 1988 s 70

Legislation Act 2001 s 40, 41, 139 and 140

Administrative Arrangements 2017 (No 1) article 5

Road Transport (Driver Licensing) Act 1999 s 32(2)(a)

Human Rights Act 2004 s 21 and 22

Police v Candy [2025] ACTMC 5

Stone v French [2013] ACTMC 4

O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47

Cassell v R [2000] HCA 8

Hijazi v Orr (1997) 26 MVR 266

R v Morris (1997) 98 A Crim R 408

SAS Trustee Corporation v Miles [2018] HCA 55

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

Mirko Bagaric, Ross on Crime (Thomson Reuters, 9th ed, 2022)

R Mackenzie - ACT Director of Public Prosecutions (Informant)

E Wilson - Legal Aid ACT (Defendant)

1. Earlier today I found the defendant had no case to answer in relation to a charge and dismissed the same. These are my reasons.

1. The defendant was before the Court for the hearing of several charges. Relevantly, he was charged with the offence of driving while his driver licence was suspended, contrary to s 32(2)(a) of the Road Transport (Driver Licencing) Act 1999. He pleaded not guilty to that charge.
2. The prosecution case was that in 2023 he was pulled over by police and observed to have been driving while his driver licence had been suspended. There was no issue that he was driving a registrable vehicle on a road at the relevant time. The defendant took issue with the certificate tendered to prove the suspension, submitting that:

(a) the certificate was invalid and therefore should not be admitted into evidence, and

(b) in any event, the purported suspension was invalid and of no effect.

1. In these proceedings, as in all criminal proceedings, the onus of proof is on the prosecution, and they are required to prove each element of an offence beyond reasonable doubt. Proof is based on the evidence before the court.
2. At the end of the prosecution case and before a defendant decides whether to present their own case, the defendant may make a no case to answer submission. The test to be considered in those circumstances is whether, based on the evidence before the court, whether the defendant could lawfully be found guilty: see for example, R v Morris (1997) 98 A Crim R 408 at 416. Put another way, and as summarised in Ross on Crime (9th ed, 2022) at [14.1100]:

The test to be applied is whether there is evidence which, if accepted would provide evidence of each element of the charge. Even if there is such evidence, it may be so lacking in weight or reliability that it is open to the court, as a matter of discretion, to dismiss the information.

3. In the present case, the only evidence of the suspension was in the form of a certificate. Obviously, if that certificate was inadmissible, or the suspension found to be invalid, then that test would fail, and I would be required to find the defendant not guilty and dismiss the charge.

1. The defendant objected to the admissibility into evidence of a certificate purportedly made in accordance with s 72 of the Road Transport (General) Act 1999. That certificate was relied on to prove that the defendant's driver licence was suspended at the relevant time. The objection was based upon the reasoning adopted in Police v Candy [2025] ACTMC 5. As I understand it, that reasoning did not involve any suggested inadequacy in the form or content of the notice, but rather whether the author of the certificate was authorised to issuing the same. It concluded that the author was not, and the notice was therefore invalid and inadmissible. That determination involved a consideration of various documents that devolved authority and various statutory provisions. The certificate in that judgment was purported issued under a similar, but different provision, namely s 25 of the Road Transport (Safety and Traffic Management) Act 1999.
2. I have concluded that the s 72 notice in this matter is admissible. I have done so principally due to the construction of that provision which, in my view, does not require me to go behind an appropriately presented certificate to consider the authority of the author to issue the same. This feature does not appear to have been argued or considered in Candy. This convenience, about readily accepting the admissibility of the certificate, does not in any way detract from a defendant's ability to challenge the matters contained within a certificate by pointing to and or presenting other evidence that raises a doubt about such conclusions.
3. The devolution of authority within government is notoriously unclear. This is demonstrated by the complexity of the discussions in Candy. Often legislative provisions are impractically precise and utilise different methods to devolve power, for example delegations of powers or the appointment of 'authorised persons' who may then exercise powers defined by statue. Sometimes, both mechanisms are utilised in series. Those arrangements also change over time, with instruments being amended, revoked or substituted. Additionally, the powers may be simultaneously devolved by different principals to various individuals or positions. Those devolutions often exist within complex government structures, which themselves involve uncertainty, including inconsistent titles and terminology, and which invariably change and evolve over time. Individuals come and go, make act in more than one capacity and, at times, may be required to act in positions or on behalf of others. A determination that a particular person had a power to exercise a particular devolved power at a particular time is not necessarily a simple inquiry.
4. In response to that challenge, the common law has developed a range of principles, including the Carltona principle and the de facto officer doctrine; the former which provides that a principal may act through staff when administratively necessary, and the latter which may validate the acts of an officer ineffectively appointed: See O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47 at [6] and the minority judgment of Kirby J in Cassell v R [2000] HCA 8 at [71]. Modern statutory provisions echo, in part, those principles, (see for example ss 18 and 20 of the Public Sector Management Act 1994, s 17 of the Road Transport (General) Act 1999) and s 70 of the Australian Capital Territory (Self-Government) Act 1988 (Cth)). Modern provisions also provide presumptions that statutory instruments are valid (see for example s 40 of the Legislation Act 2001); and permit Ministers to sign instruments on behalf of another Ministers (see for example s 41 of the Legislation Act 2001). Additionally, instruments themselves may contain provisions intended to provide flexibility (see for example article 5 of the , which provided that Ministers were authorised to act on behalf of other Ministers).
5. Section 72 of the Road Transport (General) Act 1999 states relevantly:
   1. Certificate evidence and other evidentiary provisions

(1) A certificate that appears to be signed by or on behalf of the road transport authority ... and states any of the following matters, is evidence of:

(a) a matter that appears in or can be worked out from the demerit points register or driver licence register kept under the Road Transport (Driver Licensing) Act 1999; ...

(7) A court must accept a certificate or other document mentioned in this section as proof of the matters stated in it if there is no evidence to the contrary.

1. Certificates, such as this, have been described as providing prima facie evidence of the facts stated, that such evidence has no inherent weight, and it remains necessary for the court to be satisfied beyond reasonable doubt that the offence has been proved: Hijazi v Orr (1997) 26 MVR 266 at 271_._ Accordingly, it is open to the defendant to present and or point to other evidence that supports an alternative finding or at the very least creates a reasonable doubt about the facts described in a certificate.
2. That opportunity to challenge the matters described within a certificate should not be confused with any challenge to the provenance or validity of the certificate. The latter does not appear available when the certificate, on its face, satisfies the requirements of the provision.
3. The High Court, in in SAS Trustee Corporation v Miles [2018] HCA 55 at 20 (the judgment of Kiefel CJ, Bell and Nettle JJ) observed that 'the starting point for ascertainment the meaning of a statutory provision is, of course, the text of the provision considered in light of its context and purpose.' That principle is echoed in ss 139 and 140 of the Legislation Act 2001. Earlier, the High Court observed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [71] that 'a court construing a statutory provision must strive to give meaning to every word of the provision.' Additionally, Territory legislation must also be interpreted, so far as is possible, in a way that is compatible with the rights described in the Human Rights Act 2004.
4. Section 72 does not expressly require a certificate to be valid. Instead, the ordinary meaning of the text requires that the certificate only appears to be signed by or on behalf of the Road Transport Authority and state relevant matters. The natural and ordinary meaning of that language is not ambiguous.
5. The word 'appears' would do no work and have no meaning if the provision was construed to require the certificate to have been, as a matter of fact, signed by the Road Transport Authority or someone authorised to do so on the authority's behalf.
6. The above construction is consistent with the obvious purpose and context of the provision and Act. In particular, the provision's purpose is obviously to streamline the proof of technical and ordinarily non-controversial facts; and more generally, the purpose of the Act is the administration and enforcement of the Road Transport Legislation: s 3 of the Road Transport (General) Act 1999. The provision exists along with a range of other provisions, described above, that provide flexibility for the devolution of statutory authority. Further, the defendant retained the opportunity to challenge the actual contents of the certificate. The convenience provided by these certificates is in the context of the court hearing very minor offences where any engagement with the question about whether the certificate was validly signed may trigger an inquiry unacceptably disproportionate in scale. Accordingly, I see no ambiguity in the ordinary meaning of the provision or any inconsistency between that construction and the purpose and of the Act or the legislative context.
7. Finally, in the circumstances where a defendant retains the opportunity to present and or point to other evidence which may create a reasonable doubt about the contents of the certificate, including compelling the production of records from the Road Transport Authority, the above construction appears consistent with the human rights of a fair trial and rights in criminal proceedings described at ss 21 and 22 of the Human Rights Act 2004.
8. Accordingly, the s 72 certificate was admitted into evidence.

1. Section 44A of the Road Transport (General) Act 1999 requires, amongst other things, a suspension notice be sent to the defendant before any suspension. Such a notice must state, amongst other things, any information prescribed by regulations. Regulation 16J of the Road Transport (Offence) Regulations 2005 requires the notice to include a statement that 'any suspension action ... continues until the suspension is revoked under the Act, part 3'. In the present case a copy of this suspension notice was attached to the certificate admitted into evidence. It did not make a reference to part 3 of the Act. Instead, it referred only to s 47 of the Act. While s 47 is in part 3, s 47A is also in that part and provides a separate mechanism for the revocation of a suspension. The defendant submitted that as this requirement had not been met, the suspension was invalid and without effect.
2. The High Court, in Project Blue Sky, at [91] described how failure to comply with such requirements may affect the validity of a statutory power, and at [93] what it considered to be the better test:

91. An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue. > > 93. ... A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute". (Footnotes omitted)

3. In this case the requirement was obviously for the purpose of putting the recipient of a suspension notice on notice about what he or she could do before a suspension to avoid that suspension and what he or she could do after the suspension to have the suspension revoked. The incorrect reference effectively deprived the reader of notice of any information pointing to the mechanism provided by s 47A that the suspension may be revoked if the defendant once again adhered to the infringement notice management plan. That failure, within a scheme designed to provide a recipient with every opportunity to avoid a suspension, is of significant consequence and, to my mind, elevates the failure to one which the purpose of the legislation would render the suspension invalid.
4. Accordingly, I found the subsequent suspension invalid and without effect and therefore, there was no evidence that the defendant was suspended at the relevant time.

1. The Court ordered: In relation to CC2024/1484, the defendant is not guilty of the charge, and that charge is dismissed.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Theakston