Consideration
22Even if I were wrong in reaching that conclusion, for the reasons that follow, it does not appear to me to matter.
23Section 23(2) of the Fines Act is critical to the success of Mr Lironis' argument. He maintains that he paid the penalty referable to the penalty notice before it was validly withdrawn or cancelled. There is no dispute in these proceedings that Mr Lironis did not do so before it was purportedly cancelled on 17 April 2012. He contends that his payment of the fine prior to its valid withdrawal or cancellation had the effect of precluding the Director from bringing the further charges contained in the Court Attendance Notices.
24Section 23 is in these relevant terms:
"23 Payment of amount required by penalty notice
(1) For the purposes of this Part, the amount payable under a penalty notice is the amount specified in the notice, as fixed by or in accordance with law.
(1A) ...
(2) Payment of the full amount under a penalty notice results in there being no further liability for further proceedings for the offence to which the notice relates."
25Counsel for Mr Lironis argued that the words "further proceedings for the offence to which the notice relates" were somehow wide enough to include or to extend to the commencement of any further or other proceedings arising out of the same facts as those allegedly constituting the offence to which the penalty notice related. I was not referred to any authority for that proposition. Mr Lironis' submission included the following contention:
"... there is an important public interest element here. The legislature sought to provide some measure of protection to a person receiving a penalty notice and intended to create a statutory bar."
26Mr Lironis' submission also included the proposition that s 23(2):
"should be given some broader scope and characterised or interpreted or construed in a way as to suggest that the reference to the offence in that section is or should be a reference to an offence which is [a] substantially similar offence".
27I am unable to accept these submissions. The words of the section are clear and unambiguous. The provision excludes the prospect of further liability for the same offence once the penalty for that offence has been paid. It would be surprising if it were otherwise. The section does not say in terms and does not suggest by implication that a charge alleging some other offence arising out of the same or substantially similar facts cannot be preferred if the penalty for the offence contained in the penalty notice has been paid. If that had been intended, the section might have been expected to say so. It does not. Nor is there any obvious or apparent policy reason why it should be so. Section 23(2) only operates to bar or prohibit later proceedings for the same offence.
28In the light of that conclusion, Mr Lironis' supplementary submissions become otiose. Mr Thomas of counsel for Mr Lironis quite properly conceded that if the s 23(2) point were decided against him, that was in reality the end of any of the other arguments he may have wished to propound. That is because they are all directed to the question of the validity of the withdrawal or cancellation of the penalty notice. In other words, in order to succeed, Mr Lironis had to prevail upon his argument with respect to s 23(2) of the Fines Act as well as upon his contention that the penalty notice had for some reason not been validly withdrawn or cancelled by the time that he paid it. Out of deference to the detail of the submissions on the latter point by both sides, I will deal with it despite my conclusions upon the s 23(2) issue that otherwise wholly dispose of the application.
29The second part of Mr Lironis' argument is based upon the review provisions of the Fines Act. The relevant parts of the Act are in these terms:
"3 Definitions
'issuing agency', in relation to a penalty notice or official caution, means the agency in or by which the appropriate officer who issued the penalty notice or gave the caution is employed or engaged.
'reviewing agency', in relation to a penalty notice, means the State Debt Recovery Office or the issuing agency.
20 What is a penalty notice?
(1) A penalty notice is a notice referred to in subsection (2) to the effect that the person to whom it is directed has committed a specified offence and that, if the person does not wish to have the matter dealt with by a court, the person may pay the specified amount for the offence to a specified person within a specified time.
(2)...
24A Application for review of penalty notice
(1) An application may be made by or on behalf of any person for a review of the decision to issue a penalty notice in respect of the person.
(2) An application for a review:
(a) is to be made in writing to the issuing agency for the penalty notice or to the State Debt Recovery Office (if the fine under the penalty notice is payable to the State Debt Recovery Office), and
(b) is to include the mailing address of the applicant and the grounds on which the review is sought (including supporting evidence).
(3) An application for a review may be made even if the whole or part of the amount payable under the penalty notice has been paid, but such an application may not be made later than:
(a) if the whole of the amount payable under the penalty notice has been paid and no penalty reminder notice is served in respect of the offence-60 days after the penalty notice was served, or
(b) in any other case-the due date specified in the penalty reminder notice for payment in relation to the offence concerned.
(4) The regulations may make provision for or with respect to applications under this section.
24B Circumstances when agency is not required to conduct a review
(1) An agency that receives an application for a review of a decision to issue a penalty notice is not required to conduct a review of the decision under this Division in any of the following circumstances:
(a) the agency notifies the applicant in writing, within 10 days after receiving the application, that it has decided not to conduct a review under this Division and gives reasons for its decision,
(b) a review of the decision has already been conducted under this Division,
(c) such other circumstances as may be prescribed by the regulations.
(2) An agency that decides not to conduct a review may take such other action as it sees fit, including withdrawing the penalty notice to which an application relates.
24C Review by reviewing agency
(1) Except as provided by section 24B, an agency that receives an application for review under this Division must conduct a review in accordance with this Division.
(2) The reviewing agency is to ensure that a review under this Division is conducted by a person who was not involved in making the decision that is the subject of the review.
24E Outcome of review
(1) After reviewing a decision under this Division, a reviewing agency may confirm the decision to issue a penalty notice or may withdraw the penalty notice.
(2) A reviewing agency must withdraw a penalty notice if it finds any of the following grounds to be made out:
(a) the penalty notice was issued contrary to law,
(b) the issue of the penalty notice involved a mistake of identity,
(c) the penalty notice should not have been issued, having regard to the exceptional circumstances relating to the offence,
(d) the person to whom the penalty notice was issued is unable, because the person has an intellectual disability, a mental illness, a cognitive impairment or is homeless:
(i) to understand that the person's conduct constituted an offence, or
(ii) to control such conduct,
(e) an official caution should have been given instead of a penalty notice, having regard to the relevant guidelines under section 19A,
(f) any other ground prescribed by the regulations.
(3) A reviewing agency may, at its discretion, also decide to withdraw a penalty notice on a ground other than those specified in subsection (2).
(4)...
24G Effect of withdrawal of penalty notice
(1) If a reviewing agency withdraws a penalty notice, following a review under this Division or otherwise, it may, if it considers it appropriate to do so, give an official caution to the person in accordance with Division 1A as if it were an appropriate officer.
(2)...
24H Agency may review a decision on its own motion
(1) Nothing in this Division limits the power of a reviewing agency to review a decision to issue a penalty notice, or withdraw a penalty notice, on its own motion.
(2) If a reviewing agency withdraws a penalty notice on its own motion after the amount under the penalty notice (or a penalty reminder notice in respect of the offence to which the penalty notice relates) has been paid, no person is liable to any further proceedings for the alleged offence."
30Mr Lironis contended that these provisions applied to the circumstances relating to the withdrawal or cancellation of the penalty notice in this case and that they were not complied with. His submission was therefore that the penalty notice remained on foot. He formulated that submission in a number of ways.
31First, Mr Lironis maintained that the review provisions of the Fines Act operated as a code. In particular, he drew attention to the fact that the evidence suggests that Mr Kerr was both the appropriate officer from the issuing agency that issued the penalty notice as well as the person at the reviewing agency that conducted the review. If that were so, according to this argument, there would have been a fundamental failure to comply with the terms of s 24C(2) of the Fines Act. He argued that the result of that was that the penalty notice remained in force when he paid it.
32Secondly, Mr Lironis argued that there was no circumstance in which a penalty notice could be withdrawn other than in accordance with, and following, implementation of the review provisions. Mr Lironis submitted that no independent right or power to withdraw or cancel a penalty notice existed beyond the scheme and framework of the review provisions.
33I pause to observe that her Honour formed the view that it was likely that the State Debt Recovery Office conducted a review and made a decision to withdraw the penalty notice. With respect to her Honour, she was required to form her view about that question on less than perfect evidence and on one view of the matter on no satisfactory evidence at all. It is apparent that her Honour was desirous of giving an opinion in the context of Mr Lironis' propositions concerning the sanctity and significance of the review provisions of the Fines Act. In my view it was unnecessary for her Honour to have done so or to have attempted to do so.
34That is because Mr Lironis' argument is misconceived. There was in my view no review conducted in this case at all. No one applied for a review in accordance with s 24A(1) of the Fines Act. There was no evidence before her Honour that was capable of establishing at any level of satisfaction that a review took place. For the same reason, Mr Lironis can take no comfort from the alleged failure by a reviewing agency to conform to the exhortation contained in s 24C(2) of the Fines Act: no review under the relevant Division of the Act was conducted by anyone.
35It is quite obvious that some reconsideration of the penalty notice took place within the St George Local Area Command after it was issued. The evidence suggests that this may have been the result of some informal representations upon the matter that were made on behalf of the injured pedestrian. Whether or not that is a correct assessment of what occurred is for present purposes entirely beside the point. Mr Kerr's report on 17 April 2012 clearly indicated that the injuries sustained by the pedestrian appeared upon further consideration to conform to the description of grievous bodily harm and that a more serious offence may in these circumstances have been committed. A decision to prefer additional charges by way of Court Attendance Notices was made. A simultaneous decision was also made to request the State Debt Recovery Office urgently to cancel the penalty notice. That is what occurred.
36Section 24B(2) provides for the withdrawal of a penalty notice in circumstances where a decision has been made not to conduct a review. Section 24G(1) contemplates the withdrawal of a penalty notice "following a review...or otherwise." The terms of s 24H(2) are also clear. Nothing contained in the relevant Division of the Fines Act dealing with reviews limits the power of a reviewing agency to review a decision to issue a penalty notice, or withdraw a penalty notice, of its own motion. That is what occurred in the present case.
37Section 24H(2) also makes it clear that if a reviewing agency withdraws a penalty notice of its own motion after the amount under the penalty notice has been paid, no person is liable to any further proceedings for the alleged offence. In the present case the penalty notice was cancelled before Mr Lironis paid the amount due. However, even if he had paid it beforehand, I consider that the expression "further proceedings for the alleged offence" means further proceedings for the offence alleged in the penalty notice and not some other offence based substantially upon the same facts. In that respect I take the same view concerning the interpretation of s 24H(2) of the Fines Act as I took with regard to s 23(2) of that Act.
38In my opinion the review provisions of the Fines Act do not contain or provide for a code with which a reviewing agency must comply before a penalty notice can be cancelled or withdrawn. The "cancellation" of the penalty notice in this case by the State Debt Recovery Office on 17 April 2012 was valid and effective according to its terms.