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[2013] NSWSC 1483
Supreme Court of NSW
2013-10-08
Harrison J
Original judgment source is linked above.
Judgment 1HIS HONOUR: By summons filed in this Court on 27 February 2013 Perkilis Lironis seeks leave pursuant to s 53(3) of the Crimes (Appeal and Review) Act 2001 to appeal on a question of law against an order of Magistrate Barkell said to have been made on 31 January 2013. Section 53(3) of that Act is in the following terms: "(3) Any person against whom: (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court." 2The orders sought in the summons and the grounds of appeal that it contains are also faintly suggestive of an application for some form of relief pursuant to s 69 of the Supreme Court Act 1970. In those circumstances the parties agreed that I should have regard to such matters if it appeared appropriate to do so. However, Mr Lironis did not indicate that he was proposing to file an amended summons.
Background 3An appreciation of the slightly unusual facts of this case is necessary for a proper understanding and application of the relevant principles. The relevant facts are briefly as follows. They are not in dispute. 4On Sunday 12 February 2012 Mr Lironis was driving a motor vehicle along Bay Street at Brighton Le Sands when he made a right hand turn into Queen Street. As he did so he collided with a pedestrian who was knocked to the ground and injured. Mr Lironis stopped to assist the injured pedestrian who was taken to hospital. He also spoke to police at the scene. 5On 27 March 2012 Mr Lironis was issued with a penalty notice for the offence of "negligent driving (not occasioning death or grievous bodily harm)". That is an offence under s 42(1)(c) of the Road Transport (Safety and Traffic Management) Act 1999. 6On 17 April 2012 the police sent a report by facsimile to the State Debt Recovery Office that included a written request (expressed as a recommendation) that the penalty notice be "cancelled". The relevant terms of that report are as follows: "ISSUE: Request for the cancellation of Traffic Infringement Notice 4032329539, issued to Periklis LIRONIS, following a collision with pedestrian Margaret BAPTIE, on the 12th February 2012, RECORDED in Event 47138621. BACKGROUND: About 9.30am on Sunday the 12th February 2012, Periklis LIRONIS was the driver of motor vehicle BBH-48Q (NSW) when the vehicle collided with an elderly pedestrian, Margaret BAPTIE (83 yrs), at the intersection of Queens Road and Bay Street Brighton Le-Sands. As a result of the collision, BAPTIE suffered a number of injuries including a fractured right wrist and a tearing/de-gloving injury to her right elbow amongst others. Police determined that Periklis LIRONIS was the at fault party in the collision. Police monitored the progress of BAPTIE in her recovery and on the 8th March 2012, BAPTIE was contacted and advised police that she was healing well and that she had not received any surgery for her fractured wrist. She also stated that her doctor advised that she was 'okay'. With this available information the St George Traffic Supervisor made a determination that the injuries did not constitute a GBH Injury and as such advised the Officer in Charge, Constable GERSBACK, that LIRONIS was to be issued a Traffic Infringement Notice for Negligent Driving (Not Occasioning Death or GBH) which was done on the 27/03/12. COMMENT: On the 16th April 2012, information was received from the victims daughter indicating that her mother, the victim Margaret BAPTIE, had a bulging disfigurement to the fracture site on her wrist which was described as being permanent by her treating Orthopaedic Surgeon, and that she has 'significant restrictions' in the movement of her right arm with ongoing pain. It could be argued that these injuries do fall within the description of a Grievous Bodily Harm, being that it was a 'really serious injury resulting in permanent impairment or disfigurement'. Enquiries made this date with the State Debt Recovery Office indicate that Traffic Infringement Notice 4032329539 has yet to be paid. With this information, advice was sought from the Sutherland Prosecutors who advised that the matter should be forwarded for review. RECOMMENDATION: It is recommended that TIN: 4032329539 be cancelled immediately so that a full brief of evidence can be prepared and forwarded to Legal Services for review to determine whether there is sufficient evidence available to support a charge of Negligent Driving Occasioning GBH against Periklis LIRONIS in this matter." 7That document was prepared and signed by M A Kerr, the Traffic Supervisor of the St George Local Area Command. 8The State Debt Recovery Office responded with notable alacrity to the receipt of that report. It wrote to Mr Lironis the very same day in the following terms: "Dear Mr Lironis, We are writing about your contact with us regarding penalty notice number 4032329539 issued for Negligent Driving (Not Occasioning Death/Grievous Bodily Harm) on 12 February 2012. We have received advise (sic) from the NSW Police to cancel this penalty notice, you do not need to take any further action regarding this penalty. Please be advised the police may take separate action in relation to this matter. We apologise for any inconvenience this has caused..." 9On 19 April 2012, after receipt of that letter, Mr Lironis paid the fine referable to the offence. The fine was subsequently refunded. 10On 14 July 2012 Mr Lironis was served with Court Attendance Notices with respect to the offences of negligent driving occasioning grievous bodily harm pursuant to s 42(1)(b) of the Road Transport Act and not give way to pedestrian pursuant to r 73(1) of the Road Rules 2008. The notices were returnable before the Local Court on 28 August 2012. Mr Lironis initially entered pleas of guilty to each offence but has now altered those pleas to not guilty. The offences came before Magistrate Barkell on 31 January 2013 for hearing. 11On that occasion Mr Lironis raised what was described as a "preliminary point", namely whether in the circumstances the fresh charges had been validly commenced. The contentions advanced by Mr Lironis in support of the proposition that the charges had not been validly commenced were to the following effect. 12The penalty notice first issued was for the less serious offence of negligent driving. A "review" of that penalty notice was conducted by the police in accordance with Part 3 Division 2A of the Fines Act 1996, as a result of which the penalty notice was "cancelled' or "withdrawn" on 17 April 2012. That "review" was a nullity because it did not comply with the relevant provisions of the Fines Act. Accordingly, the penalty notice remained "valid" up until and including the time that Mr Lironis paid the fine that it imposed. By operation of s 23(2) of the Fines Act, no further or other action or proceedings could be taken against Mr Lironis in relation to the events giving rise to the issue of the penalty notice following payment of that fine. Payment of the fine meant that the charges contained in the Court Attendance Notices issued on 14 July 2012 were therefore barred by operation of the Fines Act.
The decision below 13After hearing submissions upon this point from the parties on 31 January 2013, Magistrate Barkell rejected Mr Lironis' argument. The essential burden of her Honour's reasons for rejecting Mr Lironis' propositions is as follows. 14A question arose as to whether the penalty notice issued by police on 27 March 2012 was still valid on the day that it was paid by Mr Lironis on 19 April 2012. The determination of that question depended on whether or not it was cancelled or withdrawn before it was paid. The Fines Act gives the State Debt Recovery Office an express power to review or withdraw a penalty notice. The Director contended that it was effectively withdrawn on 17 April 2012, two days before it was paid. The evidence indicated that on that day, the State Debt Recovery Office received a report by fax from the police headed "Urgent request to cancel" the penalty notice. The State Debt Recovery Office business records indicated that the penalty notice was cancelled at 1.45pm on 17 April 2012. 15Mr Lironis contended that it was the police who made the decision to cancel or withdraw the penalty notice. He argued that, in doing so, the police breached the terms of s 24C(2) of the Fines Act (because, in conducting a "review" of the penalty notice, the police failed to ensure that the review was conducted by a person who was not involved in making the original decision to issue it). The Director contended that the fax sent to the State Debt Recovery Office on 17 April 2012 requested it to conduct a review, and that it conducted a review that day, and withdrew the penalty notice. 16The learned Magistrate concluded that the evidence was "more consistent" with the prosecution version of events, being that the State Debt Recovery Office conducted a review and made a decision to withdraw the penalty notice. She was accordingly satisfied on balance that the State Debt Recovery Office made that decision (by review) on 17 April 2012, and that its decision was "within power". There was in those circumstances no "bar" to the presentation of the two additional charges notified in the Court Attendance Notices.
A preliminary issue 17The Director contended in this Court that s 53(3)(b) of the Crimes (Appeal and Review) Act was not available to Mr Lironis as an avenue of appeal because nothing that her Honour did on 31 January 2013 amounted to the making of an interlocutory order. On the contrary, the Director submitted that all her Honour did on that day was to make a "preliminary ruling". The Director accordingly contended that s 53(3)(b) did not confer jurisdiction on this Court in this case. In this respect I was referred to the well-known comments of Spigelman CJ in Salter v Director of Public Prosecutions [2009] NSWCA 357; (2009) 75 NSWLR 392 at [15]-[16] as follows: "[15] Furthermore where, as in this case, a magistrate has done no more than answer a preliminary question of law, there has been, in my opinion, no order. As the joint judgment put it in Steffan [(1993) 30 NSWLR 633] at 639, the determination does not 'command that anything be done (or not done) in the sense of an order of the court. It remains as no more than a ruling, one which can be tested on appeal to this Court after a conviction'. [16] By s 53(1) of the Act an appeal lies to the Supreme Court from a conviction or sentence, by leave or, pursuant to s 52(1), without leave on a question of law. It is plainly undesirable to fragment committal or summary proceedings by interlocutory appeals. The ability to appeal after conviction strongly indicates that the word 'order' in both pars (a) and (b) of s 53(3) should not be given an expansive meaning." 18Similar considerations were at play in LS v Director of Public Prosecutions [2011] NSWSC 1016; (2011) 81 NSWLR 551. 19Her Honour's conclusions in the present case were that the State Debt Recovery Office had validly withdrawn the original penalty notice on 17 April 2012. She concluded that that had the consequence that payment of the penalty by Mr Lironis two days later did not create a "bar" pursuant to s 23(2) of the Fines Act. 20In my opinion her Honour's conclusion amounted to no more than an expression of opinion on a preliminary question of law. There was no order. Mr Lironis was neither commanded to do or to refrain from doing anything by her Honour. There was no circumstance in which a refusal or failure by Mr Lironis to "comply" with the "order" could be enforced or sanctioned. Her Honour did no more and no less than to indicate to Mr Lironis that she did not feel constrained by any legal argument mounted on his behalf to refrain from continuing to hear and to determine the Director's case on the charges described in the Court Attendance Notices. The correctness of that decision was available to be challenged by Mr Lironis in any appeal against his conviction on those charges were that to occur. Mr Lironis was not disadvantaged or prejudiced in his defence of those charges by any unresolved uncertainty about the correctness of her Honour's decision upon the matter in the meantime. 21In my opinion this is not a matter in which leave to appeal to this Court could or should be granted in accordance with s 53(3) of the Crimes (Appeal and Review) Act.
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.
Disposition 39I have already indicated that if Mr Lironis' application is limited to an application pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act, I would refuse leave to appeal upon the basis that the learned Magistrate did not make an interlocutory order that attracted the provision of the section. If the application is to be treated in some fashion as an application for relief pursuant to s 69 of the Supreme Court Act, no such limitation applies. 40Mr Lironis' summons sought a series of orders that included the following: "2. Set aside the interlocutory order by Magistrate Barkell made on 31 January 2013 that the penalty notice... issued about 27 March 2012 was validly reviewed and withdrawn by the State Debt Recovery Office on 17 April 2012. 3. Remit the matter to the Magistrate to be determined according to law." 41The grounds of appeal contained in the summons are as follows: "1. The learned Magistrate erred in finding that the penalty notice... was validly reviewed and withdrawn by the State Debt Recovery Office on 17 April 2012. 2. The learned Magistrate erred in finding that the penalty notice... was invalid as at 19 April 2012 when the applicant paid [it]. 3. There was no evidence to support the findings of the learned Magistrate referred to... above. 4. The learned Magistrate erred in finding that the NSW Police Service had not reviewed the said penalty notice on 17 April 2012. 5. The learned Magistrate erred in finding that the NSW Police Service had not breached s 24C of the Fines Act 1996 in the review of the said penalty notice." 42Unless I am mistaken, from a purely practical perspective, there is little, if any, utility in proceeding to analyse Mr Lironis' application as one seeking some form of prerogative relief or to consider his grounds of appeal and whether they warrant any of the orders sought in the summons. That would appear inevitably to follow having regard to my earlier conclusions and findings with respect to s 23(2) of the Fines Act. In these circumstances I propose simply to order that the summons be dismissed with costs. In the event that either party wishes to suggest a different formulation of orders for the disposition of the proceedings, I will hear submissions concerning it at some suitable time to be arranged in consultation with my Associate.
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: 11 October 2013
Lironis
Director of Public Prosecutions