NSW Police v Le Platrier

Judgment 1The case before me raises a question which arises regularly in the Local Court about the effect of an application being granted under section 4, Crimes (Appeal and Review) Act 2001 ("the Appeal Act"). 2Where a person is dealt with in their absence for a driving offence that carries a mandatory period of disqualification from driving, on conviction the disqualification (whether imposed by the court or by operation of law) takes effect. If the person is subsequently detected driving, they are required to attend court for the offence of Drive While Disqualified (now contrary to section 54, Road Transport Act 2013). 3Not infrequently such a person then lodges a section 4 application under the Appeal Act. Where such an application is granted and the conviction and sentence are set aside, the question arises as to whether the offence of Drive While Disqualified allegedly committed during the period between the court decision on the original offence and the court decision on the section 4 application can be made out as a matter of law (and leaving aside any "honest and reasonable mistake of fact" issue that might arise). 4Put simply, does an annulment of a conviction and sentence on a section 4 application take effect ab initio, or only prospectively from the date of the annulment. 5This is the situation in which Mr Le Platrier (or Platrier, both names are used in the court papers) finds himself. His driving record is complicated, and arguably very poor, and I do not propose to try to go further into it than is necessary for this decision. During 2013 he had matters before courts at Balmain, Penrith, Parramatta, Burwood and Waverley for various driving offences. 6On 6 September 2013 he was detected by police driving in Petersham. On that date his licence status was "Disqualified". That was because on 26 July 2013 at Balmain Local Court he had been dealt with in his absence for the offence of Drive While Disqualified, allegedly committed on 14 February 2013. The mandatory disqualification period of two years (because Mr Le Platrier had previously been convicted of Drive While Suspended) was imposed, from that date. 7An application under section 4 against the decision of 26 July 2013 was heard and determined at Balmain Local Court on 18 September 2013. The conviction and sentence were quashed. Subsequently, Mr Le Platrier pleaded guilty to the offence and was dealt with, without conviction, by way of a bond under section 10(1)(b), Crimes (Sentencing Procedure) Act 1999. That happened on 11 October 2013. 8The Drive While Disqualified of 6 September 2013 was adjourned to Waverley Local Court as there were other matters listed here. Prosecutors were asked to consider whether this was an appropriate charge in the circumstances. The matter was adjourned a number of times for that purpose. On 5 February 2014 in proceedings before me in which Mr Le Platrier was unrepresented a plea of guilty was entered to a replacement charge of Drive While Suspended on 6 September 2013 at Petersham. When the driving record was tendered I queried the basis on which the prosecutor alleged that the defendant's licence was in fact suspended on that day (the record suggested that it wasn't, an earlier suspension for demerit points having finished on 8 January 2013 and a later suspension for demerit points having finished on 28 August 2013). 9Having considered the matter further the prosecutor sought to proceed on a re-laid Drive While Disqualified charge, arguing that on the basis of a number of decisions the effect of the order of Balmain Local Court on 18 September 2013 was to annul the disqualification only from that date onward, not retrospectively, and that therefore the offence was made out. 10The decisions to which I was referred include a decision of a fellow magistrate of this court. On 11 October 2011 in Police v Victor Khoury at Ryde Local Court Magistrate Reiss found that the effect of an annulment was prospective only. 11His Honour placed significant reliance on of Justice James in RTA v Papadopolous [2010] NSWSC 33 in coming to the view that the term "annul" in question here should be interpreted in the same way as the word "quash" in section 202, Road Transport (General) Act 2005, in respect of a Magistrate's power to quash an habitual offender declaration. Justice James decided that the quashing of an habitual offender declaration (which imposes a five year driver licence disqualification) takes effect prospectively only. 12Uninstructed by other authority, I did not initially agree that this decision assists with the interpretation of the word "annul" in the legislation here in question. I took a different view about the effect of quashing of a conviction pursuant to a section 4 application. I reserved my decision in order to consider this issue further. 13Justice James in Papadopoulos placed particular reliance on the fact that the quashing of an habitual offender declaration was different from other cases where annulment took effect ab initio. His reasons for that conclusion appear at [52]-[54]: 52 The context in which the word "quash" is used in the present case is different from a context in which the word is frequently used and in which the word has usually been interpreted as meaning annul ab initio. 53 The context to which I am referring is where there has been a decision by a primary decision-maker and what is quashed is the decision by the primary decision-maker, on the grounds that the decision was erroneous in some way at the time it was made. Examples include the quashing of a criminal conviction or the quashing of an administrative decision on grounds such as denial of procedural fairness or jurisdictional error. 54 In the present case, on the other hand, there was no decision by a primary decision-maker and hence no erroneous decision by a primary decision-maker. The declaration of Mr Papadopoulos as an habitual traffic offender arose by the operation of s 28 of the General Act 1999 from the convictions he had incurred, without any decision by a judicial officer, and the disqualification of Mr Papadopoulos arose by the operation of s 30 of the General Act 1999 on the habitual traffic offender declaration, without any decision by a judicial officer. 14While a section 4 application does result in a decision by a primary decision maker being annulled, it is not necessarily because of any error in that decision. In some circumstances, that might be the case. So, for example, a section 4 application is equally appropriate to remedy a situation where a person has been convicted of an offence of which they are not in fact or law guilty, as it is to permit a person to set aside a conviction but nevertheless plead guilty to the offence (as was the case here). In this matter I do not have before me anything that would indicate the basis on which the application was granted at Balmain Local Court on 18 September 2013. 15The Appeal Act makes specific provision for the effect of an annulment in section 10, which provides: (1) On being annulled, a conviction or sentence ceases to have effect and any enforcement action previously taken is to be reversed. (2) The annulment of a conviction for an offence that has been heard together with another offence for which a conviction has been made does not prejudice the conviction for the other offence.(3) If a fine is annulled, any amount paid towards the fine is repayable to the person by whom it was paid.(4) The Consolidated Fund is appropriated to the extent necessary to give effect to subsection (3). 16A disqualification from driving is a "sentence" by reason of the definition in section 3 of the Appeal Act. Of course, most sentences cannot be imposed in a person's absence. If a person is absent, the only penalties that can be imposed by a Local Court are fines or orders under section 10 or 10A, Crimes (Sentencing Procedure) Act (see section 25 of that Act). Disqualification from driving, on conviction, follows by operation of law in respect of certain offences, and can also be imposed in a person's absence by a court that imposes a fine or a section 10A order. 17There are a number of decisions arguably relevant to the interpretation of this provision. However, none directly assists with the meaning of section 10(1), which is critical to a determination of this issue. 18Since I reserved this matter for decision the Court of Appeal has dealt with a somewhat similar matter in Roads and Maritime Services v Porret [2014] NSWCA 30, delivered 28 February 2014. In that case the respondent had been disqualified from driving for a drink driving offence. She subsequently drove during the disqualification period and was convicted in relation to that. Later, she lodged a severity appeal against the original fine and disqualification, and her appeal to the District Court was granted by setting aside the conviction, and making an order under section 10, Crimes (Sentencing Procedure) Act, as permitted by section 20 of the Appeal Act when read with the definition of "varying a sentence" in section 3(3A) of that Act. Ms Porret then appealed against her sentence on the disqualified driving offence. In the District Court Haesler DCJ set aside her conviction, on the basis that the section 10 order had the effect of setting aside the disqualification for the PCA offence ab initio. 19The Court of Appeal drew a distinction between a case involving jurisdictional error on the part of the original decision maker, and one that did not (at [32]). The court was dealing with an application in relation to a sentence that did not involve a challenge to the conviction, other than for the purpose of making an order under section 10, Crimes (Sentencing Procedure) Act. In those circumstances, Chief Justice Bathurst determined that the effect of the provisions of the Appeal Act would generally only operate prospectively. Accordingly, Ms Porret was disqualified on the date of the offence even though that disqualification was subsequently set aside following her severity appeal. 20That decision does not assist with the proper interpretation of section 10(1) of the Appeal Act, however it is generally consistent with other decisions on the effect of setting aside, annulling or quashing convictions. The appeal in Porret was a severity appeal. The conviction was only set aside in order to impose a section 10 order. 21In Dreja v State of Western Australia [2012] WASCA 151 the WA Supreme Court considered an appeal against a conviction and fine for an offence of breaching a suspended sentence, where the suspended sentence had subsequently been "set aside" on appeal, and a different sentence imposed. Whilst the terminology is different the court found that "in the absence of any indication that it was intended to be an order setting the sentence aside ab initio, the order takes effect to nullify the sentence only from the date of the setting aside order": at [15]. However, a distinction was drawn between such cases and cases where a conviction was set aside, where the setting aside would take effect ab initio (at [17] and [18]). 22Lynch v Hargrave [1971] VR 99 was followed in Dreja, on the basis that, in that case, only the sentence had been set aside (on appeal) not the conviction, after the later offences. Lynch v Hargrave is the only higher court decision that appears factually similar to this matter, and the court there decided that the setting aside of the defendant's conviction in his absence had the effect of annulling the conviction ab initio. Commissioner for Railways v Cavanough (1935) 53 CLR 220 was discussed as authority leading to that conclusion. However the legislation governing the setting aside of a conviction in the absence of a defendant in Victoria at the time provided only for the court to "set aside" the conviction or order, without more. In addition, the decision in Lynch v Hargrave appears inconsistent with the reasoning of the Court of Appeal in Porret, and it would appear does not now represent the law at least in NSW. 23In another driver licensing appeal, Refshauge J in the ACT Supreme Court followed Lynch v Hargrave in determining that where a conviction and disqualification had been "set aside", a subsequent driving while disqualified offence committed during the period before the setting aside was not committed because "there was no disqualification that he had breached by his driving": Licciardello v McPherson [2012] ACTSC 31 at [19]. That case was one where the original disqualification was infected with a fundamental error, being that on the facts as alleged the appellant was not at law guilty of the offence for which the disqualification had been imposed. It may be that this conviction could therefore be characterised as having involved a jurisdictional error such that the appellant was entitled as of right to have it set aside, and it could properly be described as a nullity. 24A successful application under section 4 of the Appeal Act results in the annulment of either the conviction or sentence or both. In the absence of statutory provision, the case law would in my view inevitably lead to the conclusion that the annulment of a conviction has effect ab initio, whereas the annulment of the sentence only does not (including cases where a conviction is set aside for the purpose of making a non-conviction order even though the offence has been proved). 25The issue therefore is whether section 10 of the Appeal Act by its terms leads to a different conclusion. 26A statute that affects the liberty of the subject is to be construed strictly: Smith v Corrective Services Commissioner (1980) 33 ALR 25. Generally a provision which is obscure or ambiguous ought be construed so as to enhance the liberty of the subject. A provision that has a potentially penal consequence should point clearly and unmistakably to that conclusion. Section 10 of the Appeal Act in its terms applies the same consequence to annulment of both conviction and sentence, which of itself is in clear contrast with the decisions discussed above. 27In this case there is no issue that the finding the offence proved in the defendant's absence was within jurisdiction and that on the facts alleged Mr Le Platrier was in fact guilty of it - he ultimately pleaded guilty after the annulment had been granted. 28In such a circumstance the argument that the annulment has the effect of quashing the disqualification from the date on which it was imposed has less force than in a case where the offence cannot in fact be made out. However, the effect of section 10 of the Appeal Act cannot be different if a conviction is set aside and the accused subsequently pleads guilty or is found guilty. Such an interpretation would lead to potentially absurd situations in which the effect of the granting of a section 4 application may be unknown for months while the original offence is prosecuted. That cannot be the law, although it may be that there are circumstances where an annulment would be accepted as taking effect ab initio because at the time it is made it is accepted that the original finding that the offence was proved was wrong in law, or without jurisdiction (as in Licciardello, supra). That is not a question necessary to resolve in this matter, although a Local Court does not appear to have jurisdiction to make such an order unless it is granted by the Appeal Act. 29In Police v Khoury Magistrate Reiss said (at p 12): There is nothing in the specific wording of section 10 of the Act that specifically states or is to the effect that an annulment of a disqualification applies ab initio. On a plain reading of the words of the section the expression "ceases to have effect" clearly implies a current and prospective effect. On a plain reading of the words of the section "enforcement action" is a reference to action taken in order to compel compliance or implement the sentence, e.g. action to enforce a fine. ... It may stretch to a resultant cancellation by the RTA but I do not see this expression as extending to action in respect to the Commissioner of a subsequent offence. A charge of driving while disqualified is an action for a new alleged offence and is not an action to compel compliance with the original disqualification. 30Having considered the words of the section together with the distinctions to be drawn between legislative provisions considered in other authorities, I agree with his Honour's interpretation of the provision. His Honour refers to the legislative predecessor of section 10, section 100T of the Justices Act 1902, which made abundantly clear that the effect of annulment was prospective only and used the words "ceases to have any force and effect from the making of the order of annulment". The omission of the words "from the making of the order of annulment" from section 10 of the provision which replaced section 100T on one interpretation could be seen as showing a legislative intention to vary the effect of the provision. However, no such intention is discernible from the Explanatory Notes or Second Reading speech in respect of the legislation and in my view the change is not such as to lead inevitably, or even reasonably, to that conclusion. 31Even giving the section the most beneficial interpretation available I do not consider the words "ceases to have effect" in section 10 mean other than that the annulment is prospective rather than retrospective. While the decision in Porret is not directly on point, the reasoning of the court in that matter is supportive of such a conclusion. Of course, a defence of "honest and reasonable mistake of fact" may be available in a circumstance where a driver did not know their licence had been disqualified (R v Vlahos [1975] 2 NSWLR 580; DPP v Kailahi [2008] NSWSC 752). 32In the circumstances of this matter I find that the annulment of the conviction of Mr Le Platrier for driving while disqualified took effect from the date of the annulment, that is, from 18 September 2013. Accordingly, on 6 September 2013 he was in fact disqualified. I find the offence proved, noting that Mr Le Platrier was prepared to plead guilty to it in the event I found as I have. Magistrate C Farnan Waverley Local Court 14 March 2014