R v AHMED

District Court of NSW|2008-03-13

13 March 2008 HEARING DATE(S): 22 April 2008 22 October 2008 31 October 2008

CATCHWORDS: CRIME - Appeal against penalty - 2 driving offences committed on the same day - subsequent convictions entered on the same day - whether the latter offence was a "second or subsequent offence" for the purposes of imposing penalty under s 25(2) Road Transport (Driver Licensing) Act 1998 - both offences dealt with as "first offences"

Crimes (Sentencing Procedure) Act 1999; s 10A LEGISLATION CITED: Road Transport (Driver Licensing) Act 1998; s 25A Traffic Act 1925 (Tas); s 41

Clarke v Bradlaugh (1881) 8 QBD 63 Edwards v The Queen (1854) 9 Ex. 628 re F B Warren Ex Parte A M Wheeler v The Trustee in Bankruptcy [1938] Ch 725 CASES CITED: The King v The Licensing Justice for the County Borough of South Shields [1911] 2 KB 1 R v Miller [1986] 2 Qd R 518 O'Hara v Harrington [1962] Tas SR 165 Prowse v McIntyre and Others (1961) 35 ALJR 373 Shane William Johnson v R [2008] NSWDC 47

PARTIES: The Crown Samar AHMED

SOLICITORS: Mr A Kirupaidasan - DPP Mr R Bartley - R J Bartley & Associates

IN THE DISTRICT COURT OF NEW SOUTH WALES CRIMINAL JURISDICTION

1 Samar Ahmed appeals from the penalties imposed upon her by a Magistrate in the Local Court at Burwood on 5 February 2008 for two offences of driving whilst suspended contrary to s 25A(2)(a) of the Road Transport (Driver Licensing) Act 1998.

2 For one offence she suffered a fine of $750 and was disqualified from driving from 5 February 2008 for a period of twelve months until 4 February 2009. For the other offence she was convicted, but pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 no penalty was imposed other than for a disqualification period of two years from 5 February 2009.

3 The grounds upon which the appeal is brought are first, that the learned Magistrate erred in the application of the legislation providing for the disqualification periods, and secondly, that the penalties are too severe.

4 The maximum penalties for the offences depend upon whether they are first offences or second or subsequent offences. If a first offence, the maximum penalty provided is imprisonment for eighteen months or a fine of thirty penalty units or both. If a second or subsequent offence, the maximum penalty is imprisonment for two years or a fine of fifty penalty units or both: s 25A(2) Road Transport (Driver Licensing) Act .

5 The disqualification periods provided for this offence are mandatory upon conviction. For a first offence it is twelve months and in the case of a second or subsequent offence two years: s 25A(10) Road Transport (Driver Licensing) Act .

6 The Appellant argues that although convicted of two separate offences of driving whilst suspended, because the determination of both offences occurred on the same day in the same hearing they were to be seen in each case as first offences.

7 Turning to the facts, the Appellant was the holder of a motorcycle rider's licence. On 17 October 2007 she was informed that her licence was to be suspended from 24 October 2007 until 24 January 2008 after her accumulation of demerit points.

8 About 5.30pm on 23 December 2007 she was selected randomly for a breath test. Her cycle did not have a P Plate displayed as required. She produced her licence, but when checked it was found to have been suspended. Her explanation for riding the cycle knowing her licence was suspended was, "Passion". I take that to be a reference to her passion for the riding of her motorcycle.

9 She was issued with a field Court Attendance Notice for that offence and told not to ride again. Unfortunately, about 6.15pm the same day, she was seen riding her motorcycle. I understand her explanation to be that she was simply taking her motorcycle home from where she was stopped on the first occasion.

10 Mr Bartley submits on her behalf that the legislation has not abrogated fundamental principles of the common law, namely, that a judicial act relates to the day on which it is performed without reference to the precise time at which it was completed. A judgement of conviction is a judicial act, and so, when the defendant suffers two convictions in contemporaneous proceedings determined on the same day, neither one has priority over the other, regardless of the actual sequence in which the determination was made, and regardless of the temporal disparity between the commission of the offences in respect of which judgment was passed.

11 Furthermore, the reference to second or subsequent offences, properly understood, is a reference to second or subsequent offences that are committed after conviction.

12 To this submission I would add the observation that it is fundamental to our system of criminal justice that a person accused of an offence is presumed to be innocent unless and until the essential ingredients of the offence alleged are proved beyond reasonable doubt to the satisfaction of the judicial officer or jury called upon to determine the proceedings. This is so regardless of any assessment that the prosecution case is a strong one. A person accused of an offence is entitled to have the case against them established to the requisite standard and until that has been done they are not exposed to any penalty.

13 If the legislation intended that for purposes of the imposition of penalty priority was to be determined according to the sequence in which an offence was committed, language making that intention clear would be expected in the relevant provisions. I have found no provision that provides such a clear expression of intention in my review of the legislation, and none has been brought to my attention.

14 Mr Bartley referred me to a number of decisions in support of his argument as to the principles of common law upon which he relies. The first of those is a decision in the Queen's Bench Division: Clarke v Bradlaugh (1881) 8 QBD 63. This concerned the question of priority to be given to the act of issuing a writ of summons. It was argued that this was a judicial act and the court should not enquire as to what time of the day the document was issued.

15 The Court of Appeal held that the issue of writ of summons was not a judicial act, and accordingly the court could enquire whether or not the Writ was in fact issued after the accrual of a cause of action upon which it was issued. Lord Coleridge CJ, page 65, said the following, "The defendant has contended that there is a principle of law, for which great authorities have been cited, that the law takes no regard of fractions of a day, that a writ must be taken to refer to the first moment of the day on which it is issued, and that a writ of summons is a writ within the meaning of the rule, so that the writ in this case was issued before the penalty could have been incurred. I am of the opinion that, having regard to the authorities and the reasons for them, there has been a distinction taken between various kinds of writs, and that this distinction is as old as the rule upon which the defendant relies and of the same authority. It might perhaps be also found, though it is not for us on the present occasion to decide, that even of two judicial acts done on the same day, the court would inquire, if it were necessary, which was done at the earlier time of day."

16 And then shortly thereafter he wrote, "I do not therefore recognise the universality of the rule even as to judicial acts."

17 Lord Justice Brett said at page 68, "As for the rule that judicial acts relate back to the earliest moment of the day, I know of no principle on which it can be founded. It is an unofficial rule, declared for a long number of years to be a part of common law procedure, and therefore it is to be assumed to be as old as the common law itself. But it is to be applied in the same way as it was applied when first promulgated. The question is whether those who promulgated the rule declared the issuing of a writ to be the act of a party, or whether they declared it to be the act of the court."

18 The remarks concerning a judicial act and the question of whether enquiry can be made as to priority between judicial acts on the same day was not resolved in that decision.

19 I was invited to a further decision from the United Kingdom in re F B Warren Ex Parte A M Wheeler v The Trustee in Bankruptcy, a decision in 1938. It was a decision concerned with bankruptcy proceedings and reference was made to Clarke and Bradlaugh, ibid.

20 Luxmoore J delivered the judgment of the court. His Lordship was concerned with determining the meaning of the words, "before the date of the receiving order". His Lordship noted that it was a rule of law that a judicial act is deemed to have been performed at the earliest moment of the day on which it is in fact performed and referred to Edwards v The Queen (1854) 9 Ex 628, 631 and 632 in which Coleridge J said, "The doctrine that judicial acts are to be taken always to date from the earliest minute of the day on which they are done, stands upon ancient and clear authority."

21 Luxmoore J concluded, "In our judgment the making of a receiving order in the present case was a judicial act and must in accordance with the rule be referred back to the earliest moment of March 15, 1937...".

22 I was invited also to a decision of the High Court of Australia, Prowse v McIntyre and Others (1961) 35 ALJR 373. Their Honours were there concerned with the date upon which a person is born and the time at which the calculation begins for the purposes of calculating age. Although consistent with the proposition advanced on behalf of the Appellant, I put that decision to one side because of more recent authority more closely aligned with the point I must decide.

23 In O'Hara v Harrington [1962] Tas SR 165 the Court was concerned with a section in the Traffic Act 1925 (Tas). Subsection 41(2) provided for a period of twelve months disqualification for a first conviction for an offence of driving whilst under the influence of liquor, and three years on a second conviction of such an offence. Burbury CJ said at page 167, "It is clear law that where the legislature imposes an increased penalty for a second offence that expression bears the technical meaning of an offence committed after conviction for a first offence".

24 His Honour expressed the view that the language of the legislation was such that there should be no intention attributed to the legislature that the principle was abrogated.

25 In R v Miller [1986] 2 Qd R 518 the court was called upon to deal with the same question. There was a sequence of offending and two convictions entered; the conviction for the second offence was found by the Magistrate to be a second conviction attracting the greater mandatory disqualification period. Matthews J expressed the view that as the convictions were both entered on the same day in the course of contemporaneous proceedings for each offence, neither one could be said to precede the other.

26 Shepherdson J, at page 524 said, "In my opinion in the instant case there was no such competition between the two convictions calling for consideration of the actual time when each was done. Both arose out of certain matters occurring during the same journey and within a comparatively short distance - some three kilometres. Both convictions must in my view in accordance with the general rule be deemed to relate back to the earliest moment on February 13, 1985".

27 This was the date upon which the convictions were entered. His Honour continued, "Both convictions in law occurred at the same instant".

28 At page 529 Williams J cited the judgment of Lord Elphinstone CJ in The King v The Licensing Justice for the County Borough of South Shields [1911] 2 KB 1. Lord Elphinstone said, "It seems to me that it is quite impossible to give a reasonable construction to the various clauses of the section unless the words 'second offence' and' third and any subsequent offence' are read as meaning an offence after a previous conviction or convictions, as the case may be, for offence under the section"

29 His Honour Judge Berman decided a matter to which s 25A of the Road Transport (Driver Licensing) Act was relevant in Shane William Johnson v R [2008] NSWDC 47. However, that was a matter where the second or subsequent offence and the disqualification period to have been applied to it depended upon the interpretation of s 25A(10), which is confined to offences under subsections (1), (2) or (3A) of section 25A. The first conviction was for a drink driving offence contrary to other provisions. The decision is to be distinguished from the present matter.

30 Section 25A(2), as I have said, provides for monetary and custodial penalties. Section 25A(10) provides for the relevant disqualification periods. Section 25A(6) relevantly provides, "An offence under this section is a second or subsequent offence for the purposes of this section if: (a) it is the second or subsequent occasion on which the person is convicted of any offence under subsection (1), (2), (3) (a) or (3A) within the period of 5 years immediately before the person is convicted of the offence, or …

31 The Crown has submitted that the phrase second or subsequent occasion indicates a legislative intention to embrace a second or subsequent conviction entered on the same day as a conviction entered earlier, such as in the present matter.

32 I do not believe that the language used in the legislation requires any such construction. In my opinion the submissions made by Mr Bartley on behalf of the appellant are correct. In my opinion, the convictions both having been entered on the same day in contemporaneous proceedings, there is no priority to be given in one over the other, and accordingly for the purposes of the sentencing for this offender they should be both dealt with as first offences.

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