Tay v Director of Public Prosecutions

Judgment 1McCOLL JA: I agree with Macfarlan JA's reasons and the orders his Honour proposes. 2BASTEN JA: On two consecutive days, being 25 and 26 November 2012, the applicant was charged by police with the offence of driving whilst his driver licence was suspended, contrary to s 25A(2)(a) of the Road Transport (Driver Licensing) Act 1998 (NSW). On 5 August 2013 the charges were heard by Magistrate Huntsman, the applicant being convicted on each. The offences carried a mandatory disqualification of his licence for a period of 12 months. 3On the same day, namely 5 August 2013, the applicant lodged appeals to the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) (the "Appeal and Review Act"). Pursuant to s 63 of the Appeal and Review Act, the lodging of the appeal stayed the operation of the suspension of licence following from the conviction on 5 August 2013, although not the suspension which was in force immediately prior to those convictions (if any): s 63(2A). 4The appeals were heard on 21 November 2013 by Arnott DCJ. By judgment delivered on the same day, Judge Arnott set aside the conviction with respect to the first offence on the basis of an honest and reasonable mistake as to the effect of correspondence between the applicant and the Roads & Traffic Authority. The judge concluded, however, that no such defence could arise with respect to the offence committed on the following day and the appeal with respect to that offence was dismissed. 5At that point, the suspension of the disqualification flowing from the conviction on 5 August 2013 was lifted. 6The applicant had no right of appeal from the judgment of the District Court. He did, however, have a right to seek judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). On 29 November 2013, some eight days after the decision of Judge Arnott, the applicant commenced proceedings by way of summons in this Court. 7The decision of the District Court was subject to a privative clause protecting it from removal by any order of this Court: District Court Act 1973 (NSW), s 176. It is well-established that the effect of that provision is to prevent proceedings by way of judicial review for error of law on the face of the record of the District Court, thus limiting available grounds of review to jurisdictional error. The summons filed by the applicant raised three complaints, but none capable of qualification as jurisdictional error. 8The first complaint referred to the letter which was said to give rise to confusion. Judge Arnott dealt with that letter and the reliance placed upon it as a basis for a defence of honest and reasonable mistake. That defence depended upon favourable findings of fact, which were made in respect of the offence committed on 25 November but not that committed on 26 November because the applicant was on notice from his communications with police on the previous day that his licence was suspended. The judge rejected the defence on the facts, a conclusion which was not merely open to him, but almost inevitable. In any event, it raised no question of law, let alone a jurisdictional error. 9The second complaint which may be gleaned from the somewhat discursive notes attached to the summons was that the person who had agreed to drive the van for the applicant on the day of the second offence withdrew at the last moment and he had, in effect, no alternative but to drive himself. That did not provide a defence, factual or otherwise. 10The third complaint involved a challenge to the original suspension as a result of an offence committed on 24 November 2011. Following that offence, the applicant was advised on 2 March 2012 that his licence was suspended for eight months from 6 April 2012 until 6 December 2012. That suspension resulted from incurring three demerit points by the offence on 24 November 2011. The applicant contended that he had not committed an offence on 24 November 2011 and therefore had not incurred demerit points on that occasion. Having not incurred those points, his licence was not lawfully suspended. 11The existence or otherwise of an offence committed on 24 November 2011 was not in issue before Arnott DCJ. Accordingly, this ground raised no question of law, let alone jurisdictional error, which could form a ground for the present application. It follows that the summons must be dismissed. 12As the applicant appeared at the hearing to harbour some resentment based on perceived injustice, it is desirable to say why there was no injustice involved. On 24 November 2011, the applicant's vehicle was captured on camera driving through a red light. At that time the applicant held his licence subject to good behaviour; if he incurred two or more demerit points his licence would be suspended automatically: Road Transport (Driver Licensing) Act, s 16(9). That conduct constituted a breach of r 59 of the Road Rules 2008 for which, on conviction, a penalty by way of demerit points was imposed, pursuant to s 14 of the Road Transport (Driver Licensing) Act. Schedule 1 to the Road Transport (Driver Licensing) Regulation 2008 (NSW) specified a penalty of three demerit points. 13The applicant asserted that he had a defence, namely that he was in effect required to go through the red light in order to get out of the way of an ambulance displaying a flashing light. That obligation, set out in r 78 of the Road Rules 2008 was said to apply "despite any other rule of these Rules": r 78(3). It followed, the applicant submitted, that he was entitled, indeed required, to do what he did and thus committed no offence. 14Although the relevant papers are not before this Court, it may be assumed that he received a "penalty notice" with respect to the offence. The offence was a "designated offence" for the purposes of s 179 of the Road Transport (General) Act 2005 (NSW) because it was a "camera recorded offence". It was a camera recorded offence because it was a traffic light offence as defined in s 57 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW). Although with respect to such an offence the person who is "the responsible person for the vehicle" is taken to have been guilty of the offence unless a defence is raised, the actual offender is entitled to raise any defence to the prosecution available to him or her: s 179(1)(a)(ii). The applicant, on his own account, had an available defence and could have raised it in proceedings in the Local Court, as indeed he sought to do with respect to the offences of 25 and 26 November 2012. 15The law provides an opportunity for any person charged with an offence, including a traffic offence, to defend the charge in a court of competent jurisdiction: Fines Act 1996 (NSW), s 23A. If a defence is proffered but rejected, the person will be convicted; if no defence is offered, conviction is virtually inevitable. From a conviction, there is usually a right of appeal or a right of judicial review. Those rights are generally time limited. A person who is convicted is not entitled to act as if he or she were innocent of the offence and can therefore ignore the consequences which flowed under the law. However, that is the position which the applicant has sought to adopt. He is wrong in law to take that position. If he did not avail himself of an opportunity to defend a particular charge, he must abide by the consequences which follow in accordance with the law. 16Finally, it is desirable to note that, on his application, this Court declared that the period of disqualification did not run from the date on which proceedings were commenced in this Court until the proceedings were determined, pursuant to s 69C of the Supreme Court Act: Tay v Director of Public Prosecutions (NSW) [2014] NSWCA 53. It follows that the effect of the judgment of 21 November 2013 having been stayed for all but a period of days to the date of this judgment, the applicant will be liable immediately to the operation of the order, including his disqualification from holding a driver licence, for a period in excess of 11 months. 17The Director of Public Prosecutions sought an order that the application should be dismissed with costs. That order should be made. 18MACFARLAN JA: By Summons filed in this Court on 29 November 2013, Mr Joseph Tay commenced proceedings under s 69 of the Supreme Court Act 1970 (NSW) for judicial review of part of a decision of the District Court dated 21 November 2013. In that decision, Arnott DCJ dealt with appeals by Mr Tay against his conviction in the Local Court on 5 August 2013 of two offences of driving a motor vehicle whilst his licence was suspended, contrary to s 25A(2)(a) of the then operative Road Transport (Driver Licensing) Act 1998 (NSW) ("the Driver Licensing Act"). Mr Tay seeks to have Arnott DCJ's decision to confirm one of the convictions set aside. His Honour set aside the other conviction.