Director of Public Prosecutions (NSW) v Dewes

HIS HONOUR: This is an appeal from the Local Court in which a Court Attendance Notice, for an offence of driving whilst disqualified under s 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998 was dismissed. The proceedings in the Local Court were prosecuted by a police officer. The plaintiff has taken over the proceedings pursuant to s 9 of the Director of Public Prosecutions Act 1986 and instituted and conducted the appeal on behalf of the Prosecution.

The plaintiff seeks an order pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 that the order of the Local Court dismissing the charge against the defendant be set aside and other ancillary relief.

Neither the facts nor, in the result, the law is in controversy and the defendant consents to the orders sought by the plaintiff.

The facts may be shortly stated. The defendant exceeded the speed limit on 19 July 2007. At that time it appeared that he was disqualified from holding a driver's licence for five years from 6 June 2006 to 6 June 2011 by virtue of s 199 of the Road Transport (General) Act 2005 (the Act) which is in the following terms: “Declaration of persons as habitual traffic offenders (cf former Act, s 28) 199. A person is, by this section, declared to be an habitual traffic offender if: (a) a court in this State convicts the person of a relevant offence, and (b) the person has, in the period of 5 years before the conviction, also been convicted of at least 2 other relevant offences committed on different occasions.”

The three offences which had led to the defendant being declared a habitual traffic offender were identified as driving whilst unlicensed, never having held a licence, on a second occasion within the period of five years from an earlier offence, and two offences of driving with a prohibited concentration of alcohol. These three offences were committed within a period of five years of his conviction for exceeding the speed limit on 19 July 2007.

There was no controversy in the Local Court that the PCA offences were "relevant" within the meaning of s 199 of the Act. The question, however, is whether the first offence was a relevant offence. If it was not, he was not an habitual traffic offender and was not, therefore, driving while disqualified.

"Relevant offence" is defined in s 198 of the Act in the following terms: “Relevant offences (cf former Act, s 27) (1) In this Division, a “ relevant offence ” means: (a) any of the following offences committed after the commencement of this Division of which a person has been convicted by a court in this State: (i) a major offence, (ii) a prescribed speeding offence, (iii) an offence under section 25(3) of the Road Transport (Driver Licensing) Act 1998, (iv) an offence under section 25A(1), (2) or (3) of the Road Transport (Driver Licensing) Act 1998, or (b) an offence committed after the commencement of this Division of which a person has been convicted by a court in another State or Territory that would be an offence of the kind referred to in paragraph (a) if it had been committed in this State, or (c) a relevant offence within the meaning of section 10EA of the Traffic Act 1909 as in force immediately before its repeal. (2) A relevant offence includes an offence of the kind referred to in subsection (1) (a) in respect of which the charge is found proven, or a person is found guilty, (but without proceeding to a conviction) under section 10 of the Crimes (Sentencing Procedure) Act 1999, or section 556A of the Crimes Act 1900, if the offence would, if it were a relevant offence, give rise to the declaration of the person under this Division as an habitual traffic offender. In that case, a reference in this Division to the conviction of the person for a relevant offence includes a reference to the making of an order with respect to the person.”

Section 25 of the Road Transport (Driver Licensing) Act 1998 provides, so far as is relevant: “(1) A person must not, unless exempted by the regulations: (a) drive a motor vehicle on any road or road related area without being licensed for that purpose, or (b) employ or permit any person not so licensed to drive a motor vehicle on any road or road related area. Maximum penalty: 20 penalty units. 2) A person who has never been licensed must not, unless exempted by the regulations, drive a motor vehicle on any road or road related area without being licensed for that purpose. Maximum penalty: 20 penalty units (in the case of a first offence) or 30 penalty units or imprisonment for a period 18 months or both (in the case of a second or subsequent offence). (3) If a person is convicted of an offence under subsection (2) (being a second or subsequent offence), the person is disqualified by the conviction (and without any specific order) for a period of 3 years from holding a driver licence. The disqualification is in addition to any penalty imposed for the offence. Note. Section 26 of the Road Transport (General) Act 1999 provides for the effect of a disqualification (whether or not by order of a court). (4) For the purposes of subsection (2), a person has not been licensed in connection with an offence if the person has not held a driver licence (or equivalent) of any kind in Australia for the period of at least 5 years immediately before being convicted of the offence. (5) 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 an offence against this section within the period of 5 years immediately before the person is convicted of the offence, or (b) within the period of 5 years immediately before the person is convicted of the offence, the person was convicted of: (i) an offence under section 6 (1C) or 7A of the Traffic Act 1909 (as in force before its repeal), or (ii) an offence under section 25 (2). (6) A person who has never been licensed cannot be convicted under both this section and section 25A in respect of driving on the same occasion. However, nothing in this section prevents the person from being convicted of an offence under section 25A in respect of driving that constitutes an offence under this section. (7) A person cannot be convicted under both subsection (1) (a) and (2) in respect of driving on the same occasion. A person charged with an offence under subsection (2) can be convicted instead of an offence under subsection (1) (a), but a person charged with an offence under subsection (1) (a) cannot be convicted instead of an offence under subsection (2). (8) Subsection (1) does not apply to or in respect of a light rail vehicle within the meaning of the Road Transport (Safety and Traffic Management) Act 1999.”

It will be seen that s 25(3) does not create an offence, it provides an increased punishment for a second or subsequent offence of the kind described in s 25(2).

The learned Magistrate considered that since s 25(3) did not create any offence, its inclusion in the definition of "relevant offence" in s 198 of the Act was an error.

It is an extreme step to interpret a statute as containing a meaningless provision. Authority is not needed for the obvious proposition that the task of interpreting statutes proceeds upon the assumption that enactments are not meaningless. Indeed, where the "ordinary meaning" of a legislative provision is manifestly absurd or unreasonable, the Court will strive to give the provision a meaning which avoids that outcome by reference, amongst other things, to the purpose of the enactment and the context in which the manifestly absurd or unreasonable meaning can be given a sensible construction: see Saraswati v The Queen (1991) 172 CLR 1; Cooper Brooks (Wollongong) Pty Ltd v The Federal Commissioner of Taxation (1981) 147 CLR 297; Project Blue Sky Inc v Australian Broadcasting Authority 194 CLR 355.

In this case no such juggling needs to be undertaken. In my view the words of s 198 are clear. The reference in subpara 198(1)(a)(iii) is a reference to a second or subsequent offence of the kind prescribed by s 25(2) of the Road Transport (Driver Licensing) Act 1998. “Under” is an ordinary word of wide and general attribution and, in subpara 198(1)(9)(iii), is synonymous with “within”. It follows that the order made by the Magistrate must be set aside and the Court Attendance Notice be remitted to the Queanbeyan Local Court to be heard and determined in accordance with this judgment.

As agreed by the parties I make no order as to costs.