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Court of Criminal Appeal 31 July 2003

DPP (NSW) v McDougall

[2003] NSWCCA 217

Also reported as 57 NSWLR 489
Traffic & driving
INFORMATION OFFENCE OF "NEGLIGENT DRIVING" WHETHER OFFENCE SUFFICIENTLY DESCRIBED.

Citation: DPP (NSW) v McDougall [2003] NSWCCA 217
Court: New South Wales Court of Criminal Appeal
Date: 31 July 2003
Judge(s): Studdert J; Ipp JA; Hulme J

Background

The respondent was convicted at Parramatta Local Court in June 2002 for negligent driving under s 42(1)(c) of the Road Transport (Safety and Traffic Management) Act 1999. The information charged him using the words "NEGLIGENT DRIVING", together with an IPB code (3661), the location, time, and a note that he had collided with a stationary vehicle. It did not reproduce the full statutory language stating that a person "must not drive a motor vehicle negligently on a road or road related area."

On appeal, the District Court judge quashed the conviction. His Honour concluded that the information was invalid because it did not specify that the respondent had been driving the vehicle negligently, and that merely stating "negligent driving" was insufficient to disclose the offence.

The Director of Public Prosecutions appealed by way of stated case under s 5B of the Criminal Appeal Act, asking the Court of Criminal Appeal to determine whether the District Court judge had erred in law in concluding that the information did not disclose an offence.

  • Whether the expression "negligent driving" in the information was sufficient to describe the offence under s 42(1)(c) of the Road Transport (Safety and Traffic Management) Act 1999
  • Whether the "Further Particulars" set out in the information formed part of the charge
  • Whether the information was rendered defective by failing to specify whether the driving occurred on a "road" or a "road related area"
  • Whether, if the District Court judge erred, the matter should be remitted for rehearing

Decision

The Court of Criminal Appeal held unanimously that the District Court judge had erred in law. The expression "negligent driving" was the short description prescribed by the Road Transport (General) (Short Descriptions and Penalty Notice Offences) Regulation 1999 for the relevant offence. Section 145B of the Justices Act provided that a summary offence is sufficiently described if stated using a prescribed expression or one substantially the same. Because "negligent driving" appeared in Column 3 of Schedule 2 to that Regulation against the relevant provision, the information satisfied the statutory requirement.

The court also accepted that the "Further Particulars" formed part of the information and reinforced its adequacy. Read as a whole, the information provided sufficient detail, including the IPB code, location, time and circumstances, to inform the respondent of what he was alleged to have done.

On the question of whether the failure to nominate specifically "road" or "road related area" rendered the information defective, the court noted that this point was not central to the District Court judge's determination. More fundamentally, if the respondent had genuinely been uncertain about that matter, the proper course was to seek clarification before the hearing proceeded rather than to challenge the information's validity after the fact.

Turning to the question of remittal, the court declined to send the matter back to the District Court for rehearing. The fine imposed by the magistrate had been only $50, the respondent had attended every court listing across both courts at considerable personal expense, and the lengthy history of adjournments meant that a further hearing would be disproportionate to the matter's gravity.

Orders Made

  • The question posed in paragraph 4 of the stated case (whether the District Court judge erred in law in concluding the information did not disclose an offence) was answered in the affirmative.
  • The matter was not remitted to the District Court for further hearing.

Key Takeaways

  • Under s 145B of the Justices Act, a summary offence is sufficiently described in an information if a prescribed short-form expression is used, even where that expression does not reproduce the full statutory text of the offence.
  • The Court of Criminal Appeal confirmed that "negligent driving", as the prescribed short description in the relevant regulation, was a legally valid way to state the charge in an information under s 42(1)(c) of the Road Transport (Safety and Traffic Management) Act 1999.
  • An information should be read as a whole, including any further particulars, when assessing whether it adequately discloses the offence charged.
  • Where a defendant is uncertain about an aspect of the charge, such as whether the alleged conduct occurred on a "road" or "road related area", the appropriate step is to seek clarification from the court before the hearing proceeds rather than to impugn the information's validity after the event.
  • In declining to remit the matter, the court weighed proportionality: where the penalty imposed is modest and the accused has already undergone substantial inconvenience through repeated adjournments, a further hearing may not serve the interests of justice.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act, s 5B
- Road Transport (Safety and Traffic Management) Act 1999, s 42
- Justices Act, ss 145A, 145B
- Road Transport (General) (Short Descriptions and Penalty Notice Offences) Regulation 1999, cl 5 and Schedule 2
- Road Transport (General) (Short Descriptions and Penalty Notice Offences) Amendment Regulation 2000

Cases:
- Ex parte O'Sullivan (1944) 61 WN 197
- John L Pty Limited v Attorney General (1987) 163 CLR 508
- Stanton v Abernathy (1990) 19 NSWLR 656
- Hedberg v Woodhall (1913) 15 CLR 531