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Supreme Court 28 April 2003

HA & SB v The Director of Public Prosecutions

[2003] NSWSC 347

Also reported as (2003) 57 NSWLR 653
Traffic & driving
CRIMINAL LAW DRIVING OFFENCES CHILDREN'S COURT FINDINGS OF GUILT WHETHER "CONVICTION" WORDS & PHRASES

Citation: HA & SB v The Director of Public Prosecutions [2003] NSWSC 347
Court: Supreme Court of New South Wales, Common Law Division
Date: 28 April 2003
Judge(s): Dunford J

Background

Two juvenile appellants, identified only by initials due to publication restrictions under the Children (Criminal Proceedings) Act 1987, each appeared before the Children's Court on driving-related charges. Both were under 16 years of age at the time of their proceedings. One pleaded guilty to driving in a manner dangerous and was released on probation; the other was fined for driving unlicensed.

In each case, the Children's Court made a finding of guilt but, consistent with s 14(1) of the Children (Criminal Proceedings) Act 1987, did not record or proceed to a conviction. Despite the absence of a recorded conviction, the magistrates in both matters also imposed licence disqualification orders under the Road Transport (General) Act 1999.

The appellants challenged those disqualification orders on appeal to the Supreme Court, arguing that the disqualification provisions in the Road Transport (General) Act 1999 were only enlivened upon a "conviction", and that neither of them had been convicted within the meaning of that legislation.

  • Whether a finding of guilt made in the Children's Court, followed by the imposition of a penalty under s 33(1) of the Children (Criminal Proceedings) Act 1987, amounts to a "conviction" for the purposes of ss 24 and 25 of the Road Transport (General) Act 1999.
  • Whether the Children's Court had power to order licence disqualification under the Road Transport (General) Act 1999 in circumstances where no formal conviction was recorded against either appellant.

Decision

Dunford J began by acknowledging that "conviction" is not a word of fixed or universal meaning. Citing the High Court's analysis in Maxwell v The Queen (1996) 184 CLR 501, his Honour noted that the word's meaning depends on the statutory context in which it appears. Generally, a conviction requires a final judgment of guilt by the court, signified by the imposition of a sentence or penalty, but context can displace that ordinary meaning.

His Honour then examined the structure of the Children (Criminal Proceedings) Act 1987. While that Act deliberately avoids the language of "conviction" in respect of children under 16, it nonetheless imposes penalties under s 33 following a finding of guilt. The Act's own s 33(5) contains an express reference to disqualification orders made under road transport legislation, which Dunford J regarded as significant. He reasoned that this provision would be rendered inoperative if a finding of guilt coupled with a penalty could not constitute a "conviction" for road transport purposes.

Dunford J also drew on the principle, stated by Gleeson CJ in R v Ingrassia and echoed by Windeyer J in Cobiac v Liddy, that it is contrary to common law principle to punish a person who has not been convicted. The corollary of that principle is that where a court imposes a punishment following a finding of guilt, the person has been "convicted" in the relevant sense. The earlier decision of Re Stubbs, which had held there was no power to disqualify under equivalent legislation where an offender was discharged without conviction under s 556A of the Crimes Act 1900, was distinguished on the basis that the operative provision in that case expressly required a final adjudication including sentencing, and explicitly used the language "without proceeding to conviction."

On that reasoning, the court held that a finding of guilt followed by the imposition of a penalty under s 33(1) of the Children (Criminal Proceedings) Act 1987 amounts to a "conviction" for the purposes of ss 24 and 25 of the Road Transport (General) Act 1999. Both appeals were dismissed.

Orders Made

  • Both appeals dismissed with costs.

Key Takeaways

  • A finding of guilt in the Children's Court, when followed by the imposition of a penalty under s 33(1) of the Children (Criminal Proceedings) Act 1987, constitutes a "conviction" for the purposes of the licence disqualification provisions in ss 24 and 25 of the Road Transport (General) Act 1999.
  • "Conviction" is a word of variable meaning whose content depends on the statutory context in which it appears, as confirmed by the High Court in Maxwell v The Queen (1996) 184 CLR 501.
  • The deliberate avoidance of the word "conviction" in the Children (Criminal Proceedings) Act 1987 does not, of itself, deprive the Children's Court of the power to impose licence disqualifications available under separate road transport legislation.
  • The express reference to road transport disqualification orders in s 33(5) of the Children (Criminal Proceedings) Act 1987 was treated by the court as an indicator of legislative intent that such orders were available following a finding of guilt and imposition of penalty, since the provision would otherwise have no operation.
  • Re Stubbs (1947) 47 SR 329, which had reached a contrary result under earlier equivalent legislation, was distinguished because the statutory language in that case expressly contemplated a stage of "conviction and sentence" that had not yet occurred, making the factual and legislative context materially different.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 10, 14, 33
- Road Transport (General) Act 1999 (NSW), ss 24, 25, 27, 30
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 42(2)
- Road Transport (Driver Licensing) Act 1998 (NSW), ss 25, 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 33, 34, 35
- Crimes Act 1900 (NSW), s 556A
- Director of Public Prosecutions Act 1986 (NSW), s 9
- Justices Act 1902 (NSW), s 80AA(2)
- Motor Traffic Act 1909 (NSW)
- Traffic Act 1909 (NSW), s 7A(3)

Cases:
- Maxwell v The Queen (1996) 184 CLR 501
- Cobiac v Liddy (1969) 119 CLR 257
- R v Ingrassia (1997) 41 NSWLR 447
- Re Stubbs (1947) 47 SR 329
- Dixon v McCarthy [1975] 1 NSWLR 617
- Kinney v Green (1992) 29 NSWLR 137
- R v Felton [2002] NSWCCA 443
- S (an infant) v Recorder of Manchester & ors [1971] AC 481
- Richards v The Queen (1993) AC 217
- Burgess v Boetefeur (1844) 7 Man & G 481
- R v Tonks [1963] VR 121
- R v Jerome and McMahon [1964] Qd R 595