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Supreme Court 15 March 2011

Kane Stephen Davis v Director of Public Prosecutions (NSW) & Anor

[2011] NSWSC 153

Traffic & driving
APPEAL FROM LOCAL COURT POWER OF LOCAL COURT TO RE OPEN SENTENCE PROCEEDINGS SCOPE OF S43 OF THAT ACT

Citation: Kane Stephen Davis v Director of Public Prosecutions (NSW) & Anor [2011] NSWSC 153
Court: Supreme Court of New South Wales
Date: 15 March 2011
Judge(s): Hoeben J

Background

A motorist was charged with high-range drink driving following a breath test in June 2008. His licence was confiscated at the roadside, and he remained off the road for several months, incurring over $26,000 in driver hire costs. When the matter came before the Penrith Local Court in November 2008, agreed facts indicated a mid-range reading, and the magistrate convicted him of the lesser mid-range offence.

The magistrate sentenced the motorist under s 10A of the Crimes (Sentencing Procedure) Act 1999, which permits a court to record a conviction without imposing any further penalty. Later that same day, the magistrate recalled the matter of his own motion and, following brief submissions, made a further oral order that the motorist suffer no licence disqualification. However, the Roads and Traffic Authority subsequently imposed an automatic 12-month disqualification under the Road Transport (General) Act 2005, on the basis that a conviction had been recorded.

The DPP later applied to re-open the sentence proceedings under s 43 of the Crimes (Sentencing Procedure) Act 1999, arguing the magistrate's "no disqualification" order was contrary to law. The magistrate re-opened the matter and imposed a 12-month disqualification, then later the same day reduced it to six months. The motorist challenged the June 2010 orders in the Supreme Court, while the DPP cross-sought to quash the original November 2008 "no disqualification" order and the January 2010 re-opening orders.

  • Whether the magistrate's original order on 19 November 2008 that the motorist suffer no licence disqualification was within jurisdiction or contrary to law, such that s 43 of the Crimes (Sentencing Procedure) Act 1999 could be invoked to re-open proceedings.
  • Whether the re-opening under s 43 on 28 January 2010 was validly conducted, and whether the orders made at that re-opening were themselves errors of law.
  • Whether the subsequent further re-opening and reduction of the disqualification period on 24 June 2010 was justified under s 43, including whether there had been a denial of procedural fairness in the January 2010 hearing.

Decision

Hoeben J held that the magistrate's original November 2008 "no disqualification" order was contrary to law. Under the Road Transport (General) Act 2005, a court convicting a person of a mid-range drink driving offence must either allow the automatic 12-month disqualification to stand or order a period of not less than six months. The magistrate had no power to order that no disqualification apply. That error enlivened the court's power under s 43 to re-open the proceedings.

The January 2010 re-opening and the resulting 12-month disqualification were therefore valid. Hoeben J found that the magistrate correctly identified and corrected the unlawful "no disqualification" order, and that the 12-month disqualification imposed at the first hearing on 28 January 2010 was the lawful outcome.

However, the magistrate then reconvened later the same day and reduced the period to six months, after the defence produced a transcript of the original November 2008 proceedings. Hoeben J found the later reduction was not itself supported by any fresh error of law. The mere production of the transcript did not establish a legal error in the 12-month disqualification that had just been imposed; it was a reconsideration of fact and discretion rather than a correction of legal error, which is the precondition for invoking s 43.

On the procedural fairness point, Hoeben J rejected the argument that the first hearing on 28 January 2010 had been conducted unfairly. Defence counsel had the opportunity to ask the magistrate to read the transcript before that hearing concluded but chose not to do so. The obligation under the rules of natural justice is to afford a reasonable opportunity to be heard, not to ensure a party takes the best advantage of that opportunity.

Orders Made

  • The plaintiff's summons was dismissed.
  • The Supreme Court quashed the magistrate's further order of 19 November 2008 that the motorist suffer no further licence disqualification.
  • The Supreme Court quashed both orders made on 28 January 2010 pursuant to the purported re-opening under s 43, namely:
  • The 12-month disqualification period commencing 14 June 2008 and expiring 13 June 2009.
  • The subsequent six-month disqualification period commencing 14 June 2008 and expiring 13 December 2008.
  • The plaintiff was ordered to pay the first defendant's costs.

Key Takeaways

  • Section 43 of the Crimes (Sentencing Procedure) Act 1999 permits a court to re-open proceedings only where a penalty imposed was contrary to law or a required penalty was not imposed; the power is not available merely to revisit the exercise of discretion or to correct factual misapprehensions.
  • A magistrate sentencing under s 10A of the Crimes (Sentencing Procedure) Act 1999 for a mid-range drink driving offence retains no power to order that no licence disqualification applies; the statutory scheme under the Road Transport (General) Act 2005 mandates a minimum disqualification period of six months.
  • Where a re-opening under s 43 correctly identifies and rectifies an unlawful order, a further re-opening on the same day to reduce the replacement order requires its own independently identifiable error of law; producing a transcript of earlier proceedings does not itself constitute such an error.
  • No denial of procedural fairness was established in circumstances where counsel had the opportunity to place material before the court but did not do so, consistent with the principle confirmed in Sullivan v Department of Transport (1978) that a party must be given a reasonable opportunity to present its case, but the court is not obliged to ensure the party makes the most of that opportunity.
  • In dismissing the plaintiff's summons and granting the DPP's certiorari orders, the Supreme Court confirmed that the 12-month disqualification imposed at the first hearing on 28 January 2010 represented the lawful outcome, subject to the automatic RTA disqualification already applied.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 43, 55
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 43
- Road Transport (General) Act 2005 (NSW), s 188(2)(b)
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 9(3), 9(4)(a), 12(1)
- Supreme Court Act 1970 (NSW), s 69
- Local Court Act 2007 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- Director-General of Fair Trading v O'Shane (NSW Supreme Court, Graham AJ, unreported, 22 August 1987)
- Erceg v District Court (NSW) (2003) 143 A Crim R 455
- Ho v Director of Public Prosecutions (1995) 82 A Crim R 80
- Nitiva v DPP and 2 Ors [1999] NSWCA 332
- R v Finney (No 2) [2004] NSWCCA 150
- Sullivan v Department of Transport (1978) 20 ALR 323