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Local Court 14 March 2014

NSW Police v Le Platrier

[2014] NSWLC 10

Traffic & driving
CRIMINAL PROCEEDINGS

Citation: NSW Police v Le Platrier [2014] NSWLC 10
Court: Local Court of NSW
Date: 14 March 2014
Judge(s): Magistrate Farnan

Background

The defendant was convicted in his absence at Balmain Local Court on 26 July 2013 for driving while disqualified. That conviction carried a mandatory two-year disqualification from driving, which took effect immediately upon conviction.

On 6 September 2013, police detected the defendant driving in Petersham. At that point, his licence status was recorded as "disqualified." He was charged with drive while disqualified in relation to that detection.

On 18 September 2013, a section 4 application under the Crimes (Appeal and Review) Act 2001 was granted at Balmain Local Court, quashing the original conviction and sentence. The defendant subsequently pleaded guilty to the original offence and was dealt with without conviction under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. The question before the court was whether, given the annulment of the original conviction, the defendant had in fact been disqualified on 6 September 2013, and whether the drive while disqualified charge could therefore be made out.

  • Whether an annulment granted under section 4 of the Crimes (Appeal and Review) Act 2001 operates retrospectively (that is, from the date of the original conviction, erasing its legal effect entirely) or only prospectively (from the date the annulment is made).
  • Whether section 10(1) of the Crimes (Appeal and Review) Act 2001, which provides that an annulled conviction "ceases to have effect," supports a retrospective interpretation.
  • Whether the defendant was legally disqualified from driving on 6 September 2013, such that a charge of drive while disqualified could be established.

Decision

Magistrate Farnan examined the text of section 10(1) of the Crimes (Appeal and Review) Act 2001, which states that on being annulled, a conviction or sentence "ceases to have effect" and any enforcement action previously taken is to be reversed. His Honour noted that this provision replaced section 100T of the Justices Act 1902, which had expressly stated that annulment took effect "from the making of the order of annulment." The omission of that phrase in the current legislation was considered, but the Magistrate found no discernible legislative intention to change the prospective-only operation of annulment.

Magistrate Farnan reviewed a range of authorities, including the Court of Appeal's decision in Roads and Maritime Services v Porret [2014] NSWCA 30 (delivered shortly before judgment in this matter) and the earlier Local Court decision in Police v Victor Khoury. He also considered Roads and Traffic Authority v Papadopolous [2010] NSWSC 33, in which James J distinguished between the quashing of a judicial decision (which traditionally operates retrospectively) and the quashing of a status arising by operation of law without a judicial decision. While noting that distinction, the Magistrate observed that a section 4 annulment does involve a judicial decision by a primary decision-maker, but concluded that this did not compel a retrospective interpretation.

His Honour held that the phrase "ceases to have effect" in section 10(1) operates prospectively from the date of annulment, not retrospectively to the date of the original conviction. He also noted that the expression "enforcement action" in section 10(1) refers to action taken to compel compliance with or implement the original sentence, and does not extend to a prosecution for a separate and subsequent offence committed during the disqualification period.

Applying that reasoning, Magistrate Farnan found that the defendant remained disqualified on 6 September 2013, since the annulment of the original conviction did not occur until 18 September 2013. The drive while disqualified offence was accordingly proved.

Orders Made

• The offence is found proved
• The annulment of the conviction for driving while disqualified took effect from 18 September 2013

Key Takeaways

  • Under section 10(1) of the Crimes (Appeal and Review) Act 2001, an annulment of a conviction or sentence operates prospectively from the date the annulment order is made, not retrospectively from the date of the original conviction.
  • The phrase "ceases to have effect" in section 10(1) does not carry the same retrospective force as language such as "void ab initio" or "annulled from the beginning." The Magistrate found this language consistent with prospective operation only.
  • The "enforcement action" that section 10(1) requires to be reversed refers to steps taken to compel compliance with the original sentence (such as enforcing a fine), not to a separate subsequent prosecution for a new offence committed during the period the original sentence was in force.
  • A disqualification from driving that was in place at the time of a detected offence remains legally operative for the purposes of a drive while disqualified charge, even if the conviction that gave rise to the disqualification is later annulled, provided the annulment had not yet occurred at the time of the alleged offence.
  • The decision also noted, without deciding, that a defence of honest and reasonable mistake of fact may remain available to a driver who did not know their licence was disqualified, referencing R v Vlahos [1975] 2 NSWLR 580 and DPP v Kailahi [2008] NSWSC 752.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 10
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 10A, 25
- Road Transport Act 2013 (NSW), s 54
- Road Transport (General) Act 2005 (NSW), s 202
- Justices Act 1902 (NSW), s 100T

Cases
- Roads and Maritime Services v Porret [2014] NSWCA 30
- Roads and Traffic Authority v Papadopolous [2010] NSWSC 33
- Police v Victor Khoury (unrep, Local Court, 13 September 2011)
- DPP v Kailahi [2008] NSWSC 752
- R v Vlahos [1975] 2 NSWLR 580
- Commissioner for Railways v Cavanough (1935) 53 CLR 220
- Dreja v State of Western Australia [2012] WASCA 151
- Licciardello v McPherson [2012] ACTSC 31
- Lynch v Hargrave [1971] VR 99
- Smith v Corrective Services Commissioner (1980) 33 ALR 25