Brian John Wurth v Mp Gordon Sca [1991] ACTSC 49; (1991) 103 FLR 378 (17 July 1991)

SUPREME COURT OF THE ACT

BRIAN JOHN WURTH v. M.P. GORDON
S.C.A. No. 279 of 1991
Appeal from Magistrates Court
[1991] ACTSC 49; (1991) 103 FLR 378

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Appeal from Magistrates Court - Plea of guilty by post - Defendant neither present nor represented by counsel - Prior convictions apparently put before Magistrate - No record of such material - No opportunity for explanation by defendant - Unfairness - Authority for Magistrate to receive additional information - Relevant legislative guidelines - Whether valid imposition of penalty - Cancellation of licence - No immediate notification of serious penalty - Unsuitability of the imposition of such a penalty in absence of defendant.

Motor Traffic Act 1936 (ACT) s.112B,

Magistrates Court Act 1930 (ACT), s.23, s.109, s.110, s.116, Part VII, Part XI

HEARING

CANBERRA
17:7:1991

Counsel for the Appellant: Mr J. Brewster

Instructing solicitors: Messrs Gary Robb and Associates

Counsel for the Respondent: Mr M. Edwards

Instructing solicitors: Director of Public Prosecutions

ORDER

1. The appeal be allowed.

2. The conviction and penalty be set aside.

DECISION

On the 6th day of September 1990, a summons was issued to Brian John Wurth, the appellant. It was issued on the information of Robert John Gresham, a sergeant of police. The Notice of Appeal identifies "M.P. Gordon" as the respondent. However, as with all ACT prosecutions at the time, the proceedings were carried on by the Commonwealth Director of Public Prosecutions. The words "GORDON, M/P CON 4535" appear near the foot of the summons. I assume, therefore, that the named respondent was probably the apprehending or reporting officer.

2. Nevertheless, Sergeant Gresham should be noted as the respondent to the appeal as he, and not Constable Gordon, is the informant. Nothing, however, turns on this. I grant leave to the appellant to amend the title to the proceedings to reflect the correct position. I dispense with such procedural rules as would require further service of documents. If it is necessary, I grant leave nunc pro tunc to prosecute this appeal.

3. The charge against the appellant was that on the 10th day of June 1990, at 1720 hours "near City" at "intersecting street/pedestrian crossing: Bunda Street" he had proceeded contrary to a red traffic light (see s.112B, Motor Traffic Act 1936 (ACT)).

4. The summons was returnable at 10.30am on 13 November 1990 at the Magistrates Court. There is no issue about service of the summons. Indeed, the appellant returned a form headed "PLEA OF GUILTY" on 11 October 1990. He did not, however, offer an explanation.

5. What thereafter occurred on the return date is not entirely certain. The Bench Sheet, a copy of the summons, is endorsed on the rear as follows:-
"ADJUDICATION 13 NOV 1990

Defendant does not appear.
Heard Ex-parte.
PP -
Bench: Convicted. Fined $200 Court Costs $20
Witness expenses $
in default 8 days imprisonment with
hard/light labour. Time allowed 28
days to pay.
Office to notify defendant.
(Initials)
Magistrate
Licence Cancelled O.T.N.D.
(Initials)"

6. There is nothing to indicate what further material, if any, the learned Magistrate had before him. If a traffic record was tendered, it was neither marked nor retained on the Court file. I was told it was the usual practice for a defendant's record to be read in such circumstances. Whether the apprehending officer gave further details than particularised on the summons is simply unknown. I was told that the officer will do so if asked. It is not uncommon for such further facts (if any) to be referred to. In this case there is no indication as to whether Constable Gordon was present. There is no indication of the presence of counsel representing the informant/DPP.

7. I was also told, for what it is worth, that if a traffic infringement notice had issued for the offence, the recipient could have avoided court proceedings by paying $80.00 within the prescribed time.

8. Against this background, I have to consider whether there has been a valid imposition of a penalty in this case.

9. The summons was served in accordance with s.116B of the Magistrates Court Act 1930 (ACT) ("the Act"). Section 116C(2) establishes a presumption that it was the defendant (appellant) who completed the prescribed Form 85 (Plea of Guilty) returned in this case. Section 116D provides that a defendant in those circumstances thereby enters a plea of guilty to the offence charged in the summons.

10. Section 116E(1) then provides that where, as here, the defendant did not appear, and the Court, as it presumably did here, accepts the plea:-

"...The Court shall record a plea of guilty and determine
the proceedings accordingly".

11. The only further procedural guidance is that given by s.116E(2):-

"The Court shall, in determining proceedings in pursuance
of sub-section (1), have regard to the matters (if any)
drawn to the attention of the Court in the plea of guilty
and shall give to those matters such weight as to the Court
seems proper."

12. Although it is not directly applicable it may be noted that where a defendant does not return the forms 85 or 86 (intention to defend), the Court may proceed to convict only if satisfied (s.116G(c)):-

"(i) That the matters alleged in the summons are reasonably
sufficient to inform the defendant of the offence
alleged against him; and
(ii) That the matters so alleged constitute the offence
charged in the summons."

13. It seems to me that the effect of s.116G(c) is the same as the effect of the return of Form 85, save, of course, that the defendant will not have taken the opportunity to place an explanation before the Court.

14. Section 116I provides that upon conviction following service by post, the defendant shall be notified of the penalty imposed and also informed of (per s.116I(1)(c)):-

"...except where the proceedings are determined in
accordance with sub-section 116E(1), the defendant's right
to apply for the setting aside of the conviction or order
in accordance with section 23."

15. Section 116E(1), of course, was that applicable in these proceedings. Accordingly, the return of Form 85 is to be equated, once the plea of guilty has been accepted, with the attendance of the defendant before the Court to enter a plea of guilty, which is then accepted as an admission of guilt of the offence charged.

16. The return of Form 85 takes the matter out of the scope of s.23 of the Act notwithstanding the lack of the defendant's personal presence (see s.23(2)). It is clear, therefore, that a defendant aggrieved by a penalty imposed after having returned a form 85 cannot apply to set the conviction or order aside pursuant to s.23. The only remedy, apart from a prerogative writ, is an appeal pursuant to Part XI of the Act.

17. It was submitted that in determining proceedings pursuant to s.116E(1), only those matters referred to in s.116E(2) could be taken into account. That is, it was not open to the Court accepting the pleas of guilty to receive any other material apart from the matter alleged in the summons and the explanation, if any, offered additionally to the plea of guilty by Form 85.

18. It may be noted that if the matter had proceeded under Part VII rather than Part VIIA of the Act, it would have been open to the informant in this case (service of the summons having been proved otherwise than by post) to have proceeded ex parte pursuant to s.110 of the Act. This would have required formal proof of the offence and of any additional matter such as the defendant's antecedents. For that purpose, the ordinary rules of evidence are expressly relaxed, but not completely abrogated, by sub-sections 110(2), (3), (4), (5) and (6). No doubt a written admission of guilt could be tendered as further evidence of guilt. However, if the informant had not appeared, s.109 would have required the Court to dismiss the information:-

"unless for some reason it thinks proper to adjourn the
hearing of the information to some other day."

19. Under Part VIIA there is no provision for appearance by or for the informant or for any consequence to follow from any non-appearance on the return day by the informant.

20. Forms 84, 85 and 86 were served with the summons. Nothing in those forms indicates that if Form 85 is returned any additional material beyond that notified in the documents so served will be considered by the Court before imposing a penalty, nor do those forms suggest the opposite. I also note that where a notice of intention to defend is given (Form 86) there is provision only for the (presumably) absent and unrepresented defendant to be notified of the time and place for the hearing of the proceedings (see s.116F). There is no provision requiring the informant to be advised thereof.

21. It could not be contended that an informant was not entitled to appear on the return date of a matter dealt with under Part VIIA or had no right to be notified of the date and place of hearing when a matter is to be defended.

22. It seems to me, also, that it is unlikely that the legislature could have intended that on a plea of guilty by post, Magistrates should be confined to a consideration merely of the particulars of the offence notified on the summons and the defendant's explanation noted on Form 85 in arriving at a conclusion as to a just penalty.

23. It seems to me that in determining the proceedings as authorised by s.116E(1) the Court would proceed according to relevantly applicable requirements of the Act as found elsewhere in the Act. Plainly, the specific provisions of Part VIIA would take precedence over more general provisions inconsistent with those particular provisions.

24. I conclude, therefore, that it would be open to the informant on the hearing of the information not only to appear (personally or by counsel) but also to supplement material contained in the summons and Form 85. Section 110 could be called in aid by the informant in the proof of such matters. However, nothing authorises a Magistrate, in the absence of the defendant, to receive matters concerning the defendant or the offence charged otherwise than as permitted by law.

25. Even where additional matters are properly proved, whether as allowed by s.110 or as otherwise permitted by law, it would still be necessary for the Magistrate hearing the matter to consider whether it would be unfair to the defendant to receive that further evidence or material in the absence of notice to the defendant that it was intended to adduce it. Particularly is this so where, as a result, the penalty is likely to be materially influenced adversely to the defendant.

26. In this case, it is apparent that the penalty imposed would, if nothing more was known, be rightly characterised as grossly excessive. It would be a result no rational person could be expected to have anticipated merely from a consideration of the particulars on the summons and the plea tendered by virtue of Form 85. Accordingly, I assume that the Magistrate, in this case, received material not disclosed on the Court record in a manner that is not recorded and without notice to the defendant before acting on it. It is clear that, whatever the material was, it so influenced the penalty as to result in a fine substantially above the infringement notice level and the imposition of the maximum penalty affecting the defendant's driving licence. Because of the inevitable delay between the imposition of the penalty and its notification, the appellant for some time may well have been driving whilst his licence was cancelled before he became aware of that cancellation. That penalty has subsequently been suspended by virtue of the institution of this appeal.

27. It is not tolerable that a citizen should be placed in the position of committing a serious offence without the opportunity of being aware of that fact. The fine is, of course, a different matter. A Magistrate will allow time to pay. That time to pay will take account of the time it will take to notify the defendant of the fine. The defendant may, in cases of hardship seek an extension of time from the Clerk. The terms of the notice (Form 84) would lead a defendant reasonably to expect that whatever penalty was imposed, it would not be productive of adverse consequences until after it was notified. If a penalty of licence suspension or cancellation was being contemplated, a defendant would reasonably assume that he or she would be so informed and have an opportunity to meet that case and, even if unsuccessful in resisting such a penalty, know of it from the time it was imposed.

28. It is true that the only express requirement for further notification is where a penalty of imprisonment might be imposed (see s.116H). However, it is plain from the nature of suspension of licence as a penalty that it is unsuitable for imposition in the absence of the defendant. It could take a week for notification to reach a defendant's address. It could take longer for the defendant to become aware of it. A chance of such delay is tolerable in the case of a fine, even in the unlikely event that the usually permitted time to pay is exceeded. It is not tolerable in the case of an immediately effective penalty such as suspension or cancellation of licence.

29. It follows that the Magistrate, in imposing a cancellation of licence without first causing the appellant personally to be present or represented, fell into error.

30. It was also an error not to record particulars of whatever additional material was before him. If it was in an admissible form, that should have been recorded. If there was no such material, of course, there was manifest error as to the penalty.

31. The appeal will, therefore, be upheld.

32. It is plainly more convenient to impose now such penalty as the Magistrate ought, in my view, to have imposed. In so doing, of course, I exercise my own discretion.

33. As to the facts of the case, there is merely the bare allegation of failure to obey a red light. It was said to have occurred at 5.20pm on a Sunday. No circumstances of aggravation can be inferred from the statements in and accompanying the information.

34. On the hearing of this appeal, the defendant's record was tendered. The summons records his age as 26. From 6 October 1984 he has the following convictions which are said to be relevant:-
Date of Offence Offence Date of Penalty

Conviction
6/10/84 Speed 5/5/85 Fined $75.00
31/ 3/85 Speed Sept 85 Fined $100.00
31/ 3/85 Cross Sept 85 Fined $75.00
unbroken line
7/ 3/86 Exceed .08 March 86 Fined $300.00
disq 3 mth
7/ 3/86 Smooth tyres March 86 Fined $30.00
7/ 3/86 No headlights March 86 Fined $50.00
16/10/87 No seat belt Feb 88 Fined $60.00
16/10/87 Speed Feb 88 Fined $100.00
Warned re licence
16/10/88 Refuse breath Oct 88 140 hrs
test community
service licence
cancelled
(restored 23/3/90)
16/ 7/88 Drive manner Oct 88 Merged with
dangerous above

Clearly, this record would warrant something significantly less than the usual leniency.

35. I propose therefore, to hear the parties further as to the penalty to be imposed and as to the costs of the appeal.