D'Ambrosio v Fearnside [2002] ACTSC 126 (19 December 2002)

Last Updated: 24 December 2002

ANTONIO D'AMBROSIO v DAVID ARTHUR FEARNSIDE [2002] ACTSC 126 (19 December 2002)

CATCHWORDS

CRIMINAL LAW - appeal against convictions for traffic offences - charges misconceived - prosecution affected by factual misconceptions - findings of Magistrate similarly affected - wrongful nature of earlier conviction identified during hearing of appeal - leave to appeal out of time - appeals upheld.

Motor Traffic Act 1936, ss 180F, 191P(2)(A), 195

Road Transport (Driver Licensing) Act 1999, s 32(3)(a)

Road Transport (Driver Licensing) Regulations 200, reg 88(2)

Wurth v Gordon [1991] ACTSC 49; (1991) 103 FLR 378

Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536

APPEAL FROM THE MAGISTRATES COURT

No. SCA 6 of 2002

Judge: Crispin ACJ

Supreme Court of the ACT

Date: 19 December 2002

IN THE SUPREME COURT OF THE )

) No. SCA 6 of 2002

AUSTRALIAN CAPITAL TERRITORY )

APPEAL FROM THE MAGISTRATES COURT

BETWEEN: ANTONIO D'AMBROSIO

Appellant

AND: DAVID ARTHUR FEARNSIDE

Respondent

ORDER

Judge: Crispin ACJ

Date: 19 December 2002

Place: Canberra

THE COURT ORDERS THAT:

1. the appeal be upheld;

2. the convictions, penalties and orders in relation to each of the offences allegedly committed on 22 October 1999, 31 March 2000 and 8 June 2000 be set aside;

3. in lieu thereof, the charges alleging the commission of each such offence be dismissed; and

4. the respondent pay the appellant's costs both in this Court and in the Magistrates Court. 1. This was initially an appeal against decisions of Magistrate Doogan convicting the appellant of two counts of driving whilst his licence was cancelled, imposing fines of $500 and $800 respectively and ordering that he be disqualified from driving for consecutive periods amounting, in all, to three years. However, during the hearing of the appeal it became apparent that there were serious questions about the validity of an earlier decision of Magistrate Madden who had convicted the appellant of another offence and made an order suspending his licence. Leave was then sought to amend the notice of appeal in order to also challenge this decision. The earlier proceedings related to an information by a different police officer, but Mr Lundy, who appeared for the Director of Public Prosecutions, did not suggest that the incorporation of an appeal against this decision even if technically involving another respondent would cause any real difficulty and did not otherwise oppose the amendment. I duly granted leave to amend the Notice of Appeal.

2. Regrettably, both proceedings seem to have been afflicted by a comedy of errors.

3. The unhappy saga effectively began on 22 October 1999 when the appellant, who was then 65 years of age, was pulled over by a police officer. A summons was subsequently issued requiring him to attend the Magistrates Court to answer an information alleging that he had committed an offence of contravening s 191P(2)(A) of the Motor Traffic Act 1936 in that:

he, in the Australian Capital territory on 22 October 1999, being a person who is (sic) disqualified from holding a driving licence by force of, or under a law of the Territory, or whose driving licence is (sic) suspended under a law of the Territory, and who is (sic) not the holder of a special licence, did, drive a motor vehicle ... upon a public street ....

4. It is unclear whether he received the summons or whether there was any other explanation for his failure to attend. However, the matter was dealt with on an ex parte basis by Magistrate Madden on 10 March 2000 when he was convicted and fined the sum of $500 and orders were made requiring him to pay court costs of $50 and suspending his licence for a period of three months.

5. This conviction and the related penalty and orders were plainly invalid because the information was void for duplicity. An offence of driving whilst disqualified from holding a driving licence was even then a quite different offence from that of driving whilst a licence was suspended. Whilst the Motor Traffic Act provided for suspension, inter alia, as a means of enforcing payment of outstanding fines, disqualification was imposed by operation of law only for conviction for offences of culpable or dangerous driving or by court order following conviction for those or other serious offences. Hence, an offence of driving whilst so disqualified involved a contumelious disregard for a disqualification imposed in order to protect the public after findings by a court and, whilst the same maximum penalties were available, was potentially more serious than an offence of driving whilst a licence was suspended due to non-payment of fines. In any event, separate offences cannot be joined in an information as if they constituted a single composite offence and, even if it were possible to construe the information as involving alternative charges, it would still be inescapable that the appellant had been convicted of such a composite charge.

6. In fact, it is by no means clear that the appellant could have been lawfully convicted of either offence. There was certainly no evidence in the appeal book to suggest that he had ever been disqualified from holding a licence since first obtaining one almost fifty years ago and the only evidence suggesting that his licence may have been suspended was contained in a record of the appellant's "licence history details" which, whilst part of an exhibit in the proceedings before Magistrate Doogan, had not initially been included in the appeal book and was subsequently added by leave. This contained a number of entries of "suspend right to drive in ACT" and "fine default suspension". These cryptic entries were presumably intended to suggest that some action may have been taken by the Registrar of Motor Vehicles under s 180F of the Motor Traffic Act to suspend the appellant's licence for failure to pay penalties stipulated in traffic infringement notices. However, the reference to a "right to drive in the ACT" seems to suggest a reference to the power provided by paragraph (1)(e) of that section which relates to interstate licences and the section did not provide for "default suspension". Indeed, the Registrar was not entitled to suspend a licence under this section unless he or she had given the person concerned at least ten days notice of the date on which the suspension was to take effect. There, is, of course, no evidence of any compliance with this requirement. I might add that the entries on the document following this date read "COURT CANCELLATION FULL LICENCE" (sic) and "Disqualified 10/03/2000 to 10/06/2000" (sic). Both these entries were, of course, incorrect. In the circumstances, it is difficult to know what reliance, if any, could have been placed upon the contents of this document which, in any event, did not constitute a certificate under s 195 and does not seem to have been admissible for the purposes of proving any suspension of the appellant's licence. It should be noted, however, that a transcript of the proceedings before Magistrate Madden was not produced on the hearing of the appeal and it is possible that a certificate under s 195 of the Act was tendered to provide at least some admissible evidence of such a suspension. Hence, despite my misgivings I would not have upheld an appeal against the conviction on this ground alone.

7. Even if the information had not been void for duplicity, the decision to suspend the appellant's licence on an ex parte hearing would, in any event, have involved appealable error. As Higgins J held in Wurth v Gordon [1991] ACTSC 49; (1991) 103 FLR 378, it is normally inappropriate for a judge or magistrate to impose a suspension or cancellation of a person's driving licence without first ensuring that he or she is present or at least legally represented. Such a person might otherwise unwittingly commit a serious offence by continuing to drive without notice of the order effectively removing or suspending his or her right to do so. The respondent did not challenge the decision in Wurth v Gordon or submit that it should be revisited in this appeal but rather submitted that as a consequence the decision of Magistrate Madden should be set aside and the matter remitted to him to be dealt with according to law. In the circumstances this concession was entirely appropriate and had the information not been void for duplicity I would have readily acceded to the respondent's submission.

8. Whatever the true position concerning the state of the appellant's licence as at 22 October 1999, however, he clearly could not have been lawfully convicted on 10 March 2000 of the only offence with which he then stood charged. The conviction, penalty and orders must be set aside.

9. His wrongful conviction and equally wrongful suspension were followed by a confused letter dated 11 April 2000 from a delegate of the Authority purporting to inform the appellant that "[a]s a result of the Court order the above ACT drivers licence is CANCELLED from 10/3/2000 to 10/6/2000 inclusive in accordance with sub reg 88(2)(C)" (sic). These statements plainly reflected some confusion. Magistrate Madden had not ordered that the licence be cancelled. It may also be noted that reg 88(2) of the Road Transport (Driver Licensing) Regulations 2002 relates to cases in which the Authority proposes to vary, suspend or cancel a person's drivers licence on its own initiative and has nothing to do with cases in which the Court orders that a licence be suspended or cancelled. Furthermore, the regulations do not authorise the authority to overrule or amend any orders made by a magistrate. There were no apparent grounds for any an independent decision to cancel the appellant's licence and, even if there had been, such action could not have been undertaken unless and until the authority had complied with the provisions of reg 88(1) by giving the appellant due notice.

10. In the interim, the appellant, who had renewed his licence and apparently received no notification of its suspension, understandably continued to drive his vehicle.

11. On 31 March 2000 he was stopped by Constable Fearnside and on 17 May 2000 a summons was issued charging him with driving whilst his licence was cancelled contrary to the provisions of s 32(3)(a) of the Road Transport (Driver Licensing) Act 1999.

12. Section 32 of that Act creates a series of separate offences, with that created by subs (1) relating to driving whilst disqualified from holding a licence, that created by subs (2) relating to driving whilst licence is suspended and that created by subs (3) relating to driving after a licence has been cancelled. It is not clear whether the decision to lay the charge under subs (3)(a) was due to a flow on effect of the misconception reflected in the letter from the Authority or a separate error on the part of the officer who issued the summons, but it is clear that the appellant's licence had not been cancelled but purportedly suspended. Hence, if he had committed any offence, it was not the one charged.

13. Furthermore, it seems unlikely that he could have been properly convicted even of an offence of driving whilst his licence was suspended. Even if the order for suspension was not void but merely liable to be set aside on appeal by reason of the principle established in Wurth v Gordon, it would have been necessary for the informant to establish that he had been aware of the suspension. The Authority's letter misinforming him that his licence had been cancelled had not even been written at the time of the alleged offence and there is no other evidence to suggest that he was aware of the suspension or even of any communication from which he might have been expected to deduce that some order, however misdescribed, had been made affecting his entitlement to drive a vehicle.

14. On 8 June 2000 he was again driving a vehicle when stopped by Constable Fearnside and a further summons was issued charging him with a further offence under s 32(3)(a) of the Road Transport (Driver Licensing) Act 1999 of driving whilst his licence was cancelled. He claimed not to have received the letter of 11 April 2000 and gave evidence of problems he had experienced with people removing mail from his letterbox. Whilst his evidence on this issue was somewhat unclear, he seems to have suggested that, since he had renewed his licence and had been entitled to drive, he had expected the police to sort the matter out and drop the charge. Whatever the merits of these explanations, he was again clearly not guilty of the offence charged because his licence had not been cancelled.

15. The charges of driving on 31 March 2001 and 8 June 2001 whilst his licence was cancelled were both heard in the Magistrates Court on 8 February 2002 when the already dismal chronicle of events was augmented by further serious errors.

16. After giving evidence that he had not received the letter dated 11 April 2000 from the Authority and that he had not known that his licence had been suspended, the appellant was cross-examined by the prosecutor about his failure to appear in Court on 17 May 2001. His explanation that he had not received any summons requiring him to appear on that date was challenged by the prosecutor and apparently disbelieved by Magistrate Doogan despite the fact that the summons in question had not required his attendance until 30 June 2002.

17. It was also put to him that when pulled over on 10 June 2000 Constable Fearnside had asked him why he had failed to appear in court in May. This suggestion was not only incorrect but without any foundation. Constable Fearnside had given evidence in the proceedings but had not claimed to have asked any such question and, since the summons had not required the appellant's attendance until 30 June 2000, there would have been no conceivable reason for him to have done so.

18. It was also put to the appellant that his licence had been cancelled on 26 October 1998. His protestations of being unable to remember that occurring were again challenged in cross-examination and apparently rejected by the Magistrate. In fact, it was entirely understandable that he would not have remembered such a cancellation because the records tendered in evidence provided no indication that such a cancellation had ever occurred. The inadmissible and plainly confused document referred to earlier suggested that there had been a "fine default suspension" on that date but, as I have mentioned, the Act did not provide for any such action and there was no evidence in the appeal book to suggest that the appellant had either been given advance notice that it was intended or retrospective advice that it had occurred.

19. Magistrate Doogan emphatically rejected the appellant's evidence, stating that she found him to be a "totally incredible witness" and that she hadn't believed a word that he had said on oath apart from "perhaps" his name, address and occupation. Regrettably, it seems clear that her Worship's adverse view of his credibility was based substantially upon the perceived implausibility of his claims to have been unable to remember events which had apparently never occurred.

20. Mr Erskine, who appeared on his behalf, submitted that the appellant would have been entitled to have been acquitted of the offence allegedly committed on 31 March 2000 of driving whilst his licence was cancelled because there had been no evidence that he had been aware of the alleged cancellation. In the alternative, Mr Erskine relied upon the principle that a person should not be convicted of an offence if he or she acted on an honest and reasonable belief in a state of facts which, if true, would have taken the relevant act outside the operation of the enactment creating the relevant offence. See, for example, Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536. It is true, as he acknowledged, that a defendant must be able to point to evidence of having had such a belief and of reasonable grounds for it but the appellant had given evidence of his belief and, whilst her Worship had rejected that evidence, her decision to do so had clearly been vitiated by the errors and misapprehension referred to earlier. The letter of 11 April 2000 had been written well after the alleged offence and there had been no other evidence to suggest that he had been advised of Magistrate Madden's decision.

21. He also submitted that the conviction for the second offence should be set aside because Magistrate Doogan's rejection of the appellant's claim to have believed on reasonable grounds that he had had a valid and subsisting licence had been based substantially on her Worship's findings as to the appellant's lack of credibility which were attributable to the errors and misapprehension mentioned.

22. In other circumstances I would have acceded to these submissions, set aside the convictions, penalties and orders and remitted the matters for re-hearing in the Magistrates Court. However, as I have mentioned, he had been convicted of offences of driving when his licence had been cancelled and it is abundantly clear that he was not guilty of either of these offences.

23. In fact, the respondent conceded that the appeal against the convictions for these offences should be upheld, though on the basis that they were dependent upon the validity of the suspension originally imposed by Magistrate Madden. Having regard to the smorgasbord of errors to which I have already referred it is unnecessary to give further consideration to this issue.

24. On any view, it is appropriate that these convictions, penalties and orders also be set aside. It is not in my opinion appropriate to remit the matters for rehearing. The appellant is entitled to be acquitted of each such charge.

25. This case is not a shining example of the administration of justice in this Territory. The appellant appears to have been misinformed by the Road Transport Authority, cross-examined about things that had never happened, found to be a liar because of his inability to remember them and wrongly convicted of three serious offences. He would be entitled to ask whether anyone associated with the enforcement of the traffic laws knew what they were doing. It must be stressed that the authorities have a duty to ensure that proceedings against alleged offenders are conducted with due fairness and this duty extends to taking reasonable care to prevent people from being wrongly convicted due to misconception or error.

26. The appellant may not have been without fault himself but he was not guilty of any of the offences charged and he is entitled to be presumed innocent of any other offences unless and until he has been charged and convicted after a properly conducted hearing.

27. The appellant is entitled to an order requiring the respondent to pay his costs of the appeal and of the proceedings in the Magistrates Court.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Crispin.

Associate:

Date: 19 December 2002

Counsel for the appellant: Mr C Erskine

Solicitor for the appellant: Nelson & Co

Counsel for the respondent: Mr J Lundy

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 28 November, 4 December 2002

Date judgment reserved: 16 December 2002

Date of judgment: 19 December 2002