Byrne v Hulbert [2009] ACTSC 124 (25 September 2009)

Last Updated: 26 October 2009

PETER BYRNE v JASON PETER HULBERT [2009] ACTSC 124 (25 September 2009)

APPEAL – appeal from convictions recorded in the Magistrates Court – appellant convicted of failing to stop at a stop line at a red traffic light – red light camera evidence related to red traffic arrow – wrong provision cited in summons – pleas of guilty – whether convictions arising from guilty pleas can be overturned – whether appellant could have been found guilty of the offences charged – appeal against conviction upheld – effect on demerit points.
TRAFFIC LAW – particular offence – failing to stop at a stop line at traffic lights in contravention of r 56 Australian Road Rules – whether offence committed – vehicle must stop before reaching stop line.
CRIMINAL PROCEDURE – power of court to amend information or summons – appellant summonsed under wrong provision – information or summons may be amended only if variance between particulars set out in information or summons and evidence adduced at hearing – amendment that changes offence charged is impermissible – operation of s 28 Magistrates Court Act 1930 (ACT).
TRAFFIC LAW – demerit points – effect of appeal from conviction on demerit points required to be added to ACT register – effect of appeal on demerit points required to be notified to another jurisdiction for entry on other jurisdiction’s register.

Legislation Act 2001 (ACT), s 192
Magistrates Court Act 1930 (ACT), ss 28, 216, 208
Road Transport (Driver Licensing) Act 1999 (ACT), ss 32, 14, 13, 16, 17, 8, 12
Road Transport (Driver Licensing) Act 1998 (NSW), s 11
Road Transport (General) Act 1999 (ACT), ss 53, 31

Road Transport (Driver Licensing) Regulation 2000 (ACT), reg 137A
Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), reg 6
Road Transport (Offences) Regulation 2005 (ACT), Schedule Part 1.2

Australian Road Rules, r 56

DPP (Cth) v Hussein [2003] VSCA 187; (2003) 8 VR 92
Wade v Evans [2003] ACTSC 85; (2003) 180 FLR 290

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 34 of 2008

Judge: Penfold J
Supreme Court of the ACT
Date: 25 September 2009

IN THE SUPREME COURT OF THE )
) No. SCA 34 of 2008
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: PETER BYRNE

Appellant

AND: JASON PETER HULBERT

Respondent

ORDER

Judge: Penfold J
Date: 25 September 2009
Place: Canberra

THE COURT ORDERS THAT:

(a) the appeal is upheld;
(b) the two convictions of Peter Byrne, for failing to stop at a red traffic light on 17 August and 19 August 2007, are set aside.

Introduction

1. Peter Byrne appeals from convictions recorded in the Magistrates Court in relation to two offences of failing to stop at the stop line at a red traffic light, being offences arising under r 56 of the Australian Road Rules (the Road Rules). He was given leave to appeal out of time on 2 May 2008.

Background

Circumstances of the offences

2. Early on 17 August 2007, Mr Byrne was driving his taxi in Fyshwick. The red light camera at the intersection of Canberra Avenue and Hindmarsh Drive in Fyshwick captured digital images of Mr Byrne’s taxi stopped across a white line at the intersection. At the time, a red arrow was displayed facing the appellant.
3. Two days later, Mr Byrne’s taxi was again recorded stopped across a white line at the same intersection.

Court processes

4. Traffic infringement notices were issued in relation to the two offences. Mr Byrne disputed liability, and summonses were issued referring to contraventions of r 56(1)(a) of the Road Rules, specifically failures to stop at the stop line at a red traffic light. On 10 December 2007, Mr Byrne, while unrepresented, appeared in court and pleaded guilty to both offences; he maintained those pleas through counsel on 14 December. The Magistrate found both offences proved and imposed fines, being $200 on each offence, and court costs in the amount of $59. Mr Byrne believed that he would also incur six demerit points as a result of the Magistrate’s finding.
5. An appeal against the Magistrate’s orders was lodged on 7 May 2008 after an extension of time was granted. In his supporting affidavit to his application for leave to appeal out of time Mr Byrne explained that it would be difficult for him to pay the fines (it did not become apparent how Mr Byrne had avoided paying his fines to that point); at the hearing he indicated that his more serious concern was with the demerit points that would be incurred as a result of the convictions and the effect of those points on his driver licence.

Grounds of appeal

6. Mr Byrne represented himself at the appeal hearing. The grounds of appeal as stated in the notice of appeal involved a challenge to the finding of the offences as proved, on the grounds that the traffic lights were faulty, that Mr Byrne’s car was shown on each photograph as having its back tyres behind the relevant line, and that he was innocent of the offences.
7. During the appeal hearing, it became apparent that there were several issues that needed to be addressed, as follows:
(a) Did Mr Byrne actually commit any offence?
(b) Was Mr Byrne properly charged, and if not, what can or should be done about that?
(c) Is there any basis for overturning Mr Byrne’s convictions given that they arose from his pleas of guilty?
(d) What is the effect of the convictions and the appeal on Mr Byrne’s demerit points?

Operation of Australian Road Rules

8. The relevant parts of r 56 of the Road Rules are set out in the Appendix to this judgment.
9. The Road Rules apply in the Australian Capital Territory by virtue of reg 6 of the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), under which they are to be read with, and as if they formed part of, that regulation. The Road Transport (Offences) Regulation 2005 provides generally for the enforcement of offence provisions listed in the Schedule. Part 1.2 of the Schedule lists Road Rules offences including those created under r 56.

Did Mr Byrne commit an offence?

10. The first question is whether Mr Byrne did in fact contravene the applicable provision of the Road Rules.

Contravention of r 56

11. Rule 56(2)(a) says, relevantly, “A driver approaching or at traffic arrows showing a red traffic arrow who is turning in the direction indicated by the arrow must stop ... if there is a stop line at or near the traffic arrows—as near as practicable to, but before reaching, the stop line”.
12. In the Road Rules, “stop ... includes park, but does not include stop to reverse the driver’s vehicle into a parking bay or other parking space”.
13. Also in the Road Rules, a stop line is defined as a continuous line that:

(a) is marked across all or part of a road; and

(b) is not part of a marked foot crossing or a keep clear marking.
14. Photographs tendered in the Magistrates Court showed Mr Byrne’s station wagon stopped at an intersection marked by three parallel lines across the traffic lanes between the kerbs on each side. Two of those lines fitted the description of a “marked foot crossing” and the third line, at the outside edge of the intersection, fitted the description of a “stop line”.
15. The photographs show that the rear wheels of the vehicle were behind the stop line, but most of the vehicle, including the front wheels, had passed over that stop line.
16. I accept that the vehicle was stopped for the purposes of the Road Rules. However, having regard to the requirement in r 56(2)(a) to stop as near as practicable to, but before reaching, the stop line, I am satisfied that Mr Byrne had in each case contravened r 56(2) in failing to bring his vehicle to a stop before it reached the stop line.
17. I am inclined to the view that the offence is committed if any part of the vehicle has travelled beyond the stop line; apart from anything else, this would be more consistent with a likely aim of keeping a buffer space between vehicles approaching to stop at the intersection and pedestrians using the marked foot crossing. However, for the purposes of this appeal I do not need to decide whether a vehicle “reaches” the stop line when any part of it reaches that line or only when its front wheels reach the line, and in the absence of argument on that question I refrain from reaching any conclusion.

Claim that lights were faulty

18. Mr Byrne mentioned in his notice of appeal that the traffic lights concerned might have been faulty. At the hearing he described the red arrow at the traffic lights as “going from green, orange, red in the blink of an eye”, and “going from green arrow to orange arrow to red arrow within about a second or two seconds. Just changing very quick.”
19. Around April 2008 (that is, about eight months after the alleged offences), Mr Byrne asked the appropriate authorities for a “calibration” in relation to the intersection concerned, and was given information to the effect that a calibration had been done five months before the alleged offences and had disclosed no problems. However, the calibration appears to be a process for checking the operation of the red light camera and, while there must presumably be some kind of operational link between the camera and the traffic lights, there was nothing before me suggesting that the calibration of the camera would detect a fault in the operation of the traffic lights. As well, the fact that Mr Byrne’s query was made so long after the alleged offences means that even if his query had clearly related to the operation of the traffic lights as such, it would by that stage have been difficult to establish how the lights had been operating at the time of the offence (absent any record of a fault having been reported around the time of Mr Byrne’s alleged offences).
20. In the absence of any evidence beyond Mr Byrne’s general observation, which was not apparently sufficient to induce him to report the matter to the traffic authorities at the time, I cannot see that his allegation that the traffic lights were changing too quickly can be pursued further in this appeal.

Significance of public statements

21. Mr Byrne’s argument that he had not committed the offence concerned was based on statements apparently made by the ACT Minister for Territory and Municipal Services, Mr John Hargreaves, and reported in The Canberra Times about the operation of red light cameras. Mr Byrne reported Mr Hargreaves’ comment as “If their back wheels go over the line the camera will take a picture of the car”. Mr Byrne also claimed to have heard different advice from ACT Policing, as well as internally inconsistent advice from the Minister’s department, about the operation of red light cameras.
22. In some circumstances, ACT Ministers or their departments might have useful comments to make about the operation of red light cameras, as might ACT Policing. To the extent that any such comments about the operation of ACT laws are incorrect or misleading, or are reported so as to render them incorrect or misleading, members of the community may have a legitimate grievance. However, it is not a grievance that can be addressed directly through the courts, which are obliged to apply the law as it really is, that is as set out in legislation or in authoritative judicial decisions, not the “law” as it is explained by Ministers or officials or reported in the media.

Conclusion

23. Accordingly, I can find no basis for concluding that Mr Byrne did not on two occasions contravene the r 56(2) requirement to stop his vehicle before reaching the stop line.

Was Mr Byrne properly charged?

24. Mr Byrne was summonsed on two charges of contraventions of r 56(1)(a).
25. Rule 56(1)(a) applies to traffic lights “showing a red traffic light” (a “red traffic light” is defined in the Dictionary of the Road Rules as “an illuminated red disc”). In that situation, a driver “must stop, if there is a stop line at or near the traffic lights, as near as practicable to, but before reaching, the stop line”. The obligation to stop at a red traffic arrow (defined, also in the Dictionary, as an “illuminated red arrow”) is distinguished from the obligation to stop at a red traffic light, and is covered by r 56(2) (see [11] above).
26. The infringement notices, which were not before me, had apparently referred to a red traffic arrow, as did the police statement of facts. The police statement of facts, however, specified r 56(1)(a) (the red traffic light provision) in its heading, as did the summonses. Thus, as counsel for the DPP conceded, the appellant was summonsed under the wrong provision of the Road Rules. It is therefore necessary to determine the effect of such an error.
27. Section 28 of the Magistrates Court Act 1930 (ACT) is as follows:

28 Power of court to amend information
(1) If at the hearing of any information or summons any objection is taken to an alleged defect in it in substance or form or if objection is taken to any variance between the information or summons and the evidence adduced at the hearing of it, the court may make any amendment in the information or summons that appears to it to be desirable or to be necessary to enable the real question in dispute to be decided.
(2) The court must not make an amendment under subsection (1) if it considers that the amendment cannot be made without injustice to the defendant.

28. In Wade v Evans [2003] ACTSC 85; (2003) 180 FLR 290, Connolly J dealt with a case in which an offender was proceeded against by summons for an offence of driving while his licence was cancelled (contrary to s 32(3)(a) of the ACT Road Transport (Driver Licensing) Act 1999), whereas in fact the offender had been disqualified from holding a licence, and so the charge should properly have been driving a motor vehicle during a period of disqualification contrary to s 32(1)(a) of that Act. When the discrepancy between the charge and facts had been raised in the Magistrates Court, the Magistrate permitted the prosecution to amend the charge to refer to the correct paragraph of s 32. Connolly J considered the operation of s 28 of the Magistrates Court Act 1930, and after a review of South Australian, Victorian and New South Wales authorities, concluded that an amendment that changes the offence charged, as distinct from an amendment to correct defects in the description of the particular matter charged, is not authorised under s 28. He said at [15]:

It seems to me that [the submission by counsel for the prosecution] overlooks the importance to the criminal justice system of requiring the prosecution to prove the particular charge against a defendant. An accused person is entitled to prepare for a trial on the basis of the offence with which he is charged, and to allow the prosecution to charge a different offence at the close of the prosecution case, when it becomes apparent that the offence with which he has been charged cannot be made out, carries the real risk of injustice. The legislature has provided a power is [sic] s 28 of the Magistrates Court Act to amend the information if there is a variance between the information and the evidence adduced at the hearing but, it seems to me, there is clear authority for the proposition that this does not permit the laying of a different charge.

29. Connolly J further said (at [18]):

The proper course at the time would have been to have dismissed the incorrect charge, and to have allowed the prosecution, if it wished, to begin afresh with a charge on the appropriate offence. Due to the expiration of the statutory limitation period, this is no longer possible, but this should not be a reason for permitting a variation to any information that goes beyond what has been recognised as the appropriate limits of the power to amend.

30. The problem with the summons in this case was not identified in the original proceedings, so there was no application to amend under s 28. If there had been, it should have been refused, in accordance with Connolly J’s conclusions set out in Wade v Evans.
31. Accordingly, Mr Byrne’s convictions on the two offences of failing to stop at a red traffic light must be set aside. Whether fresh charges are brought relating to the failures to stop at a red traffic arrow will depend first on the applicable limitation period (which may be that provided for by s 192(2) of the Legislation Act 2001 (ACT)) and, if fresh charges are available, on the police and the prosecuting authorities.

When can a conviction based on a plea of guilty be overturned?

32. Mr Byrne claims that when he appeared in the Magistrates Court in response to the summonses, he intended to contest the charges, but was persuaded to plead guilty by a solicitor whom he knew slightly and happened to meet in the court precincts before his first appearance. He says that, following his conviction for the two offences in December 2007, he intended to appeal, but didn’t pursue this until several months later when, in April 2008, the media took an interest in the operation of the traffic lights and red light cameras at the intersection concerned. Mr Byrne says that shortly after noticing the media coverage, and also relying on reported public statements from the Minister, Mr Byrne asked the traffic authorities for a “calibration” (see [19] above) and around the same time sought leave to appeal out of time.
33. The specific circumstances in which a court can overturn a conviction arising from a plea of guilty are limited. They were noted in DPP (Cth) v Hussein [2003] VSCA 187; (2003) 8 VR 92, in which the Court of Appeal of Victoria (Buchanan JA, with whom Vincent JA and Harper AJA agreed), said (at [9]):

While there is a strong public interest in limiting appeals against a conviction following a plea of guilty, such an appeal will be entertained in certain circumstances. Two of them were identified by Avory J in R v Forde [1923] 2 KB 400 at 403. His Lordship said:
A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged.
Those alternatives are not exhaustive, at least in this State, where this court has a duty to intervene if there has been a miscarriage of justice. (Crimes Act 1958, s 568(1))

34. I do not think that Mr Byrne’s explanation of the circumstances in which he pleaded guilty, or his intended challenge to his convictions, indicates either that he did not appreciate the nature of the charges or that when he pleaded guilty he did not intend to admit his guilt (whatever his intentions might have been when he first approached the Magistrates Court on the day concerned).
35. However, on the basis of my finding about the effect of the inaccurate summonses (see [24] to [31] above), it seems that Mr Byrne “on the admitted facts ... could not in law have been convicted of the offence charged”. The admitted facts related to a red traffic arrow; the summonses related to red traffic lights; red traffic arrow offences and red traffic light offences arise under different legislative provisions. If that discrepancy had been brought to the Magistrate’s attention, it would not have been appropriate for her to have allowed an amendment of the summonses, so the prosecution would have been left with only the option of starting again with a correct charge. Nor would it be appropriate to suggest that Mr Byrne’s failure to identify the mistake in the summonses entitles the prosecution to rely on the incorrect summonses. This seems to be a case in which an appeal against conviction could be upheld despite a plea of guilty.

What is the effect of the appeal on Mr Byrne’s demerit points?

36. In the course of argument a question arose about the effect of the appeal on Mr Byrne’s demerit points. Counsel for the DPP said that his recollection (dating back some years to a time when he had regularly prosecuted traffic matters) was that there was some uncertainty about the effect of disputing a traffic infringement notice on demerit points associated with the offence.

Demerit points system

37. The demerit points system is established under division 2.3 of the Road Transport (Driver Licensing) Act 1999 (ACT). Under s 14 of that Act, the system applies to:
(a) offences identified in a national schedule of demerit points;
(b) additional offences against Territory law that are specified in regulations; and
(c) offences against laws of other jurisdictions that are recognised by the Minister.
38. For each offence a number of demerit points is specified.
39. The road transport authority (RTA) is required (s 13A) to keep a record for a person of demerit points incurred in respect of demerit points offences. The event that renders demerit points of significance to a person is incurring those points. A person who incurs a specified number of demerit points over a three-year period may have his or her licence suspended and may be refused a licence or a licence renewal (ss 16 and 17).
40. The time at which the demerit points information for an offence is to be recorded is specified in s 13A(1), as follows:
(a) when the person is convicted or found guilty of the offence;
(b) when the person pays some or all of an infringement notice penalty for the offence;
(c) when the person is allowed additional time to pay an infringement notice penalty for the offence;
(d) when an infringement notice is served and the time for paying the penalty or disputing liability for the offence expires without the payment being made or a notice of dispute being given.
41. That is, the record is to be made at the earliest point when the person’s liability is determined or admitted, or when the person runs out of time for disputing liability. When the points are recorded, they are taken to have been incurred on the day the offence was committed (s 13B).
42. Thus, while disputing liability and choosing to have a matter dealt with in court would generally delay the recording of demerit points, it would not prevent that recording if there is a conviction or finding of guilt, and nor would it alter the date of effect of those demerit points. In general, this would seem to ensure that all relevant offences are brought to account within the system.
43. As mentioned above, one of the circumstances in which the RTA is to record demerit points is when a person is convicted or found guilty of a demerit points offence. The incurring of the points depends on the recording of those points on the register, which is done pursuant to an obligation imposed on the RTA by s 13A.
44. A person who is convicted or found guilty of a demerit points offence has the usual rights of appeal from the court’s decision. However, the effect of appealing a conviction or finding of guilt is not absolutely clear.

Effect of instituting an appeal before points recorded

45. Section 216(1) of the Magistrates Court Act 1930 provides that where a relevant appeal is instituted to the Supreme Court from any of the Magistrates Court decisions or orders listed in s 208:

... the enforcement or execution of the decision, conviction, order, sentence or penalty appealed from is stayed until the appeal is concluded or is abandoned or discontinued ...

46. As already noted, a conviction for a demerit points offence imposes a separate obligation on the RTA to record demerit points for that offence in the demerit points register; only when that record is made does the person incur those points (although the incurring is then automatically backdated to the date of the offence).
47. It is arguable that, under s 216(1), an appeal would stay the operation of the conviction, among other things to the extent that it imposes an obligation to record the demerit points. On the other hand, it is not clear that the recording of the points by the RTA is properly treated as an element of the enforcement or execution of the conviction or order, because it is in fact the performance of a separate statutory duty imposed by operation of law as a result of the conviction or order. Nor is either the obligation to record the points, or the recording of the points, clearly a penalty imposed on the offender, whether by operation of law or by the convicting court. The recording of the points occurs when a separate authority performs its own separate statutory obligations. Furthermore, recording demerit points may never have any direct effect on a person who manages not to incur further demerit points within the relevant period. For these reasons, the stay effected by an appeal may not affect the recording of demerit points at all, and it may be that the points can be, or even must be, lawfully recorded by the RTA even after an appeal is instituted.

Effect of instituting appeal after points recorded

48. The issue becomes more complex if the appeal is instituted after the demerit points have been recorded. At that point, the RTA has complied with its obligation and there would appear to be nothing left for s 216 of the Magistrates Court Act to stay. The demerit points simply sit on the register until they trigger a warning notice under s 15, or a notice of suspension of licence under s 16, of the Road Transport (Driver Licensing) Act.
49. The RTA’s obligation to record the points is expressly stated in the Road Transport (Driver Licensing) Act. Even if s 216 of the Magistrates Court Act could be read as staying an unperformed obligation to record points, it is hard to take the next step and read the provision as also imposing an obligation on the RTA to remove the record of demerit points in certain circumstances. This is especially so because the provisions that would need to be inferred would not stop at requiring the record to be removed—for instance, if an obligation is inferred to remove the recorded points once an appeal is instituted, it would also seem necessary to infer a further obligation to reinstate the points on the register if the appeal is unsuccessful.
50. An alternative approach would be that while the demerit points do remain on the register, the effect of the stay is that they must be ignored in administering the demerit points system. Again, inferring that kind of direction addressed to the administrators of a separate statutory scheme from the stay of a conviction requires a substantial leap of faith, and one not apparently supported by anything else in the legislation.

Effect of conviction being overturned

51. For the reasons mentioned in [49] above, it seems that even the overturning of the conviction may not be enough to oblige the RTA to remove relevant demerit points from the register.

Effect of withdrawing an infringement notice

52. As indicated above, I am reluctant to infer a series of obligations binding the RTA in relation to the demerit points register that would take account of the effect of an appeal and its outcome, whatever form those inferred obligations might take. My reluctance is increased by the existence of explicit provisions relating to the withdrawal of infringement notices for demerit points offences.
53. Under s 31 of Road Transport (General) Act 1999 (ACT), an infringement notice may be withdrawn by notice to the person concerned, and after that a proceeding may be taken in a court against the person as if the infringement notice had not been served on the person. It seems that this approach is used, for instance, where a person disputes liability for an infringement notice offence (see s 53 of the Road Transport (General) Act).
54. Under the Road Transport (Driver Licensing) Regulation 2000, if demerit points have been recorded against the person otherwise than because of the person being convicted or found guilty of the offence, and the infringement notice is subsequently withdrawn, then the demerit points must be deleted from the register and are taken for all purposes never to have been recorded against the person (reg 137A).
55. Thus, if an infringement notice is withdrawn and there is no further action against the person in respect of the offence concerned, the demerit points will not affect the person in any way. However, the withdrawal of an infringement notice will have no effect on demerit points added to the register as a result of a conviction or finding of guilt.
56. Regulation 137A appears to reflect a recognition that removing the demerit points record from the register, by itself, would not be adequate to reverse the effect of the original recording; it makes explicit provision in relation to matters that might have resulted from the recording of the points, such as the refusal of an application for a licence, service of licence supervision notices, and the cancellation of a licence. The existence of that regulation makes it even less likely that a requirement to remove demerit points from the register after an appeal against conviction, or after a successful appeal, together with all the other provisions apparently seen as necessary to reverse the effect of the recording of the demerit points, should be inferred from s 216 of the Magistrates Court Act and the routine orders made in disposing of a successful appeal.

Effect of appeals out of time

57. A further question arises in respect of appeals out of time. Even if the system is administered to take account of the normal operation of appeal periods (perhaps by the RTA not recording demerit points until the end of an appeal period or the resolution of an appeal instituted within that period), it is not clear how the system could take account of appeals out of time. Presumably a conviction and the consequent demerit points should have been dealt with, at the latest, at the expiry of the appeal period in relation to the convictions concerned; for the reasons already mentioned, it is hard to conclude that the application of s 216 in relation to an appeal (or the overturning of a conviction following a successful appeal) imposes an obligation on the RTA to remove properly recorded material from its register.
58. Nor does it seem that there is any administrative solution in such a case, especially in the absence of a provision like reg 137A of the Road Transport (Driver Licensing) Regulation 2000. Subsection 8(3) of the Road Transport (Driver Licensing) Act 1999 (ACT) permits the RTA to “correct any mistake, error or omission in the ... demerit points register ... ” but it is not clear to me that a record of demerit points that was correct when made could properly become a mistake or an error (as distinct from becoming out of date) by reason of a change in the circumstances that led to the points being recorded initially.

Mutual recognition—operation of demerit points system for licences issued in other jurisdictions

Mutual recognition provisions

59. The Road Transport (Driver Licensing) Act 1999 of the ACT is part of an Australia-wide scheme regulating road transport in all respects, and in each jurisdiction there are provisions for sending certain information to authorities in other jurisdictions and for dealing with information received from other jurisdictions.
60. Section 12 of that Act (Mutual recognition of demerit points) takes some account of the effect of an appeal; the RTA is not required to give demerit points information to another jurisdiction under s 12(1) until after any appeal periods expire and any appeal is disposed of or discontinued (s 12(3)).
61. I have found no equivalent provision relating to “local” demerit points. The absence of such a provision may reflect an assumption that for the ACT system, s 216 of the Magistrates Court Act is enough to address the interaction between the appeal system and the demerit points system. However, for the reasons already mentioned at [47] to [51] above, I am not convinced such an assumption is correct.
62. Mr Byrne held a NSW licence. There was no obligation on the ACT RTA to record his demerit points on the ACT register, but there was an obligation on that authority (under s 12 of the ACT Road Transport (Driver Licensing) Act) to give demerit points information about Mr Byrne to the NSW authorities. Under s 12(3), the ACT RTA was not obliged to pass on Mr Byrne’s demerit points information until after his appeal period had expired. Under s 11(6) of the Road Transport (Driver Licensing) Act 1998 of NSW, the NSW authorities would, on receiving that information, have been required to take the action they would have taken if Mr Byrne’s offence had been committed in NSW. Even if s 216 of the Magistrates Court Act could be read as requiring the ACT RTA to remove any points it has recorded for an offender after a relevant conviction is set aside, it is a significant stretch to accept that either ACT legislation, or the decision of an ACT court, could oblige a NSW authority to act (for instance, to remove the demerit points from its register) in a way that might be inconsistent with its obligations under NSW law.
63. It is possible that the NSW legislation has a provision dealing expressly with the effect of appeals, of the kind that I have not been able to locate in the ACT legislation. If not, it may be the case that even once Mr Byrne’s convictions are set aside, he will still be taken to have incurred the demerit points that, on the face of s 12 of the ACT Road Transport (Driver Licensing) Act, should have been reported to the NSW authorities no later than the expiration of the appeal periods for the original convictions.
64. The injustice may not be particularly grave in this case, given that Mr Byrne’s convictions are to be set aside because of administrative failure on the part of the authorities rather than because he has not committed any offence. However, it is easy to imagine cases in which these provisions, if they operate as they appear to, could work a serious injustice.
65. As already indicated, this matter was not properly argued before me, so I refrain from making any finding. However, it seems possible that the upholding of an appeal out of time against the ACT convictions will not have any impact at all on Mr Byrne’s demerit points record in NSW. As well, if the ACT authorities can and do pursue the offences by instituting new proceedings against Mr Byrne, he may be at risk of having two sets of demerit points recorded, one in respect of the convictions that have been overturned and the other in respect of any new convictions recorded as a result of the new proceedings. This would be a surprising outcome, but it cannot be ruled out.

Conclusions

66. As set out in [31] and [34] above, Mr Byrne’s convictions on the two charges of failing to stop at a red traffic light must be set aside, but this finding of itself does not prevent the prosecuting authorities proceeding against him for the offences that he does appear to have committed.
67. As mentioned in [65] above, it is not clear that setting aside the convictions will mean that any demerit points recorded against Mr Byrne in respect of those offences are removed from the NSW register. That is a matter he may need to take up with the NSW authorities.

Orders

68. The orders are that:
(a) the appeal is upheld;
(b) the two convictions of Peter Byrne, for failing to stop at a red traffic light on 17 August and 19 August 2007, are set aside.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 25 September 2009

Counsel for the appellant: Self-represented
Counsel for the respondent: Mr S Drumgold
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 25 August 2008
Date of judgment: 25 September 2009

Appendix
Australian Road Rules
56 Stopping for a red traffic light or arrow

(1) A driver approaching or at traffic lights showing a red traffic light must stop:

(a) if there is a stop line at or near the traffic lights — as near as practicable to, but before reaching, the stop line; or

(b) if there is a stop here on red signal sign at or near the traffic lights, but no stop line — as near as practicable to, but before reaching, the sign; or

(c) if there is no stop line or stop here on red signal sign at or near the traffic lights — as near as practicable to, but before reaching, the nearest or only traffic lights; and must not proceed past the stop line, stop here on red signal sign or nearest or only traffic lights (as the case may be) until the traffic lights show a green or flashing yellow traffic light or no traffic light.

Offence provision.

Note Red traffic light and stop line are defined in the dictionary.

...

(2) A driver approaching or at traffic arrows showing a red traffic arrow who is turning in the direction indicated by the arrow must stop:

(a) if there is a stop line at or near the traffic arrows — as near as practicable to, but before reaching, the stop line; or

(b) if there is a stop here on red arrow sign at or near the traffic arrows, but no stop line — as near as practicable to, but before reaching, the sign; or

(c) if there is no stop line or stop here on red arrow sign at or near the traffic arrows — as near as practicable to, but before reaching, the nearest or only traffic arrows; and must not proceed past the stop line, stop here on red arrow sign or nearest or only traffic arrows (as the case may be) until the traffic arrows show a green or flashing yellow traffic arrow or no traffic arrow.

Offence provision.

Note 1 Red traffic arrow is defined in the dictionary.

Note 2 This rule only applies to a driver turning left using a slip lane if the red traffic light or red traffic arrow applies to the slip lane — see Part 20, Divisions 2 and 3, especially rules 330 and 345.

Note 3 Rule 58 deals with when a driver does not have to stop for a red traffic light.

Note 4 The driver of a tram or a public bus does not have to stop at traffic lights showing a red traffic light if a white T light (for trams) or a white B light (for public buses) is also showing, or a white traffic arrow is showing and the driver is turning in the direction indicated by the arrow —see rules 278 and 285.