Markovic v Stafford [2010] ACTSC 109 (9 September 2010)

Last Updated: 29 September 2010

PREDRAG MARKOVIC v ANDREW STAFFORD [2010] ACTSC 109 (9 September 2010)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 33 of 2010

Judge: Nield A/J

Supreme Court of the ACT

Date: 9 September 2010

IN THE SUPREME COURT OF THE )

) No. SCA 33 of 2010

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PREDRAG MARKOVIC

Appellant

AND: ANDREW STAFFORD

Respondent

ORDER

Judge: Nield A/J

Date: 9 September 2010

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The sentencing Magistrate’s conviction be set aside.

As to the appeal of Pedrag Markovic.

1. On 17 June 2009 the appellant was found to be driving a motor vehicle on a public street of the Australian Capital Territory. He was charged with being a disqualified driver and a repeat offender.

2. The prosecution relied upon a statement of Senior Constable Stafford, who had stopped the appellant when driving the motor vehicle and had ascertained from him that he did not have a licence, as it was suspended.

3. The prosecution relied upon a certificate, pursuant to section 72 of the Road Transport (General) Act, that, and I quote:

“The records maintained in accordance with section 6 of the Road Transport (Driver Licensing) Act 1999 have been searched and that on 17 June 2009, Pedrag Markovic, date of birth 29 June 1967, was not the holder of an ACT licence in accordance with section 10 of the Road Transport (Driver Licensing) Act 1999. ACT RTA records reveal his ACT probationary licence was disqualified from 4 June 2004.”

4. The certificate did not state the date to which the appellant was disqualified from holding or obtaining a licence. The certificate did not state that as at 17 June 2009 the appellant was disqualified from holding or obtaining a driver’s licence.

5. In the absence of proof that the appellant was a disqualified driver as at

17 June 2010 the prosecution fails. I allow the appeal. I set aside the magistrate’s conviction, as he has not yet been dealt with, I understand.

6. Regarding the application for costs by the appellant, why should you have your costs?

7. The appellant was driving without a licence. He should have been charged with driving without a licence, and then he would have been found guilty, and properly fined, and had his licence disqualified.

8. In these circumstances, I cannot see why the prosecution should pay costs. I refuse to order that prosecution pay the appellant’s costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Associate: I Fernandez

Date: 14 September 2010

Counsel for the plaintiff: Mr J Sabharwal

Solicitor for the plaintiff: Rachel Bird and Co

Counsel for the respondent: Ms K Weston-Scheuber

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 9 September 2010

Date of judgment: 9 September 2010