RTA v Papadopoulos [2010] NSWSC 33 (19 February 2010)

Last Updated: 22 February 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
RTA v Papadopoulos [2010] NSWSC 33


JURISDICTION:


FILE NUMBER(S):
2009/296962

HEARING DATE(S):
2 February 2010

JUDGMENT DATE:
19 February 2010

PARTIES:
Roads & Traffic Authority of New South Wales - Plaintiff
Constantine Papadopoulos - Defendant

JUDGMENT OF:
James J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
T Lynch - Plaintiff



SOLICITORS:
Hunt & Hunt - Plaintiff
J Lewis & Co - Defendant


CATCHWORDS:
CRIMINAL LAW — Road Transport Legislation — habitual traffic offender declaration — effect of “quashing” habitual traffic offender declaration — declaration annulled for the future but not ab initio — Crimes (Sentencing Procedure) Act s 43 — Section 43 not available where penalty not imposed by a court

LEGISLATION CITED:
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act
English Criminal Appeal Act 1907
Local Court Act 2007
New South Wales Criminal Appeal Act
Road Transport (Driver Licensing) Act 1998
Road Transport (General) Act 1999
Road Transport (General) Act 2005
Road Transport (General) Amendment (Consecutive Disqualification Periods) Act 2009 No 69
Road Transport Legislation Amendment (Miscellaneous Provisions) Act 2009 No 104


CASES CITED:
Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220
Director of Public Prosecutions v TY [2009] VSCA 226
Hancock v Prison Commissioners [1960] 1 QB 117
Ho v Director of Public Prosecutions (1995) 37 NSWLR 393
Lesi v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCFCA 285

TEXTS CITED:
Pearce & Geddes Statutory Interpretation in Australia (6th ed)

DECISION:
1. Order that the determination of the Local Court magistrate to disallow the decision of the RTA on 24 June 2009 to refuse the application by Mr Papadopoulos for a driver licence be set aside.
2. Order that the determination of the magistrate to fix the date of commencement of the third disqualification as 25 February 2007 be set aside.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

JAMES J

FRIDAY 19 FEBRUARY 2010

2009/296962 ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES v CONSTANTINE PAPADOPOULOS

JUDGMENT

1 HIS HONOUR: This is an appeal by the Roads & Traffic Authority of New South Wales (“the RTA”) pursuant to s 70 of the Local Court Act 2007 and Pt 5 of the Crimes (Appeal and Review) Act 2001 against orders made by a Local Court magistrate on an application to the Local Court by Constantine Papadopoulos (“Mr Papadopoulos”), who is the defendant in the appeal. The facts giving rise to the appeal are complicated and it will be necessary to set them out in some detail.

Mr Papadopoulos’ traffic record

2 An exhibit in the hearing of the application in the Local Court was a traffic record report of Mr Papadopoulos prepared by the RTA. The details of Mr Papadopoulos’ traffic record which I will now give are taken from this report.

3 In March 1998 Mr Papadopoulos was issued with a learner driving licence, in March 1999 he was issued with a provisional driving licence and in March 2000 he was issued with an unrestricted driving licence.

4 On 26 March 2002 in Burwood Local Court Mr Papadopoulos was convicted of having driven on 10 February 2002 with a mid-range concentration of alcohol in his blood and he was disqualified from holding a driving licence for a period of six months from 10 February 2002. Although this period of disqualification expired on 9 August 2002, Mr Papadopoulos after 9 August 2002 had the status of being an unlicensed person whose licence had been cancelled.

5 On 25 February 2003 at Burwood Local Court Mr Papadopoulos was convicted of having on 25 January 2003 driven a motor vehicle after his licence had been cancelled. By virtue of s 25A of the Road Transport (Driver Licensing) Act 1998 (“the Driver Licensing Act”) and particularly s 25A(7), and without the need for any court order, Mr Papadopoulos was disqualified from holding a driver licence for a period of two years from 25 February 2003. Although the disqualification occurred by the operation of s 25A of the Driver Licensing Act, and not by any court order, the entry in the traffic record report reads “DISQ(ualified) 2 years (Court Order)”.

6 At the hearing before me the conviction on 25 February 2003 was often referred to as “the first conviction” and the disqualification period from 25 February 2003 was often referred to as “the first disqualification” and I will use these terms in this judgment.

7 On 17 March 2004 at Balmain Local Court Mr Papadopoulos was convicted of having on 20 January 2004 driven a motor vehicle while disqualified. By virtue of s 25A of the Driver Licensing Act Mr Papadopoulos was disqualified from holding a driver licence for a period of two years from 25 February 2005, that is from the date of expiration of the existing disqualification, that is the first disqualification. Although the disqualification occurred by the operation of s 25A of the Driver Licensing Act and not by any court order, the entry in the traffic record report reads “DISQ(ualified) 2 years (Court Order)”.

8 At the hearing before me the conviction on 17 March 2004 was often referred to as “the second conviction” and the disqualification period from 25 February 2005 was often referred to as “the second disqualification” and I will use these terms in this judgment.

9 By virtue of s 28 of the Road Transport (General) Act 1999 (“the General Act 1999”), since repealed, Mr Papadopoulos, as a result of the convictions against him, was declared on 17 March 2004 to be an habitual traffic offender. By s 30 of the General Act 1999 Mr Papadopoulos, having been declared to be an habitual traffic offender, was disqualified by the declaration and without any specific order of a court from holding a driver licence for a period of five years commencing after all his other disqualifications had been completed, that is on 25 February 2007.

10 On 25 October 2006 at Balmain Local Court Mr Papadopoulos was convicted of having driven on 21 November 2005 while disqualified. By virtue of s 25A of the Driver Licensing Act Mr Papadopoulos was disqualified from holding a driver licence for a period of two years from 25 February 2012, that is from the date of expiration of the disqualification arising from his having been declared to be an habitual traffic offender. At the hearing before me the conviction on 25 October 2006 was often referred to as “the third conviction” and the disqualification period from 25 February 2012 was often referred to as “the third disqualification” and I will use these terms in this judgment. As in the case of the first and second disqualifications, although the disqualification occurred by the operation of s 25A of the Driver Licensing Act and not by any court order, the entry in the traffic record report reads “DISQ(ualified) 2 years (Court Order)”.

Parts of relevant legislation

11 In summarising Mr Papadopoulos’ traffic record I have made references to the Driver Licensing Act and the General Act 1999. It is convenient to set out some of the provisions of these Acts which are particularly important for the present case and also some of the provisions of the Road Transport (General) Act 2005 (“the General Act 2005”), which repealed and replaced the General Act 1999 as from September 2005.

Road Transport (Driver Licensing) Act 1998

Section 25A

(1) A person who is disqualified by or under any Act from holding or obtaining a driver licence must not:

(a) drive a motor vehicle on a road or road related area during the period of disqualification...

(7) If a person is convicted by a court of an offence under subsection (1), (2), (3) (a) or (3A), the person:

(a) is disqualified by the conviction (and without any specific order) for the relevant disqualification period from the date of expiration of the existing disqualification or suspension or from the date of such conviction, whichever is the later, from holding a driver licence, and

(b) may also be disqualified, for such additional period as the court may order, from holding a driver licence.

Road Transport (General) Act 1999

Section 28

A person is, by this section, declared to be an habitual traffic offender if:

(a) a court in this State convicts the person of a relevant offence, and

(b) the person has, in the period of 5 years before the conviction, also been convicted of at least 2 other relevant offences committed on different occasions.

Section 30

(1) If a person is declared by section 28 to be an habitual traffic offender, the person is disqualified by the declaration (and without any specific order of a court) for a period of 5 years from holding a driver licence, except as provided by this Division.

(2) If the court that convicts the person of the offence giving rise to the declaration thinks fit, the court may order a longer period of disqualification (including disqualification for life).

(3) If the court that convicts the person of the offence giving rise to the declaration determines that a 5-year disqualification is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case, the court may order a shorter period of disqualification (but not shorter than 2 years).

(4) If a court orders a shorter or longer period of disqualification, the court must state its reasons for doing so.

(5) A declaration of an habitual traffic offender ceases to be in force when the period of disqualification imposed by the declaration is completed.

(6) The period of any disqualification under this Division does not commence until all other disqualifications, and all other periods of licence cancellation or suspension, imposed on the person by or under this or any other Act have been completed.

(7) Further declarations have effect under this Division even though they occur while an existing declaration is in force, and the consequent periods of disqualification do not commence until all existing disqualifications under this Division have been completed. It does not matter that some of the relevant offences giving rise to a further declaration also gave rise to an earlier declaration.

(8) If, while an existing disqualification under this Division is in force, the person is disqualified by a court or automatically under another provision of this or any other Act, that further disqualification does not commence until all existing disqualifications under this Division have been completed.

Section 31

(1) The declaration of a person as an habitual traffic offender by section 28 may be quashed by a court that convicts the person of a relevant offence (at the time of the conviction or at a later time) if it determines that the disqualification imposed by the declaration is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case.

(2) If a court quashes a declaration under this section, the court must state its reasons for doing so.

(3) However, a declaration or disqualification under this Division cannot be appealed to any court whether under this or any other Act.

Road Transport (General) Act 2005

Division 3 of Part 5.4 of this Act deals with “habitual traffic offenders”. The sections in Div 3 are in identical or substantially similar terms to corresponding sections in the General Act 1999.

Section 198 in Div 3 deals with “relevant offences”.

Section 199 provides for the declaration of persons as habitual traffic offenders. It is in identical terms to s 28 of the General Act 1999.

Section 201 provides for the period of disqualification of an habitual traffic offender. Apart from one additional sub-section, which is not relevant for present purposes and one reference to another section of the General Act 2005, it is in identical terms to s 30 of the General Act 1999.

Section 202, as originally enacted and as in force at all relevant times for present purposes, contained three sub-sections and was in identical terms to s 31 of the General Act 1999 (apart from a reference to s 199). However, because of its importance in the present case I will set out the provisions of s 202.

1) The declaration of a person as an habitual traffic offender by section 199 may be quashed by a court that convicts the person of a relevant offence (at the time of the conviction or at a later time) if it determines that the disqualification imposed by the declaration is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case.

(2) If a court quashes a declaration under this section, the court must state its reasons for doing so.

(3) However, a declaration or disqualification under this Division cannot be appealed to any court whether under this or any other Act.

12 It was common ground at the hearing before me that by virtue of cl 3 in Pt 2 of Sch 1 to the 2005 Act, containing savings, transitional and other provisions, the General Act 2005 applied to the declaration of Mr Papadopoulos as being an habitual traffic offender as if the General Act 2005 had been in force at the time of the declaration.

Subsequent events

13 In February 2009 Mr Papadopoulos made an application to the Local Court pursuant to s 202 of the General Act 2005 that the declaration that he was an habitual traffic offender be quashed. The only further information about this application in the evidence before me was contained in a letter from the Registrar of the Balmain Local Court which reads “the presiding magistrate on 1 April 2009 at this court made the following order. Application granted. Declaration quashed.”

14 On 8 April 2009 an officer of the RTA wrote a letter to the Registrar of the Balmain Local Court. Part of this letter was as follows:-

The Authority has received legal advice to the effect that with the making of the quashing order, the period of disqualification imposed as a consequence of the declaration became a nullity: Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220 esp at 225 per Rich, Dixon, Evatt and McTiernan JJ. This had the result that Mr Papadopoulos became entitled to apply for a driver licence from 26 February 2007 until 24 February 2012. The order by the Court disqualifying Mr Papadopoulos from driving from 25 February 2012 and running until 25 February 2014 nevertheless remains intact unless it is varied.

The RTA is of the view that the circumstance of a person being disqualified for an offence but remaining eligible for a licence for a period is illogical from a road safety perspective. This is an unintended consequence of the provision. The RTA will propose to the Minister for Roads, that legislative amendments be made to remedy this outcome. In the meantime, the Authority requests that, pursuant to s 43(2) of the Crimes (Sentencing Procedure) Act 1999, the Court, of its own motion, re-open the sentencing proceedings in relation to the offence committed by Mr Papadopoulos on 21 November 2005 with a view to varying the commencement date of the disqualification penalty from 25 February 2012 to 25 February 2007 for the offence committed on 21 November 2005. Assuming the Court does not vary the duration of the periods of disqualification, the last day of the period of disqualification would become 25 February 2009.”

15 As will become apparent later in this judgment, the RTA subsequently changed its position from that stated in the letter of 8 April 2009. The Balmain Local Court declined the request made in the letter of 8 April 2009 that the court re-open the sentence proceedings for the offence of 21 November 2005.

16 On 24 June 2009 Mr Papadopoulos made an application to the RTA to be issued with a driver licence. This application was refused by the RTA on the grounds of Mr Papadopoulos’ driving record and the “unserved two year period of disqualification ordered by Balmain Local Court on 25 October 2006”.

17 On 2 July 2009 Mr Papadopoulos made an application to the Local Court for an order that the decision of the RTA to refuse his application for a licence be set aside. Written submissions in relation to Mr Papadopoulos’ application were lodged with the Local Court by the RTA and on behalf of Mr Papadopoulos.

18 The application by Mr Papadopoulos came before the Local Court on 24 August 2009. There is no transcript available of the hearing on that date. On 31 August 2009 the application was again before the Local Court and the transcript of the hearing on that date was included in the evidence on the appeal.

19 Between about pages 24 and 29 of the transcript of 31 August 2009 there is a record of what was in effect a judgment given by the Local Court magistrate.

20 In the judgment the magistrate noted a submission made by the RTA’s representative that on the quashing of the habitual traffic offender declaration on 1 April 2009 the disqualification which had been existing at the time of the appellant’s conviction on 25 October 2006 expired. Her Honour noted further submissions which had been made on behalf of the RTA as follows:

“The respondent argued that “quash” was often interpreted to (mean) void or null and void but that it could also mean to put an end to, overcome, suppress or stifle and reference was made to The New Shorter Oxford English Dictionary 1993 edition. The respondent submitted that the habitual traffic offender declaration was valid and operative until the order was made on 1 April 2009, that it was a merits review and that merit(s) reviews generally have the effect when made until they are overturned and the authority for that was quoted as Lesi v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCFCA 285.”

21 In her judgment the magistrate noted submissions which had been made on behalf of Mr Papadopoulos that she should find that Mr Papadopoulos was a fit and proper person to hold a driver licence. Her Honour, while acknowledging that she did not have a transcript of what had occurred on 1 April 2009, referred to the decision made on that date that the disqualification imposed by the habitual traffic offender declaration was a disproportionate and unjust consequence having regard to Mr Papadopoulos’ total driving record and the special circumstances of his case.

22 In her judgment her Honour referred to the letter of 8 April 2009 from the RTA, parts of which I have already quoted. Her Honour referred to the Road Transport (General) Amendment (Consecutive Disqualification Periods) Bill of 2009 and the speeches made in Parliament in relation to that Bill. Her Honour distinguished Lesi v The Minister for Immigration and Multicultural and Indigenous Affairs, the case sought to be relied on by the RTA.

23 Her Honour concluded:-

“The expression with respect to a declaration being quashed in s 202(1) of the Road Transport (General) Act 2005 is not defined in the Act. It should be taken to have its ordinary English meaning consequently I consider the expression simply means the declaration is made null and void and is wholly set aside as though it had never been.”

24 Her Honour subsequently repeated the same conclusion:-

“It is my opinion that the declaration is avoided ab initio. It is the same as no declaration.

The main findings that is my view that the declaration is made null and void and it is set aside as though it had never been.”

25 Her Honour quoted parts of the joint judgment in Commissioner for Railways NSW v Cavanough, the case cited by the RTA in its letter of 8 April 2009, as supporting her conclusion.

26 Her Honour made an order that the RTA’s decision to refuse Mr Papadopoulos’ application for a licence be disallowed.

27 Section 43 of the Crimes (Sentencing Procedure) Act was referred to at the hearing on 31 August 2009. However, her Honour declined to apply s 43 so as to adjust the date of commencement of the third disqualification, apparently partly for procedural reasons and partly because the RTA had indicated its intention to appeal against her Honour’s decision about the effect of the quashing of the habitual traffic offender declaration.

28 The RTA appealed to the Supreme Court against the order made by the Local Court magistrate on 31 August 2009. The appeal was heard by Kirby J of this Court, who gave an extempore judgment on 13 October 2009.

29 In his judgment Kirby J held that the magistrate had not determined from what date the third disqualification operated, whether it was from 1 April 2009 (the date on which the quashing order was made), as the RTA submitted, or from 25 February 2007 (the date of expiration of the second disqualification), as Mr Papadopoulos’ legal representative submitted. His Honour accordingly remitted the matter to the Local Court magistrate to determine from what date the third disqualification operated.

30 Further written submissions were lodged with the Local Court on behalf of both Mr Papadopoulos and the RTA and the matter came before the same Local Court magistrate on 27 October 2009.

31 On 27 October 2009 the Local Court magistrate, purporting to be acting pursuant to s 43 of the Crimes (Sentencing Procedure) Act re-opened the sentencing proceedings for the third conviction and varied the date of the commencement of the third disqualification from 25 February 2012 to 25 February 2007. In so acting her Honour applied the finding she had made on 31 August 2009 that, as a result of the quashing of the habitual traffic offender declaration, the declaration was rendered null and void ab initio, as though it had never been made.

The issues

32 In its summons instituting the present appeal the RTA sought an order that the decision by the Local Court magistrate to disallow the decision of the RTA on 24 June 2009 to refuse Mr Papadopoulos’ application for a driving licence be set aside and that the decision of the Local Court magistrate purportedly made pursuant to s 43 of the Crimes (Sentencing Procedure) Act that the third disqualification should commence on 25 February 2007 be set aside. Other orders were also sought in the summons but it was conceded on the hearing of the appeal that at least most of the other relief sought in the summons was inappropriate to be granted on an appeal under s 70 of the Local Court Act.

33 At the hearing three principal submissions were made by counsel for RTA.

1. The Local Court magistrate had erred in holding that, where a declaration of a person as an habitual traffic offender is quashed pursuant to s 202 of the General Act 2005, the declaration is annulled ab initio, as though there had never been any declaration, and should have held that, where a declaration is quashed, the declaration is merely annulled prospectively as from the date of the order quashing it and is to be regarded as having been in effect from the date of the declaration to the date of the order quashing.

2. Even if a declaration is annulled ab initio by the making of an order quashing the declaration, nevertheless, for the purposes of s 25A(7) of the Driver Licensing Act, the date of expiration of an existing disqualification resulting from the declaration of a person as being an habitual traffic offender is the date on which the declaration is quashed.

3. The Local Court magistrate erred in determining to apply s 43 of the Crimes (Sentencing Procedure) Act so as to vary the date of commencement of the third disqualification, because a condition for the application of s 43 is that “a court has imposed a penalty that is contrary to law” and the disqualification was not a penalty imposed by a court but the result of the operation of legislation in accordance with its terms, independently of any court order. Accordingly, the order made by the Local Court magistrate varying the date of commencement of the third disqualification should be set aside.

34 On the hearing of the appeal Mr Papadopoulos’ legal representative adopted the submissions which had been made in the Local Court, disputing each of counsel for the RTA’s principal submissions.

35 I will now deal in turn with each of the RTA’s principal submissions.

The effect of “quashing” pursuant to s 202 of the Road Transport (General) Act 2005 a declaration of a person as being an habitual traffic offender.

36 I have already referred to parts of the Local Court magistrate’s judgment of 31 August 2009 in which her Honour held that the effect of the order made on 1 April 2009 that the habitual traffic offender declaration be quashed was that the declaration was made null and void and set aside, “as though it had never been”.

37 The competing submissions of the parties on the appeal were the submission on behalf of the RTA that the word “quash” in s 202 meant annul prospectively, from the time of the making of the order quashing the declaration, and the submission on behalf of Mr Papadopoulos that the word “quash” meant render null and void ab initio, that is from the time of the declaration purportedly coming into existence, as was held by the magistrate.

38 It is not surprising that the magistrate formed the conclusion she did about the interpretation of the word “quash”. The word “quash”, both in ordinary language and in legal contexts, frequently has the meaning which her Honour held that the word should be given where it appears in s 202 of the General Act 2005. Before the magistrate Mr Papadopoulos’ legal representative referred to the definitions of “quash” in the Macquarie Dictionary as being “to make void, annul or set aside”.

39 The magistrate had before her the letter from the RTA of 8 April 2009 in which the RTA had said that it had received legal advice that as a result of the quashing order the period of disqualification resulting from the declaration had become a nullity and in which the RTA cited the decision of the High Court in Commissioner for Railways NSW v Cavanough as supporting that advice. It is correct that the decision and passages in the joint judgment in Cavanough might be capable of lending some support to the opinion expressed in the letter of 8 April 2009.

40 I have, nevertheless, reached the conclusion that, for the reasons advanced by counsel for the RTA in his submissions, the word “quash” in s 202 of the General Act 2005 should be interpreted as meaning annul prospectively and not annul ab initio.

41 Both before the magistrate and on this appeal counsel for the RTA referred to definitions of the word “quash” in the Shorter Oxford English Dictionary. These definitions include “annul, make null or void but also include “put an end to””. Accordingly, the word “quash” can in ordinary language mean “put an end to”.

42 There are undoubtedly many instances of courts interpreting the word “quash” in legislation as meaning to render null and void ab initio. An example is Commissioner for Railways NSW v Cavanough, the case referred to in the RTA’s letter of 8 April 2009 and in the magistrate’s judgment of 31 August 2009.

43 In Commissioner for Railways NSW v Cavanough the respondent Cavanough was an employee of the Commissioner. Cavanough was convicted of a criminal offence but the conviction was set aside on appeal. Cavanough then sued the Commissioner for unpaid salary between the date of his conviction, when he was suspended, and the date of the setting aside of the conviction, when he was reinstated. In defending the claim for salary the Commissioner relied on a section of the Government Railways Act which provided that an officer convicted of a felony should be deemed to have vacated his office. It was held by the High Court that upon the setting aside of the conviction the conviction was avoided ab initio. Consequently, Cavanough could not be deemed to have vacated his office and he was entitled to the salary he was claiming.

44 In their joint judgment Rich, Dixon, Evatt and McTiernan JJ said at 225:-

“The scope and effect of an appeal must in the end be governed by the terms of the enactment creating it. But the power given to the Quarter Sessions includes authority to quash and set aside convictions. These are familiar expressions, and describe a jurisdiction exercisable at common law by Courts of error. The effect of the reversal of a conviction by proceedings in error has long been settled, and the same effect is produced by quashing it, or setting it aside upon a statutory appeal. The conviction is avoided ab initio. "The judgment reversed is the same as no “judgment” — per Coleridge, J, R v Drury, (1849) 3 Car. & K. at p 199, 175 ER 517 at p 520.”

45 A case to which I referred the parties at the hearing of the appeal was the English decision of Winn J in Hancock v Prison Commissioners [1960] 1 QB 117.

46 The decision in Hancock involved s 4(3) of the English Criminal Appeal Act 1907, which was in broadly similar terms to s 6(3) of the New South Wales Criminal Appeal Act and corresponding provisions in the criminal appeal legislation of the other States. Section 4(3) of the English Act provided:-

“On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law by the verdict...in substitution therefor as they think should have been passed.”

47 Hancock had been sentenced to a term of imprisonment for ten years. During the first years of his imprisonment he suffered losses of remissions from his sentence. He subsequently successfully appealed against sentence, the Court of Criminal Appeal quashing the original sentence and imposing a lesser sentence of imprisonment for seven years. The question arose whether the losses of remissions in respect of the quashed sentence continued to subsist in respect of the substituted sentence. Winn J held that the word “quash” in s 4(3) of the Criminal Appeal Act did not mean to make null and void ab initio but only for the future from the moment when the Court of Criminal Appeal decided to quash the original sentence and substitute a different sentence.

48 In his judgment Winn J said at p 125:-

“(Counsel for Hancock) has submitted to me cogently (and one recognises that it is an argument which calls for careful consideration and has considerable weight) that the word “quash” in that order (of the Court of Criminal Appeal) means that the 10-year sentence was thereby rendered null and void, and wholly set aside as though it had never been. There would be persuasive force in that argument, and I would feel very well disposed to accept it, had I not found in the very wording of section 4(3) of the Act the provision that, wherever the Court of Criminal Appeal does find itself of the opinion that a sentence passed has been too severe, it “shall...quash” that sentence and “pass such other sentence ... as they” (the court) “think ought to have been passed in substitution therefor.” When one finds those words in the section and considers the context in which they are used, and the subject-matter to which those words must be applied, one is inevitably driven to the conclusion that the word “quash” is not there used in the sense in which the Shorter Oxford English Dictionary tells me that it often is used, namely, “to annul,” “make null or void,” but is used in the less drastic meaning that the former sentence is by the order of the court rendered null and void at the moment when the Court of Criminal Appeal decides to substitute for it a different sentence, so as to make that earlier sentence null and void and of no effect for the future from that point of time onwards, but not so as to render it null and void ab initio, namely, as from the date when it was passed.”

49 Hancock v Prison Commissioners would not appear to have been referred to in any New South Wales case. However, it was referred to with approval by the Victorian Court of Appeal in the recent decision of Director of Public Prosecutions v TY [2009] VSCA 226 at [25] and [26] per curiam.

50 The decision in Hancock v Prison Commissioners shows that the word “quash” in a legal context does not necessarily mean to make null and void ab initio and can simply mean to make null and void for the future. What interpretation should be given to the word in particular legislation depends on the terms of the legislation, the context in which the word “quash” is used and the subject matter to which the word must be applied.

51 Counsel for the RTA submitted that in the present case the terms of the legislation in which the word “quash” was used, the context in which the word was used and the subject matter to which the legislation was to be applied showed that the word “quash” should be interpreted as meaning annul for the future and not annul ab initio. In my opinion, these submissions should be accepted.

52 The context in which the word “quash” is used in the present case is different from a context in which the word is frequently used and in which the word has usually been interpreted as meaning annul ab initio.

53 The context to which I am referring is where there has been a decision by a primary decision-maker and what is quashed is the decision by the primary decision-maker, on the grounds that the decision was erroneous in some way at the time it was made. Examples include the quashing of a criminal conviction or the quashing of an administrative decision on grounds such as denial of procedural fairness or jurisdictional error.

54 In the present case, on the other hand, there was no decision by a primary decision-maker and hence no erroneous decision by a primary decision-maker. The declaration of Mr Papadopoulos as an habitual traffic offender arose by the operation of s 28 of the General Act 1999 from the convictions he had incurred, without any decision by a judicial officer, and the disqualification of Mr Papadopoulos arose by the operation of s 30 of the General Act 1999 on the habitual traffic offender declaration, without any decision by a judicial officer.

55 Section 202 of the General Act 2005 provides that the declaration of a person as an habitual traffic offender may be quashed “(at the time of the conviction or at a later time) if it determines that the disqualification imposed by the declaration is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case”.

56 Accordingly, a declaration may be quashed at a later time than the time of the conviction giving rise to the declaration. A court considering an application for a quashing order at a later time has to determine whether the disqualification imposed by the declaration is disproportionate and unjust having regard to the applicant’s total driving record and the special circumstances of the case. It is clear, in my opinion, that the total driving record and the circumstances of the case are not limited to the driving record and the circumstances of the case as at the time of the conviction giving rise to the declaration but include the driving record and the circumstances of the case down to the time of the hearing of the application for a quashing order.

57 It could be the case that the disqualification imposed by a declaration was not disproportionate and unjust having regard to the driving record and the circumstances as they existed at the time of the conviction giving rise to the declaration but is disproportionate and unjust having regard to any driving record and circumstances which have occurred since the time of the conviction giving rise to the declaration. In such a case it would not be appropriate that the disqualification should be annulled ab initio but the disqualification could appropriately be annulled for the future.

58 Section 202 of the General Act 2005 was amended by the Road Transport Legislation Amendment (Miscellaneous Provisions) Act 2009 No 104 (Sch 1(13)) so as to insert after s 202(3):-

“(4) For the avoidance of doubt, the quashing of a declaration under this section:

(a) operates to set aside the disqualification imposed by the declaration on and from the day on which the court makes the order that quashes the declaration, and

(b) if the disqualification period has already commenced when the declaration is quashed-does not operate to invalidate or otherwise affect the operation of the disqualification in its application to the habitual traffic offender at any time before the day on which the declaration is quashed.”

This amendment commenced on 14 December 2009.

59 The General Act 2005 was also amended by the Road Transport (General) Amendment (Consecutive Disqualification Periods) Act 2009 No 69 (Sch 1(1)(6)), so as to insert a new s 188A for the bringing forward of consecutive disqualification periods to avoid what were described in the amending Act as “orphan licence disqualifications”. In the present case the third disqualification from 2012 to 2014 could be an “orphan licence disqualification”. This amending Act commenced on 27 November 2009.

60 It is common ground on the hearing of the appeal that neither of the amending Acts to which I have referred had any direct application in the present case. Mr Papadopoulos’ legal representative did not make any submission that the amendments could be referred to in interpreting s 202 as it stood before the amendments.

61 I do not consider that it would be legitimate to refer to the amending acts in interpreting the word “quash” in the unamended s 202. I note that the new sub-s (4) to s 202 is introduced by the words “for the avoidance of doubt”. On the question of whether an amendment to an Act can be referred to in interpreting the unamended Act – see Pearce & Geddes Statutory Interpretation in Australia (6th ed) at pars 3.33 and 3.34.

62 I conclude that the word “quash” in s 202 of the General Act 2005, as it stood at 1 April 2009, meant annul for the future and not annul ab initio.

Whether under s 25A(7) of the Road Transport (Driver Licensing) Act the date of expiration of an existing disqualification from a declaration under the Road Transport (General) Act that a person is an habitual traffic offender is the date on which an order is made quashing the declaration, even if the effect of the quashing of the declaration is to render the declaration null and void ab initio.

63 It was submitted by counsel for the RTA that, even if the order quashing the declaration which was made on 1 April 2009 should be held to have had the effect of annulling the declaration ab initio, nevertheless for the purposes of s 25A(7) of the Driver Licensing Act “the date of expiration of the existing disqualification”, that is the date of the expiration of the disqualification from the habitual traffic offender declaration, would be the date on which the order was made depriving the declaration of any effect, that is 1 April 2009.

64 It is unnecessary for me to rule on this submission, because I have held that the effect of the order quashing the declaration which was made on 1 April 2009 was merely to annul the declaration prospectively and not to annul the declaration ab initio. Consequently, the date of expiration of the disqualification from the habitual traffic offender declaration was 1 April 2009.

65 However, if I had held that the effect of the order quashing the declaration had been to annul the declaration ab initio, I would not have considered that the submission by the RTA I am presently considering should have been upheld. If a declaration were rendered null and void ab initio by the making of an order quashing it, I do not see how there could have been at any time an effective disqualification or any “expiration” of a disqualification. “The expiration” of a disqualification implies the ceasing of a disqualification which has been effective at least for some period.

Whether the Local Court magistrate was correct in determining to apply s 43 of the Crimes (Sentencing Procedure) Act so as to vary the date of the third disqualification.

66 Earlier in this judgment I recorded that on 27 October 2009 the magistrate, purporting to be acting pursuant to s 43 of the Crimes (Sentencing Procedure) Act, re-opened the sentence proceedings for the third conviction and varied the date of commencement of the third disqualification from 25 February 2012 to 25 February 2007.

67 Section 43 of the Crimes (Sentencing Procedure) Act provides, so far as is relevant:-

“This section applies to criminal proceedings...in which a court has:

(a) imposed a penalty that is contrary to law...”

68 It was submitted by counsel for the RTA that by its terms a condition for the application of s 43 is that a court has imposed a penalty that is contrary to law and that this condition was not satisfied in the present case, because the third disqualification (that is the disqualification from the third conviction) was the result of the operation of legislation in accordance with its terms, quite independently of any court order.

69 It has been held that s 43 should be interpreted broadly. See for example Ho v Director of Public Prosecutions (1995) 37 NSWLR 393. However, I consider that the submissions of the RTA should be accepted. The application of the section is predicated (for present purposes) on a court having imposed a penalty that is contrary to law and in the present case this condition was not satisfied, in that the penalty which the magistrate purported to correct had not been imposed by a court.

70 I set aside the order made by the Local Court magistrate varying the date of commencement of the third disqualification.

Whether relief should be refused as a matter of discretion.

71 Mr Papadopoulos’ legal representative submitted that s 70(1)(c) of the Local Court Act provides that an appeal to the Supreme Court may be made in accordance with Pt 5 of the Crimes (Appeal and Review) Act 2001 and that under Pt 5 of the Crimes (Appeal and Review) Act a court has a discretion to withhold relief, even if a claim to relief has been prima facie established. It was submitted that grounds for exercising such a discretion in favour of Mr Papadopoulos included the anomalies in the legislation and “the tangled web of the legislation”; the incorrect statements in the traffic record report prepared by the RTA that disqualifications of Mr Papadopoulos were by court orders when the disqualifications arose from the operation of legislation independently of any court order; the reversal of the position taken by the RTA about the effect of the quashing of the habitual traffic offender declaration; and what was submitted to have been an error in the first disqualification in that the offence giving rise to the disqualification was a first offence and not “a second or subsequent offence” within the meaning of those expressions in s 25A(7) of the Driver Licensing Act.

72 It is not clear to me that I have a discretion of the kind suggested by Mr Papadopoulos’ legal representative. In any event, even if such a discretion is available, I do not consider that, having held that the magistrate made errors of law, I should decline to make orders in favour of the RTA.

What orders should be made

73 The Local Court magistrate made an order that the RTA’s decision to refuse Mr Papadopoulos’ application for a licence be disallowed. The basis of the magistrate’s decision was that the declaration of Mr Papadopoulos as an habitual traffic offender had been quashed, that the effect of the quashing was that the declaration was rendered null and void ab initio and hence the disqualification resulting from the declaration had also been rendered null and void ab initio.

74 I have held that the magistrate’s decision about the effect of the quashing of the declaration and hence of the disqualification was wrong in law, that the declaration and the disqualification were annulled only as from the time of the making of the quashing order on 1 April 2009 and hence the third disqualification commenced from the expiration of the disqualification arising from the declaration and is still current.

75 Accordingly, I consider that I should make the order sought in par 2 of the RTA’s summons that the determination of the Local Court magistrate to disallow the decision of the RTA on 24 June 2009 to refuse the application by Mr Papadopoulos for a driver licence should be set aside.

76 The magistrate purporting to be acting pursuant to s 43 of the Crimes (Sentencing Procedure) Act made an order that the third disqualification should commence on 25 February 2007.

77 I have held that the magistrate did not have power under s 43 to make such an order and that, even if the magistrate had had power to make such an order, the magistrate’s exercise of the power was erroneous, because it was based on the magistrate’s erroneous interpretation of the word “quash”.

78 Accordingly, I consider that I should make the order sought in par 3 of the RTA’s summons that the determination of the magistrate to fix the date of commencement of the third disqualification as 25 February 2007 be set aside.

79 As a present advised, it seems to me that the substantive relief I should grant should be limited to the two orders I have just made. However, I would consider any submission on behalf of the RTA that further relief should be granted.

Costs

80 I do not at this stage make any order for the costs of the appeal. The RTA has been successful on the appeal. However, other factors could be relevant in determining that would be an appropriate costs order, for example the extent to which the magistrate might have been misled by the RTA’s letter of 8 April 2009, including its application to vary the date of the commencement of the third disqualification and its citation of Commissioner for Railways v Cavanough.

81 If the parties cannot agree on what would be an appropriate costs order, the matter will have to come back before me.

Further comment

82 On the appeal it was accepted by both parties that the disqualifications under s 25A(7) of the Driver Licensing Act were disqualifications resulting from the operation of statutory provisions and did not result from any court order. Hence, the traffic record report was incorrect in stating or at least suggesting that the disqualifications resulted from court orders.

83 It was suggested at the hearing that the incorrect entries in the traffic record report might have been made because magistrates had purported to make orders imposing the disqualifications.

84 In accordance with a request made by counsel for the RTA at the hearing I make the comment that, where a disqualification results from the automatic operation of a statutory provision, independently of any court order, it is unnecessary and liable to be confusing for a magistrate to purport to make a disqualification order. Of course, where the legislation permits a magistrate to impose a longer or shorter period of disqualification than the automatic statutory period and the magistrate considers that a longer or shorter period of disqualification would be appropriate in the particular case, then it is appropriate, and indeed necessary, for the magistrate to make an order.

Orders

Order that the determination of the Local Court magistrate to disallow the decision of the RTA on 24 June 2009 to refuse the application by Mr Papadopoulos for a driver licence be set aside.

Order that the determination of the magistrate to fix the date of commencement of the third disqualification as 25 February 2007 be set aside.

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LAST UPDATED:
19 February 2010