Director of Public Prosecutions v Yigit [2008] NSWSC 35

New South Wales Supreme Court

CITATION : Director of Public Prosecutions v Yigit [2008] NSWSC 35

HEARING DATE(S) : 3 September 2007

JUDGMENT DATE : 4 February 2008

JURISDICTION : Common Law

JUDGMENT OF : Adams J at 1

DECISION : Appeal dismissed.

CATCHWORDS : Appeal from Local Court - suspension of licence - notice specifies two dates - whether void for ambiguity - whether question of law alone.

Crimes (Appeal and Review) Act 2001 s56 LEGISLATION CITED : Director of Public Prosecutions Act 1986 s10 Road Transport (Driver Licensing) Act 1988 25A(2)(a) Road Transport (Driver Licensing) Regulation 1999 cl 39

Director of Public Prosecutions (Plaintiff) PARTIES : Ali YIGIT (First defendant) William PIERCE (Second defendant)

FILE NUMBER(S) : SC 13277/07

COUNSEL : Mr D Frearson SC with Ms N Noman (Plaintiff) First defendant unrepresented

Mr S C Kavanagh (Plaintiff) SOLICITORS : First defendant unrepresented Mr I V Knight (Second Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT JUDICIAL OFFICER : Pierce LCM

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

Monday 4 February 2008

13277/07 DIRECTOR OF PUBLIC PROSECUTIONS v YIGIT

JUDGMENT

1 HIS HONOUR: As is well known, drivers' licences can be suspended by the Roads and Traffic Authority when a driver has accumulated a number of demerit points incurred for road traffic offences. On 22 August 2006 Mr Yigit was given a notice of suspension of his licence pursuant to the Road Transport (Driver Licensing) Act 1988. The relevant parts of that notice are as follows – "As a result of the excessive speed offence and the demerit points you have incurred for the offences listed below, your …licence will be suspended on and from 26 September 2006 for a period of 9 months. The suspension period comprises 6 months for the excessive speed offence and a further 3 months for exceeding the demerit points limit. You must not drive on a road or road-related area during the suspension period. You may keep the licence in your possession, but you cannot drive until on or after 27 June 2007. If your license expires during the suspension period it is still regarded as suspended until the suspension period ends. The licence must be renewed at a motor registry before you resume driving. However, it cannot be renewed while the suspension period is still current. As an alternative to the suspension period for exceeding the demerit points limit, you may elect to be of good behaviour for a period of 12 months. To make an election, you must attend a motor registry with your licence and this notice. A good behaviour election form will not be accepted on or after 26 September 2006. If you make the election you may commence driving on or after 27 March 2007." 2 On 28 August 2006 Mr Yigit made his election to be of good behaviour for twelve months rather than having his licence suspended for three months in respect of the demerit points suspension due to commence 26 March 2007. 3 It is not disputed that, on 23 December 2006 Mr Yigit was driving his motor vehicle in South Strathfield. This was detected when his braking lights were not working and police pulled him over. When they checked his licence they discovered that it had been suspended from 26 September 2006. Accordingly, Mr Yigit was issued with a Court Attendance Notice alleging that he had committed the offence of driving whilst suspended, contrary to s25A(2)(a) of the Road Transport (Driver Licensing) Act 1988. 4 The matter was heard in the Local Court at Burwood on 23 March 2007, a police prosecutor appearing for the informant and Mr Yigit appearing unrepresented. The learned Magistrate dismissed the charge upon the ground that the notice of suspension was invalid since it specified, in effect, that Mr Yigit could not commence driving until both (relevantly) midnight on 24/25 March 2007 and midnight on 26/27 March 2007. His Honour held that the notice was ambiguous since it specified a six month period of suspension but also, in effect, a period of six months and two days' suspension. 5 The Director of Public Prosecutions gave notice that he, in accordance with s10 of the Director of Public Prosecutions Act 1986, had taken over as prosecutor in respect of the proceedings. 6 The Director appeals to this Court under s56 of the Crimes (Appeal and Review) Act 2001, "but only on a ground that involves a question of law alone": subsection 56(1). In substance, the informant submitted that the periods of the suspension, specified in terms of months, were correctly stated but that the further detail informing Mr Yigit when driving could recommence was not required under the legislation and was superfluous and, though inconsistent with the stipulated six months, it was really an error of particularisation or explanation. Accordingly, it was submitted, the notice was not ambiguous when rightly construed: it simply contained an error of supererogatory explanation. 7 It is conceded by the Director that, if indeed the notice specified inconsistent periods of suspension, it would be invalid. The Director submits, however, that no one sensibly reading the notice would suppose that the suspension might have been for a period greater than six months and that on any reasonable construction, it would be understood that the specification of the dates upon which the driver could recommence driving was simply errors and should be ignored. On this argument there were two errors: 27 June 2007 instead of 25 June 2007; and 27 March 2007 instead of 25 March 2007. One problem with the Director's contention is that it (rightly) accepts that there are two or, more precisely, three periods of suspension specified but two of them should be ignored as mistakes. 8 Some argument was directed to a purposive interpretation of the relevant legislation. I do not intend to set out this material, as I do not think it is useful in the present context. Whether the notice does or does not specify inconsistent periods of suspension is scarcely a matter which will be illuminated by adopting a purposive approach to interpreting the relevant legislation, once it be conceded – as is the case – that it is essential to the validity of the notice of suspension that it unambiguously specify the relevant period. 9 The Road Transport (Driver Licensing) Regulation 1999 specifies in clause 39 the procedures for the variation, suspension, and cancellation of drivers' licenses and, so far as is relevant, provides – "(1) If the Authority decides to vary, suspend or cancel a person's driver licence, the Authority must give the person notice in writing of: (a) the reasons for the proposed variation, suspension or cancellation, and (b) any action that must be taken by the licence holder in order to avoid or reverse the variation, suspension or cancellation, and (c) the date after service of the notice on which the variation, suspension or cancellation takes effect. (2) The notice under subclause (1) must also state: (a) in the case of a notice to vary a person's driver licence, that if the licence is varied as set out in the notice, the person will no longer be authorised to drive a motor vehicle of a kind specified in the notice on a road or road related area, or (b) in the case of a notice to suspend a person's driver licence, that if the licence is suspended, the person will not be authorised to drive a motor vehicle on a road or road related area for the period of suspension specified in the notice, or (c) in the case of a notice to cancel a person's driver licence, that if the licence is cancelled, the person will no longer be authorised to drive a motor vehicle on a road or road related area." 10 It will be seen that paragraph 39(2)(b) requires that the notice state that "the person will not be authorised to drive a motor vehicle…for the period of suspension specified in the notice". It is submitted on the Director's behalf that the first paragraph of the notice specified this period unmistakeably as being "on and from 26 September 2006 for a period of 9 months…[comprising] 6 months for the excessive speed offence and a further 3 months for exceeding the demerit points limit." It is argued that this is the relevant period stated for the purposes of clause 39 and that the second paragraph is a mere explanation of the first paragraph and, though mistaken, does not affect the statement of the period of suspension required by virtue of clause 39 for the validity of the notice. It is submitted that the Magistrate misconstrued the effect of clause 39 in failing to appreciate that the "period of suspension specified in the notice" must be that contained in the first paragraph and not that contained in the third (and, by parity of reasoning, the second). 11 I do not think that the Magistrate misconstrued clause 39, since it is clear that periods of suspension may be specified in a number of ways, either by stating a period of months or days from a specified commencement point or else stating a commencement date and a termination date. The problem with the notice is that it appears to have adopted both modes of specification. The interpretation of clause 39 does not assist to resolve the inconsistency. It is, however, important, since it confirms the view taken by the Magistrate and conceded by the Director in this Court that only one period of suspension can be specified in a notice and that the specification of inconsistent periods must be fatal to the validity of a notice. If it were not already clear enough from the earlier paragraphs of clause 39, clause (4) makes this clear beyond debate – "(4) A driver's licence is varied, suspended or cancelled in accordance with the terms of a notice served under this clause unless the Authority by further notice in writing, withdraws the notice." 12 Furthermore, although the first paragraph of the notice states that the licence is suspended for the specified periods, it does not say anything about the person not being "authorised to drive a motor vehicle…for the period of suspension specified in the notice": that task is left to the second paragraph, the second sentence of which gives the first inconsistent date. The third paragraph purports to give the effect of making an election. Even accepting that it is unlikely that the Roads and Traffic Authority would suspend for the period of six months and two days and the responsible officer made a mistake in specifying the date upon which Mr Yigit could recommence driving, this might explain how the notice came to be in its present form but does not construe the notice. No doubt a mistake was made: that is demonstrated by the presence of inconsistent dates. The supposed explanation simply suggests that of the three possible mistakes, there is a speculative possibility which, if it is the fact, means that two of the dates should be ignored. 13 A person in Mr Yigit's position might feel some sense of uncertainty about his or her right to drive on and from 25 March 2007 in light of the explicit assertion that this was forbidden. This is especially so since the granting of the right to drive during the "further three months" follows an election to be of good behaviour. For all Mr Yigit knew, this process might involve a further two days' suspension. 14 A finding, contrary to that of the Magistrate, that it is appropriate to construe the notice as mistakenly specifying wrong dates and thus that those dates should be ignored in understanding the effect of the notice, however, is not be sufficient to dispose of the appeal. The crucial question is whether the construction of the notice is a matter of fact or a matter of law alone. 15 The Magistrate, in my respectful view, correctly identified the question of law, namely whether the notice specified two periods of suspension or only one. Whether it specified two or more periods of suspension is a matter of the ordinary meaning of the words used in the notice. It involves a guess about the intention of the relevant officer of the RTA – or, more likely to be the case, the computer that spat out the notice. It seems to me that such an interpretation is a question of fact and does not involve any question of law or, if it does, it involves a question of mixed fact and law. This view is reinforced by the consideration that the notice is sent to a wide range of drivers, many of whom do not have a sophisticated knowledge of English or a sensible understanding of the workings – let alone the language – of the bureaucracy. It is difficult to suppose that the Legislature would have in mind that a doubtfully phrased notice that actually did specify two inconsistent suspension periods and required the reader to decide which part of the notice was mistaken and should be disregarded and which part was correct and should be obeyed would nevertheless be a valid notice. 16 In the end, the submission for the Director amounted to the contention that the Magistrate's interpretation of the notice was unreasonable. Even if the Magistrate's interpretation of the notice was perverse or unreasonable – a conclusion which I would not be prepared to come to – this would amount to no more than a judgment about the meaning of ordinary English words and thus no more than a finding of fact even though it is a finding of fact which arose because of the necessity to determine whether the notice complied in a particular respect with the statutory requirements. 17 I mention that it is obvious at all events that a notice must be clear in its meaning: it should not be necessary for the licence holder to construe it by disregarding some part of it. This requirement is implicitly necessary under the Regulation and is sufficient to render the notice void. 18 I mention that there was a question whether the appeal was instituted within time. In the circumstances, I am satisfied that, if necessary (a matter that I do need to determine) leave should be granted to appeal out of time. 19 It follows that the appeal must be dismissed. 20 I wish, however, to add a comment. The learned Magistrate observed that he had come across many notices of suspension which contained errors identical to the kind which he had to consider in Mr Yigit's case and expressed some frustration that the Roads and Traffic Authority had not adjusted its word processor to get the dates right. It is about time that the Authority followed the Magistrate's suggestion. 21 The respondent to the appeal was unrepresented but, in case some costs were incurred, I think it is necessary to order that the Director pay the costs, if any, of the appeal. ********

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