Friday, August 12, 2011

Last week, The Advertiser newspaper reported that 8000 people would lose their driver’s licence due to demerit points or breaches of conditional licence conditions. Sadly this is true and already we have been inundated with calls from people affected by this issue. The problem has been created by a “glitch” in a computer program used by the Courts Administration Authority. Information concerning demerit points and conditional licence breaches has not been relayed to the DTEI as a result of the “glitch”.

This issue has since been rectified and now people who have moved on with their lives are facing dire consequences due the disqualification notices. It should be noted here, that there are a select few people who can elect for a Magistrates Appeal, Safer Driver Agreements or Good Behaviour Options in certain circumstances. Those people are notified of this fact on the notification letters. Others are not so lucky and now face disqualification some years down the track.

At Woods & Co, we believe this to be unfair. Of course, it could be argued that road users who break the rules should punished according to the rules. That would be a reasonable argument if the punishment were meted out expeditiously. The very purpose of expiable offences is to facilitate the efficient disposal of matters involving minor offences. This includes some traffic offences. Efficiency in disposal of these matters punishes the offender quickly and ultimately alleviates the need for the Courts to intervene in the conduct of minor matters. There are, as a matter of necessity some matters that will require Court intervention. For the most part, however, minor traffic offences and are expiated and the consequences (if any) such as demerit points and conditional breaches are then handled by the DTEI.

In a perfect world, there would be no need to comment on a system that appears on the face of it to be a working system. Clearly we do not live in a perfect world and this system is not without its problems.

In a legal sense, the Motor Vehicles Act 1959 makes it clear that when the Registrar of Motor Vehicles becomes aware of demerit or conditional licence infringements, it MUST disqualify the offender from holding or obtaining a driver’s licence. The relevant section of the Act does not give the Registrar any discretion to act otherwise. There is no time limit applicable. There is no allowance for consideration of special circumstances. In essence, the DTEI and Registrar have no alternative but to disqualify the offender. We have spoken with the DTEI and they agree that it is far from an ideal situation. The DTEI are currently powerless but are committed to finding a resolution to the problem.

Where to now?

It’s our view, after carefully considering the relevant legislation, that there are limited options available for an individual legal remedy for any one person affected by this issue. We feel that the best way to attack the problem is to pool the resources of many of those affected and make a formal approach to the Minister and appeal to have some retrospective changes made to the Act. This resolution comes with its own problems, but that is job of Parliament. That being said, this issue will not be solved by finger pointing and laying blame. To do that would be counter productive.

This is a case where Parliament could not possibly have foreseen a situation arising of this magnitude. We say that they can, now, have the foresight to remedy the problem.

There are other ways to solve the problem, but they are individual remedies and come with their own problems.

An application to the Registrar for review is available to an affected person under Section 98Z of the MVA. An appeal to the District Court is available to a person who is dissatisfied with a decision from the Registrar. Whilst a person who is aggrieved by a decision of the Registrar can ask for a review, it would seem somewhat empty if the Registrar has no discretion to act.

Given that most people affected by this are time poor (most disqualification are effective at the end of August 2011) we have doubts as to the capacity of the Registrar to timely deal with these applications. Again, there is the issue of unforeseen circumstances in the drafting of the Act(s). Some of those affected may have financial barriers to such a remedy.

Another remedy is possible by virtue of Section 16 of the Expiation of Offences Act 1996. This section allows for the issuing authority (generally the Police) of the original expiation note to withdraw the notice in certain circumstances. If these circumstances exist, we are faced with already expired time limits (60 days from the date of the notice has expired). The next problem and perhaps the most impractical, as far as the issuing authority is concerned, is the fact that the Act requires that if a notice is withdrawn, the expiation fee must be refunded. Common sense suggests that this will not happen.

We would encourage anyone affected to contact our office immediately and provide your details to us. We will then make a formal approach to the Minister to make the necessary changes. Whilst we cannot guarantee a successful or positive outcome for all, we can say that there is strength in unity. At Woods & Co, we continue to strive to ‘protect your rights’.

Damon C Ind

Solicitor – Woods & Co

DRINK DRIVING CASES – PROSECUTION ERROR IN PROVING CASE 19 AUG 2011 

Friday, August 19, 2011

DRINK DRIVING CASES – FAILURE TO PROVE THE BREATH ANALYSIS OPERATER WAS AUTHORISED TO OPERATE THE BREATH ANALYSIS INSTRUMENT.

On 16 August 2011 the Supreme Court handed down a decision of Police v Short [2011] SASC 131. The accused pleaded not guilty to exceeding the Prescribed Concentration of Alcohol. Therefore, the prosecution were put to proof. In order to prove the case against the accused the prosecution had to establish that the breath analysing instrument was operated by a person authorised to operate the instrument by the Commissioner of Police. The case was run by a colleague of mine, Mr Ken Gluche from Websters. The media have since created a maelstrom in respect of whether this case may have wider implications.

In Short’s case, the prosecution set about proving the breathalyser operator’s approval by relying on a Government Gazette. The Supreme Court found that the method of proof was deficient and the Gazette did not actually prove what the prosecution had hoped it had. In particular, the Road Traffic Act allowed for approval of a BA operator by the tendering of a certificate signed by the Commissioner of Police. The Government Gazette was not a certificate and was certainly not signed. Secondly, the Gazette ‘approved ‘ an operator to ‘conduct a breath analysis’, whereas the Road Traffic Act required approval that the operator was approved to ‘operate the BA instrument’. The Supreme Court held there was a difference. Lastly, the Supreme Court held the Gazette only purported to prove a person was approved on 7 July 2009 and it did not approve them ‘ as from’ that date. In other words, the approval was not ongoing.

Drink Driving cases are very complex and few lawyers understand the complexity of the legislation. We at Woods & Co undertake these cases daily. We congratulate Ken on the success, but it is likely that it will have little effect for future cases as promoted in the media.

Firstly, if you have already pleaded guilty, then you admit by your guilty plea the elements of the offence and the prosecution do not have to prove the breathalyser operators approval to operate the instrument. Secondly, in this case, the prosecution simply failed to prove that fact. They won’t make the same mistake. It is likely the issue can be fixed up by calling oral evidence of the approval of the operator, or by retrospectively issuing a complying certificate and relying upon that at trial.

We have been inundated with calls about this error and as leaders in our field have tried diligently to respond to all calls about this aspect. We at Woods & Co enjoy drink driving cases and the complex legislation that accompanies it. We look forward to the next move by the prosecution to see how they address this error, which as it presently stands leaves them with a difficulty of proving their case. We will continue to protect your rights and keep you updated as to trends and developments in drink driving law.

Michael Woods LLB (Hons)

Principal