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Eastwood v Kaspar [1976] PNGLR 206 (21 May 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 206 - David Leigh James Eastwood v Kaspar Bernar Samar 

[1976] PNGLR 206

N44

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EASTWOOD

V

KASPAR BERNAR SAMAR

Waigani

Williams J

12 May 1976

21 May 1976

VEHICLES AND TRAFFIC - Licensing of drivers - Person convicted of traffic offence - Fine and suspension of licence imposed - Notice of appeal not operating as stay of order for suspension - Period of suspension expiring before hearing of appeal - Appeal dismissed.

APPEAL - Inferior courts - Local courts - Traffic offence - Order for suspension of driver’s licence expiring before hearing of appeal - Inability of court on appeal to set aside order for suspension.

The appellant was charged with driving a motor vehicle in excess of the speed limit (at 100 k.p.h. in a 50 k.p.h. area), pleaded guilty, was fined K50 and disqualified from holding or obtaining a driver’s licence for a period of three months.

On appeal against the fine and order for disqualification, which appeal came on for hearing after the expiration of the three month period of suspension,

Held

(1)      The lodgment of the notice of appeal did not in itself operate as a stay of the order for suspension: Appeal (Local Courts) Rules r. 5.

(2)      An order is not rendered void ab initio when it is set aside on appeal as erroneous: accordingly any order setting aside the order for suspension in the present case would be quite ineffective to undo the operation of the order which had run its course. Parisienne Basket Shoes Pty. Ltd. v. Whyte [1938] HCA 7; (1938) 59 C.L.R. 369 at p. 374 followed.

(3)      The appeal, so far as it concerned the order for suspension, should be dismissed.

(4)      On the facts appearing in the record of proceedings there was nothing which could be said to constitute a substantial miscarriage of justice within the meaning of s. 43(3) of the Local Courts Act and the appeal should be dismissed.

Appeal

This was an appeal against a fine of K50 and three months’ suspension of licence imposed on a plea of guilty to a charge of driving a motor vehicle in excess of the speed limit.

Counsel

RHB Wood for the appellant

JL Cagney for the respondent

Cur. adv. vult.

21 May 1976

WILLIAMS J:  The appellant was charged with driving a motor cycle upon the Hubert Murray Highway in Port Moresby at a speed greater than 30 miles per hour. The matter came before the Local Court in Port Moresby on 25th November, 1975. The appellant pleaded guilty to the charge and was fined K50.00. The Court further ordered that the appellant be disqualified from holding or obtaining any driver’s licence for a period of three months.

On 23rd December, 1975, he instituted an appeal to this Court. The grounds of appeal are:

1.       That the fine imposed was excessive.

2.       That in making the order for disqualification of the appellant’s licence that the magistrate failed to exercise any discretion or alternatively failed to exercise his discretion upon proper principles.

3.       In the further alternative the disqualification was excessive.

It should here be observed that no stay of the order for suspension of licence has been made. It seems clear that the lodgment of the notice of appeal did not in itself operate as a stay (see rule 15 of the Appeal (Local Courts) Rules). The period of suspension imposed on 25th November, 1975, has already expired.

During the hearing of this appeal I was informed from the Bar table that, notwithstanding the order for suspension of licence, the appellant following that order obtained physical possession of the licence from the police. How this came about I do not know but it seems to me clear that the action of a police officer in handing over the licence to the appellant could not affect the court’s order. I was further informed during the hearing that following the suspension order some event (the nature of which I am unaware) had occurred concerning the appellant which makes this appeal, so far as it concerns the suspension of licence, more than of academic interest to the appellant notwithstanding the fact that the period of suspension has expired.

It must, however, be kept in mind that the order for suspension was made. It was an order which the magistrate had jurisdiction to make. Its legal effect continued to operate until it was stayed or was set aside by a court of competent jurisdiction. It was not, during its currency, either stayed or set aside. Any order which this Court may now make can have effect only from the date of its pronouncement. It seems to me that were I now to make an order setting aside the order for suspension it would be quite ineffective to undo the operation of the order which has run its course. It could not in my view have the effect of destroying the magistrate’s order ab initio. Reference might here be made to the observations of Latham C.J. in Parisienne Basket Shoes Pty. Ltd. v. Whyte[ccxxv]¹, which are as follows:

“An order made without jurisdiction — as if a court of petty sessions purported to make a decree of divorce — is not an order at all. It is completely void and has no force or effect. The persons who make the order will, for example, if any action by way of interference with person or property is taken under the authority of the order, be liable in an action of trespass. But an order is not rendered void ab initio when it is set aside on appeal as erroneous.”

For these reasons alone I think that the appeal, so far as it is concerned with the order for suspension, should be dismissed.

The primary attack made on the order for suspension was that the magistrate, in making it, had failed to exercise any or any proper discretion in the matter. It is, of course, plain that in making an order of this kind a magistrate is required to exercise his discretion upon the accepted principles of the exercise of judicial discretion. It was pointed out on the appellant’s behalf that the record of the proceedings in the Local Court consisted of two sheets of paper, one a printed form headed “Court Record of a Criminal Case” and the other a copy of the information containing the charge. On the former the magistrate has filled in in handwriting a number of particulars. At the bottom of the form appear the words “The Court further orders that the defendant be disqualified from holding or obtaining any driver’s licence from today’s date for a period of ...” In the blank space the magistrate has written the words “3 months”.

It was contended for the appellant that this indicated that the magistrate had engaged himself in the mechanical exercise of filling in blank spaces in the form and had not applied or properly applied his mind to the question of suspension. In other words he had not properly exercised a discretion in the matter.

A report has been furnished by the magistrate as required by rule 7 of the Appeal (Local Courts) Rules. This (omitting formal parts) is in the following terms:

“There is nothing unusual about this case. It was an ordinary speeding case to which the defendant pleaded guilty and for which I awarded the usual penalty.

In such cases involving excessive speed, (i.e. 100 k.p.h.), it is customary for this court in addition to a fine to disqualify the defendant from driving for a certain period, and this I also did in this case.

This is a discretinary (sic) matter only exercised in such cases of excessive speed, and not exercised in cases of minor infringements of the speed limitation. In this case I exercised my discretion in the usual manner.”

This, on its face, indicates that he was aware that suspension of licence was a matter for the exercise of his discretion. A number of cases have come before this Court in recent times in which the principles to be observed by magistrates in relation to suspension of licences have been discussed. Examples are to be found in Kamir v. Peneia Woi Woi [ccxxvi]²: Kapena Boe Arua v. Bulanasoi [ccxxvii]³; Guje Beng v. Billey Kombel[ccxxviii]⁴ and Johnson Takovong v. Tino Tarera [ccxxix]⁵. I do not think that I should readily attribute to the magistrate a lack of understanding on his part that he was required to exercise a discretion and the principles upon which it should be exercised.

The facts concerning this matter as disclosed in the record before me are scanty. It is shown that the appellant admitted driving his motor cycle upon the Hubert Murray Highway in Port Moresby at 100 kilometres per hour. The time at which the offence was committed and the general conditions then prevailing are not shown. There is no information as to his antecedents. The form of “Court Record of a Criminal Case” is apparently a new form. In the circumstances of this case it contains little information for a court sitting on appeal and the attention of magistrates should be drawn to the necessity for ensuring that the form contains all relevant information relating to the offence.

It is notorious that driving offences in Port Moresby are prevalent, a matter which has been discussed in the cases to which I have earlier referred. Upon the facts appearing in the record I am not persuaded that a substantial miscarriage of justice within the meaning of s. 43 (3) of the Local Courts Act appears.

Appeal dismissed.

Solicitors for the appellant: McCubbery Train Love & Thomas.

Solicitor for the respondent: B. W. Kidu, State Solicitor.