Director of Public Prosecutions (NSW) v Kmetyk [2018] NSWCA 156

Director of Public Prosecutions (NSW) v Kmetyk [2018] NSWCA 156 · Read the judgment on AustLII

Catchwords: District Court Appeals – Stay of disqualification – meaning of ‘conviction’

This twin pair of appellate judgments significantly alters the previously-accepted state of affairs in relation to stays of disqualifications pending an appeal. The Court of Appeal has (twice) provided an interpretation of legislation which means that an appellant who lodges a severity appeal will not have disqualification periods stayed pending the appeal if they are automatically imposed by statute.

The appellant was convicted and sentenced for driving whilst suspended. The conviction led to an additional, automatic, statutory disqualification period. She lodged an appeal, because the applicable automatic period was shortly thereafter changed from 12 months to 3 months; it was really the consequences flowing from that change in her appeal which saw the matter go to the Court of Appeal. But that aspect of the case (which applies to a relatively limited category of matters, but might be worth reading if practitioners have matters currently pending) is not the subject of this summary. Rather, it was what the court said – twice – about whether her disqualification was stayed which is the focus here.

Interpreting the obtuse legislation which determines whether a Local Court disqualification is stayed by lodging an appeal is the kind of thing best done after a good night’s rest, and when there are no sharp objects within reach. It is, however, required context for what follows: Broadly, the Crimes (Appeal and Review) Act 2001 (NSW) s63 provides that the sentence orders (a bond, prison or whatever) are stayed, whereas the disqualification may or may not be stayed, depending on whether the offence resulted in a roadside suspension of licence. So for example, high range PCA carries an immediate licence suspension at the roadside, and the disqualification is not stayed by an appeal. For novice range PCA, however, there is no roadside suspension. Practitioners had always proceeded on the basis that when an appeal is lodged in a matter with no roadside suspension, the order for a disqualification was stayed, since that broadly returned people to the status quo ante when they lodged an appeal.

Returning to Kmetyk, having found that there was a jurisdictional error (which, again, is not the subject of this summary), the Court of Appeal (Leeming JA; Meagher JA and Sackville AJA agreeing) turned its mind to the question of whether the 10 weeks which had elapsed between the Local and District Courts should be included in the calculation of the disqualification period for the appellant. Both parties proceeded on the assumption that there was a stay of the automatic disqualification ([45] of Kmetyk; [2] of Kmetyk (No 2)). The court disagreed.

In Kmetyk, the issue appeared to have been raised by the court itself, which was concerned that the accepted interpretation would provide an incentive for people to lodge meritless appeals in order to prolong the period when they were allowed to drive (at [46]). Through detailed grammatical parsing and analysis of the problems with the word ‘such’ (at [51]-[52]), the court found that the stay does not apply to all penalties, disqualifications, losses or suspensions of licence (at [54]). In particular, because the appellant had only appealed her sentence and not her conviction, so the court held, when the disqualification is automatically imposed by statute upon conviction (rather than by a specific order of the court), then that is not a disqualification ‘in respect of which’ an appeal has been made (at [57]).

In Kmetyk (No 2), the DPP sought to re-agitate this issue (Ms Kmetyk did not wish to be heard further). They sought to argue in favour of the common assumption of the parties: that the effect of the law was to return things to the status quo. This, the Director submitted, would better reflect the purpose of the section (at [11]). But, despite maintaining that there is no clear-cut answer to the question of construction, the court found that there were ‘real difficulties’ with that orthodox construction, for example in this case the appellant pleaded guilty and did not ask for a s10, and it was therefore passing strange that she could achieve a stay of her disqualification by appealing. Given it was considered that ‘improbable outcomes are unavoidable’ in this exercise, the court determined to give the text of the statute its ordinary meaning (at [17]).

Practitioners should therefore be aware that, on this construction of the law, any disqualification which is imposed by force of statute following a conviction is not stayed by the lodging of a severity appeal only. The Law Society has already written to Government raising the issue and inviting urgent legislative amendment.