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Drive ban ruling may spur rash of appeals

Date

Louis Andrews Court Reporter

Two drivers have been acquitted for getting behind the wheel in breach of a roadside ban, in twin appeals with ramifications for other cases before Canberra courts.

Motorists and defence lawyers have been anxiously awaiting the ACT Supreme Court's verdicts in the separate but similar cases of Emily Louise Slawson and Wissam Aziz.

Justice Richard Refshauge on Monday overturned their convictions and sentences, ruling prosecutors pursued the wrong charge under the circumstances.

Both Mr Aziz and Ms Slawson were allegedly caught driving while immediate roadside suspension notices were in effect pending court dates.

But they were ultimately charged and convicted with driving while suspended, instead of the less serious crime of driving with a suspension notice in effect.

The first charge is typically applied when someone disobeys a court-ordered driving suspension, or accrues too many demerit points, and carries a mandatory driving ban.

The other is punishable only by a fine and is issued when a person drives in breach of a roadside notice.

Mr Aziz was fined $1000 and disqualified from driving for a year; Ms Slawson was fined $250 and banned from driving for a year.

Their legal teams took the fight to the Supreme Court, arguing prosecutors were not legally entitled to lay the more serious charge. But the Crown said prosecutors by law could lay the most serious charge they could prove on the facts.

Justice Refshauge said the lesser charge was created to make sure the legislation covered interstate drivers, but was not limited to out-of-towners and was always meant to carry a less severe penalty.

The judge said it was quite clear the lesser charge, introduced in 2010, was intended to repeal the stricter provision when covering people driving in breach of immediate suspension notices.

Mr Aziz and Ms Slawson cannot now be prosecuted again and Mr Aziz's lawyers on Monday were awarded $1500 in costs.

Ms Slawson's lawyer Michael Kukulies-Smith, from Kamy Saeedi Lawyers, said he had at least one other case on foot awaiting Justice Refshauge's decision.

Fairfax Media understands there are several others currently in front of Canberra magistrates but put on hold pending Monday's ruling.

''It's a binding authority on the [ACT] Magistrates Court,'' Mr Kukulies-Smith said.

''Those decisions in the Magistrates Court on the same point would have to follow suit.''

Mr Kukulies-Smith said he was not surprised with the outcome.

''The DPP seems to be the only one intent on charging this offence,'' he said.

''Police have consistently been charging people with the specific offence the legislation created rather than the disqualification offence.''

The decision sits in contrast to a 2012 ruling made by magistrate David Mossop, who dismissed a similar argument launched by a defendant.

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