Can I get out of my Covid fine?
Covid fines thrown out
Finally! The news people have been waiting to hear, the Judgement of the case which decided some of the COVID 19 fines were illegal has been published. See the news articles here & here.
This court decision will fuel debate about the extreme power the NSW Government accumulated during the pandemic and the flow on effects of the COVID 19 fines had on our most disadvantaged.
However, first, let’s dive into why these fines were deemed invalid.
This is democracy manifest
“What is the charge?” is the famous question asked by Charles Dozsa during his arrest in October 1991. You can watch his arrest here. His question is based on one of the key principles which underpin the criminal justice system: the accused’s right to know the charge laid against them.
This principle is usually associated with the accused’s right to a fair trial and hearing. This makes sense, if you do not know which offence you have been charged with, how do you know whether to plead guilty or not guilty? And in terms of receiving a penalty notice, whether to pay the fine or elect the matter to be heard in Court?
This was the crux of the argument heard in the Supreme Court of NSW in the cases of Beame; Els v Commissioner of Police & Ors [2023] NSWSC 347. You can access the judgement here: link.
Penalty Notice
It’s important to know what a ‘penalty notice’ is defined as under the Fines Act. To be a legitimate penalty notice, the alleged offence has to be “specified in the notice”. The Court found that ‘specified’ has a different ordinary meaning to ‘describe’ or ‘state’, there is requirement for unambiguous clarity.
So which wording are we quibbling over? There were two penalty notices before the Court, one issued to Mr Beame and another to Ms Els.
Mr Beame received a penalty notice with a $1000 fine that stated he had “Fail to comply with noticed direction to section 7/8/9 – COVID 19 – Individual’. There was an additional line at the bottom of the penalty notice which stated:
“THAT BRENDAN [sic] BEAME A PERSON SUBJECT TO A MINISTERIAL DIRECTION REGARDING PUBLIC GATHERING, DID AT 1300 ON MONDAY THE 2ND OF AUGUST, AT BRONTE BEACH IN THE STATE OF NEW SOUTH WALES, HAVING NOTICE OF THE DIRECTION, WITHOUT REASONABLE EXCUSE FAIL TO COMPLY WITH THE DIRECTION BY GATHERING FOR A PICNIC WITH 5 OTHER PERSONS FROM 4 SEPARATE HOUSEHOLDS IN A PUBLIC PLACE WITHOUT LAWFUL EXCUSE.”
Ms Els was issued with a $3000 fine with a penalty notice stating “unlawfully participate in outdoor public gathering – area of concern – individual”.
Of note, Mr Beale and Ms Els both requested internal reviews of their penalty notices and questioned their legitimacy for a lack of specified offences. They both stated they were unsure of the offence committed and as a result, the penalty notices were issued contrary to law and should be withdrawn/cancelled.
The Court agreed with the Mr Beale and Ms Els, and found that:
“In each case, the short description identifying the substance of the penalty notice offence was clearly insufficient…”.
The Court found that the correct offence the police intended to lay was section 10 of the Public Health Act. However, both penalty notices failed to reference this offence or correctly identify the elements of the offence. This allowed the Court to find the language used was “so vague that it renders the notice invalid”.
What did they receive?
In terms of compensation, Mr Beame was refunded $436 for his payments made towards the penalty notice amount and Ms Els was refunded $826 for her payments.
However, a further battle was won by Mr Beame and Ms Els: the reasons for the decision were published. The lawyers acting on behalf of the Commissioner of Police and the Commissioner of Fines Administration told the Court it was neither “necessary or appropriate” for the Court to give reasons.
However, the Court disagreed and decided that the judgment should be made public for the following reasons:
- Mr Beame and Ms Els were forced to bring action against the NSW Government due to unsuccessful internal review processes
- There was a dispute about why the notices were invalid and publishing the judgement provides much needed transparency
- There is considerable public interest in knowing whether the penalty notices were invalid, and publishing the judgement addresses circulating misinformation
- To provide clarity for the minimum content required for an offence to be ‘specified’ in a penalty notice
So, what next?
It is reported that NSW Police are analysing which current proceedings to withdraw due to the Supreme Court decision. At the same time, NSW Government is looking at a $30 million loss for 33,000 incorrectly issued COVID 19 penalty notices.
There are calls by Aboriginal Legal Service and Redfern Legal Centre for us as a society to look at this case carefully and consider the impact these penalty notices had on the most disadvantaged members of our society.
This attention is warranted as small towns with high indigenous populations and western Sydney suburbs were hit the hardest with COVID 19 fines. You can read the Guardian’s report here.
It is unsettling to think that people were faced with the hard decision whether to elect a vaguely worded penalty notice to Court or to figure out how to pay an expensive fine during the troubling time of the pandemic.
At Morrisons we are specialist criminal and traffic lawyers based in Wollongong and the Southern Highlands. If you require advice or representation, you can book an appointment with one of our expert criminal lawyers.