Bilal Masri v The Queen

[2021] NSWDC 305

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Bilal Masri v R [2021] NSWDC 305

Hearing dates:

24 June 2021

Date of orders:

25 June 2021

Decision date:

25 June 2021

Jurisdiction:

Criminal

Before:

Hatzistergos AM DCJ

Decision:

Appeal allowed

Conviction and sentence set aside

Judgment of acquittal entered

Catchwords:

CONVICTION APPEAL –– Driving whilst suspended -Defence of honest and reasonable mistake raised but did not need to be determined - notice of suspension invalid - Insufficient notice period by one day due to the intervening weekend following posting - Failure of notice to comply with mandatory 28 day notice period - Crown unable to establish that the Appellant’s licence was suspended when driving.

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), s 18

Road Transport Act 2013 (NSW), ss 39, 40, 54, 257

Interpretation Act 1987 (NSW), s 9

Road Transport (Driver Licensing) Regulation 2017 (NSW), clause 69

Road Transport (General) Regulation 2013 (NSW), clause 6

Category:

Principal judgment

Parties:

Bilal Masri (Appellant)
Regina (Crown)

Representation:

Appearances:
Mr E Khouzame Solicitor (Appellant)
Ms M Welch Solicitor (Respondent)

Solicitors:
Senses Legal (Appellant)
The Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2020/00101124001

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Criminal

Date of Decision:

13 April 2021

Before:

M Price ALCM

File Number(s):

777172135

Judgment

1. The Appellant appeals pursuant to s 18(1) of the Crimes (Appeal and Review) Act 2001 (NSW) in respect of his conviction for an offence that:

At 12.50am on 29 March 2020 at Greenacre he did drive on a road a motor vehicle of a class to which he was suspended.

2. This is an offence contrary to s 54(3) of the Road Transport Act 2013 (NSW) (the 2013 Act).

3. The matter proceeded by way of the Crown tendering the transcript of evidence and exhibits before the Local Court.

4. The essential matters were not in dispute and are as follows:

1. The Appellant was the driver of a white Audi S4 motor vehicle on 29 March 2020 at 12.50am. At that time the Appellant was stopped by police who were conducting stationary speed enforcement duties for northbound traffic on Roberts Road between the intersections of Rebecca Street and Northcote Road.

2. Senior Constable Aman Sareen (SC Sareen) approached the Appellant in relation to the speed of his travel and asked to produce his licence. The Appellant did so. After completing a traffic penalty notice for exceeding the speed limit, SC Sareen conducted checks on the Appellant’s licence which revealed a demerit point suspension from 17 March 2020 to 16 June 2020. The suspension related to four offences committed on 20 December 2019 resulting in a loss of 18 demerit points despite the Appellant having a maximum of 7. SC Sareen informed the Appellant of this driving history adding “So, based on that alone, your licence is already suspended. Is there any reason why you are driving whilst suspended? The Appellant responded “Can I not answer this question right now”.

3. The Appellant was then issued with a Field Court Attendance Notice for the offence in question.

4. Tendered in the Prosecution case was a certificate under section 257 of the 2013 Act which certified the following enforcement action:

The Class C P1 PROVISIONAL licence in the name of Bilal MASRI was suspended on and from 17 March 2020 to 13 July 2020 for exceeding Demerit Points Limit.

The Notice of Suspension was posted on 13 February 2020 addressed to:

BILAL MASRI

[address redacted]

5. The document titled “Notice of Suspension of Driver Licence” [1] (the Notice) expressed to be pursuant to sections 39(a) and 40 of the 2013Act was dated 11 February 2020 and according to the aforesaid certificate was posted by Roads and Maritime Services (RMS) to the Appellant at his address in Greenacre. The Appellant gave evidence before the Local Court that he did not receive the Notice in the mail and that he was certain that he had never seen that document before. He further stated that he did not receive any notice from anyone that his licence was going to be suspended or was being suspended before he was pulled over by police on the night. [2] The Appellant reiterated that he did not receive the said letter in cross examination. [3]

6. The Appellant stated that he did not make any enquiries with the RMS regarding the status of his licence as he was waiting on the actual mail for his suspension and stated “I didn’t make that attempt because I thought they’ll issue it to me before I lose my licence to give me a date that I’ve lost my licence.” [4]

7. In relation to the matters of 20 December 2019, the Appellant stated that he was aware he had received a number of penalty notices.

8. The Appellant acknowledged that he was expecting the penalty notices and expected to have his licence suspended as a result of those penalty notices.

   1. Exhibit 4 before the Local Court.

   2. T 18.6-9.

   3. T 23.22-.27.

   4. T 23.5-.10.

5. The Appellant advanced two arguments on appeal:

1. The Crown had not excluded beyond reasonable doubt an honest and reasonable mistake on the Appellant’s part that he was licenced at the time he was apprehended on 29 March 2020.

2. That the Notice even if received by him (which was denied) was invalid such that the Crown cannot establish that the Appellant had his licence suspended on 29 March 2020 when he was driving.

Honest and Reasonable Mistake

6. Both parties accepted that the matter having been raised by the Defence, the Crown bears the onus of establishing beyond reasonable doubt that the Appellant’s mistake was not honest and reasonable.

7. The Crown accepted that it was open to find the Appellant’s mistake as to the state of his licence was honest but not reasonable. This was so in light of the fact that time had elapsed from 20 December 2020 and 29 March 2020. The Crown submitted that it was incumbent on the Appellant to make enquiries in circumstances where he conceded anticipating a licence suspension.

8. The Defence contended that, in circumstances where it was incumbent on the Prosecution to satisfy the Court that the Appellant’s belief was not reasonable and it failed to lead sufficient evidence as to the issuance of the penalty and reminder notices and enforcement action (having regards to the provisions in the Fines Act 1996 (NSW)) being dates relevant to when a suspension notice may be issued. In this instance, there was no evidence of when any of the penalty notices were issued and whether any enforcement action was taken. Moreover, it was argued that this assumes greater significance in light of s 39 of the 2013 Act which reposes to Transport for NSW a discretion to issue a notice for suspension of licence where the threshold number of demerit points within a three year period have been exceeded by a provisional or a learner licence holder. [5]

   5. See s9(1) of the Interpretation Act 1987 (NSW).

9. The Appellant’s argument has merit however for reasons that follow it is unnecessary to resolve that matter. This is so as the Crown’s argument presupposes that the Notice was valid and for that matter that the Appellant would have anticipated receiving a valid Notice.

Was the Offender’s Licence Suspended?

10. The Appellant’s argument going to the validity of the Notice was not raised before the Local Court. Nevertheless, both parties accepted that it was open to advance it on a rehearing before this Court. [6]

    6. See s18(1) of the Crimes (Appeal and Review) Act 2001 (NSW) which provides for a rehearing on the basis of the evidence given in the original Local Court proceedings.

11. The Appellant’s argument rested on a failure of the Notice to comply with the requirements of s 40(2) of the 2013 Act. This section provides inter alia that the date specified by the notice on which the suspension is to take effect must not be earlier than 28 days after the notice is given.

12. The issuance of notices of suspension of drivers’ licences is provided in clause 69 of the Road Transport (Driver Licensing) Regulation 2017 (NSW).

13. Clause 6(3) of the Road Transport (General) Regulation 2013 (NSW) provides that the date on which a person is taken to have been given or served with a notice under the Road Transport (Driver Licensing) Regulation 2017 (NSW) is the fourth working day after the notice was posted if the notice was sent by mail.

14. “Working day” is defined in the 2013 Act as meaning a day that is not a Saturday, Sunday or public holiday. [7]

    7. Section 4 of the Road Transport Act 2013 (NSW).

15. By reason of s 3(1) and of s 11 of the Interpretation Act 1987 (NSW) the definition of “working day” in the 2013Act applies to the Road Transport (General) Regulation 2013 (NSW).

16. Accordingly, accepting that the Notice was posted on Thursday 13 February 2020, the Notice is deemed to have been given or served on Wednesday 19 February 2020. This is because Saturday 15 February 2020 and Sunday 16 February 2020 are not working days. The Notice itself purports to suspend the licence on 17 March 2021. That date is not a day earlier than 28 days after the Notice is given being on 19 February 2020.

17. The requirement in s 40(2) of the 2013Act that the date specified on which the suspension is to take effect must not be earlier than 28 days after the notice is given is mandatory. [8] In these circumstances, the Appellant’s licence was not validly suspended by the Notice and s 40(3) of the 2013Act which otherwise operates to suspend a licence upon a notice being served, was of no effect.

    8. Section 9(2) of the Interpretation Act 1987 (NSW).

18. It follows that the Crown has not been able to establish that the Appellant had his licence suspended on 29 March 2020 and accordingly the Prosecution must fail.

19. At the conclusion of oral argument yesterday, I stood the matter down to enable both parties to consult and ascertain if agreement could be reached as to the applicable legislative framework.

20. Upon resumption, the Crown conceded that it was open to the Court to find in the Appellant’s favour in respect of his argument as to the validity of the Notice and if the Court did so, to allow the appeal. For the reasons given that outcome must follow.

Orders

21. Accordingly the Court Orders are as follows:

1. Appeal is allowed

2. The conviction and sentence are aside

3. A judgment of acquittal is entered.

**********

Endnotes

Amendments

09 July 2021 - Paragraph 6 - Typographical error. The word "bares" is omitted and replaced with "bears".

12 July 2021 - Various typographical errors

[11] - replace "be not" with "not be"

[16] - delete the word "not" in the last sentence of that paragraph

Footnote 1 - replace "Exhibit 2" with "Exhibit 4"

Decision last updated: 13 July 2021