Director of Public Prosecutions v Shaw
[2013] TASCCA 3
•22 May 2013
[2013] TASCCA 3
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Director of Public Prosecutions v Shaw [2013] TASCCA 3
PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS
v
SHAW, Roberta
FILE NO: 822/2012
DELIVERED ON: 22 May 2013
DELIVERED AT: Launceston
HEARING DATE: 27 February 2013
JUDGMENT OF: Blow CJ, Tennent and Porter JJ
CATCHWORDS:
Criminal Law – Conspiracy – Conspiracy to defraud – Generally – Conspiracy to defraud a public officer by deflecting from carrying out a public duty – Traffic infringement notice scheme – Registrar of Motor Vehicles required to record demerit points for traffic offence awarded by operation of the scheme – Alleged agreement between two persons for one to falsely state that the other was the driver at the relevant time – Whether agreement one to deflect Registrar in carrying out duty – Nature of Registrar's duty – Duty to record demerit points against the true offender not merely an individual regardless of how points came to be awarded.
Vehicle and Traffic Act 1999 (Tas), s23.
Peters v R (1998) 192 CLR 493; Roads Corporation (Vic) v Magistrates Court (2004) 42 MVR 105, considered.
Aust Dig Criminal Law [2155]
REPRESENTATION:
Counsel:
Appellant: T J Ellis SC
Respondent: C Gibson
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Charmaine Gibson
Judgment Number: [2013] TASCCA 3
Number of paragraphs: 66
Serial No 3/2013
File No 822/2012
DIRECTOR OF PUBLIC PROSECUTIONS v ROBERTA SHAW
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
TENNENT J
PORTER J
22 May 2013
Orders of the Court
Appeal allowed.
Verdict of acquittal set aside.
Respondent to be retried on the indictment.
Direction that the respondent appear before the Court in Launceston on 17 June 2013 at 10am.
Serial No 3/2013
File No 822/2012
DIRECTOR OF PUBLIC PROSECUTIONS v ROBERTA SHAW
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
22 May 2013
I agree with the reasons of Porter J, and with the orders he proposes. There are a few comments that I would like to make.
On the Crown case, the respondent and her brother conspired to cause the Registrar of Motor Vehicles, in the course of his duties, to do something that he would not otherwise have done, namely to record demerit points for a speeding offence against the respondent's name when the speeding offence had in fact been committed by her brother. As Porter J has pointed out, if dishonest means are used so as to cause a public official to act in a way in which that official would not otherwise have acted in discharging his or her function, as where that official does something which he or she would not have done but for the deceit, then a fraud is committed upon that official. A good example is to be found in Board of Trade v Owen [1957] AC 602, which concerned a conspiracy to defraud a department of the Federal Republic of Germany by causing it to grant export licences by representing that certain metals were to be exported to Ireland, when in fact they were to be exported to communist countries.
However when the charge against the respondent alleged that the Registrar of Motor Vehicles was deflected from the performance of his public duties, it was not asserted that the deflection took the form of him being induced to record demerit points against the name of the respondent. Instead, it was alleged in the indictment, in the particulars of the conspiracy charge, that the purpose of the conspiracy was "to prevent or deflect the Registrar of Motor Vehicles from acting in accordance with the duties vested in him, namely to record demerit points against Stuart Shaw [the respondent's brother] on the Demerit Points Register". As a result, it became necessary to consider whether the Registrar had a duty to record demerit points against the name of the true offender. That was the central question in this appeal. For the reasons stated by Porter J, I consider that the Registrar has such a duty.
File No 822/2012
DIRECTOR OF PUBLIC PROSECUTIONS v ROBERTA SHAW
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
22 May 2013
I have had the benefit of detailed reasons in this matter from Porter J. With respect, I agree with those reasons and the orders he proposes.
File No 822/2012
DIRECTOR OF PUBLIC PROSECUTIONS v ROBERTA SHAW
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
22 May 2013
Introduction
On 13 September 2012, on the direction of Wood J, a jury acquitted the respondent of one count of conspiracy contrary to s297(1)(d) of the Criminal Code. That provision makes it a crime for a person to conspire with another to cheat or defraud the public, or any particular person, or class of persons. The Director of Public Prosecutions has appealed against the acquittal. The appeal concerns the construction of a number of statutory provisions relating to the traffic infringement notice system.
The indictment
The particulars of the count of conspiracy with which the respondent was charged were as follows:
"ROBERTA SHAW at Launceston in Tasmania and Melbourne in Victoria, between the 10th day of November 2008 and the 18th day of November 2008, conspired with Stuart Gordon Shaw to defraud the Registrar of Motor Vehicles for the time being administering the Vehicle and Traffic Act 1999 by agreeing that Stuart Gordon Shaw would declare on Notice of Demand No … that Roberta Shaw was the driver at the relevant time, resulting in Traffic Infringement No … being issued to Roberta Shaw, which would be subsequently paid, in order to prevent or deflect the Registrar of Motor Vehicles from acting in accordance with the duties vested in him, namely to record demerit points against Stuart Shaw on the Demerit Points Register."
The duty to record demerit points in the demerit points register as referred to in the indictment, exists in the Vehicle and Traffic Act 1999, s23. Later in these reasons I will set out the whole of that section, along with associated sections from the same Act, and relevant provisions from other legislation. For present purposes, s23(1)(b) provides that if demerit points are to be awarded following the service of a traffic infringement notice, the Registrar of Motor Vehicles must record the relevant information as required in the section. By subs(2), the relevant information includes the name and address of the offender, whilst s23(4) provides that if the person holds a driver's licence under the Act, the Registrar must record in the demerit points register, the number of demerit points awarded along with the date of the commission of the offence.[1]
[1] By reg124(1)(a)(iii) of the Vehicle and Traffic (Driver Licensing and Vehicle Registration) Regulations 2010, the Registrar of Motor Vehicles must keep a register of demerit points.
The charge on the indictment was based on the principle that the concept of defrauding a person who is a public officer extends to the actual or possible deflection of that public officer from carrying out his or her public duty. In this context, 'public duty' means an executive or administrative function of a public nature. This type of fraud will be made out if dishonest means are used so that it causes, or could cause, a public officer to act in a way in which he or she would not otherwise have acted in discharging their function; that is, doing something that would not have been done but for the deceit, or not doing something that but for it, would have been done. See Scott v Metropolitan Police Commissioner [1975] AC 819; Welham v Director of Public Prosecutions [1961] AC 103; R v Terry [1984] AC 374 per Lord Fraser at 379, and in this State, R v Turner (No 4) (2001) 10 Tas R 81, R v Turner (No 7) (2001) 10 Tas R 219 (defrauding the Commonwealth) and Tasmania v Lin [2011] TASSC 14 (s279(1)(d) of the Criminal Code).
The background
At the close of the Crown case, the evidence was capable of establishing that:
· On 29 September 2008 Stuart Shaw was driving a motor vehicle which was detected committing a speeding offence on the East Tamar Highway.
· The registered operator of the vehicle was Cormel Pty Ltd.
· Stuart Shaw was the sole director of Cormel Pty Ltd and is the respondent's brother.
· A notice of demand under s43G of the Traffic Act 1925 was issued to the company. That notice required the company as registered operator to provide a statutory declaration stating the name and address and, if known, the date of birth and driver licence number of the driver of the vehicle at the time the specified offence was committed.
· As that notice went unanswered, an infringement notice for the failure to comply was issued to the company. That notice gave the company seven days to complete the statutory declaration, in which event the penalty under the infringement notice would be avoided.
· Stuart Shaw telephoned the respondent and "asked for her help" with, inferentially, his demerit points situation. He "obtained her permission" to put her details on the statutory declaration. (These facts were in dispute.)
· Stuart Shaw then, as director of the company, provided a false statutory declaration saying that the respondent had been the driver on the identified occasion and not him, as was the case.
· On 25 November 2008, a traffic infringement notice was issued against the respondent. She sent it to Stuart Shaw who paid the relevant amount, with the consequential demerit point recorded against the respondent's name.
At the trial, before the trial judge's summing-up began, her Honour raised with counsel the question of the nature of the Registrar's "duties vested in him" as pleaded in the particulars of the indictment. After hearing from counsel, her Honour gave oral reasons for ruling, an edited version of which was later published. In these reasons, I will refer to that edited version, and later set out the relevant passages. For present purposes, I note that her Honour said that it was evident from the legislation that the Registrar was not concerned with whether the recording of demerit points was against the true offender; the function was to record them against the person who had accrued them. Her Honour held that the word "offender" in s23(2) of the Vehicle and Traffic Act simply meant the person who had accrued the demerit points.
At par[24] of her reasons, her Honour accordingly concluded "that it was not the public duty of the Registrar of Motor Vehicles to record demerit points against the true offender being the driver", and that "[t]he agreement could not be one to defraud the Registrar of Motor Vehicles by preventing or deflecting him from carrying out a public duty vested in him, namely to record a demerit point or points against Stuart Shaw on the demerit points register." On that basis, the jury was directed to acquit.
The appeal
There is a single ground of appeal alleging that the trial judge "erred in law in ruling that it was not the public duty of the Registrar of Motor Vehicles to record demerit points against Stuart Shaw on the Demerit Points Register." In short, the appellant's argument is that the legislative scheme contains significant provisions designed to ensure that the actual offender is identified and punished. The scheme is not "unconcerned about the distribution of blame, penalty and demerit points to the true offender." and is not one intended to operate so that demerit points are distributed amongst those willing to take them. Its structure suggests that the "offender" in s23(2)(a) is the true offender, and not merely the name of someone who has no connection with the offence, but who by fraudulent means is wrongly named.
The appellant's written submissions argue that "the Registrar's duty must be to record the name of the offender or the person deemed to be the offender by application of the uncorrupted process with checks and safeguards provided by the system". For the reasons which follow, I would allow the appeal and set aside the verdict of acquittal. First, I will set out the relevant parts of the legislation, and the trial judge's reasons.
The statutory provisions
To accord with the chronology of the case, it is convenient to start with the provisions of the Traffic Act. Relevant for present purposes are ss43G, 43GA, and 43H(1):
"43G Notice of demand
(1) A police officer may serve a notice of demand on the registered operator of a vehicle if the police officer is satisfied that the driver of that vehicle committed a traffic offence.
(2) A notice of demand is to —
(a) indicate the offence to which it relates; and
(b) specify the registration number of the vehicle that was involved in the offence; and
(c) specify that the registered operator is to provide to a police officer, within 14 days after the registered operator is served with the notice, a statutory declaration stating the name, address and, if known, the date of birth and driver licence number of the driver of the vehicle at the time the offence was committed.
(3) A registered operator must comply with the notice of demand.
Penalty:
Fine not exceeding 40 penalty units.
43GA Statutory declaration naming driver
(1) A registered operator providing a statutory declaration naming the driver of a vehicle under section 43G(2)(c) is to —
(a)state in the statutory declaration his or her full name and address; and
(b)state the name, address and, if known, the date of birth and driver licence number of the driver of the vehicle at the time the offence took place.
(2) A statutory declaration provided under section 43G(2)(c) and naming the driver is prima facie evidence that the person named in the statutory declaration as the driver of the vehicle at the time of the offence was the driver of the vehicle at that time.
43H Traffic infringement notices
(1) Where a police officer or an authorised officer is satisfied that a person has committed a prescribed offence or offences he may serve on that person a notice (in this Act referred to as a 'traffic infringement notice') in respect of that offence or those offences.
…".
The traffic infringement notice under s43H(1) which was issued to the respondent in this case, also contained a demand under s51(3) of the Traffic Act[2] but that fact is of no consequence in this case. Section 51 itself has some significance, and I will return to it.
[2] 51 Facilitation of proof of certain matters
Sections 22 and 23 of the Vehicle and Traffic Act are in the following terms:
"22 Award of demerit points on traffic infringement notice
(1) Where a traffic infringement notice relating to a traffic offence that attracts demerit points has been served on the person alleged to have committed the offence and —
(a)the notice has not been withdrawn; and
(b)the person is taken to have been convicted of that offence in accordance with section 20 of the Monetary Penalties Enforcement Act 2005 —
the number of demerit points prescribed in respect of that offence is to be awarded against that person.
(2) Where —
(a)the number of demerit points prescribed in respect of an offence depends on facts that do not necessarily have to be established for a conviction for the offence; and
(b)any such facts are stated in the traffic infringement notice; and
(c)the person is taken to have been convicted of that offence in accordance with section 20 of the Monetary Penalties Enforcement Act 2005 —
the relevant facts are taken to have been established against the person alleged to have committed the offence and demerit points are to be awarded accordingly.
(3) If a traffic infringement notice relating to a red light offence or speeding offence has been served on the person alleged to have committed the offence and –
(a)the offence is —
(i) in the case of a red light offence, one of 2 or more red light offences committed in succession by the same offender; or
(ii) in the case of a speeding offence, one of 2 or more speeding offences committed in succession by the same offender; and
(b)the offences were detected by photographic detection devices; and
(c)at the time of the detection of the offence to which the notice relates, the offender had not been served with a traffic infringement notice or a summons for the earlier offence or offences —
the offender may, on being taken to have been convicted of that offence in accordance with section 20 of the Monetary Penalties Enforcement Act 2005, give the Commissioner of Police a written request setting out the circumstances of the case and asking the Commissioner to exercise the Commissioner's discretion under subsection (4) in the offender's favour.
(4) …
23 Recording of demerit points
(1) If —
(a)a Tasmanian court awards demerit points in respect of a traffic offence that attracts demerit points; or
(b)demerit points are to be awarded following the service of a traffic infringement notice; or
(c)the Registrar is notified by a driver licensing authority under a corresponding law that a person who holds a driver licence under this Act, or a person who does not hold an Australian driver licence but is a resident of Tasmania —
(i) has been convicted by a court, in the jurisdiction of the corresponding law, of an offence in respect of which demerit points are prescribed in the national schedule of demerit points or the schedule of recognised interstate demerit points offences; or
(ii) has committed such an offence in the jurisdiction of the corresponding law and has been dealt with under a procedure corresponding to the traffic infringement notice procedure –
the Registrar must record or transmit the relevant information as required in this section.
(2) The relevant information is —
(a) the name and address of the offender; and
(b) the nature of the offence and the date of its commission; and
(c) whether the offence was dealt with by a court or a traffic infringement notice or a similar procedure under the law of another jurisdiction.
(3) Demerit points awarded by a court on conviction are not to be recorded, and information is not to be transmitted, under this section until —
(a)the time for appealing against the conviction has passed; or
(b)if there is an appeal – the appeal is determined, withdrawn or discontinued.
(4) Information is to be recorded or transmitted as follows:
(a)if the person holds a driver licence under this Act (or is a resident of Tasmania who does not hold an Australian driver licence)– the Registrar must record the date of commission of the offence, and the number of demerit points awarded, in the demerit points register;
(b)… .
…".
As will be seen, the trial judge took the view that the offender's name and address as referred to in s23(2)(a) "does not flow on to the requirement in subs(4)(a)" However, I think the section can be reasonably read so that the obligation is to record the offender's name as an identified person in respect of whom the demerit points are to be recorded in the register. That proposition was not the subject of any argument in this appeal. Section 24 of the Vehicle and Traffic Act may also need to be noted. It requires the Registrar to serve a notice of licence suspension on a person who has accumulated the specified number of demerit points within a certain period, those matters depending on the type of licence.
As indicated by s23 of the Vehicle and Traffic Act, the last piece of the puzzle is s20 of the Monetary Penalties Enforcement Act 2005. That Act deals with all infringement notices which may issue under various Acts. Of course, its operation includes traffic infringement notices. Section 20 is referred to in s22(1)(b) of the Vehicle and Traffic Act and provides as follows:
"20 Offender taken to have been convicted
(1) If an alleged offender —
(a)pays a penalty in part or in full; or
(b)applies to the Director or to the issuing authority for a variation of payment conditions; or
(c)takes no action under section 15(1)(a), (b) or (c) or section 17(1)(a), (b) or (c) or is refused an application under section 15(1)(b) or section 17(1)(b) and does not elect to have the infringement notice heard and determined by a court within the time allowed —
he or she is taken to have been convicted of the offence.
(2) If a person pays a sum of money to the Director in respect of a specific infringement notice, the offender is taken to have been convicted of the offence or offences specified in that infringement notice.
(3) A conviction under subsection (1) is not to be regarded as an admission of liability for the purpose of, nor in any way affect or prejudice, any civil claim, action or proceeding."
It is necessary to say something about ss15 and 17 of the Monetary Penalties Enforcement Act, as referred to in s20(1)(c). Effectively, they are in identical terms, the difference arising from the nature of the issuing authority. Section 15 is relevant to this case as it relates to a non-fee paying public sector body: Tasmania Police. The section provides that the person who is served with an infringement notice must, within 28 days, pay the penalty, apply to the issuing authority for the withdrawal of the notice, apply to vary the payment conditions, or lodge a notice of election with the Director of the Monetary Penalties Enforcement Service to have the offence heard and determined by a court. Section 23 of the same Act enables an issuing authority to withdraw an infringement notice served by it at any time, on application by the alleged offender or on its own motion.
Further, under s43HA of the Traffic Act, a person on whom a traffic infringement notice has been served, may provide, within 28 days following service, a statutory declaration to the relevant officer stating the name and address of the person who was in charge of the vehicle at all relevant times relating to the alleged offence, that statutory declaration becoming evidence in any proceedings against the person making the declaration. Such a statutory declaration is treated as an application for withdrawal of the traffic infringement notice. There are other provisions in the Traffic Act which relate to the discovery of the name of the person who was actually in charge of a particular vehicle at a relevant time; for example, s51(3) set out in footnote 2 to par[14] above. I will come to those later in these reasons.
In summary, a traffic infringement notice may be served on any person who a police officer or authorised officer is satisfied has committed a prescribed offence. It can be seen that where a traffic infringement notice which attracts demerit points has been served on a person, and the notice has not been withdrawn, the person named in the notice is taken to have been convicted if he or she, as the alleged offender, pays the monetary penalty in part or in full: s20(1)(c) of the Monetary Penalties Enforcement Act. Once that occurs the prescribed number of demerit points is to be awarded against the person, and the Registrar must record the date of commission of the offence and the number of demerit points awarded, in the demerit points register. Once a person is taken to have been convicted, the person may apply, by virtue of s40(1) of that Act, to have the conviction set aside. Relevant parts of s40 are as follows:
"40 Application to court
(1) …
(2) …
(3) The issuing authority may consent to an application under subsection (1)to set aside the conviction.
(4) The court may set aside the conviction if satisfied that —
(a)the offender has provided valid and relevant reasons why he or she did not elect to have the matter heard by a court within the time allowed by the infringement notice; and
(b)the offender has established a prima facie defence to the offences that are the subject of the infringement notice.
(5) If the court sets aside a conviction —
(a)for the purposes of any time limit imposed by another Act on the taking of action in respect of the offence, the date when any limitation period for taking action commences is taken to be the date when the conviction was set aside; and
(b)the infringement notice is taken to have been withdrawn and any enforcement order, administrative sanction or civil sanction relating only to that infringement notice is revoked; and
(c)the issuing authority may commence proceedings to have the matter heard by a court; and
(d)the court is to notify the Director that the conviction has been set aside.
...".
The trial judge's reasons
Her Honour set out s23 of the Vehicle and Traffic Act and continued:
"[8] It was submitted that the duty of the Registrar is to record the 'offender' on the register, as set out in subs(2)(a), as part of the 'relevant information'. The submission was that the Registrar was deflected from that duty by reason of the dishonest means.
[9] While the meaning of 'relevant information' certainly encompasses the information about the 'offender', the obligation set out in subs(1) is for the Registrar to record or transmit the relevant information 'as required by the section'. I emphasise those words, 'as required by the section'.
[10] Because of the way the indictment is framed the concern is with the Registrar's duty to record information on the register. That duty is set out in subs(4)(a). That subsection requires only that the Registrar is to record the date of commission of the offence and the number of demerit points. The requirement in subs(4)(a) does not relate to recording the 'offender'. The information regarding the name and address of the offender, set out in subs(2)(a), does not flow on to the requirement in subs(4)(a).
[11] It may be noted that subs(4)(b), which relates to the obligation to transmit information for interstate purposes, embraces 'relevant information' and all of that which is set out in subs(2). By contrast subs(4)(a) is more restrictive.
[12] If the contrary is the case, and 'offender' details are to be included for the purposes of subs(4)(a) in the demerit points register, the question arises as to the meaning of the word 'offender'. It is evident from the words of s23, and the scheme of the Vehicle and Traffic Act, as well as other related legislation, that 'offender' does not mean the true offender, being the driver at the relevant time, in an exclusive sense.
[13] Having regard to s23 and the recording of demerit points, it seems evident that the Registrar is not concerned with whether the recording of demerit points in the register is against the true offender. Rather, the Registrar's role is to record them against the person who has accrued them, see s23(1) and (6).
[14] There are various means by which a person may have demerit points awarded against them. The statutory pathways include possibilities that legitimately do not involve the person being the offender." [Emphasis added]
After setting out s22 of the Vehicle and Traffic Act and s20 of the Monetary Penalties Enforcement Act, her Honour said:
"[17] It can be seen that there are pathways by which a person would be taken to have been convicted of the offence and yet not be the true offender. They include paying the money in respect of an infringement notice, and taking no action with respect to the notice within the timeframes set out in the legislation. These people will legitimately have demerit points awarded against them.
[18] The legislative scheme with regard to the awarding of demerit points encompasses people who are not the true offenders. A consequence of the scheme is that the Registrar is to record demerit points against a multitude of people who are not offenders.
[19] The scheme is pragmatic. If a person is taken to have been convicted, but was not the offender, and wishes to have the conviction set aside there are statutory obstacles designed to preserve the status quo with respect to their status as a person taken to have been an offender, s40 of the Monetary Penalties Enforcement Act.
[20] The Registrar's duty is to record demerit points that have been awarded against an individual on the register regardless of how they have accrued. It must be the case that the Registrar is unconcerned with the question of whether the person is the offender in the sense of the person who committed the offence. There is no duty to investigate.
[21] If this is not the case and the Registrar has a duty to record the true offender on the register, it could be said that for a person who is not the offender, but who allows demerit points to be awarded against themselves, undermines the Registrar's duty. There is no suggestion that that could be the situation.
[22] Given the scheme of the legislation it is evident that 'offender' in s23(2) means the person who has accrued demerit points.
[23] As an aside, I note the comments of Blow J in Tasmania v Lin are coincidentally apposite. His Honour stated:
'There has never been anything in the relevant legislation to require the Minister to obtain or act upon accurate information. Obtaining and acting upon accurate information would no doubt have been an excellent idea at all times, but there was no legal duty in relation to accurate information.'
The consequence of the ruling in this case does not mean that people can be deceitful in their representations with respect to traffic infringement documentation. Swearing a false statutory declaration is a crime, s113 of the Criminal Code. The Code also provides for accessorial liability.
[24] …". [Emphasis added.]
Observations
Both the trial and this appeal seem to have been conducted on the mutual understanding that the reference to the Registrar's duties in the particulars, that is to record demerit points against Stuart Shaw in the demerit points register, is descriptive of the general duty. Very obviously, irrespective of what view is taken of the nature of the duty, a duty to record demerit points against Stuart Shaw did not arise on the facts. It is the making of the agreement with the relevant intention which is the core of the crime alleged. In this type of case, there needs to be established an agreement to use dishonest means to deflect a public officer from carrying out his or her duty, knowing that such deflection will or might occur: see generally P Gillies, The Law of Criminal Conspiracy, 2nd ed, 1990 at 125 – 128.
The effect of the trial judge's ruling is that the Registrar's duty does not extend beyond a purely mechanical function of recording whatever name is produced by the operation of the system. That is, the performance of that duty or function is not conditioned by considerations of the means by which the name has been produced, or the legitimacy of the punishment of the individual concerned. It would seem to be a necessary corollary that it would not be contrary to the Registrar's duty so viewed, to record a name known to him to be not that of the true offender. Although some focus needs to be placed on the meaning of "offender" in 23(2)(a) of the Vehicle and Traffic Act, it is the nature of the Registrar's duty in the context of the overall scheme which needs to be considered.
Before I turn to the arguments, I will slightly digress. It occurs to me that even accepting that, as her Honour held, the Registrar's duty is a merely mechanical one, there may well have been a case for the respondent to answer in any event. This comes about on a basis which does not seem to have been the subject of any argument before the trial judge and was not raised in this Court, although conceivably it is covered by the ground of appeal. It arises from the meaning of 'defraud' and the breadth of the notion of 'deflecting' a public officer from carrying out a duty.
Earlier in these reasons, I briefly mentioned relevant aspects of the concept of defrauding a public officer, and of a conspiracy to do so. In Welham v Director of Public Prosecutions (above) at 127, Lord Radcliffe said that the essence of defrauding was "to bring about a course of action, whether doing something or refraining from something." (See also Lord Denning at 133.) An agreement to use dishonest means to imperil economic interests is a conspiracy to defraud in the more usual sense. The point I make is that, similarly, an agreement to use dishonest means to deflect a public officer includes to prejudice, or to imperil or influence, the exercise of the duty: Welham per Lord Denning at 104; R v Turner (No 4) (2001) 10 Tas R 81 at 87 [11]. [3]
[3] See also R v Turner (No 3) [2001] TASSC 32 in which Blow J (as he then was) resolved an argument for particulars of knowledge where the Crown had alleged knowledge rather than intention, the knowledge being "that if a public officer did act on the false statements as if they were true, he could be prejudiced in the execution of his public duty". There was no argument about the legal validity of the notion of the officer possibly being prejudiced in the execution of the duty.
In Peters v R (1998) 192 CLR 493, Toohey and Gaudron JJ discussed the concept of dishonesty, and went on to examine the concept of dishonesty in relation to the offence of conspiracy to defraud in the context of the offence of conspiracy to defraud the Commonwealth. At 508 – 510 [30] and [33] their Honours said (omitting references):
"30 … As has already been pointed out, there are difficulties in attempting an exhaustive statement of what is involved in the notion of defrauding or in the offence of conspiracy to defraud. Ordinarily, however, fraud involves the intentional creation of a situation in which one person deprives another of money or property or puts the money or property of that other person at risk or prejudicially affects that person in relation to 'some lawful right, interest, opportunity or advantage' knowing that he or she has no right to deprive that person of that money or property or to prejudice his or her interests. Thus, to take a simple example, a 'sting' involving an agreement by two or more persons to use dishonest means to obtain property which they believe they are legally entitled to take is not a conspiracy to defraud.
…
33 As already explained, 'dishonesty' does not appear in the statute establishing the offence of conspiracy to defraud the Commonwealth. But when properly analysed, the offence of conspiracy to defraud involves dishonesty at two levels. First, it involves an agreement to use dishonest means. Ordinarily, the means will be dishonest if they assert as true something which is false and which is known to be false or not believed to be true or if they are means which the conspirators know they have no right to use or do not believe that they have any right to use the means in question. And quite apart from the use of dishonest means, the offence involves an agreement to bring about a situation prejudicing or imperilling existing legal rights or interests of others. That, too, is dishonest by ordinary standards. …'."
These observations on defrauding can be applied to defrauding a public officer. See also McHugh J at 529 – 530 [84] – [85], where his Honour speaks of conspiracy to defraud as involving proof of intention to prejudice another person's rights or interests by the use of means that are dishonest. Those comments were approved of in Spies v R (2000) 201 CLR 603 at 631 [80].
In this case, the evidence was capable of establishing that the Shaws anticipated that Stuart Shaw would be awarded demerit points for his offending. The Registrar's act of recording demerit points under s23 of the Vehicle and Traffic Act is the last step in the process. The evidence was capable of establishing an agreement to use dishonest means intending that the points be awarded to someone else; that is, intending to at least imperil or influence what it was that the Registrar had to do. It does not matter whether the intended means were direct or indirect.
On that basis, it would not matter whether the duty to record demerit points was a merely mechanical one. Assuming the necessary components of the alleged agreement and accompanying state of mind were established, the crime would seem to have been made out. However, that may depend on whether a jury was satisfied that the intended outcome was dishonest on the second of the two levels identified by Toohey and Gaudron JJ in Peters at [33]. If it be the case that the legislative scheme is completely indifferent to whether blame and punishment are allocated to the person who has actually offended, then that element may be missing. Accordingly, even on that alternative view of things, the question posed by the arguments in this case would still need to be answered.
The arguments
The appellant submits that the scheme is not one which is designed to distribute points amongst those willing to accept them, whether or not they were the actual offender. He argues that the system is not indifferent to the true offender, or indifferent to the award of demerit points against someone who is not the person who actually committed the offence. In this respect, the appellant points to those provisions which facilitate the discovery of the person who was actually driving the vehicle at the relevant time, and committed the offence. These are s43G of the Traffic Act, set out in par[13] above, s43HA referred to in par[19] above, and s51(3), also referred to in par[19] above and set out in footnote 2 to par[14].
It will be recalled that both ss43G and 51(3) enable a police officer to demand information of the registered operator of a vehicle. In the case of s43G, the information which can be demanded by statutory declaration is the name, address and, if known, the date of birth and driver's licence of the driver of the vehicle at the time the offence was committed. In the case of s51(3), the information which may be demanded is "all such information of such as [the] officer may require as to the identity and whereabouts of the driver of [the] vehicle at any relevant time." In the case of each of ss43G and 51(3), it is an offence to fail to comply with the requirements.
A particular illustration of the point is said to be s54 of the Traffic Act. Both parties to this appeal rely on that section for different purposes. I will set out the relevant parts in full:
"54 Proceedings in relation to certain offences
(1AA) This section applies to such offences under this Act or the Vehicle and Traffic Act 1999 as may be specified in the regulations.
(1) Where an offence to which this section applies occurs in relation to a motor vehicle or trailer, the person who, at the time of the occurrence of the offence, was the registered operator of the motor vehicle or trailer, is, by virtue of this section, guilty of the offence as if he were the person driving or in charge of the motor vehicle or trailer at the time of the occurrence of the offence.
(2) It is a defence to proceedings in relation to an offence under subsection (1) for the defendant to establish that he was not driving or in charge of the motor vehicle or trailer at the time of the occurrence of the offence.
(2A) If a person wishes to rely on a defence under subsection (2), he or she must —
(a)lodge with the Director, MPES a notice of election to have the matter heard in court; or
(b)provide a statutory declaration under section 43HA.
(3) A person is not entitled to rely on a defence under subsection (2) unless he gives, within 21 days of the service on him of a complaint and summons relating to the offence, to the clerk of the court specified in the summons, written notice of his intention to rely on that defence, together with a statutory declaration stating that at the time of the occurrence of the offence —
(a)the motor vehicle or trailer was being driven by some other person without his knowledge or consent;
(b)the motor vehicle or trailer was in the charge of another person and stating the name of that person; or
(c)the person had completed as transferor an application for the transfer of the registration and stating the name of the transferee.
(4) Proceedings shall not be heard in relation to an offence to which this section applies unless the defendant referred to in the complaint and summons relating to the offence was, at the time of the service of the complaint and summons on him, notified in writing of the provisions of this section.
(5) …
(5A) …
(5B) …
(6) Where –
(a)a person on whom a complaint and summons relating to an offence to which this section applies has been served gives to the clerk of the court specified in the summons written notice of his intention to rely on the defence under subsection (2) together with a statutory declaration stating that the motor vehicle or trailer was in the charge of another person and stating the name of that person; and
(b)proceedings in respect of that offence are taken against the person named in the statutory declaration as being in charge of the motor vehicle or trailer —
the statutory declaration is evidence that the person named in the statutory declaration as being in charge of the motor vehicle or trailer was in charge of the motor vehicle or trailer at all relevant times relating to the offence.
(7) Nothing in this section affects the liability of the actual offender but where a penalty has been imposed on or recovered from any person in relation to an offence to which this section applies, a further penalty shall not be imposed on or recovered from any other person in relation to the offence."
The offences to which the section applies under subs(1AA), are now to be found in reg7 of the Traffic (Compliance and Enforcement) Regulations 2011. Speeding and red traffic light offences when detected by photographic devices are amongst them.[4] The prominent feature of s54 is subs(1) which makes the registered operator of the motor vehicle or trailer guilty of the particular offence as if he were the person driving or in charge at the time the offence was committed. Parliament has clearly chosen to make persons criminally liable for acts which they may not have committed, simply by the fact of being the registered operator. To be relieved of that liability, the person needs to establish that he was not driving or in charge of the motor vehicle or trailer at the relevant time. The section creates mechanisms by which that process is to occur.
[4] The use of photographic detection devices is authorised by s43P of the Traffic Act.
In addition to noting the evidentiary operation of s54(6), the appellant relies on s54(7), submitting that "a system which merely distributes demerit points to those willing to take them is not concerned with the preservation of the liability of an actual offender". However, the liability of the actual offender would seem only to be preserved where the registered operator has made out the defence. Otherwise, subs(7) makes it clear that if the registered operator is penalised for an offence under this section, no other person may be penalised.
The respondent submits that there are significant barriers to a registered operator seeking to defend proceedings on the basis that he or she was not the actual offender. If a traffic infringement notice is served on the registered operator in reliance on s54, that person may pay the required amount and be penalised as being guilty of the offence even though he or she were not the actual offender. The person may elect to have the offence heard and determined by a court. Section 54(2) provides for a defence but it is one which the person needs to establish. Alternatively, the person served may provide a statutory declaration under s43HA of the Traffic Act giving details of the actual driver.
Staying with the appellant's submissions, he relies on what has been described as "the principle of legality", as explained in Momcilovic v R (2011) 245 CLR 1. At 46 [43], French CJ expressed the principle:
"… as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. It requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law."
Similarly, Heydon J at 177 [444], described the principle as resting "on an assumption that, unless clear words are used, the courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms". (See also Crennan and Kiefel JJ at 200 [512].) The presumption of innocence in that provision which placed a burden of proof on an accused person was the subject of consideration in that case. The fundamental rights or freedoms protected by the principle of legality were also said to include mens rea as an element of legislatively-created crimes, the criminal standard of proof and the liberty of the individual: see Heydon J at 177 – 178 [444].
The appellant submits that the application of the principle in this case favours the interpretation of "offender" as being primarily the person who has offended rather than the person who happens to have been so designated whether or not they are the actual offender. I think it can be accepted that a court would be very slow, in the absence of clear and precise wording, to adopt a construction of such a legislative scheme which abandons traditional notions of punishment of actual wrong-doers for the sake of mere efficacy and convenience.
There is a last aspect of the appellant's submissions which does not need to be considered but about which I should say something. The submission is derived from the notion that "fraud unravels everything". This is said to support the construction advanced by the appellant, in that the fraud disabled the Registrar from the due exercise of his function in the sense of being deflected from it, even though the error was unknown and perhaps undiscernible. The appellant relies on SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. In that case a family of foreign citizens arrived in Australia and applied for protection visas. The applications were refused and they sought a review before the Refugee Review Tribunal, and the Tribunal invited the applicants to appear before it.
A person wrongly claiming to be a solicitor and migration agent advised the applicants not to attend the hearing, and acting on that advice, they did not. The Tribunal rejected the review, citing the applicants' failure to appear as one of the grounds. The court[5] held that the conduct of the person amounted to fraud, and that it stultified the operation of the natural justice provisions in the legislative scheme. The fraud was perpetrated on the Tribunal as well as on the family, and accordingly the jurisdiction of the Tribunal had not been exercised.
[5] Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Crennan JJ.
At 196 – 200 [15] – [27], the court discussed the vitiating effects of fraud. It was noted that the vitiating effect is not universal throughout the law, citing exceptions in the area of civil actions and suits. The court observed that a rather different trend appeared in public law, particularly in respect of the supervisory jurisdiction of superior courts over inferior courts and tribunals. Fraud was noted as one of the distinct established grounds upon which certiorari would issue.
I am not sure that I understand how this assists in the construction of the traffic infringement notice scheme. The appellant's proposition seems to presuppose the correctness of the conclusion argued for. If the scheme is not intended to target the actual offender and is completely indifferent as to whether the actual offender or someone else is penalised, then the Registrar's duty is to record in a truly mechanical way, the name of the person taken to have been convicted. That is to say, the Registrar's duty is not based on an intended presumption that the true offender has been named in the process. On that basis, the fact that fraud involving the person named as the offender precedes that outcome, would not disable the Registrar's function.
In short, the respondent's submissions are as follows. Under s22(1) of Vehicle and Traffic Act demerit points are awarded against the person "taken to have been convicted" by virtue of the provisions of the of the Monetary Penalties Enforcement Act. Section 20 of the latter Act provides that if "an alleged offender pays a penalty in part or in full, he or she … is taken to have been convicted of the offence".[6] The respondent says that this section clearly contemplates the conviction of someone who is merely an alleged offender. The term "the offender" as used in ss22(3) and 23(2) of Vehicle and Traffic Act, simply means an alleged offender taken to have been convicted.
[6] Although on its face, the section contemplates payment by the alleged offender, there is no specific requirement for that to occur. Indeed, s20(2) provides that if "a person" pays a sum of money in respect of an infringement notice, the offender is taken to have been convicted of the offence or offences specified in that infringement notice.
The respondent argues that the trial judge was correct in describing the scheme, particularly as it applies to photographic detection device offences, as "pragmatic", as it simply requires the Registrar to award demerit points against the name of the person who is taken to have been convicted, without any obligation to ensure that the person was the actual driver at the relevant time. A clear example of where the scheme embraces the notion of someone who was not the actual driver being punished for the acts of someone else, appears in s54(1). In that section and in other areas of the overall scheme, there are significant barriers to a person who is not the actual offender to avoid being penalised: ss15 and 40 of the Monetary Penalties Enforcement Act. Those provisions which allow a person who is not the actual offender to avoid being treated and punished as such, must be strictly complied with, or the person will be deemed to be the offender and punished accordingly.
Victorian authority
A debate not dissimilar to the one in this case was had in Roads Corporation (Vic) v Magistrates Court (2004) 42 MVR 105, [2004] VSC 384 (the VicRoads case). Smith J had to consider provisions of the Road Safety Act 1986 (Vic), and the processes of the issue of traffic infringement notices, the awarding of demerit points, and licence suspensions as a consequence of the accumulation of points. Section 26 of that Act allowed an appeal to a magistrate from a decision (amongst other things) to suspend a driver licence, on grounds which were set out in s26(2) as follows:
"(a)That the appellant was not the person against whom the Corporation was required by this Act and the regulations to record certain demerit points;
(b)That a miscalculation has been made in assessing the total number of demerit points incurred by the appellant."
The proceedings before Smith J related to two appeals to magistrates. Each appeal concerned the identity of the person against whom VicRoads was required to record demerit points. In each case the appellant before the magistrate argued that he was not the person driving the vehicle at the relevant time; in one case the offence led to an accumulation of sufficient demerit points in turn leading to the suspension of his licence, in the other case it was a simpler matter of the receipt of a traffic infringement notice to which no objection was made within the required time, as it had gone astray in the mail. (Further breaches seem to have ultimately led to the decision to suspend the licence.) In each case the magistrate took the view that the true identity of the driver was an issue which could be raised on s26(a) appeals. The appeals were upheld and VicRoads appealed.
VicRoads argued that s26(2)(a) should be read as relating to the factual situation presented to it at the time it recorded the demerit points or issued the suspension notices. VicRoads argued that it was not appropriate to go behind the mere facts as presented, and that the appeal was limited to clerical errors where, for example, it had misdescribed the persons who received the points. The real respondents in the appeal, (the appellants before the magistrates), argued that the provisions were concerned with the true identity of the driver and allowed an appeal where, on the true facts, the person against whom VicRoads was required to record demerit points was someone else. Smith J dismissed VicRoads' appeals.
At [24] his Honour said:
"I can well understand their Worships taking the approach they did to the construction of s 26(2)(a), the construction then and now advanced for [the respondents]. At first reading, the section appears to be directed to the realities of the situation. This construction in turn makes much sense in that with the owner/onus provisions and the extensive use of the mail system for delivering notices, there is every chance that some errors will be made and not corrected before the 12 demerit point situation is reached. One might expect the Parliament to seek to introduce a safety net for those who find out for the first time that they have received demerit points when their licences are about to be, or have been, suspended. Driving licences, while a privilege, can be critical to peoples' livelihoods. Suspension of a licence can have catastrophic consequences for licence holders. It would also, in my view, be surprising if an appeal procedure to the Magistrates' Court should have been set up to deal only with clerical errors when those responsible for the drafting of the legislation would have been well aware that the system carried with it the risk of serious injustice where the owner was not in fact the driver who infringed."
Counsel for VicRoads had submitted that the infringement notice system gave effect to a choice by Parliament, namely a compromise between accuracy and efficiency in identifying and penalising traffic offenders. It was said that to interpret s26(2)(a) in the manner adopted by the magistrates would tamper with the method chosen by Parliament to achieve its policy goals. One of the goals was described as the enhancement of road safety and the reduction of pressure and strains on the law enforcement bodies in the courts. Counsel also "submitted that it was part of the traffic infringement notice system that offences would be attributed to persons through the demerits points register other than the actual driver and that was part of the legislative compromise."
Additionally, it was submitted that s66 of the Road Safety Act (Vic) (a section not dissimilar to the Tasmanian Traffic Act, s54, but only relating to offences detected by photographic detection devices) "effectively collapsed the distinction between deemed drivers and actual drivers subject to limited exceptions". At [29] Smith J said:
"The foregoing propositions of the plaintiff, if accepted, do not carry with them the consequence that an appeal procedure made available in different circumstances, namely, where a licence has been suspended, should not enable the correction of an allocation of demerit points to the wrong person. Efficiency is very important. So too are just outcomes. Parliament has expressed an intention to create safety nets to deal with cases of injustice that may flow from the features designed to give efficiency. One of those safety nets is provided by s 26(2)(a) of the Act. The question to be decided is the scope of that safety net. …".
In conclusion, at [39], his Honour said:
"The legislation and regulations are extremely complex and difficult to understand and apply. The odd anomaly is to be expected. It is difficult to discern and articulate all the underlying purposes and objectives of the legislation. I venture to suggest, however, that the demerit system was intended to discourage drivers from breaching the law but was also intended to punish and remove from the roads those who by their conduct have incurred 12 demerit points in the prescribed period. It is also reasonably clear that various devices have been employed to achieve the efficiencies required because of the sheer volume of potential infringements and court business such as the photographic detection system … . But efficiency is a means to an end, not an end in itself and those efficient systems will on occasions result in injustices. The suspension of licences, in particular, can be a very serious matter for the individuals concerned. Ultimately, however, it is against the actual driver of the vehicle committing the offences under the Act that it is intended to operate. It seems to me, therefore, to serve the legislation to adopt the interpretation applied by their Worships. Further, it is important for compliance that there be community acceptance and confidence in the systems. For that to exist it is important that there be mechanisms for dealing with unjust results." [My emphasis.]
As the respondent in this case pointed out, the VicRoads case of course concerned an appeal provision, and not any part of the process by which the award of demerit points is recorded. However, Smith J's observations are of assistance in this case. It should be mentioned that the scheme which his Honour considered included two review mechanisms designed to avoid unjust outcomes. The Infringements Act 2006 (Vic) provides for internal reviews by enforcement agencies in certain circumstances, one of which was mistaken identity. Additionally, regulations provided for rights of review by VicRoads in relation to certain decisions, one of which was the suspension of a driver's licence. That seemed to include suspension by accumulation of demerit points and can be contrasted with the Vehicle and Traffic (Review of Decisions) Regulations 2000 (Tas) (now the 2010 regulations) which did not allow review of a suspension of the driver's licence by way of accumulation of demerit points pursuant to s24 of the Vehicle and Traffic Act (Tas).
Notwithstanding the existence of these review mechanisms, Smith J felt constrained to hold that s26(2)(a) of the Road Safety Act (Vic) was not confined to the mere mechanical function of the recording of demerit points, but extended to the merits of whether the points should have been recorded against the particular person. The Tasmanian legislative scheme does not provide for these sorts of reviews, but merely enables a person who wishes to dispute a liability under an infringement notice to elect to have the matter heard and determined by a court. However, the power to withdraw an infringement notice, may give rise to an informal process by which requests for withdrawal are made and entertained where liability is an issue.
Resolution
The essential question is whether Parliament's intention, to be derived from the wording of the scheme, was to create a scheme which is unconcerned with whether it is the actual offender who is penalised, and indifferent to whether someone else is penalised for the actual offender's conduct. The alternative, as advanced by the appellant, is that Parliament's intention was to create a scheme designed with the objective of producing, as far as can be reasonably achieved, the result that the actual offender is the one who is penalised. It would follow that the duty or function of the Registrar is to be construed in that context. Accordingly, as I see the appellant's argument, the duty is more than a mere mechanical function; but is one to record demerit points in respect of a person who, at that point, is intended to be the actual offender.
The task is to determine Parliament's meaning as to the nature of the Registrar's duty to record demerit points, in the context of the overall operation of the scheme. To frame the issue in limited terms of whether s23(2)(a) means a "true offender" or a "deemed offender" may be unhelpful. It follows that it may be unhelpful to consider whether the Registrar had any investigative duty or role. Undoubtedly there are circumstances in which the operation of the scheme, particularly as it relates to offences detected by photographic detection devices, will lead to the award of demerit points against a person who is not the true offender. The obvious example is the service of a notice on a person who was not the driver but who mistakenly thinks he or she was, and pays the amount on that basis.
It needs to be highlighted that the scheme provides for the recording of demerit points by the Registrar in a variety of circumstances. First, court awarded demerit points arising from the usual curial processes are to be recorded: s23(1)(a) of the Vehicle and Traffic Act. Second, the Registrar is to award points following the service of a traffic infringement notice: s23(1)(b). The service of such a notice may follow detection of the offence and of the offender by traditional means including direct observations of witnesses – no doubt usually in this context, police officers – and the ordinary means of investigation. Alternatively, the service of the notice might follow the detection of the offence by way of a photographic detection device. In essence, the Registrar perfects court orders awarding demerit points, and perfects the award of points by virtue of the operation of the infringement notice scheme.
The point is that s23 is not exclusively concerned with the recording of demerit points in the situation in which the service of a traffic infringement notice follows detection by a photographic detection device and the notice is initially served on the registered operator. That broad aspect of s23 militates against the construction argued for by the respondent. This is because, clearly, in those cases for which the section caters other than those involving the photographic detection process, Parliament could not be said to be indifferent or unconcerned about whether it is the actual offender against whom points are being awarded.
It would be difficult to characterise the duty of the Registrar in different ways depending on the pathway to the obligation to record demerit points. However, the question might remain, at least in respect of offences detected by photographic detection devices, as to whether the scheme is concerned with the actual offender or is indifferent as to who is punished. The terms of s23(2) and (4) of the Vehicle and Traffic Act are, as shown by the debate before the trial judge, rather unsatisfactory. One curious omission relevant to the Registrar's duty is that, whilst there is an obligation created by s65 of the Vehicle and Traffic Act for the Registrar, clerk or other proper officer of the court to give to the Registrar written notice of persons convicted of offences of demerit points, no such obligation rests on the Director of the Monetary Penalties Enforcement Service.[7] That appears to be a mere omission and to have no significance to the debate.
[7] Under the previous regime before the commencement of the Vehicle and Traffic Act, traffic infringement notices were dealt with by clerks of petty sessions and council clerks; the repealed s43H(4) of the Traffic Act. Under the then reg51A of the Traffic (Miscellaneous) Regulations 1968, upon a person accepting a traffic infringement notice, a clerk of petty sessions, (but not for some reason a council clerk), was under an obligation to forward the traffic infringement notice to the then Transport Commission.
There are a number of considerations which operate in favour of the trial judge's determination and the respondent's arguments. It is true that infringement notices arising from detection by photographic devices would inevitably be first served on the registered operator – in itself a form of guilt by association with a particular vehicle – thus creating scope for mistake and manipulation. It is not an offence under the scheme for a person who is served with an infringement notice and, knowing that he or she was not the driver, accepts the penalty in order to benefit the person who was.[8]
[8] On the authority of Einfeld v R (2008) 71 NSWLR 31, neither would such conduct seem to amount to the crime of perverting justice under s105 of the Criminal Code. Of course, making a false statutory declaration is a crime under s116.
Next, s54 of the Traffic Act provides clear indication that Parliament has embraced the notion that a person may be criminally liable for acts committed by others, purely as a result of having the status of registered owner of the vehicle or trailer. Further, there is no doubt that there are hurdles in the way of a person who wishes to dispute that they are the offender in respect of an offence the subject of an infringement notice, and the absence of any internal review processes such as those which exist in the Victorian legislation might suggest that Parliament intended an indifference to who it was who was punished. On the other hand, that absence might suggest oversight or a possibly misplaced faith in the enacted scheme.
However, despite some deficiencies and inadequacies, and notwithstanding the particular matters which I have mentioned, I take the view that the scheme relating to traffic infringement notices is directed to, and intended to punish, the actual offender. I think that Smith J's reasoning in the VicRoads case is pertinent and should be adopted, notwithstanding the differences in the two schemes. The principle of legality as explained in Momcilovic (above) supports the construction that the ordinary notions of attribution of blame and punishment of offenders should be adopted. The proposition that the Registrar would be acting in accordance with his duty if he were to record demerit points against a person who he knew not to be the offender cannot be accepted.
As I have said, the scheme is intended to identify and punish the actual offender. That intention conditions or qualifies the Registrar's duty to the extent that it is to record demerit points against a person who is at that point intended by operation of the scheme to be the actual offender. The term "the offender" in s23(2) does not mean the true offender in an absolute factual sense. On that basis, the Registrar's duty would have been to record Stuart Shaw as the offender had he not been deflected from that duty by the corruption of the process which produced the name to him. An agreement to adopt dishonest means intending that the person responsible for the awarding of demerit points would, or may be, deflected in that sense, is a conspiracy to defraud. (It also follows from what I have said, that on the alternative approach which I discussed at pars[25] – [30] of these reasons, the second level of dishonesty explained by Toohey and Gaudron JJ in Peters (above) is capable of being satisfied.)
I would allow the appeal.
Orders
There is no submission that there was any other flaw in the Crown case so as to justify the direction to the jury to acquit the respondent. Nor has any submission been made that there are any other reasons an order for retrial should not be made. The orders I propose are as follows:
1The appeal be allowed.
2The verdict of acquittal be set aside.
3The respondent be retried on the indictment.
4The respondent be directed to appear on the first day of the next criminal sittings in Launceston.
…
(3) Where any person is alleged to have committed any offence against this Act or the Vehicle and Traffic Act 1999 as the driver of any vehicle —
(a) the owner or registered operator of such vehicle, on demand by any police officer or an authorised officer, shall give to such officer all such information as such officer may require as to the identity and whereabouts of the driver of such vehicle at any time relevant to such charge;
(b) if any information so required is not known to the owner or registered operator, he shall forthwith with all reasonable diligence (proof of which shall be upon him) take steps to obtain the same, and shall report to such officer within 7 days or sooner if practicable the result of the steps so taken;
(c) upon demand being made to any person by a police officer or an authorised officer for any information within such person's knowledge as to the identity of such driver as aforesaid, or as to any fact which may lead to the identification of such driver, such person shall give such information to such officer —
and if any person fails to comply with any of the requirements of this subsection he shall be guilty of an offence.
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