Driver v State Electoral Department No. Scgrg-98-1402 Judgment No. S104

[1999] SASC 104

[1999] SASC 104

DRIVER V STATE ELECTORAL DEPARTMENT

Civil (Ex Tempore)

1. LANDER J. On 19 May 1998 the appellant was charged on complaint that on 11 October 1997 he was an elector who failed to vote at an election without a valid and sufficient reason, contrary to s85(7) of the Electoral Act 1985.

2. The matter first came before Mr Rogers SM on 9 July 1998, and, there being no appearance by the appellant, a conviction was imposed and the appellant was fined $10.

3. An application was then made for re-hearing of the matter.  That application was granted by Mr Gurry SM.

4. The conviction and penalty were set aside.  Nothing can be read into the fact that a conviction was first imposed by Mr Rogers SM.

5. The matter then came on for hearing before Mr Baldino SM on 23 September 1998, when the appellant entered his plea of not guilty.  After hearing evidence and receiving exhibits the learned magistrate found the charge proved beyond reasonable doubt, entered a conviction, imposed a fine of $10, together with court fees.

6. The appellant has appealed against the entry of that conviction and the finding that the charge was proved beyond reasonable doubt.  The ground of appeal is:

   “citizen, apparently has a duty to discharge obligations to the state, (sic) but the state does (sic) not have to discharge obligations to children under the Convention of the Rights of the Child and does not have to rationalise its behaviour.  State case is Can’t (sic) do unrationalised and persecution (sic) if you don’t give us face.”

7. An election was held in this State on 11 October 1997.  At the time of the election the appellant was enrolled as an elector for the district of Mawson.  The appellant admitted before the learned Magistrate, that he was so enrolled and admitted that he failed to vote on 11 October 1997, but his case before the learned Magistrate was that he had valid and sufficient reason for failing to vote.

8. After the election he was served with a document entitled ‘Notice of apparent failure to vote’.  That document provided for the recipient of the notice to give reasons for not voting.  The appellant responded to the notice in the following terms, offering this response as his reason for failing to vote;

   “I am unable to respect state. (sic) Human rights are equal opportunity to participate in society. (sic) State obliged to ensure rights.  Child molesters not required to present children victims to so called mandatory reporting appointments.  Dismissed for negligence.  No further correspondence entered into.” 

9. Following receipt of that reply, the electoral office issued an expiation notice, which allowed the appellant to pay by way of expiation fee the sum of $10, together with a levy of $7 for failing to vote at the election on 11 October 1997.  On receipt of that notice the appellant elected to be prosecuted, which is a right given to him by the Electoral Act.

10. He was also entitled to provide, in response to the notice, his reasons for disputing the assertion that he had admitted an offence.  He did so and gave these reasons;

    “State obligations to ensure equal rights to participate in society.  On 29 January 1997 Robert Brokenshire, representing state and Ken Teo, representing Adult ego state in FACS, expressed that I was entitled and appropriately seeking my rights to expect support for raped children.  Expressions and actions needing to be consistant (sic) to be true.  The state does not exist for children being violated.  I will not vote for this non-existant (sic) state that manifests as it does for children.  The state is as able to be respected as its response to number 1 violation against children.”

11. When the matter came before the learned Magistrate he noted that the respondent had established that the appellant was enrolled in the House of Assembly district of Mawson and that he had failed to vote at the election of 11 October 1997.  So much, in fact, were agreed facts.  He found that the defendant was not absent from the State on the polling day.

12. He held that there was an onus lying upon the appellant to establish that he had a defence to a charge of failing to vote under s85(7)(a). He found that the appellant had failed to discharge that onus and found that the appellant had not satisfied himself, on the balance of probabilities, that he had a valid and sufficient reason for his failure to vote. In my opinion the learned Magistrate properly directed himself in relation to the burden of proof in relation to the defence raised by the appellant. Douglas v Ninnes (1976) 14 SASR 377.

13. The evidence before the learned Magistrate was contained within the two documents to which I’ve referred, together with the appellant’s own evidence.  His evidence was that his daughter had been molested sometime in 1992.  It is clear from his evidence that he believes that the State organisations have failed to provide appropriate investigative resources and appropriate support for his daughter in relation to that matter.

14. It is also clear from his evidence and from what he has said to me today, that he believes that the Family Court and its counselling services, have also failed to properly investigate the circumstances of the assault and counsel his daughter and himself in relation to it.

15. He complains that the State has been guilty of neglecting his child and of negligence.  It is for those reasons and other reasons associated with the experience which his daughter suffered in 1992 and the complaints since 1992 that he failed to vote.

16. This Court is not in a position to judge whether the appellant’s complaints about the behaviour of the State organisations or the Family Court and its counselling service amount to negligence on the part of all or any of those organisations. Even if it was to assume that each, or any of those organisations have been guilty of negligence in relation to the complaints about Mr Driver’s child, or in relation to any other child, in my opinion that could not amount to a valid and sufficient reason under s85 of the Electoral Act for failing to vote.  Judd v McKean (1926) 38 CLR 380. Section 85(8) of the Electoral Act provides:

    “An elector has a valid and sufficient reason for failing to vote at an election if (a) the elector was ineligible to vote at the election or; (b) the elector was absent from the State on polling day; or (c) the elector had a conscientious objection based on religious grounds for voting at the election or (d) there is some other proper reason for the elector’s failure to vote.”

17. Clearly enough, the appellant could not bring himself within s85(8)(a)(b) or (c). He was eligible to vote. He was not absent from the State on polling day and he did not have a conscientious objection, based on religious grounds, to voting at the elections.

18. If, in fact, he was available to bring himself within the scheme of s85(8) it was only because there was no other proper reason for the elector’s failure to vote. In my opinion the reasons he has advanced, whilst no doubt important to him and his child are not proper reasons for a failure to vote within the meaning and scheme of the Electoral Act.

19. The maximum penalty for a failure to vote is $50.  The penalty was capable of expiation by payment of a sum of $10.  The penalty imposed by the learned Magistrate was $10.  In my opinion it cannot be said that the penalty was manifestly excessive.  In those circumstances, in my opinion, the appeal must be dismissed.