Hanel v Ryan
[2012] ACTSC 100
•31 May 2012
IN THE SUPREME COURT OF THE )
) No. SCA 114 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DARRYL HANEL
Appellant
AND: LACHLAN SCOTT RYAN
Respondent
ORDER
Judge: Burns J
Date: 31 May 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal is allowed. The conviction and penalty that were imposed by the learned Magistrate with respect to the charge of driving whilst suspended are set aside.
The matter is to be remitted back to the ACT Magistrates Court for re-hearing on that charge.
It is not clear to me from the transcript whether the learned Magistrate appreciated that a defence of honest and reasonable mistake of fact (see Proudman v Dayman (1941) 67 CLR 536) was being raised by the appellant with respect to the charge of driving whilst suspended. It is not clear to me from the transcript whether the learned Magistrate was aware that such a defence was available with respect to this offence.
In any event, the evidence given by the appellant before the learned Magistrate with respect to the way in which he dealt with his mail from the Road Transport Authority was central to the reasonableness of any belief held by the appellant that his licence was not suspended. The evidence given by the appellant before the learned Magistrate, in my view, is quite ambiguous in that regard.
As the appellant was unrepresented before the learned Magistrate, it would have been appropriate, in my view, for the learned Magistrate to have asked a limited number of questions of the appellant with a view to elucidating the evidence given by the appellant about how he dealt with mail that he received from the Road Transport Authority. The failure by the learned Magistrate to assist the appellant in that regard results in a failure of process in the matter that was before the ACT Magistrates Court, such that the conviction should be set aside and the matter should be reheard.
Now, Mr Hanel, I have set aside the conviction and penalty but that is not the end of the matter. It is going to go back to the Magistrates Court for a further hearing so that further evidence can be given, particularly about your knowledge of whether your licence was suspended and also the question of whether any belief held by you that your licence was not suspended was a reasonable belief, particularly based on how you dealt with your mail from the Road Transport Authority. Do you understand that?
I allow the appeal. I set aside the conviction and penalty that were imposed by the learned Magistrate with respect to the charge of driving whilst suspended. The matter is to be remitted back to the ACT Magistrates Court for re-hearing on that charge.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 25 June 2012
Solicitor for the appellant: The appellant appeared in person
Counsel for the respondent: Mr T Jackson
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 31 May 2012
Date of judgment: 31 May 2012
0
1
0