Kilgariff v The Queen
[2015] NSWDC 414
•15 December 2015
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New South Wales |
Case Name: | Kilgariff v R |
Medium Neutral Citation: | [2015] NSWDC 414 |
Hearing Date(s): | 15 December 2015 |
Date of Orders: | 15 December 2015 |
Decision Date: | 15 December 2015 |
Jurisdiction: | Criminal |
Before: | Neilson DCJ |
Decision: | Appeal allowed |
Catchwords: | CRIMINAL LAW – Conviction and severity appeal – Driving unregistered vehicle – Appellant’s vehicle due for registration on 19 June 2014. On 5 June 2014 Appellant advised RMS that his addressed had changed. RMS had already sent notification of registration renewal to previous address. On 2 July 2014 appellant received traffic infringement notice for driving an unregistered vehicle, RMS sent reminder notice to correct address on 9 July 2014 – Appellant did not receive notice of registration renewal before expiration of registration. However vehicle had registration label affixed notifying of the expiration date – Appellant did not routinely check registration label – Whether honest and reasonable mistake of fact |
Category: | Principal judgment |
Parties: | Ian Warner Kilgariff (Appellant) |
Representation: | Ms Haddad (Appellant) |
File Number(s): | 2014/292311 |
Publication Restriction: | No |
Decision under appeal: | |
Court or Tribunal: | Sutherland Local Court |
Jurisdiction: | Criminal |
Date of Decision: | 2 February 2014 |
Before: | Trad LCM |
File Number(s): | 2014/292311 |
JUDGMENT
HIS HONOUR: This is an appeal against a conviction recorded by Magistrate Trad sitting in the Local Court at Sutherland on 2 February 2014.
The appellant was the owner of a 1990 Ford Falcon motor car registered number AW 95 BT. Its registration expired on 19 June 2014. Antecedent to the 19 June 2014, the Roads and Maritime Services recorded the appellant’s address for the purposes of the registration of his motor vehicle as being 1‑13 Mangrove Lane, Taren Point. On 5 June 2014, the appellant sent a letter by registered post to RMS at North Sydney advising that his correct address was now 17 Mangrove Lane, Taren Point. The RMS received the appellant’s letter on 12 June 2014. However, it had already sent the registration renewal notice to the appellant on 8 May 2014 at his prior address then recorded by the RMS, as I said, as 1-13 Mangrove Lane Taren Point. I do not know exactly when it was that the appellant changed his address from 1-13 Mangrove Lane, Taren Point to 17 Mangrove Lane, Taren Point but the appellant has averred on oath that he did not receive the communication from the RMS of 8 May 2014.
The registration of the appellant’s motor vehicle, as I said, expired on 19 June 2014. On 2 July 2014, the police, namely, Senior Constable Hudson of the Sutherland Highway Patrol, detected the appellant driving his motor vehicle in Pinson Road, Taren Point. The vehicle Senior Constable Hudson was driving was fitted with Automatic Number Plate Recognition software and other forms of advanced technology. This software recognised that the registration of the vehicle being driven by the appellant had expired. Senior Constable Atkins then activated the warning devices on his Highway Patrol vehicle and the appellant pulled over to the left and stopped. The appellant was submitted to a random breath testing which he passed but was then told that as far as the police were concerned, his vehicle was unregistered. That was “news” to the appellant. However, the police officer walked around the vehicle to the near side portion of the windscreen where the appellant still had affixed to his vehicle a registration label. That label indicated that the registration had expired on 19 June 2014. The appellant was then given a traffic infringement notice for $623.
The appellant did not pay the traffic infringement notice and elected to have the matter dealt with by the Local Court. In the Local Court the appellant raised a large number of technical objections all of which were dismissed by the learned magistrate. He did not, however, run the defence of a reasonable and honest mistake of fact. He has been granted leave to raise that defence in this Court.
The appellant is a former member of the legal profession who is retired. At the time of the offence he was 71 years old. He is now 73 years old. He came before the court as a man of prior good character. The RMS, with its usual alacrity, responded to the appellant’s letter of 5 June 2014 advising it of his change of address by sending to him a reminder notice about the re-registration of his vehicle on 9 July 2014, that is, a week after the appellant was pulled over by Senior Constable Hudson. It took the RMS 27 days to react to the appellant’s advising it of his change of address. During that window, unfortunately, the appellant was detected driving his vehicle whilst its registration had expired.
Most members of the public react to notices received from the government. One would expect the current appellant to do so. He received no notice from the government and not keeping daily watch on the old registration label can be readily excused as something that no one regularly does. Indeed, one usually awaits communication from the RMS, or its predecessor the RTA, that registration is about to expire before going through the process of obtaining a pink slip and a green slip and paying the appropriate fee to the RMS. One has also to bear in mind that the appellant, as a retired person, may not be as quick off the mark as younger members of the community and time can fly easily the older one is.
The only thing which might stand in the way of finding of reasonable and honest mistake of fact was the fact that the appellant had an old registration label on his vehicle, but, as I said, one would not expect anyone to regularly read that but be waiting, if it were anticipated the registration might soon expire, for the appropriate notice from the government which, unfortunately, the appellant received far too late. For those reasons I accept that there was a reasonable and honest mistake of fact. That means that the Crown has failed to negative that defence and, therefore, that the appellant was wrongly convicted.
For those reasons, I set aside the conviction recorded and the sentence passed by the Local Court at Sutherland on 2 February 2015.
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