Kwok v Mothersole

[2019] NSWSC 1415

Supreme Court

New South Wales

Medium Neutral Citation:	Kwok v Mothersole [2019] NSWSC 1415
Hearing dates:	10 April 2019
Date of orders:	18 October 2019
Decision date:	18 October 2019
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) The appeal is dismissed; (2) To the extent to which Mr Mothersole may otherwise be entitled as a self-represented litigant, the plaintiff is to pay the defendant’s legal costs.
Catchwords:	APPEALS – Appeals as of right – compulsory voting – Local Government Act – council election – decision of magistrate – sufficient reason
Legislation Cited:	Crimes (Appeal and Review) Act 2011 (NSW), s 56(1)(c) Electoral Act 2017 (NSW) Local Government Act 1993 (NSW), Chapter 10 Parliamentary Electorates and Elections Act 1912 (NSW)
Category:	Principal judgment
Parties:	Simon Kwok (Plaintiff) John Mothersole (Defendant)
Representation:	Counsel: Ms GE Lewer (Plaintiff ) John Mothersole in person (Defendant)   Solicitors:
File Number(s):	2018/395765
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court at Parramatta Jurisdiction: Criminal Citation: Unreported Date of Decision: 27 November 2018 Before: Magistrate Shields File Number(s): 2018/277133

Judgment

1. This appeal was heard with the appeal in Kwok v Maresch [2019] NSWSC 1151, the decision in which was handed down to day. Both appeals raise an identical issue and in deciding this appeal I will refer the law as discussed and determined in Kwok v Maresch. I will not repeat that reasoning in this judgment and the reader should have some familiarity with that decision.

2. The appeal was commenced by summons filed on 24 December 2018. The plaintiff, an official of the New South Wales Electoral Commission (“the Commission”), appeals on the Commission’s behalf from the dismissal of a summary prosecution brought against the defendant, Mr John Mothersole, by his Honour Magistrate Shields in the Local Court at Parramatta on 27 November 2018.

3. By proceedings commenced by Court Attendance Notice issued out of the Parramatta Local Court, the Commission prosecuted the defendant for failing to vote in a contested election in the Dundas Ward for the City of Parramatta Council held on 9 September 2017, contrary to the provisions of s 312 Local Government Act 1993 (“LGA”). The defendant pleaded not guilty to the charge and after a contested hearing before the learned magistrate on 27 November 2018, his Honour found that the defendant’s explanation was sufficient reason not to vote within the meaning of s 312 LGA and, as I have said, dismissed the matter.

4. The appeal is brought under s 56(1)(c) Crimes (Appeal and Review) Act 2011 (NSW). Such appeals lie as of right, “but only on a ground that involves a question of law alone”: s 56. The sole of ground of appeal propounded in the summons is expressed as follows:

It is contended that the magistrate erred in law by finding that the defendant’s lack of knowledge of the election could constitute a sufficient reason for failing to vote.

Relevant factual background

5. Section 312 LGA is in the following terms:

A person whose name is on the residential roll in respect of a ward or area must vote at any contested election in the ward or area (other than an election of the mayor by the councillors) unless the person has a sufficient reason not to vote.

The maximum penalty is 1 penalty unit.

6. The plaintiff’s uncontested evidence led before the learned magistrate established that: a local government election was held for each ward of the City of Parramatta Council; Mr Mothersole was named in the electoral roll for use in the election for the Dundas Ward; and he failed to vote by any of the permissible means.

7. S 314 LGA permits the Electoral Commissioner to deal with matters of failing to vote without a sufficient reason by service of a penalty notice. At the time the Electoral Commissioner for New South Wales was appointed under s 21AA Parliamentary Electorates and Elections Act 1912 (NSW) (Repealed) with the responsibility of administering legislation relating to, inter alia, the conduct of elections. The Electoral Commissioner is an ex officio member of the Commission which was constituted by s 21A of the Repealed Act. (See now Divisions 1 and 2 of Part 2 Electoral Act 2007 (NSW) which commenced on 1 July 2008.) A penalty notice issued to the defendant on 30 November 2017 and he took the opportunity allowed by the penalty notice pursuant to s 314(3) LGA to provide the Electoral Commissioner with “a sufficient reason” for not voting. The defendant stated:

I was unaware council elections were being held. Unlike other years we received absolutely no electoral flyers, correspondence and the like from any of the candidates or political parties. The local paper has stopped being delivered and I had no way of knowing the elections were being held.

8. Mr Mothersole’s explanation was considered an insufficient reason by the Electoral Commissioner under s 314(5) LGA and by reference to sub-section (6). This being so a penalty reminder notice, described as a “Final Notice”, was served on Mr Mothersole in accordance with the provisions of s 314(5) LGA which he returned on 27 February 2018 indicating his “wish to have the matter dealt with by a court” (Court Book 23).

9. The evidence also established that advertisements informing the public of the 2017 local government elections had been placed in the Daily Telegraph on 9 occasions between 17 July and 5 September 2017; the Sydney Morning Herald on 10 occasions between 17 July and 6 September 2017; and the Parramatta Advertiser on 5 occasions between 19 July and 7 September 2017. The advertisements in each of those newspapers were general, that is not specific to the City of Parramatta local government area, and included the following information:

Not all councils are holding elections on 9 September. To check whether you need to vote visit our website or call us.

Voting is compulsory in all areas conducting elections. Fines apply for not voting.

The Commission’s web address and telephone number were provided.

10. In addition to newspaper advertisements, the evidence established that radio advertisements were broadcast between 7 August and 10 September 2017,variously, on radio stations 2CH, 2Day FM, Edge 96.1 FM, Kiis 106.5 FM, Nova 96.6 FM, 2MMM, Smooth FM 95.3 and WSFM 101.7.

11. Mr Mothersole was self-represented at the hearing before Magistrate Shields. From the bar table he was permitted to say:

I am 68 years old and I believe in compulsory voting, but this is the first time I have never ever received a pamphlet in the paper (CB 101, 2.35T).

On oath he said “if it was … a Federal or a State election, I wouldn’t be here because the media is swamped with it” (CB 103, 4.10T). Mr Mothersole said he did read the Sydney Morning Herald but not as far as page 7 or 10 and he normally listened to 2GB and not any of the radio stations where advertisements had been broadcast (CB 103, 4.10 - .15T).

12. He said, “I know where the electoral things are and I believe in voting.” He added:

But there’s my diary. I am builder. 6 o’clock, I was out west … which is Huntingwood. I go Kissing Point Road, I go James Ruse Drive and the M4. I came back at 3 o’clock the same … day. There’s no schools … on that. There all in the back streets there. There’s no schools. (CB 103, 4.20T).

He didn’t know there had been an election until he “saw where Counsellor Wilson was elected Mayor” (CB 103, 4.30T). No one knocked on his door and he received no brochures (CB 103, 4.40T).

13. Under cross-examination, he said he had lived at his address since 1979. He normally voted at a nearby public school, “off the street” (CB 104, 5.15T). He maintained he had not passed any polling place and volunteered, “I had plenty of time to vote, if I knew about it, and I would have voted” (CB 104, 5.40T). His wife was overseas visiting their daughter in London (CB 104, 5.45T). He’d reiterated that he had not received any information in his letter box from candidates (CB 105, 6.20 - .30T).

14. At first instance, the Commissioner argued that the obligation to vote imposes an obligation to make oneself aware of when that obligation arises. The Commissioner also argued that as the statute is not one where a mens rea element of knowledge is expressed in the text “it’s unnecessary for the prosecution to essentially prove knowledge in order to make out the offence” (CB 107.8.5T). The prosecutor made it clear that he “certainly did not doubt the honesty” of Mr Mothersole’s assertions (CB 107, 8.40T). He emphasised that he did not cavil with the honesty of Mr Mothersole’s lack of knowledge, but cavilled with its reasonableness (CB 108, 9.5T).

The reasons for the Magistrate’s decision

15. Having referred to Judd v McKeon (1926) 38 CLR 38 and Commonwealth Director of Public Prosecutions v Eastern [2018] NSWSC 1516, the learned Magistrate gave the following reasons for dismissing the matter:

Mr Mothersole’s defence to these proceedings is that he was unaware that an election was to be held on that day. In support of the prosecution case and marked as exhibit 1 is a statement of Gillian Berry, an electoral officer, which relevantly attaches the records disclosing that Mr Mothersole did not vote in the council election and also attaching the various documentation that was sent to him following that election. Also part of exhibit 1 is a statement of Alex Chapman, who is also an electoral officer. This statement annexes a number of documents that establish that the Electoral Commission placed advertisements in the print and radio media that the election in which Mr Mothersole failed to vote was to be held on 9 September.

What is clear from a reading of that material is that the media coverage that was provided by the Electoral Commission could not be described as exhaustive, nor would it reasonably lead to the conclusion that everyone in the community who was obliged to vote in the council election would necessarily have it brought to their attention through the media alone.

Mr Mothersole says that he does read one of those publications although he points out that the advertisement that was placed in respect of it was well to the back of the paper and he does not ordinarily read that far. Mr Mothersole gave evidence about the day in question which was to the effect that he was working and he said that he did not pass by any polling place which would have brought to his notice the fact that an election was held that day. Furthermore, he said that he did not see any signage in the community, did not receive any pamphlets and was not approached by any candidate. There is no basis upon which I can conclude that evidence is other than honest, and [the prosecutor] properly concedes that the Commission does not contest the honesty of what [Mr Mothersole] has said.

The question for determination in this case, of course, in the context of the principles to which I have already referred, is whether being unaware of an election is a sufficient reason for not having voted. The word, “sufficient” is not defined in the legislation and therefore is to be construed with its ordinary and natural meaning. HAVING REGARD TO THE MATTERS SET OUT ABOVE, IN MY VIEW, [MR MOTHERSOLE’S] EXPLANATION FOR HAVING FAILED TO VOTE IS A SUFFICIENT REASON FOR HAVING FAILED TO VOTE AND THE PROSECTION WILL BE DISMISSED.

16. With respect, his Honour does not seem to have directly addressed the two principal issues pressed by the Commission: whether the statute imposes an obligation on the elector to make inquiries to find out when an election is to be held; and the reasonableness of the explanation proffered. Nothing may turn on this, having regard to the ground of appeal propounded.

Submissions for the plaintiff

17. As this appeal was heard with the appeal in Kwok v Maresch, Ms Lewer of Counsel, appropriately, made the same submissions in each case. I have summarised her written and oral submissions at [20] – [26] of my judgment in Kwok v Maresch. Her primary argument was that the learned Magistrate’s decision involved an error of law alone because ignorance of the date on which an election was to be held was necessarily outside the statutory description of “sufficient reason not to vote” as required by s 312 LGA. As summarised in the Kwok v Maresch judgment [25] – [26], counsel also relied upon the in pari materia principle to argue by reference to the provisions of ss 207 and 259(9) of the Electoral Act, that Parliament has declared that ignorance that an election is being conducted is not a sufficient reason for failing to vote.

Submissions of the defendant

18. Mr Mothersole is self-represented. In written submissions filed by him on 15 March 2019, he reaffirmed that: he strongly believed in the compulsory voting system; the Magistrate had accepted his explanation as honest; and his honesty was not questioned by the prosecutor at first instance. He submitted that Gannat v Becker (Supreme Court of South Australia unreported 30 July 1992 Olsson J) was distinguishable because the defendant’s plea of ignorance there had not been believed. He otherwise relied upon the judgments of Isaac J and Higgins J from Judd v McKeon (1926) 38 CLR 380 at 387 and 390 respectively.

19. At the hearing he adopted the submissions of law advanced by Mr D McMahon of Counsel on behalf of Mr Maresch.

Legislative provisions

20. The relevant legislative provisions have been set out in my judgment in Kwok v Maresch, especially at [33] – [34]. As with the election for the City of Ryde Council, the 2017 election for the City of Parramatta Council was not held in accordance with the fixed statutory rotation established by s 287 LGA. Rather it was held 12 months later because of the abandonment of the State Government’s policy of local government amalgamation.

Decision

21. As this appeal raises the same point of law, not materially distinct primary facts, and the same conclusion of ultimate fact as Kwok v Maresch, my reasoning at [35] and following in that judgment is equally applicable and I will merely summarise it here.

22. In accordance with the judgment of Glass JA In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, the ground raised by the plaintiff will involve a point of law alone if the primary facts of ignorance of the election as found by Shields LCM are “necessarily outside [the] statutory description and a contrary decision has been made”: Azzopardi at p 156 – 157. Obviously, as I said in Kwok v Maresch, whether ignorance that the occasion for discharging the obligation to vote has arisen is necessarily outside the statutory description of “a sufficient reason not to vote” is a question of statutory construction.

23. In my judgment by reference to the reasoning in The Queen v Tolson (1889) 2 QBD 168 at 181; Thomas v The King (1937) 59 CLR 279 at 304 – 306; Harding v Price [1948] 1 KB 695 at 701; Belling v O’Sullivan [1950] SASR 43 at 46; and He Kaw Teh v The Queen (1985) 157 CLR 523, I am satisfied that s 312 LGA does not involve an offence of absolute liability. And, even if guilty knowledge is not an element of the offence, an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts which, if true, would have made his act innocent: He Kaw Teh at p 553 by Gibbs CJ.

24. As I said (at Maresch [47]), “the legal meaning of legislation is normally determined by a consideration of the text of the provision, its legislative and broader context, and a consideration of the purpose of the Act”. There is nothing in the language of s 312 LGA which excludes the availability of the “defence” of honest and reasonable mistake of fact. The express language creates the “sufficient reason” exception. Nor is there anything which excludes the principle in Harding v Price (at p. 701) which I adapted (at Maresch [48]) into the following formulation:

Unless a person knows that an election is being held, how can he or she carry out the duty to vote imposed by s 312 LGA? There is nothing in the language of the provision excluding the rebuttable presumption of law that there is no crime without a guilty mind that underpins the criminal law, both common law and statute law: Thomas v the King (at 304-306).

25. For the reasons I explained at Maresch [49] – [50], there is nothing in the legislative context or the broader statutory purpose which would amount to a compelling necessary legislative intendment to exclude the rebuttable presumption to oust the availability of honest and reasonable mistake of fact as an exculpatory consideration.

26. My reasons for rejecting the argument that the enactment of the new provision at the foot of s 259(9) Electoral Act 2017 operate in pari materia as an aid to the interpretation or construction of the concluding clause of s 312 LGA, “unless the person has a sufficient reason not to vote”, have been fully set out at [52] to [55] of my judgment in Kwok v Maresch. I will not repeat them here. In my view, that provision does not lead to the conclusion that honest and reasonable mistake of fact is excluded as a defence to a charge alleging a contravention of s 312 LGA. I repeat it does not lead me to conclude that ignorance of the date of the election, if honestly and reasonably based, is not a “sufficient reason not to vote”.

27. As I tried to explain in Kwok v Maresch this conclusion ought to open no flood gate. The requirement is one of honest and reasonable mistake of fact involving both subjective and objective aspects. Even an honestly held belief may be completely unreasonable. Decisions about what is reasonable do not involve judges or magistrates engaging in value judgments at large. The primary task of the court is to apply the legislative norms to be found in Chapter 10 LGA (see Maresch at [63]). I repeat what I said in Maresch at [60]:

In the case of a Federal, State or Local Government general election it would stretch credulity for an elector to plead ignorance of the date fixed for the election given the highly visible election campaigns conducted by the major political parties and the saturating coverage flooding, not only, the mainstream or established media, but also, social media.

28. I am not of the view that ignorance that the occasion has arisen to discharge the obligation to vote is necessarily outside the statutory description of “sufficient reasons”. And I am not persuaded that the Commission has demonstrated that its sole ground of appeal involves the question of law alone. It follows from my reasoning that an elector is not obliged to make inquiries about the date fixed for an election (Harding v Price at 701; Belling v O’Sullivan at 46). Although knowledge that one is imminent may activity an onus at a factual level to make inquiries (Gannat v Becker).

29. As ignorance as an explanation is founded on honest and reasonable mistake of fact such an explanation will be insufficient unless it is both honest and reasonable. A standard of reasonableness is an objective yardstick.

30. My orders are:

1. The appeal is dismissed;

2. To the extent to which Mr Mothersole may be otherwise entitled as a self-represented litigant, the plaintiff is to pay the defendant’s legal costs.

**********

Decision last updated: 18 October 2019