McFarlane v Police - [2014] SASCFC 111

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
MCFARLANE v POLICE
[2014] SASCFC 111
Reasons for Decision of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Peek and The Honourable Justice Parker)
29 October 2014
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FURTHER EVIDENCE - IN GENERAL
Application for permission to appeal to the Full Court of the Supreme Court against the decision of a single judge. The judge dismissed the applicant’s appeal against a finding of guilt made by a magistrate. The applicant submits that the decision of the Full Court in Franklin v Stacey (1981) 27 SASR 490 not be followed. The applicant also seeks to adduce fresh evidence. Whether permission to appeal should be granted. Whether permission to adduce fresh evidence should be granted.
Held:
Permission to appeal refused. It is most unlikely that Franklin v Stacey was wrongly decided or is no longer good law. The fresh evidence sought to be adduced is not relevant.
Motor Vehicles Act 1959 (SA) s 9, s 102; Crimes Act 1914 (Cth) s 87, referred to.
Franklin v Stacey (1981) 27 SASR 490, discussed.
Proudman v Dayman (1941) 67 CLR 536; R v Dorning (1981) 27 SASR 481, considered.

MCFARLANE v POLICE
[2014] SASCFC 111
Full Court Appeal: Vanstone, Peek and Parker JJ

THE COURT: The unrepresented applicant has sought permission to appeal to the Full Court from the judgment of David J in McFarlane v Police [2014] SASC 55 dismissing an appeal from a magistrate.
Background
On 12 September 2013 a magistrate found the appellant guilty of two offences of driving an unregistered motor vehicle and two counts of driving an uninsured vehicle contrary to s 9 and s 102 respectively of the Motor Vehicles Act 1959. Those offences occurred on 22 May 2012 and 24 June 2012. The appellant admitted that he had driven the vehicle on the relevant dates and that it was unregistered and uninsured.
The first offence was detected by a speed camera. The expiation notice was not issued immediately. Thus, the appellant was not aware at the time of the second offence that he had previously been detected driving an unregistered and uninsured vehicle.
The prosecution relied upon the decision of the Full Court in Franklin v Stacey[1] to submit that the offences of driving a vehicle whilst unregistered and uninsured were offences of absolute liability, ie it was not necessary for the prosecution to prove mens rea and the defence of honest and reasonable mistake of fact was not available.
[1] (1981) 27 SASR 490.
The unrepresented appellant submitted that Franklin v Stacey should no longer be followed due to the relatively recent abandonment of the practice of issuing registration labels for attachment to vehicles. That had led to doubt and confusion in the minds of drivers as to whether a vehicle is registered and insured.
The magistrate held that Franklin v Stacey was still good law and binding upon him. While it was not strictly necessary for him to do so, the magistrate went on to consider whether the defence of honest and reasonable mistake of fact was available to the appellant.
The appellant gave evidence that on 12 December 2011 he had renewed the registration of the relevant vehicle and also that of a caravan and a boat. While he had lost the document relating to the vehicle, that for the caravan showed it was registered until 1 March 2012. Subsequently, he received in the post a “registration details certificate” for the car. The last line on that document said “12 month expiry date 28 March 2013”. He said that he only read that part of the document and therefore formed the belief that he must have registered the vehicle for 12 months or for whatever period was required to make its expiry date 28 March 2013.
At the relevant time the registration renewal notice provided that registration could be renewed for either three months or 12 months. The vehicle owner had to make an election and then pay the appropriate fee.
After hearing and observing the appellant give evidence, the magistrate did not accept his assertion that he thought the vehicle was registered until 28 March 2013. The magistrate noted that his evidence “seemed to change with the wind depending on the question that he was being asked at the time. My impression was that he was amending his evidence as he went along to make it the most favourable”.
The magistrate also rejected the appellant’s evidence that he had only read the final line of the document referring to the expiry date of 28 March 2013. I note that this date would only have been relevant if he had elected to register the vehicle for 12 months and had paid the relevant fee.
The magistrate said that he found it unbelievable that the only line he would read in the document was that which might, if his evidence was accepted, provide a basis for the belief he claimed to hold. The magistrate also rejected evidence put by the appellant that he had been having trouble with his eyesight at the relevant time. The magistrate noted a medical certificate referring to some memory problems suffered by the appellant but found that this did not explain the deficiency of memory that he now asserted.
The magistrate did not record a conviction and imposed fines for the four offences equal to the expiation fee otherwise payable. He also waived the $100 prosecution fee and court fees. The total fines amounted to $1,794 and the Victims of Crime levies came to $640.
Appeal to a single judge
In essence, the appellant advanced four grounds in the appeal to a single judge. They were that:
1The certificate issued in respect of the registration and insurance of his vehicle was misleading contrary to s 87 of the Crimes Act 1914 (Cth);
2The abolition of the issue of registration labels was unjust;
3He had been prejudiced at trial by the failure of the prosecution to provide statistics about the effect of the decision to cease issuing registration certificates; and
4He had been humiliated during cross-examination.
The appeal judge held that while s 87 of the Commonwealth Act was not relevant, the certificate was not misleading or false. His Honour also rejected the other grounds.
The appeal judge considered whether the authority of Franklin v Stacey had been affected by the abolition of registration labels. His Honour found that the use of registration labels was not an essential part of the reasoning of the Full Court.
The grounds raised in the application for permission are essentially the same as those raised before the appeal judge although the appellant is now seeking permission to adduce fresh evidence.
Consideration
We do not consider that the abolition of registration labels requires Franklin v Stacey to be distinguished. The reasoning of the Full Court was based upon the public policy underlying regulatory offences of this nature and the principles of statutory interpretation. As the appeal judge noted, while the issue of registration labels was mentioned in passing, it was not an essential element in the reasoning of Walters J and the other members of the Full Court.
Amendments made to ss 9 and 102 of the Motor Vehicles Act since Franklin v Stacey was decided reinforce the correctness of that decision. Those two sections now provide a series of defences available to the driver of an unregistered or uninsured vehicle. For example, a person who has driven a vehicle owned by his or her employer (or an organisation for which they volunteer) has a defence if they did not know the vehicle was uninsured or unregistered. The defence may be established by providing a statutory declaration to South Australia Police. However, none of the statutory defences was available to the appellant.
We consider that by providing a series of statutory defences that are based upon mistakes of fact that have occurred in certain specified circumstances (regardless of their reasonableness), the Parliament has left no room for the court to imply the Proudman v Dayman[2] defence where the mistake is said to have occurred in circumstances other than those expressly allowed by the statute. In other words, the Parliament has made detailed provision about the available defences and has thereby covered the field.
[2] (1941) 67 CLR 536.
As noted, the appellant has sought permission to adduce fresh evidence in the appeal to the Full Court. One part of that evidence comprises receipts for spectacles issued in the Philippines on 3 July 2013 and 7 September 2013. Those dates are prior to the trial before the magistrate but well after the alleged misreading of the registration document. The apparent purpose of that evidence is to support his claim that he had misread the document as he did not have glasses.
As the receipts were apparently in the possession of the appellant prior to the trial[3], it is unlikely that they would qualify as fresh evidence. However, for the reasons that follow, we do not need to take that any further.
[3] R v Dorning (1981) 27 SASR 481.
Given our view that the Proudman v Dayman defence is not available, this evidence is not relevant. In any event, even if the appellant could not read the registration document, or could not read it properly, the error could not be regarded as reasonable if he had not sought assistance to read what he knew was a motor vehicle registration document. Moreover, his own evidence was that he was able to read the last line (being the only line that supported his case). It has not been explained why he could not read the rest of the document.
The second piece of fresh evidence sought to be admitted by the appellant is a report from his psychiatrist, Dr Ken Fielke, dated 7 March 2014. While the report was dated a week before the appeal hearing before the appeal judge, it does not appear that the appellant sought to have it admitted as fresh evidence on that occasion.
The report notes that the appellant suffers from a long-standing anxiety disorder, ie social phobia or social anxiety disorder. Dr Fielke has stated that there are very well documented memory and other cognitive problems associated with social phobia. His sleep apnoea could also contribute to problems with memory, concentration and thinking. These conditions may cause persons to think that he was lying. However, Dr Fielke went on to say that without a clear understanding of the issues before the court he could not comment further as to whether the appellant's medical and mental health problems may have been a contributing factor in the rejection of his evidence.
Once again, given our view that the Proudman v Dayman defence is not available, this evidence is not relevant.
We would refuse permission to appeal on the basis that it is most unlikely that the appellant could persuade the Full Court that either Franklin v Stacey was wrongly decided or that the cessation of the practise of issuing registration labels has caused that judgment to be no longer good law.
The appellant has filed an interlocutory application which has yet to be dealt with. Apart from certain procedural matters relevant to the proposed appeal, the application seeks to stay the enforcement of the penalties by the Fines Enforcement Unit.
On 27 June 2014 Stanley J stayed the orders made by the magistrate imposing penalty until the application for permission to appeal has been heard by the Full Court in private or lapses. The content of the further application suggests that the stay has either not been communicated to the Fines Enforcement Unit or has not been properly acted upon. Be that as it may, the refusal of permission to appeal will bring the stay made by Stanley J to an end.
Conclusion
The Full Court:
1refuses permission to appeal; and
2dismisses the interlocutory application made on 25 September 2014 (FDN 12).