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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McFarlane v Police

Details

AGLC: McFarlane v Police [2014] SASCFC 111
Case: [2014] SASCFC 111
Decision Date: 29 October 2014

CaseChat Overview and Summary

This matter came before the Full Court of South Australia on appeal from a decision of a single judge. The appellant, McFarlane, sought permission to appeal against a magistrate's decision concerning offences related to an unregistered and uninsured motor vehicle. The appellant also sought to adduce fresh evidence on appeal.

The primary legal issues before the Full Court were whether the defence of honest and reasonable mistake of fact, as established in *Proudman v Dayman*, was available to the appellant in the circumstances of the case, and whether the proposed fresh evidence should be admitted. The court was required to consider the impact of amendments to the *Motor Vehicles Act* on the availability of such defences.

The Full Court reasoned that amendments to sections 9 and 102 of the *Motor Vehicles Act* had introduced a series of specific statutory defences for drivers of unregistered or uninsured vehicles, based on mistakes of fact in defined circumstances. The Court concluded that by providing these detailed statutory defences, Parliament had "covered the field," leaving no room for the implication of the *Proudman v Dayman* defence in situations not expressly contemplated by the legislation. Consequently, the appellant could not rely on this defence. Furthermore, the Court found that the proposed fresh evidence, relating to the appellant's eyesight, was unlikely to qualify as fresh evidence and, in any event, was not relevant given the unavailability of the *Proudman v Dayman* defence. The Court also noted that even if the appellant had misread the registration document, the error would not have been considered reasonable given his failure to seek assistance and his ability to read part of the document.

Accordingly, the Full Court refused permission to appeal and dismissed the interlocutory application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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; and2dismisses the interlocutory application made on 25 September 2014 (FDN 12).

Ratio Decidendi

Legal Principle Established

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.