MCFARLANE v Police - [2014] SASC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCFARLANE v POLICE
[2014] SASC 55
Judgment of The Honourable Justice David
17 April 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - OTHER OFFENCES
TRAFFIC LAW - REGISTRATION AND LICENSING OF PRIVATE VEHICLES - UNREGISTERED VEHICLES
INSURANCE - MOTOR VEHICLES - COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES - OFFENCES - DRIVING, USE OR CAUSING OR PERMITTING USE OF UNINSURED VEHICLE - DRIVING OR USE OF UNINSURED VEHICLE
The appellant was found guilty by a Magistrate of two counts each of driving a motor vehicle while unregistered and uninsured (totalling four counts) – appellant was driving motor vehicle on Port Wakefield Road, Globe Derby, on 22 May 2012 and on Government Road, Andamooka, on 24 June 2012 - appellant’s vehicle was unregistered and uninsured at all relevant times – appellant contended at trial and on appeal that he had a defence of reasonable and honest mistake of fact – whether defence available to appellant – whether, notwithstanding recent changes to the Registrar of Motor Vehicles’ practice of issuing registration labels, the offences charged remain offences of strict/absolute liability.
Held: Appeal dismissed – the appellant has failed to identify any error on behalf of the Magistrate - the recent change in the practice of issuing registration labels does not have any impact on the law established by the Full Court in Franklin v Stacey - by virtue of the strict liability of the offences for which he was charged, in conjunction with the undisputed facts, the appellant is guilty of those offences.
Motor Vehicles Act 1959 (SA) ss 9, 102; Road Traffic Act 1961 (SA) s 79B; Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 14; Crimes Act 1914 (Cth) s 87, referred to.
Franklin v Stacey (1981) 27 SASR 490, applied.
Singh v Police [2013] SASC 155, considered.

MCFARLANE v POLICE
[2014] SASC 55
Magistrates Appeal: Criminal

DAVID J: The defendant was charged under section 79B of the Road Traffic Act 1961 (SA) (the “RTA”) with being the owner of a motor vehicle that was involved in the commission of four registration offences, which occurred on two separate days.
In particular, it was alleged, from evidence obtained through the operation of a photographic detection device, that on 22 May 2012 at Globe Derby the defendant’s vehicle was involved in the commission of two offences contrary to section 102(1) and section 9(1) of the Motor Vehicles Act 1959 (SA) (the “MVA”) respectively.
Further, it was alleged that on 24 June 2012 at Andamooka the defendant’s vehicle (being the same vehicle the subject of the earlier charges) was again involved in the commission of two offences contrary to section 102(1) and section 9(1) of the MVA respectively. In relation to those offences, evidence was given by the police officer who issued the relevant expiation notice to the defendant and a number of documents and certificates were tendered.
Section 102 of the MVA relevantly provides:
(1) A person must not drive an uninsured motor vehicle, or cause an uninsured motor vehicle to stand, on a road.
Maximum penalty: $10 000.
(2) If an uninsured motor vehicle is driven or found standing on a road, the owner of the vehicle is guilty of an offence.
Maximum penalty: $10 000.
...
(7) In this section—
owner, in relation to a vehicle, includes the last registered owner and the last registered operator of the vehicle, but does not include a person who takes the vehicle on hire.
Section 9 of the MVA relevantly provides:
(1) A person must not drive an unregistered motor vehicle, or cause an unregistered motor vehicle to stand, on a road.
Maximum penalty: $7 500.
...
(3) If an unregistered motor vehicle is driven or found standing on a road, the owner of the vehicle is guilty of an offence.
Maximum penalty: $7 500.
...
(7) In this section—
owner, in relation to a motor vehicle, includes the last registered owner and the last registered operator of the vehicle, but does not include a person who takes the vehicle on hire;
unregistered motor vehicle means a motor vehicle without registration in force under this Act.
The defendant pleaded not guilty in the Magistrate’s Court and appeared unrepresented, both at trial and on the appeal.
In relation to the offending on 22 May 2012, the prosecution tendered a number of documents and certificates, including photographs taken by a photographic detection device at Glove Derby South showing the defendant’s vehicle being driven in a southerly direction on Port Wakefield Road. Further, an affidavit of Michelle Anne Rathman of Transport Safety Compliance was tendered, which explained the operation of the detection device at Globe Derby South and, more particularly, the manner in which a photograph of a vehicle is taken, its registration status ascertained and, where appropriate, processed for prosecution.
A Certificate of Operation and Testing of Approved Photographic Detection Device signed by Chief Inspector Burgess was also tendered, certifying that the detection device used was an approved device under Regulation 14 of the Road Traffic (Miscellaneous) Regulations 1999 (SA) (“the Road Traffic Regulations”) and that the device was operated and tested in compliance with both those regulations and the RTA.
The photographs and the certificate were tendered pursuant to section 79B(10) of the RTA. Section 79B relevantly provides:
(1)     In this section—
owner, in relation to a vehicle, has the meaning assigned to the term by section 5, and includes the operator of the vehicle;
prescribed offence means—
(a)    an offence against section 45A; or
(b)     an offence against a prescribed provision of this Act; or
(d)an offence against a prescribed provision of the Motor Vehicles Act 1959;
...
(2)Where a vehicle appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of a prescribed offence, the owner of the vehicle is guilty of an offence against this section unless it is proved—
(a)   that although the vehicle appears to have been involved in the commission of a prescribed offence, no such offence was in fact committed; or
(b)   that the owner, or, if the owner is a body corporate, an officer of the body corporate acting with the authority of the body corporate, has furnished to the Commissioner of Police a statutory declaration stating the name and address of some person other than the owner who was driving the vehicle at the time; or
(c)     that—
(i)if the owner is a body corporate—the vehicle was not being driven at the time by any officer or employee of the body corporate acting in the ordinary course of his or her duties as such; and
(ii)the owner does not know and could not by the exercise of reasonable diligence have ascertained the identity of the person who was driving the vehicle at the time; and
(iii)the owner, or, if the owner is a body corporate, an officer of the body corporate acting with the authority of the body corporate, has furnished to the Commissioner of Police a statutory declaration stating the reasons why the identity of the driver is not known to the owner and the inquiries (if any) made by the owner to identify the driver.
…
(10)In proceedings for an offence against this section or proceedings for a prescribed offence—
(a)          a photograph or series of photographs produced by the prosecution will be admitted in evidence if—
(i)    the photograph or each of the photographs was produced from an exposure taken, or electronic record made, by a photographic detection device; and
(ii)   the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with that use of the device, and a denotation as to date, time and location that appears as part of such a photograph will be accepted as proof, in the absence of proof to the contrary, of the date, time and location at which the exposure was taken or the electronic record made by the photographic detection device; and
(b)         a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or any other police officer of or above the rank of inspector, and purporting to certify—
(i)    that a specified device used at a specified location during a specified period was a photographic detection device; and
(ii)   that the requirements of this Act and the regulations as to the operation and testing of photographic detection devices were complied with in connection with the use of that device during that period,
will be accepted as proof, in the absence of proof to the contrary, of the facts so certified; and
(c)          where it is also certified in a document of a kind referred to in paragraph (b) that the device was designed and set to operate according to a specified system during that period, it will be presumed, in the absence of proof to the contrary, that the device was designed and set to operate according to that system during that period and did, in fact, so operate.
Regulation 14(1)(a)(i) of the Road Traffic Regulations provides that the particular model of photographic detection device used is an approved detection device for the purposes of a ‘registration offence’, which, pursuant to Schedule 1 of the MVA, means an offence against section 9 or 102 of the MVA.
In relation to the offending on 24 June 2012, evidence was given at trial by Brevet Sergeant Chidgey, a police officer of approximately 8 years experience, that on 24 June 2012 she observed the defendant driving a motor vehicle which, after undertaking a number of enquires, she determined was both unregistered and uninsured. Brevet Sergeant Chidgey stated that, after having determined that the defendant was the owner of the unregistered and uninsured vehicle, she issued him with an expiation notice. She also gave evidence, and was cross-examined by the defendant, as to a conversation that she had with the defendant after having issued him with the expiation notice.
The defendant gave evidence of the circumstances surrounding both incidences of offending. The defendant’s evidence was given in part in response to questioning from the Magistrate and also under cross-examination from the police prosecutor. Importantly, the defendant admitted that he was the driver of the vehicle in question on both 22 May 2012 and 24 June 2012. Further, the fact that the vehicle in question was both unregistered and uninsured at all relevant times was not disputed. Regardless of whether those facts were admitted, undisputed or otherwise, the learned Magistrate found them proven beyond reasonable doubt.
The defendant stated that at all relevant times he believed that the car he was driving was both registered and insured. The learned Magistrate characterised his defence as being one of honest and reasonable mistake of fact. However, he determined that the ratio established in Franklin v Stacey[1] (“Franklin”) was applicable, and therefore that the offences for which the defendant was charged were offences of strict/absolute liability. In Franklin, Walters J (with whom Wells and Jacobs JJ agreed) stated at 492:
In enacting [sections 9 and 102 of the MVA], the legislature has adopted language to which I think a clear and precise meaning may be assigned, and having regard to the objective form in which the statutory prohibition is expressed, it is my opinion that with nothing more, the language of each section, given “the plain, literal and grammatical meaning of the words in which [the section is] expressed” (Attorney-General v Lockwood) respectively imposes strict liability both for driving an unregistered vehicle and for driving an uninsured vehicle, and that proof of mens rea on the part of the alleged offender is unnecessary to complete the respective offence.
(citation omitted)
[1] (1981) 27 SASR 490
Accordingly, the defendant’s state of mind at the time of the offending was of no moment. In those circumstances, the learned Magistrate concluded that the prosecution had proven the charges against the defendant beyond reasonable doubt.
In any event, and notwithstanding his conclusion that the defence of honest and reasonable mistake of fact was not available to the defendant, the learned Magistrate went on to determine that the defence had not been made out because he doubted that the defendant held the relevant belief and, even if he did, such a belief would have been unreasonable or not based on reasonable grounds.
The defendant has appealed against the judgment of the learned Magistrate and, by his notice of appeal, has advanced several contentions.
In essence, the defendant by his notice of appeal argues:
1.that the Certificate issued by the Register of Motor Vehicles in respect of the registration and insurance of his vehicle was misleading;
2.that the abolition of the issue of registration labels to motorists was unjust;
3.that he had been prejudiced at trial by the prosecution’s failure to provide certain statistics pertaining to the effect of the decision to cease to issue registration labels to motorists; and
4.that the prosecution’s conduct during his cross-examination caused him to be ‘humiliated’.
During the hearing of the appeal, the defendant’s argument focussed predominantly on the status of the Certificate issued to him by the Registrar of Motor Vehicles. More specifically, he argues that the Certificate was misleading and that by issuing the Certificate the Registrar of Motor Vehicles had contravened s 87 of the Crimes Act 1914 (Cth).
The nature in which the defendant was purportedly misled by the Certificate was dealt with comprehensively by the learned Magistrate, whose reasons evince no error. The Certificate was not misleading. Further, even if s 87 of the Crimes Act 1914 (Cth) applied to the Certificate issued by the South Australian Registrar of Motor Vehicles, which it does not, the matters set out in the Certificate issued to the defendant were not ‘false’ within the meaning of that section.
Though it was not raised in his notice of appeal, the defendant also argues that Franklin was no longer binding, in part due to the recent abolition of registration labels. Ultimately, it is this argument upon which the defendant’s appeal can be decided because if, as the respondent contends, Franklin was binding then the decision of the Magistrate is unimpeachable.
Franklin appears to have been applied most recently by this Court in Singh v Police[2], though in respect of offending which occurred prior to the abolition of registration labels. In that case, which was delivered in October 2013, Kourakis CJ confirmed in respect of sections 9 and 102 of the MVA that:[3]
Section 9(1) of the MVA creates an offence of strict liability for which no mens rea need be proved. As the Full Court found in Franklin v Stacy, driving an unregistered vehicle is an offence of absolute liability. There is no Proudman v Dayman defence of honest and reasonable mistake of fact.
Therefore, the only defences available to the appellant are those provided by the statute.
...
The offence of driving uninsured contrary to s 102 of the MVA is also an offence of strict liability for which no mens rea need be proved and there is no defence of an honest and reasonable mistake of fact.
[2] [2013] SASC 155
[3] Singh v Police [2013] SASC 155 at 20 – 22
I have considered what effect the recent abolition of registration labels has on the authority of Franklin and have determined that it has none. It is clear and perhaps unsurprising that, upon a proper reading of Franklin, the use of registration labels, although mentioned, did not form an essential part of the leading judgment of Walters J. In determining that sections 9 and 102 of the MVA created offences of strict liability, Walters J had regard to the language of the sections and also the declared purpose and policy of the MVA. In particular, he stated at 493:
There can be no doubt that the object of the Motor Vehicles Act, read as a whole, is designed to achieve is to secure the public welfare and to promote the safety of the public. In the case of s. 9, the manifest purpose of the legislature is to ensure that save in certain excepted cases, a motor vehicle shall not be used on our public roads unless (inter alia) the vehicle has been registered with the Registrar of Motor Vehicles, after the requisite particulars, for the purpose of its registration, have been supplied to him; unless the prescribed fees are paid into the general revenue of the State; and unless identifying number plates and a registration label are carried by the vehicle. In the case of s. 102, the object for which the provisions are designed is to afford a protection to the public and to secure the benefit of insurance to persons who suffer death or bodily injury in a road accident. I think, therefore, that in enacting ss. 9 and 102 of the Act, the legislature must be taken to have subordinated the interests of individuals to the interests of the public and have intended that any hardship resulting to an individual by the application of the ordinary rule of interpreting a statutory provision with its natural and literal meaning, and by the imposition of strict liability for infringement of the particular section, is to give way to the public interest.
The passage set out above is applicable today as it is not affected by the changes in the use of registration labels. Accordingly, the learned Magistrate, in applying Franklin, has not made any error of law. In my view, he was correct to do so as the recent change in the practice of issuing registration labels does not have any impact on the authority of that case.
It follows therefore that the appellant’s lack of knowledge, genuine or otherwise, that the registration and insurance of the vehicle he was driving had expired is of no consequence. By virtue of the strict liability of the offences for which he was charged, in conjunction with the undisputed facts, the appellant is guilty of driving unregistered and insured contrary to s 9 and s 102 of the MVA respectively.
In the circumstances and having regard to matters set out above, the grounds of appeal relating to the prosecution’s failure to provide certain statistics and the purportedly unfair cross-examination of the appellant are without merit and do not disclose any error on behalf of the Magistrate. Further, they do not provide the appellant with any valid defence to the offences charged.
Conclusion
The defendant has failed to establish any error on behalf of the Magistrate. The appeal is dismissed.