Minear v Rudrum
[2001] WASCA 10
•31 JANUARY 2001
MINEAR -v- RUDRUM [2001] WASCA 10
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 10 | |
| Case No: | SJA:1206/2000 | 19 JANUARY 2001 | |
| Coram: | MILLER J | 31/01/01 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | DYLAN MICHEAL MINEAR LEE DOUGLAS RUDRUM |
Catchwords: | Criminal law Road traffic offence Cancellation of motor driver's licence by operation of law Driver believing he could drive until licence collected Whether mistake of fact or law Application of s 24 of the Criminal Code |
Legislation: | Criminal Code, s 22, s 24 Road Traffic Act 1974, s 45, s 49, s 51, s 62, s 102 |
Case References: | Brooks v Roberts, unreported; SCt of WA; Library No 970072; 17 February 1997 Denton v Bodycoat [2000] WASCA 424 Duffield v The Queen, unreported; CCA SCt of WA; Library No 950065; 14 February 1995 Egerton v Taylor, unreported; SCt of WA; Library No 960700; 28 November 1996 Illich v Young [2000] WASCA 383 McCaskie v Bagby, unreported; SCt of WA; Library No 1534; 18 April 1975 Ottobrino v Espinoza (1995) 14 WAR 373 Wroblewski v Starling [1987] WAR 233 Nobes v R, unreported; CCA SCt of WA; Library No 960486; 26 August 1996 Nutall v R, unreported; FCt SCt of WA; Library No 920090; 26 February 1992 Pilkington v R [1955] Tas SR 144 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
LEE DOUGLAS RUDRUM
Respondent
Catchwords:
Criminal law - Road traffic offence - Cancellation of motor driver's licence by operation of law - Driver believing he could drive until licence collected - Whether mistake of fact or law - Application of s 24 of the Criminal Code
Legislation:
Criminal Code, s, 22, s 24
Road Traffic Act 1974, s 45, s 49, s 51, s 62, s 102
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr J R Criddle
Respondent : Ms M J Garnett
Solicitors:
Appellant : J R Criddle
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Brooks v Roberts, unreported; SCt of WA; Library No 970072; 17 February 1997
Denton v Bodycoat [2000] WASCA 424
Duffield v The Queen, unreported; CCA SCt of WA; Library No 950065; 14 February 1995
Egerton v Taylor, unreported; SCt of WA; Library No 960700; 28 November 1996
Illich v Young [2000] WASCA 383
McCaskie v Bagby, unreported; SCt of WA; Library No 1534; 18 April 1975
Ottobrino v Espinoza (1995) 14 WAR 373
Wroblewski v Starling [1987] WAR 233
Case(s) also cited:
Nobes v R, unreported; CCA SCt of WA; Library No 960486; 26 August 1996
Nutall v R, unreported; FCt SCt of WA; Library No 920090; 26 February 1992
Pilkington v R [1955] Tas SR 144
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1 MILLER J : The appellant, who was born on 7 December 1982, is presently 18 years of age. On the day he turned 17 years of age he obtained a probationary motor driver's licence. Such a licence is issued pursuant to the provisions of s 45 of the Road Traffic Act 1974 ("the Act"), and all persons under the age of 18 years have licences in that category. Such a licence is valid for a period of 12 months, and is deemed to be an unrestricted licence (inter alia) if and when the holder of the licence attains the age of 18 years.
2 On 10 June 2000 the appellant was involved in a motor vehicle accident caused when he collided with the rear of another vehicle in Woodvale. As a result he received a General Traffic Infringement Notice, issued under s 102 of the Act. Under that provision a member of the police force who has reason to believe that a person has committed an offence against the Act may serve on that person a traffic infringement notice informing him that if he does not wish to have a complaint of the alleged offence heard and determined by a court, he may pay to an officer specified in the notice, within the time therein specified, the amount of the penalty prescribed for the offence, if dealt with under the section (s 102). In this case the infringement notice alleged an offence of driving without due care and attention within the meaning of s 62 of the Act. The prescribed penalty was $100 and the date of issue 21 July 2000. A covering letter from the Joondalup Crash Enquiry Section (dated 22 June 2000) advised the appellant that the notice had been post-dated to accommodate a 28-day payment period. On the back of the infringement notice were various instructions in relation to payment and under the heading "Additional Information" probationary licence holders were advised:
"If you are the holder of a probationary driver's licence and the offence is one of driving without due care and attention (careless driving) AND you are still on probation at the time any of the three things mentioned above occurs then automatically by law your driver's licence is cancelled under the provisions of section 51 of the Road Traffic Act. You are also disqualified from holding or obtaining a driver's licence for a period of three (3) months from the date of any of the above occurrences."
3 The appellant's mother, Sheryl Marcia Minear, looked after the infringement notice on behalf of her son. She has sworn an affidavit, admitted in the proceedings, in which she deposes to the fact that following her son's receipt of the infringement notice she telephoned the
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- "traffic infringement section" to enquire about the consequences to the appellant of cancellation of his motor driver's licence, consequential upon payment of the sum indicated in the notice. According to her affidavit, she spoke with a person who had the appellant's file and who informed her that he would check with the supervisor. It is said that he then informed Mrs Minear that if her son elected to pay the fine shown on the notice, a warden would come to the appellant's address to collect his licence and it would be cancelled from the date of collection. Mrs Minear has added in her affidavit that she specifically questioned the person to whom she spoke whether her son could continue to drive until such time as the licence was either collected or handed in, and she was informed that he could do so with impunity until such time as the licence was physically collected from him. The affidavit of Mrs Minear is unchallenged in the proceedings.
4 As a fact, the advice received by Mrs Minear was incorrect. The provisions of s 51 of the Act provide that where the holder of a driver's licence issued on probation is convicted of an offence under s 62 of the Road Traffic Act (careless driving) then that licence is by operation of s 51(1) (cancelled). A person whose licence is so cancelled is then disqualified from holding or obtaining a driver's licence for a period of three months from the date of his conviction (s 51(2)). Although prior to 1 February 1997 there was in the Act a provision which provided for delivery of a cancelled licence on demand, that section was repealed on that date. It was in the following terms:
"When any driver's licence issued to a person is cancelled or suspended or a person who is the holder of a driver's licence is disqualified from holding or obtaining a driver's licence, the person shall, on demand made by the Board or a member of the Police Force, deliver such licence to him."
5 Whether the person who gave advice to Mrs Minear believed this section to still be applicable, or whether it was simply erroneous advice is unclear. However, whatever it was, it constituted advice as to the law. The provisions of the law were applicable irrespective of it.
6 On 28 July 2000 Mrs Minear attended at Woodvale Post Office and paid the $100 prescribed penalty on the infringement notice. The result was that pursuant to the provisions of s 102(7) of the Act, payment of the penalty constituted a conviction of the offence with which the appellant had been charged. However, notwithstanding the provisions of s 51 of the Act, which disqualified the appellant from holding his driver's licence
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- upon that conviction, the appellant continued to drive. He did so in the belief that he was entitled so to do until somebody arrived to collect his driver's licence. On 11 August 2000 he was stopped in Kingsley for a breath analysis and on production of his driver's licence was advised by a police officer that he was driving without a licence. On 16 August 2000 he received notice from the Traffic and Operations Support Portfolio advising that his motor driver's licence had been cancelled by reason of his conviction of an offence prescribed against s 51 of the Act and he was called upon to deliver his licence to the nearest police station.
7 On 29 August 2000 the appellant was served with a summons alleging breaches of the provisions of s 49(1)(a) and s 49(2) of the Act by reason of driving a motor vehicle on Kingsley Drive, Kingsley without being the holder of the appropriate vehicle driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence. The charge was returnable before the Children's Court, Joondalup on 17 October 2000 where the appellant duly appeared and pleaded guilty to the offence alleged. His plea was somewhat qualified, appearing in the transcript as "Well, guilty". Counsel who represented the appellant explained to the presiding Magistrate what had happened, but his Worship took the view that there was no alternative other than to impose the minimum penalty prescribed by s 49(2) and (3) of the Act, namely a fine of $400 and disqualification from holding or obtaining a driver's licence for a period of 9 months. His Worship said:
"HIS WORSHIP: 9 months disqualification, cumulative. All right. Well, there's not much we can do about that. We'll place the minimum, fine $400. Give you time to pay, and your driver's licence is cancelled for the minimum period of 9 months, which is cumulative on the existing period of disqualification. Seems you might have some complaint against people who gave you that erroneous advice. All right. I'll leave that up to you. You'll get a bit of paper with the details on. Once you get that, you're free to go. For goodness sake, don't drive again, because it'll be a second driving licence disqualified, and then it starts off at $1000. All right? Take it from me, you haven't got a licence at the moment. Wait till you get it back. You'll have to re-sit it and go through the whole process."
8 The appellant now says that he had no idea of the severity of the penalties which would be imposed and had he done so, he would have sought independent legal advice with a view to pleading not guilty. He
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- has appealed to this Court by leave granted 9 November 2000 on the following two grounds:
"(i) The learned Magistrate erred in accepting a plea of guilty when the facts disclosed that the Applicant had no knowledge of the cancellation of his motor driver's licence at the time the offence was alleged to have occurred.
(ii) It would be unjust to allow the conviction to stand, it being predicated on the Applicant's prior conviction of a charge of careless driving when no such conviction had occurred."
"It has long been held that a plea of guilty which is not in plain, unambiguous and unmistakable terms must be treated as a plea of not guilty and that where a plea of guilty is accompanied by a statement indicating innocence, a plea of not guilty should be entered, otherwise the conviction may be a nullity.
For a plea to be equivocal the defendant must add to his plea of guilty a qualification which, if true, may show that he is not guilty of the offence charged. Where upon a plea of guilty the defendant so qualifies the plea by giving an explanation in relation to the matter with which he has been charged, he should be taken to have been pleading not guilty.
In Mason v Strudwick, unreported; SCt of WA; Library Number 920703, 3 December 1992 Murray J further expanded on the general principles to which I have referred and in doing so stated at 6-7:
'It may, of course, be the case that the appeal against conviction will be allowed after a plea of guilty in a variety of circumstances despite the effect ordinarily accorded to the plea made in unequivocal terms, and despite the circumspection with which an appellate court will ordinarily approach the suggestion that the conviction should be
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- overturned in such circumstances. Reference may be made to such matters as the lack of representation for the defendant where there is some reason to doubt that the defendant proceeded upon a proper understanding of the factors affecting guilt or innocence; where the offence is of a technical nature and so might more readily lead to an inference of material misapprehension; where there was no intention to admit guilt; where the plea is no plea at all because of its equivocal nature; or where on the admitted or incontrovertible facts, the defendant could not in law be convicted. Those matters should not be regarded as a closed roll-call of the possible grounds upon which such an appeal may succeed: Wills v Williams (1971) WALR 29 at 33, Murray v Northcott (1990) WALR 219 at 233.' "
10 There are decisions of this Court which make it clear that before an appellate court will set aside a conviction based on a plea of guilty the appellant must show that there has been a miscarriage of justice. In Duffield v The Queen, unreported; CCA SCt of WA; Library No 950065; 14 February 1995 Kennedy J said (at 18 - 19):
"An appeal against conviction recorded on a plea of guilty will only be allowed in exceptional circumstances. In a passage which has frequently been cited, Avory J in R v Forde [1923] 2 KB 400 at 403 said:
'A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the applicant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged.'
That may, however, be expressing the position too narrowly. If an appellate court is satisfied that an applicant has been the victim of a miscarriage of justice in any other way, it will set aside the conviction - see R v Murphy [1965] VR 187 per Herring CJ and Adam J at 187 -188 and per Sholl J at 190, Ansell v The Queen [1966] Tas SR 8 per Gibson J at 9; R v Vella (1984) 14 A Crim R 90; Attorney General v Kitchen (1989) 51 SASR 54; R v Kardogeros (1990) 49 A Crim R 352 and Eyre v The Queen, unreported; CCA SCt of WA; Library No 930149; 18 March 1993."
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- Reference might also be made to Meissner v R (1995) 184 CLR 132 where (at 157) Dawson J said:
"It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his built. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud."
12 Reliance was placed by counsel for the appellant on the decision of Wallace J in McCaskie v Bagby, unreported; SCt of WA; Library No 1534; 18 April 1975. There, Wallace J was concerned with a case in which the respondent had been driving a motor vehicle whilst unaware that his probationary licence had been cancelled. It had been cancelled in the Court of Petty Sessions at Rockingham and the respondent had received a notice advising of fine and fees imposed but not advice in relation to cancellation of his licence. The licence had been cancelled automatically as a matter of law by virtue of the provisions of s 25B(1)(a)(iv) of the Act. In Petty Sessions the respondent had pleaded
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- that he was unaware of the cancellation of his licence and although he had made no enquiries as to what would happen or what had happened about his licence, he had been to a police station and not been told of any cancellation and it simply did not occur to him that his licence might have been automatically cancelled. The question for determination was whether any defence under the provisions of s 24 of the Criminal Code was open. Wallace J said (at 3):
"Section 24 of the Criminal Code relates to a mistake of fact. Its terms are as follows: 'A person who does … an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act … to any greater extent than if the real state of things had been such as he believed to exist.' To succeed the respondent claimed that he had an honest belief which was reasonable, but mistaken, that his licence had not been cancelled - but how could that be a mistake 'in the existence of any state of things'? The licence which the respondent held was a permit to permit him to drive a motor vehicle and was issued to him pursuant to the provisions of the Traffic Act. Such a licence could be cancelled by operation of law and this was in fact what happened here. The mere possession thereof did not make it valid. In other words the provisions of s 22 of the Criminal Code applied, ignorance of the law being no excuse. See Hanger CJ in Sancoff v Holford, ex parte Holford (1973) QR 25 at p27 and Mayer v Marchant (1973) 5 SASR 567."
"Furthermore, whilst I well appreciate the weight that should be placed upon the learned Magistrate's finding of fact, I can but agree with the appellant that on the evidence set out in the appeal book the respondent could not have formed an honest and reasonable belief in the continued existence of his licence. To come within the provisions of Geraldton Fishermen's Co-op v Munro (1963) WAR 129, it would be necessary, I my opinion, for the respondent to have exercised his mind in a more positive manner than that indicated by his evidence to acquire the belief
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- necessary to activate the section. In my view, on the evidence that he had read the book of rules before obtaining his licence, that he should have known that the licence would have been automatically suspended, and that the thought crossed his mind but he didn't pay any attention thereto, the respondent is deprived of the necessary belief because he never did anything to form such a belief, honesty and reasonableness to which the section adverts."
14 Counsel for the appellant sought to interpret his Honour's decision as meaning that a defence under s 24 of the Code was open, but on the facts of the particular case, could not be established. However, I prefer to read his Honour's observations in the same way as they were interpreted by Roberts-Smith J in Illich v Young [2000] WASCA 383. There (at [17] - [18]) his Honour said:
"On appeal, Wallace J appears to have dealt with the matter principally on the basis that the belief was not a reasonable or honest belief because on his understanding of the evidence the respondent should have known that the licence would have been automatically suspended. In short, as I understand his Honour's reasons, he found that the respondent could not claim the necessary belief because as a matter of fact he had never done anything to actually form it.
More pertinently to the present case, however, as a matter of law his Honour reached the conclusion that because the licence was cancelled by operation of law, the provisions of s 22 of the Criminal Code applied and, that being so, there was no defence to the charge."
15 In my view, a defence under s 24 of the Code was not open to the appellant in this case, because cancellation of his driver's licence arose automatically by operation of law. Any mistake that he made was one of law not fact, and s 22 of the Code thus applied. A line of authority to this effect in this Court is clear. A case close in factual circumstances is Brooks v Roberts, unreported; SCt of WA; Library No 970072; 17 February 1997, the facts of which Templeman J (at [1]) summarised as follows:
"The circumstances are these: on 10 August 1995 the appellant's driver's licence was suspended for 3 months on the basis of demerit points which had then accrued. On 22 September 1995
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- the appellant drove his motor vehicle and was apprehended by the police while so doing. That was, of course, within the 3 month period of suspension.
On 20 March 1996 the appellant was convicted of the offence of driving while under suspension. His licence was suspended for 1 month. That was an error on the part of the Magistrate who dealt with the matter. It is common ground that under s49(3) of the Road Traffic Act 1974 a suspension of at least 9 months ought to have been imposed on the appellant, that being the statutory minimum period.
Following the suspension of 1 month the appellant was advised by his solicitor that that period of suspension had been imposed on him.
It then became apparent to the Crown that the error had been made. On 10 April 1996 an application pursuant to s166B of the Justices Act 1902 was served on the appellant by leaving it at his estranged wife's address. It is common ground that the appellant did not in fact learn of the application.
That application was heard on 22 May 1996 when the period of disqualification was increased to 9 months; that is, to the statutory minimum period provided for under s49(3) of the Road Traffic Act.
On 1 June 1996 the appellant drove his motor vehicle and was apprehended by the police. That incident was outside the period of 1 month which had been imposed erroneously but was, of course, within the 9-month period which had been imposed pursuant to the s166B application of which, as I have said, the appellant had no actual knowledge."
16 Templeman J considered the case before him to be indistinguishable from McCaskie v Bagby (supra). His Honour said (at [4]):
"In the present case, despite the information given to the appellant, his belief in the validity of his licence could have been based only on his ignorance of the law. By contrast, the appellant's suspension in Wroblewski's case did not arise from the operation of law but from the exercise of a discretion. At page 236 of the report Rowland J said:
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- 'It seems to me that McCaskie v Bagby, and the reference to that case in Fletcher v Fowler, means no more than an acceptance that there is no room to apply s24 where the suspension of licence results from the operation of the Act in the facts or the state of things known to the person concerned. In other words, the driver in that case must be taken to know how the law operates on the facts known to him.'
- In the present case the appellant drove his motor vehicle on 21 September 1995 when he knew he was under suspension. The operation of the Act in those circumstances, that is in the fact or state of things known to the appellant, was that his licence must be suspended as a matter of law for a period of 9 months.
It is true that Magistrates who imposed the sentence of 1 month initially made an error but that, it seems to me, does not change the appellant's position under cl 22 of the Criminal Code which provides:
'Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.'
The last part of that provision, of course, does not apply in the present case so one is left with the position that ignorance of the law does not afford any excuse.
I do not think that ignorance of the fact that there has been a revisiting of the offence under s166B of the Justices Act alters the appellant's position. As I have said, that is something of an administrative provision. It does not, or should not, in my opinion, change substantive rights. I do not think that the provisions of s22 give the appellant the right to take advantage of a mistake by the Magistrate, unfortunate though that mistake was. It was also, of course, unfortunate that the appellant received incorrect advice from his solicitor in the first instance. All that goes to the reasonableness of the appellant's mistake, but under s22 there is no room for the operation of reasonable mistake."
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17 In Illich v Young (supra) Roberts-Smith J made reference to the various decided cases, including Wroblewski v Starling [1987] WAR 233 and Ottobrini v Espinoza, saying at [19] - [25]:
"In Ottobrino V Espinoza (1995) 14 WAR at p 373 the appellant had received a notice of intention to suspend licences as a consequence of s 18 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA). He failed to comply with the notice and in consequence a licence suspension order was made in respect of him. He was subsequently charged under s 49(1)(a) of the Act as a person who had driven a motor vehicle whilst not holding a valid driver's licence. He contended that at the time of the offence he was unaware that his licence had been suspended. Nonetheless, on legal advice he pleaded guilty. Despite that, however, he was granted leave to appeal on the grounds that the Magistrate had erred in law.
One observation made by the learned Commissioner who dealt with that case was that it was clear on the authorities that s 24 of the Criminal Code is of general application to all statute law unless excluded and that if it is not excluded then once a basis for mistake is laid the onus is on the prosecution to prove guilt beyond reasonable doubt. His Honour in that case referred to and followed Wroblewski v Starling [1987] WAR 233.
In relation to the application of s 24 his Honour concluded that in the circumstances there disclosed the appellant may have had a defence under s 24 if at the material time he had not received a notice confirming licence suspension.
The point of distinction, it seems to me, between that case and the present is that the learned Commissioner was dealing with a situation in which administrative action had to be taken to effect the suspension; it was not something which operated automatically, that is not simply as a matter of law. In those circumstances one can readily see, I think, the validity of an argument that the mistake is one of fact, the relevant fact being whether or not the administrative action has been taken.
In Wroblewski v Starling (supra) Rowland J had dealt with a similar case in respect of a charge under s 49(1) of the Act of driving a motor vehicle without a licence. The facts were that at the relevant time the appellant had not known that his licence
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- had been suspended at a previous court hearing which he had not attended, although he conceded that it was his responsibility to ascertain the result of the hearing.
At the hearing at first instance the Court had found that the appellant had made a mistake of fact and that s 24 could be applicable in appropriate circumstances. However, the Court went on to find that the mistake was not reasonable on the basis of his careless attitude to the result of the previous hearing. On appeal the outcome appears to have turned on the basis that the onus of proof had effectively been reversed in the court below. Once the basis for mistake had been laid, the onus was on the prosecution to prove guilt beyond reasonable doubt and that in the circumstances the appellant's mistake in not realising he had had his licence suspended was not unreasonable.
As to the nature of the mistake, Rowland J held that the mistake was one of fact and not law, observing, however, that the position would have been different if the licence suspension had been an automatic effect of the appellant's original offence. That again I think is a significant point of departure from the present case."
18 I respectfully adopt his Honour's reasoning. The present case is, in my view, one in which the appellant's mistake was a mistaken belief as to a matter of law, not fact. There was nothing discretionary about the circumstances in which his motor driver's licence was to be cancelled. It was cancelled purely by the effect of law. Such advice as his mother received could not affect the legal position, whether it was right or wrong.
19 Although counsel for the appellant argued valiantly that the mistake his client made was one of fact in that he had an honest and reasonable but mistaken belief in the existence of a state of things, namely that the cancellation by operation of law of his licence would not be effective until somebody arrived to confiscate his licence, this argument overlooks the line of authority which establishes clearly that the appellant's belief in the validity of his licence could have been based only upon ignorance of the law: see particularly Brooks v Roberts (supra) per Templeman J at [4]. The position was neatly summarised by Roberts-Smith J in Denton v Bodycoat [2000] WASCA 424 at [39] where his Honour said:
"The salient point which may be derived from those authorities is that where a license disqualification is discretionary and it
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- depends upon a court or an administrative decision whether or not a disqualification is made and if so, the duration of it, those are matters of fact. On the other hand where the disqualification is effectively automatic by operation of law, then any mistake by a defendant about it is a mistake of law with the consequence that s 22 of the Criminal Code applies and s 24 does not."
20 It follows, in my view, that the appellant has failed to establish that his conviction and the penalty imposed upon him in a Court of Petty Sessions on 17 October 2000 was a miscarriage of justice. Accordingly, the appellant's plea of guilty should not, in my view, be set aside. It may seem a hard result to the appellant in circumstances where his mother had received advice from some unknown person within the traffic infringement section that the appellant could drive until such time as his motor driver's licence was collected from him. However, a careful reading of the infringement notice would have revealed that as a probationary licence holder the appellant's licence was automatically by law cancelled under the provisions of s 51 of the Act. In the circumstances I would dismiss the appeal.
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