Morcom v Police - [2017] SASC 147

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MORCOM v POLICE
[2017] SASC 147
Judgment of The Honourable Justice Kelly
12 October 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - IGNORANCE AND MISTAKE OF FACT - AVAILABILITY OF DEFENCE OF HONEST AND REASONABLE MISTAKE
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES - DRIVING WHILE DISQUALIFIED
Appeal against conviction and sentence. Appellant convicted by a Magistrate of driving a motor vehicle whilst suspended pursuant to s 91 of the Motor Vehicles Act 1959 (SA). Magistrate disqualified appellant from obtaining a driver’s licence for five months. Where appellant denied receiving notification of any licence disqualification and as a result of enquiries made with Service SA held the belief that he was licenced. Whether Magistrate erred in finding that appellant’s driver’s licence was suspended at the relevant time. Whether Magistrate erred in finding that the appellant’s reasonable mistake as to status of his driver’s licence was a mistake of law. Whether sentence manifestly excessive. Whether extension of time in which to file notice of appeal should be granted.
Held: Extension of time granted. Appeal allowed. Defence of honest and reasonable mistake of fact available. Conviction and sentence of Magistrate set aside. Verdict of acquittal substituted.
Motor Vehicles Act 1959 (SA) s 91, referred to.
Davis v Bates (1986) 43 SASR 149; R v Smith [2000] SASC 173, applied.
Ostrowski v Palmer (2004) 218 CLR 493, considered.

MORCOM v POLICE
[2017] SASC 147
Magistrates Appeal: Criminal
KELLY J.

The appellant, Gregory Morcom, was convicted by a Magistrate of driving a motor vehicle whilst suspended pursuant to s 91 of the Motor Vehicles Act 1959 (SA). The Magistrate disqualified him from obtaining a driver’s licence for five months.
The appellant now appeals both against conviction and sentence and seeks an extension of time in which to file the notice of appeal.
The appellant complains that the Magistrate erred in finding that the appellant’s driver’s licence was suspended at the relevant time and, on the second ground, that the Magistrate erred in finding that the appellant’s reasonable mistake as to the status of his driver’s licence at the relevant time was a mistake of law and not one of fact and/or fact and law.
The appellant also complains that the penalty imposed by the Magistrate was manifestly excessive.
Background
On 8 July 2014 the appellant was observed driving a red Commodore in Flinders Park by Constable Nicholas Porter. Constable Porter obtained information that the registered owner was the appellant and that he was disqualified from driving due to unpaid fines. Constable Porter then pulled over the appellant and questioned him about driving whilst suspended. At that time the appellant exercised his right to silence, however he did say to Constable Porter words to the effect that he had checked and his licence was not suspended as far as he knew.
Constable Porter then phoned the Fines Enforcement and Recovery Unit and was told that the appellant may not have been made aware of the suspension of his licence. As a result of receiving that information, Constable Porter decided not to report the appellant for the offence of driving disqualified, but instead informed him that he was suspended and warned him not to drive.
On 16 September 2014 Constable Emma Bennett had cause to pull the same vehicle over for a licence check. The appellant was again driving the vehicle. When informed by Constable Bennett that his licence was suspended the appellant again exercised his right to silence, however Constable Bennett at trial said that the appellant did respond with words to the effect “it shouldn’t be suspended” and “the fines should be sorted – that’s where I am going right now, to get a bit of paper printed, that’s a really good idea”. On this occasion the appellant was reported for the offence, his vehicle was impounded and in due course the matter came on for trial.
Constable Bennett was cross-examined at trial and it was put to her that the appellant actually said “I’ve been to motor reg and I’m not disqualified and I need to get that in paper”. Constable Bennett said that she did not recall such words being said and if they had been she would have made a note of it. Constable Bennett did however concede that the conversation with the appellant was about the fact that the appellant thought he was not suspended.
At trial the appellant testified that when he was pulled over by the police in July 2014 he believed that he had a licence at the time. He said he had conducted enquiries prior to that date due to another occasion when the police had allegedly misinformed him that he did not have a licence and so he went and made enquiries at Service SA and was informed that he did have a licence.
He said that after 8 July 2014 when he was stopped by Constable Porter, he went to Service SA again and told a female attendant there that he kept being pulled over because of his licence and was again told that he was currently licenced. He said he was on a plan to pay outstanding fines and was paying them off by monies being taken out of his bank fortnightly.
The appellant denied that he had ever received any mail concerning his outstanding fines nor had he received any notice of any licence disqualification when he was living at Pennington.
As a result of the enquiries he made with Service SA he held the belief on 16 September 2014 when he was again stopped by the police that he was “clearly licenced”. He said that he told the police officer that this had happened before “I think it’s a glitch in your system. I’ve been to motor reg, I do have that”. When the police asked if he had anything on paper he said he did not but he wanted to go and get that because it seems to keep happening. He was adamant that as at 16 September 2014 he believed he had a current licence and that he was not currently under any disqualification.
The appeal
At the hearing of the appeal the respondent conceded the second ground of appeal on the basis that contrary to the Magistrate’s finding that the appellant’s belief at the time amounted to a mistake of law, the appellant’s submission that it amounted to a mistake of fact ought to be accepted.
A defence of honest and reasonable mistake of fact is available in relation to a charge under s 91 of the Motor Vehicles Act 1959 (SA).[1]
[1] Davis v Bates (1986) 43 SASR 149.
The Magistrate found that it was reasonably possible that the appellant did make an enquiry with Service SA and that he was told that his licence was not suspended. On the basis of the evidence which she accepted the Magistrate then made the following finding:
I find that the prosecution has not excluded the reasonable possibility that the defendant honestly and reasonably believed that he was lawfully entitled to drive his vehicle on the day in question.
She then went on to find that any incorrect advice he was given by the Department of Planning, Transport and Infrastructure, that his licence was not currently suspended did not provide any foundation for a defence of honest and reasonable mistake of fact.
The wording the Magistrate used when describing the appellant’s evidence as to his belief seems to have characterised his state of mind as a belief “that he was lawfully entitled to drive a motor vehicle on 16 September 2014”. Such a belief would be a mistake of law. However the Magistrate seems to have accepted the appellant’s evidence that his state of mind on the relevant day was that he believed that his licence was not suspended. That belief was a belief in a state of facts that, if true, would provide a defence to the charge of driving whilst the licence was suspended. It is a belief that went directly to one element of the offence.
In Ostrowski v Palmer[2] the High Court found that a lobster fisherman’s mistaken belief, induced by a government department, that the law did not prohibit him fishing in a certain location, was a mistake of law. In the course of the judgment however the High Court stated that had the appellant been under an honest and reasonable mistake as to his location as a consequence of a navigational error, that would have provided a defence as it would have been a relevant error of fact.
[2] (2004) 218 CLR 493.
It can be seen from the authorities that it is not always easy to discern what is in fact a mistake of fact or a mistake of law and when the two overlap.
Nevertheless, in this case, I consider that the respondent’s concession that the appellant’s state of mind which the Magistrate seems to have accepted did provide a defence to the charge.
However, contrary to the conclusion reached by the Magistrate I do not consider that the case of R v Smith,[3] to which the Magistrate was referred, is distinguishable from the facts here.
[3] [2000] SASC 173.
In Smith, the Court of Criminal Appeal (Doyle CJ with whom Prior and Martin JJ agreed) held that the appellant’s evidence raised as a reasonable possibility that the appellant was unaware of the licence disqualification, and on reasonable grounds, believed mistakenly that he held a valid licence he was not disqualified from holding.
Here the appellant gave positive evidence that after being stopped by police in July 2014, he enquired at the office of the Fines Enforcement and Recovery Unit and was told his licence was not suspended.
In reaching my conclusion, I consider it is relevant that the disqualification of the appellant’s licence came about through a discretionary act of the person responsible for the Fines Enforcement and Recovery Unit and that it was not an automatic consequence which flowed from the accumulation of certain demerit points or from legislation. Such a mistake has typically been characterised as an error of law.[4]
[4] See Cook v Commissioner of Police (Qld) (2012) 220 A Crim R 444.
The appellant’s evidence was not to the effect that he believed he was lawfully entitled to drive his vehicle on the day in question resulting from a mistaken understanding of the law. His evidence was that he believed he was permitted to drive because a person from Service SA subsequent to being stopped by the police on 8 July 2016 had told him in response to a specific query that he had a current unsuspended licence.
In my view the nature of the appellant’s mistake was in truth an error of fact.
It is for these reasons that at the hearing of the appeal I granted an extension of time in which to appeal, allowed the appeal and set aside the conviction and sentence imposed by the Magistrate and substituted a verdict of acquittal.