Pallett v Paul
[2007] WASC 290
•3 DECEMBER 2007
PALLETT -v- PAUL [2007] WASC 290
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 290 | |
| Case No: | SJA:1056/2007 | 18 OCTOBER 2007 | |
| Coram: | HASLUCK J | 2/12/07 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction dismissed Fine varied | ||
| B | |||
| PDF Version |
| Parties: | NADA BETI PALLETT KAROLYN LOUISE PAUL |
Catchwords: | Criminal law Appellant convicted of driving a vehicle without a valid vehicle licence Whether magistrate erred in refusing to grant adjournment of hearing Whether effect of refusal to adjourn denied appellant an opportunity of acquittal Held on appeal that defence of honest and reasonable but mistaken belief had no real prospect of defence s 24 of Criminal Code (WA) excluded by specific provisions of Road Traffic Act 1974 (WA) Appeal dismissed in the absence of any miscarriage of justice |
Legislation: | Criminal Appeals Act 2004 (WA), s 14(2), s 40(1)(e) Criminal Code (WA), s 24 Road Traffic Act 1974 (WA), s 15(1), s 15 (3) |
Case References: | Aubertin v Western Australia (2006) 33 WAR 87 Bennett v Councillor [2001] WASCA 342 Birks v Western Australia (2007) 33 WAR 291 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 De La Espriella-Velasco v The Queen (2006) 31 WAR 291 Easterday (2003) 143 A Crim R 154 G J Coles & Co Ltd v Goldsworthy [1985] WAR 183 Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129 Greer (1992) 62 A Crim R 442 Harling v Hall (1997) 94 A Crim R 437 Hillstead v The Queen [2005] WASCA 116 Lappan v Hughes [2003] WASCA 173 Lawless v Turner [2007] WASCA 127 Lawless v Turner [2007] WASCA 2 Leary v The Queen [1975] WAR 133 McPherson v Cairn [1977] WAR 28 Mickelberg v The Queen (2004) 29 WAR 13 Ottobrino v Espinoza (1995) 14 WAR 373 Proudman v Dayman (1941) 67 CLR 536 R v Jones [1971] VR 72 R v McGill [1967] VR 683 Wroblewski v Starling [1987] WAR 233 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
KAROLYN LOUISE PAUL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P G MALONE
File No : PE 54901 of 2006
Catchwords:
Criminal law - Appellant convicted of driving a vehicle without a valid vehicle licence - Whether magistrate erred in refusing to grant adjournment of hearing - Whether effect of refusal to adjourn denied appellant an opportunity of acquittal - Held on appeal that defence of honest and reasonable but mistaken belief had no real prospect of defence - s 24 of Criminal Code (WA) excluded by specific provisions of Road Traffic Act 1974 (WA) - Appeal dismissed in the absence of any miscarriage of justice
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Legislation:
Criminal Appeals Act 2004 (WA), s 14(2), s 40(1)(e)
Criminal Code (WA), s 24
Road Traffic Act 1974 (WA), s 15(1), s 15 (3)
Result:
Appeal against conviction dismissed
Fine varied
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr M A Tjhung
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Aubertin v Western Australia (2006) 33 WAR 87
Bennett v Councillor [2001] WASCA 342
Birks v Western Australia (2007) 33 WAR 291
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
De La Espriella-Velasco v The Queen (2006) 31 WAR 291
Easterday (2003) 143 A Crim R 154
G J Coles & Co Ltd v Goldsworthy [1985] WAR 183
Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129
Greer (1992) 62 A Crim R 442
Harling v Hall (1997) 94 A Crim R 437
Hillstead v The Queen [2005] WASCA 116
Lappan v Hughes [2003] WASCA 173
Lawless v Turner [2007] WASCA 127
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Lawless v Turner [2007] WASCA 2
Leary v The Queen [1975] WAR 133
McPherson v Cairn [1977] WAR 28
Mickelberg v The Queen (2004) 29 WAR 13
Ottobrino v Espinoza (1995) 14 WAR 373
Proudman v Dayman (1941) 67 CLR 536
R v Jones [1971] VR 72
R v McGill [1967] VR 683
Wroblewski v Starling [1987] WAR 233
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- HASLUCK J:
Introduction
1 The appellant, Nada Beti Pallett, has obtained leave to appeal against a conviction after trial in the Perth Magistrates Court in respect of an offence arising under the Road Traffic Act 1974 (WA).
2 The questions raised by the appeal are whether the learned Magistrate erred in refusing to grant an adjournment of the hearing. This leads to a related question as to whether the effect of the refusal was to deny the appellant a realistic opportunity of securing an acquittal by reliance upon s 24 of the Criminal Code (WA).
3 The appeal was opposed by the respondent who was represented by counsel instructed by the State Solicitor for the State of Western Australia. The appellant appeared in person.
The prosecution notice
4 It appears from a prosecution notice dated 8 October 2006 (54901/06) that the appellant was charged that on 5 October 2006, being the owner of a vehicle bearing registration plates ICI 110, she drove the same on a road, namely, Victoria Avenue, Perth, while there was not a valid vehicle licence granted or issued for the vehicle as required by s 15(1) of the Road Traffic Act contrary to s 15(3) of the Act.
5 The vehicle in question was a Bolwell motor scooter that had been purchased for the appellant by her brother, Peter Brajkovich, from a firm known as Scootamoto situated at 191 Scarborough Beach Road, Mount Hawthorn. The materials before me on the hearing of the appeal included a Scootamoto printed contract form which was signed by the purchaser on 24 February 2006.
6 It appears from the Scootamoto contract form that the vehicle was to be licensed in the name of the appellant (described as Nada Beti Brajkovich on the form). However, it was a matter in issue before the learned magistrate, and remained a matter in issue before me, as to exactly what contractual arrangements were made concerning the licensing of the vehicle; more particularly, whether it was to be licensed in the name of the appellant for a period of 12 months as from 17 February 2006.
7 The Scootamoto contract form and related documents make it quite clear that the appellant became the owner of the vehicle as a consequence of the transaction. It is an undisputed fact that upon taking possession of
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- the vehicle the appellant treated it as her own property thereafter and commenced using it within the central business district of Perth and elsewhere.
Road Traffic Act 1974 (WA)
8 Section 15(1) of the Road Traffic Act provides that a vehicle licence is required for any vehicle described in the First Schedule whilst that vehicle is being used on a road. It was common ground at all material times that the subject vehicle was a vehicle of that kind.
9 As at 5 October 2006 s 15(3) of the Act read as follows:
(3) Where a vehicle for which there is not a valid vehicle licence granted or issued under this Act is used on any road, a responsible person for the vehicle and any person so using the vehicle or causing or permitting such use commits an offence against this Act, but -
(a) the provisions of this subsection do not apply to the use of a vehicle within the period of 15 days immediately succeeding the day of expiry of a vehicle licence for the vehicle;
(b) it is a defence to a charge of an offence against this subsection against any person other than a responsible person for the vehicle if the accused proves that he had no knowledge that a valid vehicle licence had not been granted or issued in respect of the vehicle; and
(c) a person shall not be convicted of an offence against this subsection if he has already been convicted, or charged and acquitted of an offence against section 4(3)(a) of the Motor Vehicle (Third Party Insurance) Act 1943, and both those offences or alleged offences were committed simultaneously.
(1) For the purposes of this Act a person responsible for a vehicle is -
(a) if the vehicle is licensed - any licence holder who has not given a notice as described in paragraph (b);
(b) if a licence holder has given notice under section 24(1), or a corresponding law of another State or Territory or the Commonwealth, of a change in ownership of the vehicle
- and subsection (2) does not apply - the new owner as specified in the notice or, if more than one is specified, each of them;
- (c) if the vehicle is not licensed but was previously licensed and subsection (2) does not apply - a person responsible under paragraph (a) or (b) before the vehicle last ceased to be licensed; or
(d) in any other case -
(i) the person who is entitled to the immediate possession of the vehicle; or
(ii) if there are several persons entitled to its immediate possession, the person whose entitlement is paramount.
12 Section 17 of the Road Traffic Act provides that an owner of a vehicle may apply for the transfer of a licence for a vehicle by submitting an application in an approved form and paying the prescribed fee.
13 Section 27 provides that the Director General shall keep a register of vehicle licences, and enter therein particulars of every vehicle licence issued, and shall, upon the issue or renewal of any vehicle licence, issue to the applicant a registration label evidencing the grant of the licence. The licence holder of a licensed vehicle is required to affix the registration label to the vehicle.
14 Section 98 of the Act deals with proof of certain matters in any prosecution or proceedings for an offence. It provides that an averment in the prosecution notice that any person is or was an owner of, or a responsible person for, a vehicle or that the vehicle was driven or used on a road to which the public is permitted shall be deemed to be proved in the absence of proof to the contrary.
15 By s 98(2) the Director General may issue a certificate which states that on any date or during any period a vehicle was registered or was not registered under the Act in the name of any person specified in the certificate. Such a certificate is evidence of the facts stated in the certificate.
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Procedural steps
16 The matter was brought on for hearing initially on 23 November 2006. It seems that the appellant was convicted in her absence. However, the decision was set aside on 29 March 2007.
17 It appears that the matter was then adjourned to 12 June 2007. I note in passing that the handwritten note concerning the adjournment is difficult to decipher. It might be taken to mean that the matter was adjourned 'to' 12 June 2007, or adjourned 'mo' 12 June 2007; that is, for mention only on 12 June 2007. It could mean that it was adjourned 'hd' to 12 June 2007; that is, adjourned to a 'hearing date' on the appointed day. I will return to this point later.
18 For the sake of completeness, and in order to understand the appellant's position on appeal, I must also note that as at mid 2007 the appellant was facing other charges before the Magistrates Court including a disorderly conduct offence.
The prosecution case
19 The materials before me included a transcript of the hearing on 12 June 2007. At the commencement of the hearing the presiding magistrate said that on his understanding the unlicensed vehicle charge was the only matter to be dealt with as the disorderly conduct and another matter were for mention only.
20 The appellant queried this as she thought the disorderly conduct matter was to be heard. However, after some further exchanges with the magistrate the appellant seemed to acknowledge (at that stage) that the unlicensed vehicle charge had been 'adjourned to a hearing today' (that is, 12 June 2007) and that she was willing to proceed. The prosecutor then called his first witness, being Police Officer Ms Paul, who described her involvement in the events of 5 October 2006.
21 Police Officer Paul said that at about 10.15 am on the day in question, while travelling in an easterly direction along St George's Terrace in Perth she observed the subject vehicle. Having requested a vehicle registration check by radio she discovered that the registration had expired on 15 August 2006, so the vehicle was directed to pull over. She spoke to the appellant about the matter and pointed to the registration sticker which showed that the licensing of the vehicle had expired. She required the appellant to leave the vehicle at the scene.
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22 The police officer adduced in evidence a certificate whereby Linda Brown, on behalf of the Department for Planning and Infrastructure, asserted that the vehicle register maintained in accordance with s 27(1) of the Road Traffic Act showed that as at 5 October 2006 a 2005 Bolwell scooter silver, expiry date 15 August 2006, registration number ICI-110, was registered in the appellant's name. The registration was paid on 5 October 2006 at 3.52 pm.
23 Put shortly, Police Officer Paul's evidence and the evidentiary certificate established that as at 10.15 am on 5 October 2006 the vehicle was registered in the appellant's name but it was unlicensed because the licence had expired two months earlier on 15 August 2006. It was common ground at the hearing before the magistrate and before me that after being stopped on 5 October 2006, the appellant, later on the same day, renewed the licence by paying the required fee for a period of six months as from the expiry date with the result that the vehicle was licensed until 15 February 2007.
The defence case
24 The appellant was invited to examine Police Officer Paul. This led to various exchanges with the bench in the course of which the appellant foreshadowed a plea to the effect that in early 2006 the vehicle had been bought for her by a rich relative on the understanding that it was to be licensed for 12 months through to 15 February 2007. The appellant said that she had papers bearing upon this issue and had in mind to call a witness concerning the matter.
25 In the course of these exchanges the appellant was invited to give evidence and did so. She said that the vehicle had been purchased on her behalf in early 2006 and on her understanding it was insured and licensed for 12 months. On a number of occasions prior to 5 October 2006 she was stopped by police officers who told her that she was not licensed but when she went to 'enforcements' to check she was told that 'nothing's come up that your licence has been suspended'. According to her, her understanding that the vehicle was licensed was reinforced by the fact that Scootamoto called back the vehicle two months after the sale to sort out a problem concerning the vehicle.
26 Under cross-examination she agreed that she had owned the vehicle for six months before being stopped. When she was stopped on 5 October 2006 and was told that the vehicle was unlicensed she went down and paid the registration that afternoon. I note in passing that this could be treated as an acceptance by the appellant that the vehicle was indeed
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- unlicensed as at 5 October 2006, as indicated by the sticker attached to the vehicle, even though she had previously thought it was licensed.
27 Exchanges with the magistrate led to a further assertion by the appellant that, on her understanding, the 12 June hearing was fixed to deal with the disorderly conduct charge and another charge. The unlicensed vehicle charge was to be dealt with on a later occasion.
28 His Honour was not prepared to adjourn the hearing of the unlicensed vehicle. He said that upon his review of the court record it emerged that the unlicensed vehicle conviction was set aside upon the basis that the charge would then be dealt with at a hearing on 12 June. The other charges came before the court later and were put down to be heard on the same day. He observed that 'it seems to me that you have had plenty of time to bring these supposed papers to court and you haven't done it'. He then proceeded to give his reasons for decision, having regard to the evidence before him.
Reasons for decision
29 In his reasons for decision the learned magistrate referred to the procedural history of the matter and to the evidence of Police Officer Paul. His Honour referred to the vehicle check which indicated that the vehicle was unlicensed and to the fact that the registration sticker was consistent with the licence having expired in August. He referred also to the evidentiary certificate confirming that the vehicle was unlicensed as alleged and to the appellant's evidence that she re-registered the vehicle on the afternoon of the day in question.
30 His Honour referred also to the appellant's understanding that when she acquired the vehicle it was to be insured and registered for 12 months and to the fact that she had papers bearing upon that issue. However, his Honour doubted that any such papers would in fact be of assistance to her because of the clear evidence before him that 'the vehicle was unquestionably unregistered'. He therefore found the charge proved beyond reasonable doubt and convicted the appellant accordingly. He then fined her $200 with costs of $55.50 upon the basis that he had simply 'reimposed' the fine that had been imposed prior to her earlier conviction for the offence being set aside.
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Appeal notice
31 By an appeal notice dated 23 July 2007 the appellant sought leave to appeal against her conviction upon the grounds set out in a letter to the Supreme Court dated 20 July 2007.
32 First, the appellant said that she was denied procedural fairness in that the disorderly behaviour charge was supposed to have been heard on 12 June 2007, not the unlicensed vehicle charge. By way of elaboration she mentioned that she was instructed to wait in Court 37, and did so for approximately two hours. She was then escorted to Court 94 at which location, to her surprise, the unlicensed vehicle charge was brought on for hearing.
33 Second, she said that she was denied the right to present her evidence in that her documents pertaining to the unlicensed vehicle charge were at home, and the magistrate refused to adjourn the hearing.
The application for leave to appeal
34 The appellant's application for leave to appeal came before McKechnie J on 24 August 2007. The appellant appeared on her own behalf; the respondent was represented by counsel.
35 It appears from the transcript of the hearing that the appellant referred to certain papers that were said to substantiate the case that she wanted to present to the magistrate, namely, that her brother had given her good reason to believe that the vehicle he had purchased for her on or about 2 March 2006 from Scootamoto for an all in price of $3,962 was licensed and insured for 12 months.
36 The papers handed up at the hearing before McKechnie J included the Scootamoto printed form contract (which showed the vehicle price to be $3,500) an interim insurance contract showing the initial premium was $237 and a registration receipt showing the motor vehicle licence and a third party insurance policy fee to be $141 with an expiry date of 15 August 2006.
37 It appears from the transcript that various factual and legal issues were canvassed in the course of the hearing. Put shortly, the appellant did not appear to dispute that her vehicle was in fact unlicensed when she was stopped by Police Officer Paul on 5 October 2006, as evidenced by the fact that she attended to re-registration of the vehicle later that day. However, her stance was that she had reason to believe that the vehicle was licensed because she had understood from her brother that at the time
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- of the purchase he had licensed and insured the vehicle for 12 months. Further, the figures in the documents she relied upon were said by her to show that a 12 month period had been paid for, Scootamoto had recalled the vehicle soon after the sale to sort out a problem concerning the vehicle, and her own inquiries led her to believe that the vehicle was licensed after she was stopped for being allegedly unlicensed.
38 I note in passing that none of the matters the appellant sought to rely upon could be regarded as conclusive. As I indicated in earlier discussion the papers handed up in fact showed an expiry date of 15 August 2006. The materials before me suggest that Scootamoto recalled the vehicle to attend to a problem concerning the chassis or vehicle identification number. It is questionable whether an inquiry from the Fines Enforcements Registry or 'enforcements', being a body concerned with the payment and collection of fines, could be regarded as a reliable source of information as to whether the vehicle was licensed in the manner required by s 15(1) of the Road Traffic Act.
Further observations
39 It emerged during the course of discussion at the hearing of the application for leave to appeal that in the event of leave to appeal being granted, bearing in mind the apparently undisputed or incontrovertible fact that the vehicle was not actually licensed on 5 October 2006, a central issue to be resolved on the hearing of the appeal would be whether the appellant had any prospect of being excused from criminal liability pursuant to s 24 of the Criminal Code; that is, that she had acted under an honest and reasonable but mistaken belief that the vehicle was in fact licensed.
40 On the other hand, if there were no prospect of such a defence succeeding, then it might be said that the refusal of an adjournment would not have given rise to a miscarriage of justice. The granting of an adjournment bearing upon her mistaken belief would have been futile. It would not have served any purpose.
41 I note in passing that, in the course of the discussion, counsel for the respondent appeared to concede that the prosecution note bore an endorsement to the effect that the matter had been adjourned to 12 June 2006 'mo'; that is, for mention only.
42 This could arguably be regarded as a concession that the appellant was indeed taken by surprise on 12 June and had grounds for seeking an adjournment if the witness and papers she wished to present in support of
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- her case might affect the outcome. However, counsel for the respondent referred to case law which suggested that the application of s 24 of the Criminal Code was excluded by the provisions of the Road Traffic Act bearing upon the present case.
43 It was against this background that McKechnie J granted leave to appeal upon the two grounds referred to in the appeal notice. In effect, without purporting to resolve the various issues that had arisen in the course of discussion, he was prepared to proceed upon the basis that the appellant had made out an arguable case that the learned magistrate had erred in refusing her application for an adjournment.
44 The discussion preceding the grant of leave put the parties on notice that on appeal the case would probably turn upon the merits of a defence case based upon an honest and reasonable mistake.
45 It will now be useful to look at the statutory provisions and legal principles bearing upon an appeal of this kind.
Statutory provisions and legal principles
46 By s 14 of the Criminal Appeals Act 2004 (WA) the Supreme Court may dismiss or allow an appeal, or set aside or vary the decision, or remit the case for rehearing. Further, if the court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the appellant.
47 It is apparent from s 39 of the Criminal Appeals Act that an appeal court must decide the appeal on the evidence and material that were before the lower court, but this does not prevent consideration of any evidence that the lower court refused to admit. By s 40(1)(e) an appeal court may admit any other evidence.
48 In Lawless v Turner [2007] WASCA 2 Roberts-Smith JA observed at [55] that it was arguably unduly narrow to proceed upon the basis that the discretion conferred by s 40(1)(e) of the Criminal Appeals Act is to be exercised in accordance with the established principles relating to the admission of fresh and new evidence on appeal. This reasoning was later approved on appeal in Lawless v Turner [2007] WASCA 127
49 However, his Honour recognised at [61] that those principles would continue to be 'significant considerations'. This suggests, having regard to what was said by the Court of Appeal in De La Espriella-Velasco v The
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- Queen (2006) 31 WAR 291, that the power to admit further evidence exists to serve the demands of justice. However, it is unlikely that s 40(1)(e) would be construed so broadly as to have the practical effect of obliterating the distinction between original and appellate jurisdictions. The consequence is that evidence should ordinarily not be admitted for the first time on appeal if it was available, or could reasonably have been obtained at the time of hearing.
50 Further, if the evidence is new evidence, then it is not enough merely to show an increased chance of acquittal. The new evidence must be strong enough to show that the appellant is innocent or raises such a doubt that the court concludes that the accused should not have been convicted: Mickelberg v The Queen (2004) 29 WAR 13 at 413; Easterday (2003) 143 A Crim R 154 at 371; Hillstead v The Queen [2005] WASCA 116 at 61.
51 The question on appeal will often be not whether the court would have formed a different view, but whether the magistrate's approach in view of the evidence was defensible: Chamberlain v The Queen (No 2) (1984) 153 CLR 521. The court has to positively believe beyond reasonable doubt the evidence presented by the prosecution: Harling v Hall (1997) 94 A Crim R 437.
Adjournment
52 To grant or refuse an adjournment is a matter for the discretion of the court to whom the application is made. Where the refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted unless, in turn, this would mean serious injustice to the other party. An appellate court will not interfere with a discretionary order of this sort unless there is strong reason for believing that an injustice has resulted: Bennett v Councillor [2001] WASCA 342 at 22.
53 In Leary v The Queen [1975] WAR 133 the Full Court observed that it is fundamental to the administration of justice that an accused person must be given full opportunity to present his or her defence and that an adjournment should be granted if it is necessary to enable the accused person properly to present that defence.
54 However, it was said in that case also, that in considering an application for an adjournment to allow a defence witness to be brought from elsewhere, it is proper to reject such an application if the court reaches the conclusion upon reasonable grounds that such a witness would
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- be unlikely to give evidence tending to exculpate the accused. See also R v McGill [1967] VR 683; R v Jones [1971] VR 72.
55 In Greer (1992) 62 A Crim R 442 Kirby J observed at 448 that adjournments are not to be granted merely for the asking, still less upon an unreasoned and unjustified demand. In criminal proceedings there is an interest at stake in addition to that of the accused. It is the interest of the community in the prompt disposal of charges of criminal offences, particularly where the accused person is in custody, and especially where the offence is a serious one. It undermines the orderly disposal of the work of the courts when trials, particularly criminal trials, are adjourned unnecessarily.
56 Let me now turn to provisions and principles bearing upon the issue of honest and reasonable mistake.
Honest and reasonable mistake
57 Section 24 of the Criminal Code (WA) provides that a person who does or omits to do 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 or omission to any greater extent than if the real state of things had been such as the person believed to exist. The operation of this rule may be excluded by the expressed or implied provisions of the law relating to the subject.
58 The authors of Carter's Criminal Law of Queensland (16th ed) observe at [24.10] that the section provides an excuse, as distinct from a defence, and is a matter which the prosecution must negative beyond reasonable doubt once the evidential onus has been discharged by the defendant. This involves the defendant showing that there is evidence of an honest and reasonable mistake of fact in the existence of a state of things, fit to be considered by the tribunal of fact, and the defendant is entitled to the benefit of any doubt that it may have in that regard.
59 Thus, to raise the application of s 24 it is merely necessary for the person charged to introduce evidence, whether by cross-examination of the prosecution witness or by direct evidence, from which it could reasonably be inferred that an honest and reasonable belief in an appropriate state of things exists, and the onus then passes to the prosecution to negative the existence of such a belief.
60 In Aubertin v Western Australia (2006) 33 WAR 87 McLure J referred at [24] to different lines of authority in this state as to the correct
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- test of mistake under s 24 of the Code. One line of authority was to the effect that reasonableness was to be adjudged by reference to the reasonable man. The other line of authority, drawing upon observations made by Burt CJ in G J Coles & Co Ltd v Goldsworthy [1985] WAR 183 at 187, indicated that the relevant question is whether there were reasonable grounds for the belief held by the accused.
61 In the end, as to the case before it, the Court of Appeal held in Aubertin that for there to be an operative mistake under s 24 of the Criminal Code, an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused's belief must be reasonable (mixed element). The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects.
62 The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself. In the case before the Court of Appeal, the appellant had no particular characteristics or attributes which took him outside the standard of the reasonable man and there was no misdirection. See also Birks v Western Australia (2007) 33 WAR 291.
63 The general rule is that s 24 of the Criminal Code is of general application to all statute law unless excluded: Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129. However, this approach has to be considered carefully in regard to regulatory offences.
64 In Proudman v Dayman (1941) 67 CLR 536, which concerned a charge of permitting an unlicensed person to drive a motor vehicle on a road, proof that the defendant knew that the driver was unlicensed was held to be unnecessary.
65 Dixon J observed in respect of South Australian legislation (being a state not subject to the Criminal Code) that as a general rule an honest and reasonable belief in a state of facts which, if they had existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence. However, this may not always be so.
66 His Honour went on to observe that the strength of the presumption that the rule applies to a statutory offence newly created varies with the
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- nature of the offence and the scope of the statute. If the purpose of the statute is to add a new crime to the general criminal law, it is natural to suppose that it is to be read subject to the general principles according to which that law is administered. But other considerations arise where in matters of police, of health, of safety or the like the legislature adopts penal measures in order to cast on the individual the responsibility of so conducting his affairs that the general welfare will not be prejudiced.
67 In such cases there is less ground, either in reason or in actual probability, for presuming an intention that the general rule should apply, making honest and reasonable mistake a ground of exoneration, and the presumption is but a weak one. Indeed, there has been a marked and growing tendency to treat the prima facie rule as excluded or rebutted in the case of summary offences created by modern statutes, particularly those dealing with social and industrial regulations.
68 In McPherson v Cairn [1977] WAR 28 the respondents were charged under the Transport Commission Act 1966 - 1972 (WA) with operating a public vehicle which was unlicensed. They were the owners of the vehicle, and contended that they believed on reasonable grounds that it was licensed under the Act at the material times.
69 Section 50(1) of the Act in question made it an offence for the driver and owner of a public vehicle to operate it whilst unlicensed or whilst carrying goods not authorised by the licence. Section 50(2) provided that in any prosecution against a driver under the section it was a good defence if the driver showed that he believed on reasonable grounds that the vehicle was operating in accordance with a licence granted under the Act.
70 The respondents were acquitted on the ground that the prosecution had failed to discharge its obligation of excluding beyond reasonable doubt the operation of the honest and reasonable but mistaken belief claimed by the respondent. However, an appeal against this decision was allowed by Burt J.
71 His Honour held that formulation of an offence in absolute terms does not by implication exclude the operation of s 24 of the Criminal Code. Whether in any particular case the operation of s 24 is excluded involves solely a question of statutory construction of the penal section, read in the context of the whole Act. He held that s 50(2) of the Transport Commission Act created a defence which was available to the driver, but which was not available to the owner, and in a prosecution against the
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- owner the operation of the rule formulated in s 24 of the Criminal Code is by implication excluded.
72 I note in passing that s 15 of the Road Traffic Act in the present case closely resembles s 50 of the Transport Commission Act being the provision being considered by Burt J in the McPherson case. I note also that the reasoning of Burt J concerning the exclusion of s 24 in respect of certain regulatory offences was recently approved in Lappan v Hughes [2003] WASCA 173.
73 As to s 50 of the Transport Commission Act, his Honour, Burt J, observed that the offence contains no mental element. Each, the owner and the driver of the unlicensed vehicle, are severally guilty of an offence. The defence created by s 50(2) only operates to protect the driver, for the reason, no doubt, that the obligation to obtain a licence is thrown onto the owner and not onto the driver. If the vehicle is not licensed this is due, from the driver's point of view, to antecedent breaches of the law generally by the owner. In such a case, it seems natural to treat ignorance upon reasonable grounds as an exculpation of the driver. Such cannot be said of the owner.
74 Burt J then made these further observations at 31:
In my opinion the operation of s 24 of the Criminal Code is, by implication, excluded by the law relating to the subject upon a prosecution of the driver. It is in effect replaced by ss (2) and by that replacement the onus of proof is shifted. Various sections of the Criminal Code operate in the same way. By way of illustration see s 187(2) and 193. I think too that the same implication arises in a prosecution against the owner, but in that case it is not replaced by ss (2). In each case the legislature has addressed its mind to the question of mistake. In each case the offence is subject to ss (2), but when one reads that sub-section it appears that it has created a defence which is available to the driver and which is not available to the owner, and this I think sustains the implication that in a prosecution against the owner the operation of the rule formulated in s 24 of the Code, as to mistaken belief within ss (2) which is here the case, is excluded.
75 In Wroblewski v Starling [1987] WAR 233 the appellant was charged under s 49(1) of the Road Traffic Act with driving a motor vehicle without a licence. At the relevant time the appellant had not known that his licence had been suspended at a previous court hearing which he had not attended. He conceded that it was his responsibility to ascertain the result of the hearing.
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76 At the hearing at first instance the magistrate found that the appellant had made a mistake of fact and that s 24 could be applicable in appropriate circumstances. However, he found that the appellant's mistake was not reasonable on the basis of his careless attitude to the result of the previous hearing.
77 Rowland J held that once the basis for mistake was laid, the onus was on the prosecution to prove guilt beyond reasonable doubt. In the circumstances, the appellant's mistake in not realising he had had his licence suspended was not unreasonable. The mistake was one of fact and not law. The position would have been different if licence suspension had been an automatic effect of the appellant's original offence.
78 Rowland J held that s 24 of the Criminal Code was of general application to all statute law unless excluded. His Honour made certain observations which doubted the applicability of the McPherson case to the circumstances before him. He was not prepared to hold that s 24 of the Criminal Code had been excluded. However, it is material to note that the circumstances before Rowland J concerned the driving of a motor vehicle without an appropriate licence rather than the driving of an unlicensed vehicle. On his Honour's view the provision before him did not create any offence but simply conditioned the penalty for a breach of the primary rule.
79 That case was later followed by Commissioner Buss QC in Ottobrino v Espinoza (1995) 14 WAR 373 in which it was held that a person charged under s 49(1) of the Road Traffic Act with the offence of driving without a licence may have a defence under s 24 of the Criminal Code if at the material time he has not received a notice confirming licence suspension. If s 24 is not excluded then, once a basis for mistake is laid, the onus is on the prosecution to prove guilt beyond reasonable doubt.
80 Let me now return to the circumstances of the present case.
The hearing on appeal
81 Having obtained leave to appeal from McKechnie J, the appellant took steps to have the matter listed for hearing. However, prior to the listed date the appellant sought and obtained leave to issue a subpoena directed to the Department of Planning and Infrastructure. The effect of the relevant order, which was made on 15 October 2007 (several days prior to the listed hearing date) was that the relevant officer of the Department was to provide all documents held relating to the Bolwell
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- motor scooter registration number ICI 110 purchased in 2006, and any documents relating to the issue of a motor vehicle licence for the vehicle to Nada Beti Pallett.
82 Documents were delivered to the Supreme Court in response to the subpoena. At the hearing of the appeal on 18 October 2007, in the course of arguing her case, the appellant sought leave to adduce these documents in evidence pursuant to s 40 of the Criminal Appeals Act which, as I have indicated, confers a power upon the court to 'admit any other evidence' in addition to the evidence that was before the court at first instance.
83 The documents in this first category, being documents extracted from the departmental file in response to the subpoena, can be broadly described as printouts of computer entries relating to the licensing of the relevant vehicle. They comprise seven pages of printouts from databases plus an application form dated 16 February 2006.
84 The certification form contained a notation '6 months' in the specification sheet code. The form appeared to have been completed by a person other than the appellant. It would seem from the official stamp to have been dealt with by Scootamoto.
85 The printouts appeared to confirm that there were only two payments processed by the Department being a payment to effect a light standard business licensing from 16 February 2006 for a period of six months at a cost of $141; a payment to effect a light standard business licensing from 5 October 2006 for six months at a cost of $40.35.
86 The appellant also sought to adduce by way of further evidence a bundle of documents which she described as the documents she wished to adduce in evidence at the hearing before the magistrate but was unable to do so owing to her request for an adjournment being refused.
87 The second category of documents included a purchaser's copy of a vehicle licence transfer (notification of change of ownership) which described the Bolwell motor scooter and appeared to refer to a transaction undertaken by the appellant as seller on 10 December 2006 with the selling price of the vehicle being given as $2,000. The purchaser is described as Philip Paul Huizenga.
88 Other documents in this bundle included the Scootamoto printed form contract in respect of the original transaction when the vehicle was purchased for the appellant at a price of $3,500 and the related documents mentioned earlier. There was also a copy of an application for vehicle
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- registration in respect of the original transaction which included an entry for 'specification sheet code' of '6 months'. This bundle also included a notice of conviction dated 12 June 2007.
89 I received the documents in the two categories at the hearing of the appeal upon the basis that I reserved my decision as to their admissibility, and would rule upon the admissibility issue in due course.
90 Having regard to the principles concerning new evidence that I touched upon in earlier discussion, I consider that the documents in both categories should be admitted upon the basis that they are relevant to the question of whether an adjournment should have been granted and as documents bearing upon the honest and reasonable mistake issue. I will look at the use that is to be made of them in more detail later.
91 Suffice it to say for the moment that there is nothing in these documents which can be regarded as inconsistent with or sufficient to displace the assertions contained in the evidentiary certificate mentioned earlier. The learned magistrate relied upon that certificate in finding that as at 5 October 2006 the vehicle was unlicensed and had been so since 15 August 2006 when the previous registration expired.
92 Let me now turn to the grounds of appeal.
Grounds of appeal
93 The grounds of appeal relied upon by the appellant are set out in a letter dated 20 July 2007 to the Supreme Court. It is clear from that document that essentially it was the decision of the learned magistrate to refuse an adjournment on 12 June 2007 which is challenged.
94 It is apparent from the court documents and from the transcript that the learned magistrate had a persuasive basis for proceeding with the hearing. A previous conviction had been set aside. A further preliminary hearing had been held and the matter had been adjourned to a hearing date on 12 June 2007. When the matter was called on initially the appellant indicated that she was ready to proceed and it was against that background that the prosecution witness was called. It was only when the hearing was underway that the appellant suggested that she was not fully prepared because she had understood that other matters were to have been dealt with on 12 June; that she wished to call a witness and tender documentary evidence that would support her plea of not guilty to the unlicensed vehicle charge.
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95 It emerged from the exchanges in court concerning the appellant's application for an adjournment that the evidence she wished to call did not bear upon the apparently undisputed fact that her vehicle was unlicensed on the day in question (5 October 2006) but related to her understanding as to the nature of the sale transaction whereby the motor scooter was transferred to her.
96 The appellant was unrepresented and it was therefore not put to the court expressly that the proposed evidence could bear upon a defence of honest and reasonable mistake. However, a foreshadowed plea of this kind was arguably evident in the matters she sought to raise on her own behalf.
97 It was against this somewhat confused background that the learned magistrate took the view that 'you have had plenty of opportunity to bring these supposed papers to the court and you haven't done it' (ts 11). He then refused to grant the adjournment.
98 The decided cases suggest that in the absence of some particular prejudice to the other side (which might include such matters as obstruction or prevarication in relation to the hearing) an adjournment should be allowed if that is necessary to enable the defendant to advance or support an arguable line of defence or to avoid a miscarriage of justice.
99 I am conscious also that in the present case, at the hearing before McKechnie J, counsel for the prosecution seemed to accept that the prosecution notice arguably contained an endorsement that the matter had been adjourned to 12 June 2007 'mo'; that is, for mention only. This lent support to the appellant's contention that she was taken by surprise and not fully equipped to present her case when the matter proceeded to a hearing on 12 June 2007.
100 It follows from these observations that, if the effect of the decision to refuse an adjournment was to deny the appellant a realistic opportunity of securing an acquittal, there would be a sufficient basis for concluding that in the circumstances I have described the learned magistrate erred in refusing to grant an adjournment.
101 This means, inevitably, that in dealing with the grounds of appeal I must focus upon the question of whether the appellant had a prospect of acquittal if she had been allowed to adduce the evidence she sought to rely upon; that is, the calling of a witness (presumably her brother) to testify as to the nature of the original transaction and the presentation of documentary evidence in the two categories mentioned in earlier
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- discussion, being papers in the appellant's possession and registration entries upon the Department's file.
102 However, I am bound to keep steadily in mind that by s 14(2) of the Criminal Appeals Act, even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
The issues
103 It follows from earlier discussion that, for there to have been an acquittal, the learned magistrate would have had to conclude either that the prosecutor had failed to establish beyond reasonable doubt that the vehicle was unlicensed or that the appellant was entitled to be excused from criminal responsibility under and by virtue of s 24 of the Criminal Code upon the basis that she was affected by an honest and reasonable mistake.
104 As to the first matter, it is clear that the appellant had no answer to the prosecution case that the vehicle was unlicensed. Section 98(2) of the Road Traffic Act establishes that the evidentiary certificate put in evidence as part of the prosecution case was to be treated by the learned magistrate as evidence of the facts stated in the certificate. This established that the scooter was unlicensed, and such a conclusion was inevitable where there was no admissible and cogent evidence to the contrary adduced or capable of being adduced by the appellant.
105 The first category of documents mentioned earlier, being those produced by the Department in answer to the subpoena, do not point to any document or entry casting doubt upon this conclusion. Moreover, there is a notation in the printouts for 4 July 2006 which indicates that renewal papers were then sent, and this appears to be consistent with the expiry of the licence on 15 August 2006. There is a further notation for 3 September 2006 which reads 'plate final letter'. This suggests that a letter requiring the return of the plates was then sent, and this would appear also to be consistent with a six month expiry on 15 August 2006.
106 The second category of documents sought to be relied upon by the appellant (being the papers that she might have brought to court if the adjournment had been allowed) do not rebut or cast doubt upon the prosecution case that the vehicle was in fact unlicensed as at 5 October 2006. Indeed, one of the documents held by the appellant refers to an expiry date of 15 August 2006. These papers were principally relevant to the appellant's foreshadowed honest and reasonable mistake defence.
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107 It emerges, then, that as to the question of whether the appellant was denied a realistic opportunity of securing an acquittal it is necessary to focus upon the s 24 honest and reasonable mistake issue.
108 The decided cases, and especially Aubertin, establish that in respect of this matter there are three issues to be dealt with. First, whether in the particular case the accused has discharged the evidentiary onus to adduce evidence capable of supporting the application of the excuse to the case, so that the ultimate onus rests on the prosecution to 'negative' its application.
109 As to that, I am prepared to accept that if the accused had been permitted to adduce evidence from her brother and as to her own state of belief (being a belief allegedly based upon information gathered from her brother and upon what was put to her by departmental officers) then she might have been able to discharge the evidentiary onus. Such an issue should properly be resolved by the magistrate after hearing the witnesses and related evidence, not by a review of the evidence on appeal.
110 Second, if it be accepted that the ultimate burden of proof did rest upon the prosecution, it would be necessary for the court to determine under s 24 of the Criminal Code whether the appellant in fact had an honest belief as at 5 October 2006 that her vehicle was licensed (that is, because it had been transferred to her upon the basis that it would be licensed for a period of 12 months as from 16 February 2006). This is the so-called 'subjective test' referred to in Aubertin. In other words, in order to make out its case, the prosecution would have to satisfy the court beyond reasonable doubt that the appellant did not actually hold a belief of the kind just mentioned at the relevant time.
111 Again, it can be said that if the appellant had been permitted to adduce evidence of the kind she had foreshadowed, there was some prospect that the prosecution might not have been able to make out its case in regard to this aspect of the matter. Such an issue should properly be left to the fact-finding tribunal at first instance.
112 However, even if it be accepted that the evidentiary onus lying upon the appellant could be discharged, and that the existence of an actually held belief on 5 October 2006 that the scooter was licensed might not be negatived by the prosecution, there is still a third issue to be resolved.
113 It is apparent from Aubertin that the accused's belief as to a certain state of things (in this case, that the vehicle was licensed) must be not only held honestly but also be reasonable. Unlike the subjective element
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- concerning the appellant's actual belief in the existence of a state of things, the presence of a reasonable belief has been described as a 'mixed element'.
114 The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself.
115 To my mind, the objective component stands in the way of the appellant in the circumstances of the present case. The objective circumstances included the fact that upon her own admission she had been stopped on previous occasions and told by police officers that her vehicle was unlicensed.
116 Moreover, it was an undisputed fact in the present case that when she was stopped on 5 October 2006 the vehicle bore a registration sticker showing that the registration had expired. It is well known that the purpose of such a sticker is to provide an immediate and readily accessible reference point as to whether the registration of a vehicle is current. It would therefore be difficult, if not impossible, for the appellant to assert, in the circumstances of the present case (viewed objectively), that she reasonably held a mistaken belief that the vehicle was licensed on 5 October 2006.
Findings
117 I consider, and so find, that the evidence presented in support of the prosecution case at the hearing before the magistrate was sufficient to rebut the foreshadowed defence and establish beyond reasonable doubt that any belief held by the appellant that her vehicle was licensed was not held reasonably, having regard to the evidence that she had been challenged about this matter previously and to the presence of a label or sticker on the vehicle showing that the licence had expired.
118 Even when all possible evidentiary allowances are made for the conduct of a notional retrial by the appellant in which she was able to adduce the evidence she sought to rely upon, it is clear that no reasonable prospect of acquittal was denied to the appellant. This leads me to
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- conclude that the refusal of the adjournment did not give rise to a miscarriage of justice and the appeal must be dismissed.
119 The evidence the appellant sought to adduce went essentially to her subjective state of belief. It was not sufficient to cast doubt upon the prosecution case that the vehicle was in fact unlicensed and, viewed objectively, there was no reasonable basis for holding a belief to the contrary in circumstances where the vehicle had a sticker upon it which showed that the vehicle was unlicensed.
120 There is also a further matter to be considered. To this point, for the sake of a full discussion, I have been proceeding on the assumption that a defence of honest and reasonable mistake pursuant to s 24 of the Criminal Code was available to the appellant. However, it emerges from my review of the decided cases that s 24 of the Criminal Code, as a matter of statutory construction, may be found to have been excluded by the provisions of a particular statute.
121 It appears from the reasoning in Proudman v Dayman that in regard to certain regulatory offences, which have the effect of casting on the individual the responsibility of so conducting his or her affairs that the general welfare will not be prejudiced, there is less ground for presuming an intention that honest and reasonable mistake is to be regarded as a ground of exoneration.
122 Further, the decision of Burt J in McPherson v Cairn establishes that this approach should be applied to legislation of the kind before me. Thus, having regard to the reasoning of Burt J, and not withstanding the later observations of Rowland J in Wroblewski v Starling, I must pay close attention to the matter of excuse set out in s 15(3)(b) of the Road Traffic Act concerning vehicle licences.
123 That provision makes it a defence to a charge of having an unlicensed vehicle on the road that an accused person, other than a responsible person, did not know that a valid vehicle licence had not been granted in respect of the vehicle.
124 In other words, if the driver of an unlicensed vehicle proves that he or she had no knowledge that a valid vehicle licence had not been granted in respect of the vehicle then the driver will be acquitted. However, this defence is not available to a responsible person for the vehicle such as an owner (being the appellant in the present case).
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125 To my mind, as I have regard to the reasoning of Burt J in McPherson v Cairn, which concerned an almost identical statutory provision, the effect of this provision is to impose a form of strict liability upon a responsible person such as an owner of the vehicle but to allow a line of defence to a driver (akin to the well-known defence of honest and reasonable mistake) in circumstances where the driver had no knowledge that a valid licence had not been granted in respect to the vehicle.
126 It follows from this that in my view, s 24 of the Criminal Code has been excluded in respect of a responsible person such as an owner of the vehicle, as a means of implementing a strict regulatory regime in regard to the licensing of vehicles.
127 Having regard to the definition of 'responsible person' referred to in earlier discussion, there can be no doubt that the appellant was a responsible person at the relevant time in the circumstances of the present case. She was the person who, on her own account was entitled to immediate possession of the vehicle. She was the person in whose name the vehicle had been licensed prior to its expiry on 15 August 2006. This view of the matter is substantiated by the fact that she herself attended to the renewal of the licence in her own name later on the day of 5 October 2006.
128 Accordingly, I am of the view that, having regard to McPherson v Cairn and the matters I have mentioned, it was not open to the appellant as a responsible person to rely upon the line of defence which might otherwise have been available under s 24 of the Criminal Code, because that provision had been excluded. It follows that for this reason also it cannot be said that in the circumstances of the present case the refusal of an adjournment led to the denial of a chance of acquittal. No substantial miscarriage of justice occurred with the result that, for this reason also, the appeal must be dismissed.
129 However, there is a final matter to be dealt with, although this was a matter not specifically included in the grounds of appeal. It emerged in the course of discussion before McKechnie J that the intention of the learned magistrate was to impose a fine equating to the fine imposed at the time of the original conviction. This should have led to the imposition of a fine of $100, being two penalty units. However, the reference to penalty units led to the learned magistrate inadvertently imposing a fine of $200, and I consider that this matter should be corrected on appeal.
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Summary
130 For the reasons I have given the appeal against conviction will be dismissed upon the basis that the refusal of an adjournment by the magistrate did not lead to the appellant being denied an opportunity of acquittal, or to a miscarriage of justice. However, the sentence imposed by the Magistrates Court will be varied so as to substitute for the fine of $200 a fine of $100 plus costs of $55.50 as previously ordered. I will hear from the parties as to whether any further orders or directions are required.
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