Pitt v Le Boydre - [2017] WASC 148

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: PITT -v- LE BOYDRE [2017] WASC 148

CORAM: CORBOY J

HEARD: 24 JANUARY 2017

DELIVERED : 31 MAY 2017

FILE NO/S: SJA 1025 of 2016

BETWEEN: JEFFREY DONALD PITT
Applicant
AND
FELICIA ANNE LE BOYDRE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M D WHEELER
File No  :JO 3858 of 2015

Catchwords:

Criminal law - Appeal against conviction - Road Traffic Act 1974 (WA), s 97(2)(d) - Use of a number plate without entitlement to do so - Use of 'trade' or 'dealer' plates - Governing regulations - Entitlement to use 'dealer' plates following commencement of Road Traffic (Licensing) Amendment Regulations 2010 (WA) - Where no substantial miscarriage of justice notwithstanding errors of law and fact

Criminal law - Application of Criminal Code (WA) s 24 - Whether mistake of fact or law - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 14
Criminal Code (WA), s 24
Magistrates Court Act 2004 (WA), s 31
Road Traffic (Charges and Fees) Regulations 2006 (WA), r 32, r 33
Road Traffic (Licensing) Amendment Regulations 2010 (WA)
Road Traffic (Licensing) Regulations 1975 (WA), r 26, r 26A, r 26C, r 26C, r 26E
Road Traffic (Vehicles) Regulations 2014 (WA), r 138
Road Traffic Act 1974 (WA), s 97(2)(d), s 26(2)

Result:

Appellant given leave to amend appeal notice
Leave to appeal on grounds 1 - 3 of amended appeal notice granted
Leave to appeal on all other grounds refused
Appeal dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr C M Beetham

Solicitors:

Applicant: In person
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Beydoun v City of Stirling [2015] WASC 25
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
CORBOY J:

The appeal and the result

The appellant was stopped by police while driving an unlicensed vehicle on Wanneroo Road. Two 'dealer' plates were attached to the vehicle (the Attached Plates). The appellant contended that he was entitled to use the Attached Plates as the vehicle was being taken to and from a repair workshop. However, he was convicted of a charge that on 10 April 2015 at Wanneroo he used a number plate to which he was not entitled, contrary to s 97(2)(d) of the Road Traffic Act 1974 (WA) (RT Act). He sought leave to appeal from his conviction on five grounds.
Two further issues were raised for the first time at the hearing of the appeal. The first issue concerned the effect of information about the Attached Plates that was recorded on two certificates of registration issued by the Department of Transport. That issue raised a question about whether the prosecution had proved the elements of the offence alleged beyond a reasonable doubt. The second issue concerned findings that the presiding magistrate had made about the application of s 24 of the Criminal Code (WA). The hearing was adjourned to enable the parties to provide further submissions on those issues.
I have concluded that:
(a)The appellant should be given leave to amend his notice of appeal to allege that the magistrate erred:
(i)in law, by referring in his reasons to licensing regulations that had not commenced as at the date of the alleged offence;
(ii)in fact, by finding that the Attached Plates had been reported as missing some years prior to the date of the alleged offence;
(iii)in fact and in law, by finding that the prosecution had proved beyond a reasonable doubt that he was not entitled to use the Attached Plates on 10 April 2015 at Wanneroo;
(iv)in fact and in law, in finding that the appellant did not have an honest and reasonable but mistaken belief that he was entitled to use the Attached Plates;
(b)leave to appeal will be granted on the grounds proposed in the amendments referred to in paragraphs (a)(i) ‑ (a)(iii) above;
(c)leave to appeal on all other proposed grounds of appeal will be refused;.
(d)a substantial miscarriage of justice did not occur as a result of any error made by the magistrate;
(e)the appeal will be dismissed.

The alleged offence

At the time that the appellant was alleged to have committed the offence, s 97(2)(d) of the RT Act provided that a person shall not use any forged or fraudulently altered licence, number plate or label, or use any licence, number plate or label to which he is not entitled. The allegation made against the appellant was that he had used number plates to which he was not entitled.
As will be explained, on the evidence that was adduced in the trial (including the appellant's evidence about his use of the Attached Plates) and on the magistrate's unchallenged finding that the appellant had honestly believed that he was entitled to use the Attached Plates, the prosecution was required to prove beyond a reasonable doubt that the Attached Plates could not be lawfully used by any person (so that the appellant could not have been lawfully authorised to use the plates) and that either s 24 of the Criminal Code did not apply because the appellant's belief was a belief about a matter of law or his belief was, in the circumstances, unreasonable.

The circumstances in which the offence was allegedly committed

The circumstances in which the appellant was alleged to have committed the offence were not in issue. The appellant was driving a vehicle on Wanneroo Road at approximately 7.35 pm on 10 April 2015 when he was stopped by two police officers, Constable Le Boydre and Constable Dale. Different number plates were attached to the front and rear of the vehicle - 1ZZB 358 (front) and 1ZZB 003 (rear).
The police officers checked the registration details of the vehicle and ascertained that it was registered to the appellant. However, the vehicle's licence had expired and the Attached Plates were not registered to the vehicle but were dealership plates. Constable Le Boydre stated in her evidence that the Attached Plates were held in a cover and attached to the appellant's vehicle in a manner that was ordinarily used for dealer or trade plates. Further, the plates were embossed with the word 'dealer'.
Constable Le Boydre and Constable Dale agreed that the appellant had stated that a friend had provided the Attached Plates as the appellant was making arrangements to have the vehicle repaired.

The appellant's defence

The appellant (who represented himself in the trial) gave evidence. He did not dispute the allegation that the vehicle was not licensed. He gave a rather convoluted explanation for how the licence had been allowed to expire. The purpose of that evidence was to explain why it had been necessary to attach dealer plates to his vehicle and accordingly, how he had come to possess the Attached Plates.
The appellant stated that he had previously dealt with two men who had operated a business that traded under the name 'Mark Murray Motors'. I infer that the business either sold or repaired motor vehicles. The business had been located in Wangara at some unspecified point in time. The appellant further stated that one of the owners of the business, 'Mark', had provided the Attached Plates to him to enable the vehicle to be taken to a garage to repair its exhaust system (ts 18 ‑ 19). He only knew Mark's first name. He had not realised that the Attached Plates bore different characters until the police pointed out the difference.
The appellant also stated that he had some years earlier operated a 'mechanical workshop' and that it was his understanding that dealer or trade plates could be applied to any vehicle and used at the direction of the licence holder or workshop manager. He believed that the Attached Plates had been provided to him by someone who was the representative or agent of the 'dealer' to whom the plates had been issued (ts 21). His understanding was that dealer or trade plates could only be used to drive the vehicle 'directly to the source repair or the … business and back'. He had been returning from the workshop where the vehicle's exhaust system had been examined when he was stopped by the police (ts 27). It should be noted that the workshop to which the vehicle had been taken was not a workshop that formed part of the business operated by Mark.

The missing exhibits

The procedure in a single judge appeal is for the relevant Magistrates Court to forward the trial exhibits to this court. However, the Magistrates Court was unable to locate the exhibits for this matter. Accordingly, the respondent's submissions for the first hearing in the appeal were prepared from the magistrate's findings and without the benefit of the exhibits.
At the hearing of the appeal, the appellant advised that he had retained copies of the exhibits. The hearing was adjourned to enable the parties to consider issues that were raised for the first time, including whether the respondent accepted that the documents provided by the appellant were, in fact, copies of the exhibits that had been received in the trial. At the resumed hearing, the respondent accepted that the appellant's documents were true copies of the exhibits. That resulted in some modification in the respondent's position.
The exhibits included certified extracts from the vehicle register maintained by the Department of Transport. One certificate stated that two 'dealer' plates bearing the characters 1ZZB 358 had been issued pursuant to s 26(2) of the RT Act in December 2001. The plates had been issued to SWGT Pty Ltd. The address of that company was given as the corner of Wanneroo and Lancaster Roads, Wangara. One of the duplicate set of plates had been reported lost in December 2008.
The second certificate stated that two 'dealer' plates bearing the characters 1ZZB 003 had been issued in March 2001 to City Motors 1981 Pty Ltd. The address of that company was given as Newcastle Street, Perth. Again, one of the duplicate set of plates had been reported lost on 17 August 2005.
The exhibits also included the Attached Plates that were seized by the police or photographs of the plates. The documents produced by the appellant included photographs of the Attached Plates that showed that the word 'Dealer' appeared below the characters.

The magistrate's reasons

The magistrate found that the Attached Plates had been missing for some time (ts 38) (the respondent accepted that this finding was made in error as the certificates of registration only established that one of each duplicate set had been reported as missing). His Honour stated that:
[N]either of the plates were valid at the time. They were not paid for and nobody - no dealer actually had them or had the permitted use of them. Anybody who used them was using them fraudulently, obviously (ts 39).
His Honour emphasised that the appellant's vehicle was not licensed at the relevant time and found that '[t]he plates which he had - he's not a dealer, he was not actually entitled to them and they were not proper dealer plates at the time' (ts 39).
The magistrate then referred to the Road Traffic (Vehicles) Regulations 2014 (WA) (the 2014 Regulations). Regulation 138 specifies the circumstances in which 'trade plates' can be used on an unlicensed vehicle. Regulation 138(a) provides that the vehicle must be driven 'by or in the presence of the person to whom the plates were issued (the holder) or an employee of the holder or a person authorised by the holder'. Regulation 138(d) limits the purposes for which an unlicensed vehicle can be used while carrying trade plates.
The magistrate considered that the effect of reg 138 was that trade plates could only be used on an unlicensed vehicle for a purpose connected with the business of the holder; that is, a holder of trade plates could not authorise a person to use trade plates on an unlicensed vehicle for a purpose that was personal to the person who had been purportedly authorised by the holder. His Honour then stated that:
Now, that's the important part for current purposes … The accused says, and he's not - the onus doesn't shift to him … but if he has an honest and reasonable mistaken belief that the person who gave him the plates [was] authorised … Now, there - now, the holder is only able to use the plates for the purpose of his own business, not to help out somebody who comes from another area.
So as a matter of law, even if this Mark was entitled to hold the plates - which we know he wasn't - he would not be able to authorise – it's beyond his power to authorise the accused man to drive with - using those plates. So to that extent it's an error of law on the part of the accused and therefore of course that it's trite that that is no defence.
Even if he were entitled and the accused has an honest and reasonable mistaken belief as to the fact that he was - or sorry, he says that he had a belief that he was in fact entitled to use those plates. I accept that it's honest because I'm - (indistinct). I accept his integrity on that regard. He's entirely - believes he's entitled to use those plates. It's honest but it's certainly not reasonable. These are plates - and I'm leaving aside the question of lack of knowledge of the - the fact that two different numbers.
The prosecution couldn't prove to my satisfaction beyond reasonable doubt that he knew that they were different numbers which of course would raise his own suspicions. But it could not possibly be reasonable for a man that he only knows as Mark, doesn't know where he is, doesn't know where he works, and hasn't been able to locate him since. It's fatuous to suggest he had a reasonably mistaken belief that he would authorised to use them by a person who has just simply given him out of the back of the ute at the time - and I appreciate he said he believed he had a dealership or some sort of business - and to be able to use them.
He simply had an unlicensed vehicle and he was - at that time - and was driving the vehicle using the plates not associated with that vehicle. That would make it emphatic that he did not have a reasonable mistaken belief if that's the case (ts 40).

The appellant's initial proposed grounds of appeal

The proposed grounds

The appellant acted in person in the appeal. His appeal notice as filed proposed five grounds alleging that the magistrate erred by:
(1)admitting to not having knowledge of the use of dealer plates;
(2)stopping evidence as to the witness' knowledge of the use of dealer plates;
(3)stopping conflicting evidence as to the alleged incident on 10 April 2015;
(4)failing to have evidence available at the time of the hearing;
(5)failing to give proper reasons for his decision.
The appellant subsequently amended his notice of appeal in light of the matters that were raised at the first hearing of the appeal. The notice raised the issue of whether the prosecution had negatived beyond a reasonable doubt the 'defence' provided by s 24 of the Criminal Code. The appellant also filed an affidavit at the same time that referred to his dealings with the Department of Transport over renewing the licence for his vehicle; his understanding of the use of trade plates; and the circumstances in which a bench warrant had been issued against him. In substance, the affidavit repeated, and to some extent, expanded upon evidence that the appellant gave in the trial.
It was not clear whether the appellant intended to abandon his initial grounds of appeal by amending his notice of appeal. Accordingly, I will deal with the initial grounds of appeal before turning to consider the matters that were raised in the first hearing and on which the parties subsequently provided further submissions.

Determination of the proposed grounds

Proposed ground 1

Proposed ground 1 proceeded on a misconception of the magistrate's function. His personal knowledge, if any, concerning industry practice relating to the use of trade plates was irrelevant to the determination of the charge alleged against the appellant.

Proposed ground 2

The appellant called his son, Mr Kevin O'Grady‑Pitt, as a witness. Mr O'Grady‑Pitt gave evidence that he worked as a 'underbelly mechanic' at a tyre workshop (ts 29). The magistrate ruled that the appellant could not ask Mr O'Grady‑Pitt questions concerning his knowledge of the circumstances in which dealer or trade plates could be used on unlicensed vehicles. That ruling was correct. Mr O'Grady‑Pitt's understanding of the circumstances in which dealer or trade plates could be used on an unlicensed vehicle was irrelevant to the proper interpretation of the relevant legislative provisions and their application to the facts as found by the magistrate.
However, Mr O'Grady‑Pitt was permitted to give evidence of the circumstances in which the Attached Plates were affixed to the appellant's vehicle. That evidence was not relevant to the meaning and effect of the legislative provisions that applied but might have been material to any belief held by the appellant as to his entitlement to use the Attached Plates.

Proposed ground 3

The appellant identified a number of passages in the trial transcript which particularised the allegation that the magistrate had erred by stopping evidence. The matters identified by the appellant concerned:
(a)questions directed to a witnesses' knowledge of the circumstances in which dealer or trade plates could be used on an unlicensed vehicle (ts 6, ts 12);
(b)the manner in which the vehicle was being driven at the time that it was stopped by the police and the roadworthiness of the vehicle (ts 7, ts 33);
(c)how the Attached Plates were removed by the police after the vehicle was stopped (ts 8);
(d)who was present when the appellant was served with the summons (ts 14); and
(e)an exchange between the appellant and police officers from the Wanneroo Police Station on 5 June 2015 (ts 14, ts 30, ts 31).
As the magistrate ruled, each of those matters was irrelevant to the issues to be determined in trying the charge alleged against the appellant.

Proposed ground 4

The appellant also identified a number of passages in the transcript as particulars of the allegation that the magistrate did not have evidence available at the time of the trial. For example, at ts 5 the magistrate indicated that he had not seen the plates previously. His Honour made that comment when the Attached Plates were tendered and as a prelude to asking a question about the condition of the plates. Another passage identified by the appellant concerned a response to an inquiry made by the appellant as to whether his Honour had a copy of the 'police notes'. His Honour stated that the notes had been not put into evidence and he had nothing other than the prosecution notice. The balance of the passages to which the appellant referred concerned either his Honour's rulings on relevance or explanations about matters of procedure. The matters identified by the appellant reflected misunderstandings about trial procedures or the admissibility of evidence.

Proposed ground 5

Section 31 of the Magistrates Court Act 2004 (WA) provides that:
(1)The Court's reasons for a judgment in a case ‑
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.

As Pritchard J observed in Beydoun v City of Stirling [2015] WASC 25:
There is no doubt that magistrates must give adequate reasons for their decisions. That obligation is expressly acknowledged in s 31 of the Magistrates Court Act 2004 (WA). That section makes clear that the reasons given by a magistrate need not constitute a detailed exposition of every piece of evidence adduced or argument advanced in a case, but need only identify those facts the court has accepted in reaching its decision and the law the court has applied, and in each case its reasons for doing so.
Many cases have confirmed that magistrates are expected to undertake the work of that busy court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases. Consequently, appeal courts should not scrutinise the reasons for decision given by magistrates with an eye keenly attuned to the identification of error, and errors should not be inferred from mere infelicities of language. The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached. The adequacy of a magistrate's reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made but findings to be inferred from the findings expressly made, and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced) [142] ‑ [143].
This was a simple charge in which the essential facts were not in dispute. In my view, his Honour's reasons fulfilled the requirements of s 31 of the Magistrates Court Act and they disclosed the 'underlying intellectual process' on which the findings were based.

Section 9 of the Criminal Appeals Act

Section 9 of the Criminal Appeals Act 2004 (WA) provides that the leave of the court is required for each proposed ground of appeal. The court must not grant leave unless it is satisfied that the proposed ground has a reasonable prospect of succeeding; that is, that the proposed ground must have a 'rational and logical prospect of succeeding ... it would not be irrational, fanciful or absurd to envisage it succeeding': Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
None of the grounds of appeal initially proposed by the appellant have a reasonable prospect of success applying that test. The appellant will not be given leave to appeal on any of the grounds that were contained in his notice of appeal as filed.

The wrong regulations

The respondent noted in written submissions filed prior to the first hearing of the appeal that the magistrate had referred to regulations that were not in force at the time that the offence was alleged to have been committed. The 2014 Regulations commenced on 27 April 2015. Accordingly, the Road Traffic (Licensing) Regulations 1975 (WA) (the 1975 Regulations) applied.
Regulation 26 of the 1975 Regulations provided for the application and use of trade plates. Regulation 26(2) stated that the persons to whom trade plates may be assigned and issued included persons carrying on the business of a repairer of motor vehicles. Regulation 26C prescribed the conditions on which an unlicensed motor vehicle could be used while carrying trade plates. Regulation 26C(1)(c) provided that it was a condition of use that the vehicle was driven by or in the presence of the registered holder of the plates or an employee of the holder or was driven by a person authorised by the holder. Regulation 26C also limited the purposes for which a vehicle carrying trade plates could be used. Those purposes included delivery of the vehicle to and from a repairer or a repairer's agent.
The respondent initially submitted that the magistrate's error in referring to the 2014 Regulations did not cause a substantial miscarriage of justice. That was because the findings made by the magistrate on the application of reg 138 of the 2014 Regulations could also be applied to reg 26 of the 1975 Regulations. However, that was before the respondent had been given an opportunity to review the copy exhibits provided by the appellant.

A further issue

There was a further issue arising out of the magistrate's reference to the 2014 Regulations. As has been noted, the plates incorporated the word 'dealer'. However, the 1975 Regulations were amended by the Road Traffic (Licensing) Amendment Regulations 2010 (WA) (the Amendment Regulations) to substitute the expressions 'trade' and 'trade plates' for 'dealer' and 'dealer plates'.
Prior to the amendments, reg 26D(3) provided that the characters on a dealer plate were to incorporate the word 'Dealer'. Following the amendment, reg 27C(3) provided that the word 'Trade' was to appear below the characters on each trade plate. Further, reg 26E contained transitional provisions that applied once the amendments made by the Amendment Regulations had commenced. Those provisions provided that dealer plates that had been issued prior to the commencement date for the Amendment Regulations were to be taken to be trade plates for the purposes of reg 26C but only for a period of 30 days. A holder of dealer plates could return the plates in exchange for trade plates during the 30 day period without incurring an obligation to pay further registration fees. The effect of the transitional provisions was that dealer plates ceased to be valid plates for the purposes of the 1975 Regulations once the 30 day grace period had expired.
It follows that it would have been open to the prosecution to prove that the appellant was not entitled to use the Attached Plates because they were not trade plates within the meaning and for the purpose of the 1975 Regulations as amended by the Amendment Regulations. However, that was not the basis upon which the prosecution against the appellant was conducted and it did not form any part of the magistrate's reasons for finding the appellant guilty of the charge. Although the magistrate referred to the plates as not being 'valid plates', it is clear that he did not have in mind that the plates had been issued in 2001 as 'dealer' plates. That is apparent from his Honour's reference to the 2014 Regulations. The comment that the plates were not valid plates was based on the finding that the Attached Plates had been reported as missing.

The certificates of registration

As has been noted, the respondent's position changed after copies of the certificates of registration that had been received in the trial were produced by the appellant. The certificates stated that the duplicate sets of plates had been issued to two companies. However, the prosecution did not adduce any evidence regarding those companies - for example, who controlled the companies, what businesses they operated and whether they still operated those businesses in April 2015 (given that the sets of plates had been issued in 2001). Consequently, the respondent conceded in further written submissions that:
12.[I]t is open to conclude that the evidence only proved:
(a)the registered holders of the plates are companies;
(b)the [appellant] was not one of those companies;
(c)one each of the plates 1ZZB 003 and 1ZZB 358 remained in circulation; and
(d)someone ('Mark') had given one each of plates 1ZZB 003 and 1ZZB 358 to the [appellant] to use.
13.In the absence of evidence of the natural persons standing behind the registered holders of the plates, it appears open to the [appellant] to argue that the prosecution did not disprove (as it was required to do) that 'Mark' was able to authorise the [appellant's] use of the plates.
Further, as the respondent rightly conceded, the certificates of registration disclosed that the magistrate had erred in finding that the Attached Plates had been missing for some time (ts 38 ‑ 39). The certificates merely established that one of each duplicate set had been reported lost. The Attached Plates may or may not have been the plates that were lost.
However, the magistrate's finding formed the basis for further findings that the Attached Plates were not 'proper plates' and that no-one was permitted to use the plates (ts 39). The respondent accepted that:
(a)those errors 'appear to have led his Honour to inexorably (yet erroneously) conclude that any use of the [Attached Plates] by the [appellant] (or any other person) on 10 April 2015 was necessarily use that was not permitted by law';
(b)that 'having reached this conclusion, the magistrate inevitably found that the fourth element of the offence [that the appellant was not entitled to use the Attached Plates] was proved beyond reasonable doubt';
(c)but that 'in light of the errors of law and fact committed by his Honour, and in light of the difficulties with the evidence led by the prosecution, that conclusion must be open to doubt' (respondent's submissions dated 25 November 2016, pars 19 ‑ 20).

Disposition

The disposition of this appeal has been complicated by the factual errors that were made by the magistrate and the further errors or assumptions that have been made about the licencing regulations that apply:
(a)the magistrate's error in finding that the Attached Plates affixed to the appellant's vehicle had been reported as missing some years earlier;
(b)the magistrate's further error in applying the 2014 Regulations and not the 1975 Regulations;
(c)the failure to have regard to the transitional provisions in reg 26E of the 1975 Regulations.
The trial and the parties' submissions in the appeal proceeded on the assumption that the Attached Plates, which were dealer plates, were trade plates within the meaning and for the purpose of the 1975 Regulations as amended by the Amendment Regulations. The failure to consider the transitional provisions in reg 26E worked in favour of the appellant and I propose to primarily consider the appeal on the assumption on which it was argued. However, the fact that the plates were dealer plates, and not trade plates, was established by the evidence and, of course, the appeal is to be determined according to the applicable law.

Did the respondent prove that the appellant was not entitled to use the Attached Plates?

The respondent's concessions concerning the magistrate's error that the Attached Plates had been reported missing and his Honour's further error in referring to the 2014 Regulations were properly made. They were errors of fact and law that constituted grounds of appeal within s 8(1)(a) of the Criminal Appeals Act. However, in my view neither error caused a substantial miscarriage of justice to occur (s 14(2) of the Criminal Appeals Act.The evidence provided by the certificates of registration was sufficient to establish that the Attached Plates were not held by a person who was a registered holder of the plates as at 10 April 2015.
Vehicle number plates are ordinarily issued as duplicates, with one plate to be affixed to the front of a vehicle and the other plate to be affixed to the rear. Regulation 26C(4) of the 1975 Regulations, as amended by the Amendment Regulations, provided that the 'a trade plate shall be fitted to the motor vehicle, in the position to which a number plate is required by these regulations to be fitted'. Regulation 25 stated that, in relation to a motor vehicle where the number plate is duplicated, one plate was to be fixed and kept in a conspicuous place on the front of the vehicle, and one plate was to be fixed and kept in a conspicuous place on the back of the vehicle. The 1975 Regulations contained similar provisions relating to dealer plates prior to the Amendment Regulations taking effect.
Regulation 39 of the 1975 Regulations created an offence for a breach of the Regulations. Accordingly, it was unlawful to display only one of a duplicate set of plates. The certificates of registration established that duplicate sets of number plates bearing the characters 1ZZB 358 and 1ZZB 003 had been issued consistent with the provisions relating to the display of dealer plates but that one plate of each set had been reported lost - in August 2005 (1ZZB 003) and December 2008 (1ZZB 358). The remaining plate in each set could not be lawfully used under the 1975 Regulations.
Regulations 32 and 33 of the Road Traffic (Charges and Fees) Regulations 2006 (WA) (the Charges and Fees Regulations) provided for fees to be paid for the issue and assignment of trade plates and for the use of plates (the regulations were repealed on 17 April 2015). Regulation 32(1) required a fee and deposit to be paid for the assignment and issue of trade plates. Regulation 32(3) further provided that:
Where a trade plate or a set of trade plates is lost, the person to whom that plate or set of plates was issued must send to the Director General notice in writing of the loss and in that case -
(a)the deposit is forfeited; and
(b)the Director General must, on proof by statutory declaration of -
(i)the loss; and
(ii)the return of any plate of the set that was not lost; and
(iii)payment of a further deposit specified in Schedule 1 Division 2 item 26 together with the plate fee referred to in subregulation (2),
assign and issue a replacement set of plates, and the annual fee paid in respect of the replaced set of plates is to be taken to have been paid in respect of the replacement set of plates.
Regulation 33(1) of the Charges and Fees Regulations provided that an annual fee was payable in respect of the possession and use of trade plates (the fee was specified by item 27 in sch 1, div 2 to the Regulations).
Regulation 26A of the 1975 Regulations provided that an adhesive label was to be issued on payment of the annual fee for trade plates or on the assignment and issue of a replacement trade plate or plates after a plate or set of plates had been reported as lost. The regulation further provided that the annual fee label was to be affixed to each plate in a duplicate set and made it an offence to use or permit to be used on any vehicle a trade plate:
(a)to which the labels were not conspicuously affixed; or
(b)if the period for which the annual fee was last paid had expired.
Consequently, the effect of the 1975 Regulations and reg 32 of the Charges and Fees Regulations was that it was unlawful for a person to hold and use only one of a duplicate set of trade plates or to use or permit to be used a trade plate for which the annual fee had not been paid or to which the annual fee label had not been affixed.
The certificates of registration did not refer to plates having been issued to replace the plates that were reported lost. Having regard to the contents and purpose of the certificates, and the fact that the appellant was provided with plates that bore different numbers, I am satisfied that the evidence established beyond a reasonable doubt that replacements plates were not issued so that the Attached Plates were not part of an intact duplicate set.
Further, the photographs of the Attached Plates that were produced by the appellant in the appeal show that annual fee labels had at some point been affixed to the plates but the labels had either been removed or had become worn down with time. It is plain from the photographs that current annual fee labels were not affixed to the Attached Plates.
I am satisfied that the evidence adduced in the trial proved beyond a reasonable doubt that the Attached Plates could not be lawfully used as trade plates: two plates with different numbers could not be used; the annual fee had not been paid and current annual fee labels were not affixed to the plates. It follows that Mark could not have authorised the appellant to use, and the appellant was not entitled to use, the Attached Plates as trade plates. That is so regardless of any association that Mark may have had with either SWGT Pty Ltd or City Motors 1981 Pty Ltd. It also follows that neither of those companies, or indeed anyone else, could have been the holder of the Attached Plates within the meaning and for the purpose of reg 26C of the 1975 Regulations as at April 2015.
That conclusion is confirmed by the fact that the Attached Plates were dealer plates. Although the case was conducted without reference to reg 26E, the transitional provisions in that regulation confirm that the Attached Plates were not held by a person who was a registered holder for the purpose of reg 26C of the 1975 Regulations. The Attached Plates were not, in the language adopted by the magistrate, valid plates. Indeed, his Honour's comments reproduced above were correct notwithstanding the possibly erroneous references to the Attached Plates as having been reported lost and to the 2014 Regulations. Those errors did not cause a substantial miscarriage of justice to occur. The effect of the evidence was to prove beyond a reasonable doubt the facts found by his Honour and the contravention of s 97(2)(d) of the RT Act, subject to the 'defence' provided by s 24 of the Criminal Code.

Section 24 of the Criminal Code

Section 24 of the Criminal Code 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 he believed to exist.
The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
Section 24 must be read with s 22 of the Criminal Code:
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.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.
As Gleeson CJ and Kirby J observed in Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493:
Section 24 is not concerned with mistakes at large. In particular, it is not concerned with mistakes about whether there is a law against conduct of a certain kind. Section 24 requires that attention be directed to the elements of the offence charged, and to the facts relevant to those elements ... It requires identification of the act or acts alleged to constitute the offence, and consideration of the extent to which the accused would have been criminally responsible for such act or acts 'if the real state of things had been such as he believed to exist'. Section 24 applies to mistakes about the elements of the offence, not mistakes about the existence of the law creating the offence [10].
In Ostrowski v Palmer, a commercial fisherman was wrongly advised by an officer of Fisheries WA about regulations governing areas within which he was permitted to fish for rock lobster. He placed a number of pots within an area in which rock lobster fishing was prohibited under the applicable regulations in the mistaken belief that he was permitted to fish in the area. He was charged with a contravention of the regulation that prohibited fishing in the area.
The fisherman's mistaken belief that he was entitled to fish in the area was based on the incorrect advice that had been provided by the Fisheries WA officer. Accordingly, his belief was held to be honest and reasonable. However, the High Court held that s 24 of the Criminal Code did not apply to relieve him of criminal responsibility for his breach of the relevant regulation. The area in which he had placed his pots was prohibited for rock lobster fishing by law. Accordingly, the mistake that he had made was not a mistake of fact but a mistake of law. Gleeson CJ and Kirby J explained:
There were three elements of the offence created by the regulation: being the holder of a commercial fishing licence; fishing for rock lobsters; and doing so in the waters surrounding Quobba Point, as defined. The respondent's conduct satisfied all of those elements. Furthermore, the respondent made no mistake, and had no erroneous belief, about any of those elements, or about any matter relevant to them. He knew he held a commercial fishing licence; he knew he was fishing for rock lobsters; and he knew where he was fishing. What he did not know was that there was a regulation prohibiting his conduct. He was fishing where he intended to fish; he did not know there was a law against it [6].

The prosecution was required to prove that the appellant was not entitled to use the Attached Plates on his unlicensed vehicle. The expression 'to which he is not entitled' in s 97(2)(d) of the RT Act means not entitled according to the regulations that govern the assignment, issue, possession and use of trade plates. Prior to the commencement of the 2014 Regulations, those provisions were to be found principally in s 26 ‑ s 26E of the 1975 Regulations. Consequently, a person was required to comply with the various stipulations contained in those regulations in order to be entitled to use trade plates.
The 1975 Regulations imposed numerous requirements on the holder and user of trade plates. Accordingly, it is necessary to consider the particular way in which it was alleged that an accused person was not entitled to use the plates that were used to determine whether the prosecution has negatived s 24 of the Criminal Code.
I have held that the Attached Plates could not be lawfully used as trade plates - the plates could not have been held by either SWGT Pty Ltd or City Motors 181 Pty Ltd or anyone else as trade plates within the meaning and for the purpose of the 1975 Regulations and no-one could lawfully use or be authorised to lawfully use the Attached Plates as trade plates. Any belief that the appellant held that he was entitled to the use the Attached Plates as trade plates (and he was found to have honestly held that belief) was as to a matter of law not fact.
The appellant's evidence of his beliefs about the use of trade plates as a result of having operated a workshop at one time was relevant to the issues of honesty and reasonableness, as was, perhaps, the evidence of Mr O'Grady-Pitt. However, the evidence otherwise merely demonstrated that the appellant's beliefs were about his entitlement to use the Attached Plates as a matter of law.
The appellant also stated in his evidence that he believed that the Attached Plates had been provided to him by 'the dealer representative' or 'agent' or 'workshop manager' or 'mechanic' (ts 21 ‑ 22). Although that belief was about a matter of fact (the position held by or the status of Mark), it was not a belief that was relevant to whether the appellant was entitled to use the Attached Plates in the circumstances of this matter. The belief would have been relevant if the Attached Plates could have been lawfully used as trade plates so that the only issue was whether the appellant had been authorised to use the plates. However, that was not the position. The appellant would not have been entitled to use the Attached Plates even if he had been provided with the plates by 'the dealer representative' or 'agent' or 'workshop manager' or 'mechanic'. Consequently, the appellant did not hold a belief that was relevant to the element of the offence that required the prosecution to prove that he was not entitled to use the Attached Plates and s 24 of the Criminal Code did not apply.
It is not necessary to consider whether the magistrate erred in finding that any belief that the appellant held was unreasonable in view of the conclusion I have reached concerning the application of s 24.