Police v Grozev - [2006] SASC 353

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v GROZEV
[2006] SASC 353
Judgment of The Honourable Chief Justice Doyle
27 November 2006
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNCERTAIN EXERCISE OF POWER
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
TRAFFIC LAW - REGULATION OF TRAFFIC - TRAFFIC SIGNS AND NOTICES
The respondent was charged with one count of driving while there was present in his blood the prescribed concentration of alcohol contrary to s 47B of the Road Traffic Act 1961 (SA) and one count of driving a vehicle in a bicycle lane contrary to r 153(1) of the Australian Road Rules - the Magistrate found the police officers who detained Mr Grozev did not have a reasonable belief that he had committed an offence - evidence of the concentration of alcohol present in his blood, conducted after Mr Grozez was detained, was excluded - whether the evidence of the alcotest was properly excluded - whether the alcotest could have been supported under a provision of the Australian Road Rules to which the relevant member of the Police Force did not turn his mind at the time - whether the Magistrate erred in holding that Mr Grozev did not breach r 153 of the Australian Road Rules - it cannot be concluded that the Magistrate was wrong to dismiss count one on the basis that the Police Officer had no reasonable belief that an offence against s 47 of the Road Traffic Act had been committed - a prescribed period for the random detention of drivers of vehicles for the the purposes of breath analysis was in force - the police officer who detained the respondent did not know of the prescribed period - in the circumstances of the case and having regard to the relevant legislation it is of no consequence that a police officer did not know the source of power he was exercising - it is enough that as a matter of law the power existed - the police officer who detained Mr Grozev issued an expiation notice which was later cancelled and reissued under a different section of the Australian Road Rules - it is of no consequence that the police officer elected to reissue an expiation notice under a section which he later considered to be a more accurate reflection of the offence of driving in a bicycle lane - it is enough that the Police Officer had the power to issue an expiation notice notwithstanding the fact that he did not have regard to that section at the time of issuing the first expiation notice - appeal allowed - count 1 remitted to the Magistrates Court for further hearing - count 2 remitted to the Magistrates Court for the recording of a conviction and for sentencing.
Road Traffic Act 1961 (SA) s 47B, s 47E(1), s 47E(1)(a), s 47E(2a)(b), s 47E(2c), s 47E(10), s 47(2)(a); Australian Road Rules r 8, r 150(1), r 153(1), r 153(4); Criminal Code 1899 (Qld) s 546; Police Powers and Responsibilities Act 1997 (Qld) s 35(1); Migration Act 1958 (Cth) s 189(1); Narcotic and Psychotropic Drugs Act 1934 (SA), referred to.
George v Rockett (1990) 170 CLR 104; Veivers v Roberts [1980] Qd R 226; Percy v Hall [1997] QB 924; Coleman v Power (2004) 220 CLR 1; Hazelton v Potter (1907) 5 CLR 445; Ruddock v Taylor (2005) 79 ALJR 1534; Lockwood v Commonwealth (1954) 90 CLR 177; Brown v West (1990) 169 CLR 195; Re JJT & Ors; Ex Parte Victoria Legal Aid (1998) 195 CLR 184; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 112 ALR 463; Harris v Great Barrier Reef Marine Park Authority (1999) 162 ALR 651; Queen v Romeo (1982) 30 SASR 243; Warke v Diare (1983) 32 SASR 321; R v Long and McDonnell (2002) 137 A Crim R 263, discussed.
VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631, considered.

POLICE v GROZEV
[2006] SASC 353
Magistrates Appeal: Criminal

DOYLE CJ: A Magistrate dismissed a charge against Mr Grozev alleging an offence contrary to s 47B of the Road Traffic Act 1961 (SA) (“the RTA”). The Magistrate also dismissed a charge alleging an offence against r 153(1) of the Australian Road Rules (“the ARR”).
The complainant, SA Police, appeals against the dismissal of the charges.
The appeal raises the following issues.
First, whether the Magistrate rightly held that Mr Grozev was required to submit to an alcotest in circumstances such that the RTA did not authorise the requirement. It was on the basis of the result of the alcotest that he was required to submit to a breath analysis. Having decided that the requirement to submit to an alcotest was not supported by the RTA, the Magistrate exercised his discretion to exclude the result of the breath analysis, on the basis that it was not lawfully obtained. The exercise of the discretion is not challenged on appeal, if the Magistrate’s premise (that the requirement to submit to the alcotest was not an authorised requirement) was correct.
The second issue is whether the Magistrate erred in excluding evidence tendered to prove that the requirement to submit to an alcotest could have been supported under a provision of the RTA to which the relevant member of the police force did not turn his mind at the time.
The third issue is whether the Magistrate erred in holding that Mr Grozev did not breach ARR 153(1) by driving in a bicycle lane, because the deviation of his motor vehicle into the lane was “a minor deviation” which did not cause any “danger or embarrassment”.
Facts
The first charge was that Mr Grozev drove a motor vehicle while there was present in his blood the prescribed concentration of alcohol, contrary to s 47B of the RTA. The alleged concentration of alcohol was 0.154 grams of alcohol in 100 millilitres of blood.
The second charge was that on the same day and at the same place he drove a vehicle on a road in a bicycle lane, contrary to r 153(1) of the ARR.
The prosecution evidence was that Constable Lord and Constable Wendt were on duty on the day in question. They saw a Subaru station wagon travelling in front of them. They saw it drift to the left side of the road and cross a continuous white painted line which was parallel to and about two metres from the kerb at the left side of the road. As I understand it there is no dispute that this line marked the edge of a bicycle lane as defined by r 153(4). The area between the painted white line and the kerb comprised the bicycle lane. There were signs painted on the surface of the road and adjacent to the road indicating that the lane was a bicycle lane.
The Subaru travelled for about ten metres in the bicycle lane, and then moved to the right and out of the lane. A little further down the road the same thing happened.
The police officers stopped Mr Grozev. Constable Lord required him to submit to an alcotest. The Magistrate found that he did so, relying on a belief that Mr Grozev had committed an offence against r 150(1) of the ARR, which, subject to exceptions that are not material, provides that “A driver must not drive on or over a continuous white edge line on a road …”. Mr Grozev was subsequently required to submit to a breath analysis, the result of which indicated that the prescribed concentration of alcohol was present in his blood.
At the time, s 47E(1) of the RTA provided:
47E   Police may require alcotest or breath analysis
(1)     Where a member of the police force believes on reasonable grounds that a person, while driving a motor vehicle or attempting to put a motor vehicle in motion—
(a)has committed an offence of a prescribed class of which the driving of a vehicle is an element; or
**********************
(c)has behaved in a manner that indicates that his or her ability to drive the motor vehicle is impaired; or
(d)    has been involved in an accident,
that member of the police force may, subject to subsection (2), require that person to submit to an alcotest or breath analysis, or both.
By reg 8 of the Road Traffic (Miscellaneous) Regulations 1999 (SA) offences against the ARR were offences of a prescribed class for the purposes of s 47E(1)(a). Accordingly, if Constable Lord believed on reasonable grounds that Mr Grozev had committed a breach of r 150(1), he was authorised to require Mr Grozev to submit to an alcotest.
Constable Lord completed and handed to Mr Grozev an expiation notice in respect of an alleged offence against r 150(1). But a few days later, after a discussion with another member of the police force, Constable Lord cancelled the expiation notice. He decided that the appropriate offence to charge on these facts was an offence against r 153(1), which (subject to immaterial exceptions) provides that a driver must not drive in a bicycle lane. In due course Mr Grozev was charged with that offence.
The reason for cancelling the expiation notice, and charging a different offence, is not clear. Constable Lord said that he began to wonder if he had “made the right choice”. He “researched” the ARR. He then decided that the “correct offence” was an offence against r 153. In cross-examination he was asked about the decision to cancel or withdraw the expiation notice in respect of an offence against r 150(1), and then he gave the following evidence:
QThat was because in your mind there was at that stage no reasonable grounds for believing he committed that offence.
AAfter researching, I believe the bicycle lane was the correct offence.
QIs the answer to my question, yes.
AYes.
When Constable Wendt gave evidence he gave the following answers:
QYour evidence is that there was further investigation and research, such that there was a direction to Constable Lord, as you understood it, to cancel the traffic infringement notice.
AThat’s correct.
QAnd that was because the offence for which the infringement notice had been issued was in fact the wrong offence.
AThat’s correct.
QAnd that there was no reasonable grounds for believing that he had committed that offence so therefore the traffic infringement notice would be withdrawn.
AThat’s right.
QAnd that was done, as you understood it, on the direction from a senior Sergeant, yes.
AA Sergeant I, believe.
The Magistrate’s Decision
The Magistrate rejected an argument that Constable Lord formed the required belief in relation to an offence against r 150(1) and an offence against r 153(1). He concluded that when the requirement was made under s 47E, the only belief held by Constable Lord related to an offence against r 150(1). That finding of fact is not challenged.
The Magistrate found that an offence against r 150(1) had not been committed. He said at [17]:
There is no doubt that from the evidence before the court the defendant’s motor vehicle had not driven on or over the continuous white line at the edge of the road and therefore could not have committed that offence. Both officers conceded that, and in fact, the infringement notice issued for that offence was subsequently cancelled.
A little later, referring to evidence given by Constable Lord, he said at [21]:
To me that indicated he did not at the time have a genuine belief that the defendant had committed the offence of driving in a bicycle lane to bring him within the criteria which justified the requirement of a test. That is why he decided to go with the other offence of crossing over a continuous white line. However, as it turned out, no such offence had in fact been committed because the defendant had not crossed over the continuous white edged line on a road. There is no doubt from the evidence that the defendant did not and could not have committed that offence. The officers considered that after receiving advice from a superior officer and the infringement notice issued for that offence was subsequently cancelled.
The Magistrate’s reasons in this respect are not clear.
It may be that he took the view that the painted line to which the police officers referred was not “a continuous white edge line on a road” for the purposes of r 150(1). The dictionary to the ARR defines an “edge line” as a “line marked along the road at or near the far left or far right side of the road”. It may be that the Magistrate decided that the line was not at or near the far left side of the road and therefore could not, as a matter of law, be a white edge line. The fact that only part of the vehicle crossed the line could not have mattered, because r 150(3) states that the offence occurs if the vehicle “is wholly or partly to the left of the line”.
In any event, the Magistrate held that Constable Lord did not believe on reasonable grounds that an offence against r 150(1) had been committed.
Having so concluded the Magistrate held that Constable Lord did not have authority to require Mr Grozev to submit to an alcotest, and exercised his discretion to exclude the result of the breath analysis.
As to the alleged breach of r 153(1), the Magistrate found as follows:
The evidence of Senior Constable Lord tends to indicate that the minor encroachment was not at the time considered by him to be sufficient to justify the offence of driving in a bicycle lane and that is why he opted for the other offence. In the circumstances, therefore, I find that such a minor deviation into the bicycle lane, especially in the absence of any evidence of danger or embarrassment, or potential danger or embarrassment to any persons using the bicycle land cannot constitute an offence for the purpose of Rule 153 of the Australian Road Rules, and I dismiss the charge.
In the course of the prosecution case the prosecutor tendered a certificate pursuant to s 47E(10) of the RTA, which at the time provided as follows:
47E(10)     A certificate purporting to be signed by the Minister and to certify that a specified period was a prescribed period for the purposes of this section is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters so certified.
The certificate stated that the day in question fell within a prescribed period.   The prosecutor proposed to argue that Constable Lord was entitled to require Mr Grozev to submit to an alcotest, under s 47E(2a) which provides:
47E    (2a)    A member of the police force may require—
(a)the driver of a motor vehicle that approaches a breath testing station established under section 47DA; or
(b)    the driver of a motor vehicle during a prescribed period,
to submit to an alcotest.
He intended to submit that the certificate established that the events in question occurred during a prescribed period, and that accordingly Constable Lord was entitled to require Mr Grozev to submit to an alcotest, even though Constable Lord did not direct his mind to the existence of this power. The Magistrate rejected the tendered evidence, and accordingly there was no factual basis on which the argument could be advanced. The Magistrate makes no reference to this in his reasons. In an affidavit the prosecutor states that the Magistrate said that he rejected the evidence because there was no evidence that the police officers directed their minds to the fact that it was a prescribed period when they required Mr Grozev to submit to an alcotest.
The exclusion of the result of the breath analysis
Decisions of this Court establish that a member of a police force might reasonably believe at a particular time that an offence has been committed even though it later emerges that the offence was not committed, or cannot be proved. The issue posed by s 47E(1) is whether Constable Lord genuinely believed on reasonable grounds, when he required Mr Grozev to submit to an alcotest, that Mr Grozev had breached r 150 of the ARR. As the High Court held in George v Rockett (1990) 170 CLR 104 at 112, what must be demonstrated or proved is the existence of facts which are sufficient to induce the relevant belief or state of mind in a reasonable person, and that Constable Lord in fact formed the relevant belief or state of mind. This is to be decided on the basis of what Constable Lord knew and saw at that time.
The fact that Constable Lord later decided that he had charged “the wrong offence” is, of itself, of no particular significance. The issue is whether he held the required belief on reasonable grounds when he made the requirement to submit to an alcotest. The same comment applies if Constable Lord later decided that a charge under r 153 was a more appropriate charge. But the Magistrate seems not to have proceeded on either of these bases. He speaks as if an offence against r 150 could not have been committed.
Why did the Magistrate decide that Constable Lord did not form the required belief?
Neither the Magistrate nor the witnesses have said clearly why an offence against r 150(1) could not have been committed. It appears to me that it must have been because the line in question was not a white edge line. I can think of no other reason, having regard to the circumstances, for the Magistrate having reached the conclusion he did. And it follows that the Magistrate must have decided that a belief based on a mistake of law was not a belief of the kind contemplated by s 47E(1)(a).
Was the Magistrate correct in deciding that Constable Lord’s belief that Mr Grozev had offended against r 150(1) was wrong as a matter of law, because the line in question was not a white edge line?
The correct identification of the meaning of “edge line” in the ARR is potentially of some importance. The ARR are part of a national scheme for uniform rules. I am reluctant to decide the point without the assistance of detailed submissions on the point, but the issue is raised by the case, and cannot be avoided.
I conclude that the line in question is not “a continuous white edge line on a road” for the purposes of r 150(1). A bicycle lane is defined by r 153(4), which provides as follows:
153 (4)      A bicycle lane is a marked lane, or the part of a marked lane:
(a)    beginning at a bicycle lane sign applying to the lane; and
(b)    ending at the nearest of the following:
(i)     an end bicycle lane sign applying to the lane;
(ii)an intersection (unless the lane is at the unbroken side of the continuing road at a T-intersection or continued across the intersection by broken lines);
(iii)if the road ends at a dead end – the end of the road.
The photographs tendered before the Magistrate show that the line in question is a line that creates or designates a bicycle lane between the line and the kerb. That is apparent from the painted line on the road and the presence of bicycle lane signs. There can be no doubt about that.
The line in question is not at the far left side of the road. It appears to be about two metres from the kerb. It might be said to be near the far left side of the road, although I have some doubts about that. The line might be said to be “continuous” although in fact it is a series of continuous and broken lines, fitting the definition of “marked lane” in the dictionary.
But the real difficulty with treating the line as a “continuous white edge line” is that odd and inconvenient consequences would follow from treating the same line as both a “white edge line” for the purposes of r 150(1) and as designating a bicycle lane for the purpose of r 153(1). Each of the prohibitions in r 150(1) and r 153(1) is subject to a different series of exceptions. Some of them overlap, but some are different. For example, the driver of a slow moving vehicle is permitted to drive on or over a continuous white edge line: r 150(1)(e). The driver of such a vehicle is not permitted to drive in a bicycle lane. The driver of certain forms of public transport may drive for up to 50 metres in a bicycle lane in certain circumstances: r 153(3). But there is no such exception to the prohibition against driving on or over a “continuous white edge line”.

I have come to the conclusion, having regard to the terms of r 150 and r 153, and the manner in which these provisions operate, that it could not have been intended that a painted line that designates a bicycle lane should also be treated as a “continuous white edge line” when it is “near the far left … side of the road”. I conclude that a “continuous white edge line” and a line that creates a marked lane that is a bicycle lane are different concepts.
The Magistrate was correct, if in fact he decided that Constable Lord’s belief that Mr Grozev had offended against r 150(1) was based on a mistake of law.
That brings me back to the question of whether a mistaken belief that the line in question was a white edge line for the purposes of r 150(1) can found a belief on reasonable grounds that an offence against r 150(1) has been committed.
One might think that the belief referred to in s 47E(1) must be a belief about facts, not a belief about matters of law. Otherwise curious results could follow. A confused or wrong belief about the law might provide a basis for the exercise of the statutory power to require a driver to submit to an alcotest.
But Mr Stratton-Smith has referred to a number of cases which suggest that a mistaken belief as to a matter of law can be relied upon as a basis for a reasonable belief that an offence has been committed. Or, putting it a little differently, the authorities can be seen as supporting the view that a reasonable belief can be formed that an offence has been committed, even though that belief might include or ultimately be founded on an error of law.
In Veivers v Roberts [1980] Qd R 226 a police officer arrested a man who was, I gather, protesting against the demolition of certain premises. The police officer arrested the man for the offence of being, without lawful excuse, in an “enclosed yard” under certain Queensland legislation. The Court held that the place in question was not an “enclosed yard” for the purposes of the legislation, and dismissed the charge of the offence in connection with which the man was arrested. There was a further charge of resisting the member of the police force in the execution of his duty. The issue was raised of whether the man could be convicted of resisting arrest on a charge in respect of which he had been acquitted. The power of arrest, under s 546 of the Criminal Code 1899 (Qld), was a power to arrest if the police officer “believes on reasonable grounds that the offence has been committed, and that any person has committed it …”.
In brief reasons DM Campbell J said at 228:
A constable may have reasonable grounds for believing that an offence has been committed although he is under a misapprehension as to the law. In this case the respondent was on private property. He was in an area which was fenced in. He was committing a trespass and the constable had reasonable grounds for believing that he found him offending against s 4(1)(viii)(a) of the Vagrants, Gaming and Other Offences Act.
The other members of the Court agreed.
A somewhat similar issue arose in Percy v Hall [1997] QB 924. The defendants had been arrested and charged with offences against certain bylaws. The defendants challenged the validity of the bylaws. The charges under the bylaws were dismissed. On appeal, the bylaws were held to be invalid. The plaintiffs then brought actions for wrongful arrest and for false imprisonment against the constables in question. In those proceedings the Court of Appeal, disapproving of the earlier decision on validity, and held that the bylaws were valid. It appears not to have been strictly necessary to decide the further issue, because it arose only if the bylaws were invalid. Nevertheless, the members of the Court of Appeal considered the issue. At 947-948 Simon Brown LJ said:
The central question raised here is whether these constables were acting tortiously in arresting the plaintiffs or whether instead they enjoy at common law a defence of lawful justification. This question, as it seems to me, falls to be answered as at the time of the events complained of. At that time these bylaws were apparently valid; they were in law to be presumed valid; in the public interest, moreover, they needed to be enforced. It seems to me one thing to accept, as readily I do, that a subsequent declaration as to their invalidity operates retrospectively to entitle a person convicted of their breach to have that conviction set aside; quite another to hold that it transforms what, judged at the time, was to be regarded as the lawful discharge of the constables’ duty into what must later be found actionably tortious conduct.
The other members of the Court agreed: see Peter Gibson LJ at 950, Schiemann LJ at 950-952. The reasons of the members of the Court of Appeal emphasise, appropriately enough, the importance of members of society being able to regulate their lives on the assumption that enactments are lawfully made, until they are found to be invalid.
These decisions were referred to by two of the members of the High Court in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1. Mr Coleman was arrested and charged with certain public order offences. He was also charged with obstructing a police officer and assaulting a police officer in the execution of his duty. He challenged the validity of the legislation creating the public order offences with which he was charged. That challenge failed. However, a majority of the Court set aside certain of the public order convictions basing their decision on the proper interpretation of the legislation.
Only two members of the Court found it necessary to consider the question of the lawfulness of the arrest.
McHugh J (dissenting on this point) decided that the law under which Mr Coleman was arrested was invalid. The power of arrest, under s 35(1) of the Police Powers and Responsibilities Act 1997 (Qld) was a power to arrest “a person the police officer reasonably suspects has committed or is committing an offence …”. McHugh J referred to the decisions in Veivers and Percy v Hall. Without expressing a view on the decision in Veivers, although he appears to have treated it as correct, he distinguished the decision in Percy v Hall. He referred to an earlier decision of the High Court in Hazelton v Potter (1907) 5 CLR 445 and went on to say at [140]:
Section 35(1) of the Police Powers Act was not identical with the enactment considered in Hazelton. But in my opinion the principle on which that case was decided applies to the present case. Hazelton holds that a person cannot intend to execute a statutory instrument if the instrument does not exist. A fortiori, a person cannot have a reasonable suspicion that an offence has been committed under an enactment that does not exist. It is not reasonable to believe or suspect that a law exists when it does not. Ignorance of the law is ordinarily not an excuse for what is otherwise unlawful conduct. Fictional though it may be, everyone is presumed to know the law.
He added that when a law is invalid because it infringes a constitutional prohibition or immunity, it would be offensive to the Constitution to validate an arrest made under it: at [143]. It is clear that his conclusion was influenced by the fact that the law under which the arrest was made was invalid for constitutional reasons. In those circumstances, the law creating the offence did not “exist”.
Kirby J found that the law was constitutionally valid, but narrower in its reach than the arresting police believed it to be. He also considered the lawfulness of the arrest. He acknowledged the force of the view expressed by McHugh J, but said that that view was not necessarily applicable when constitutional invalidity was not in issue. He said that the arrest was lawful. His conclusion appears from the following passage at [264]:
In the nature of their ordinary functions, police officers cannot wait for action until courts, months, or perhaps years later, have passed upon the legality of their conduct, often performed in fraught and urgent circumstances. They do not enjoy absolute immunity. Under the Police Powers Act they must demonstrate having “reasonable grounds for believing that an offence has been committed”. But if this is shown, the fact that it ultimately proves that the police officer is under a misapprehension as to the law, or has based the arrest “on an erroneous view of the law”, do not deprive that officer of the protection afforded by a provision such as s 35(1) of the Police Powers Act. (footnotes omitted)
In the omitted footnotes he refers to Veivers.
Both McHugh J and Kirby J appear to have accepted the decision in Veivers as correct in principle, although not applicable, or arguably not applicable, when the law creating the offence for which the arrest is made is constitutionally invalid.
In Ruddock v Taylor [2005] HCA 48; (2005) 79 ALJR 1534 the High Court had to consider s 189(1) of the Migration Act 1958 (Cth) which provided:
If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.
On two occasions Mr Taylor’s visa, on the basis of which he was permitted to remain in Australia, was cancelled by the Minister. After each cancellation Mr Taylor was detained in immigration detention. Each of the decisions cancelling his visa was quashed by an order of the High Court. Mr Taylor made a claim for damages for false imprisonment in respect of each period of detention. The Court held that the detention was not unlawful. The Court’s reasoning was that the lawfulness of Mr Taylor’s detention turned on s 189(1), and had to be separately considered from, and raised issues separate from, the unlawfulness of the exercise by the Minister of the power to cancel the visa. The majority (Gleeson CJ, Gummow, Hayne and Heydon JJ) rejected a submission that the belief in question could not be considered reasonable if it was based on a mistake of law, the mistake of law being that Mr Taylor was an unlawful non-citizen. Callinan J took the same approach: at [228]-[229].
The majority made the point at [39] that the issue was the construction of the word “reasonably” in particular, and that there was no constitutional reason to read the section as excluding a mistake of law. They said that there was nothing in the words of the Act itself that warranted the drawing of such a distinction: at [42]. They went on to say at [45]:
The second reason to reject the contention is that there would be many cases under s 189 in which a distinction between mistake of law and mistake of fact could not readily be drawn, if drawn at all. Reference to cases like Collector of Customs v Agfa-Gevaert Ltd provides ready illustration of the difficulties. Especially is that task difficult where, as here, the subject matter of the relevant suspicion is a statutory status – being an unlawful non-citizen. Errors about the conclusion cannot safely be divided between errors of law and errors of fact. Often, perhaps much more often than not, the error will be one of mixed law and fact. (footnote omitted)
They added at [46] that to draw such a distinction would cause “great uncertainty” about the extent of the obligation to detain a person.
This amounts to a significant body of authority to support the contention by Mr Stratton-Smith. However, as the High Court rightly emphasised in Ruddock v Taylor, the ultimate question is one of construction of the starting statutory provision.
I begin on the basis that there is no starting assumption that a provision like s 47E(1) cannot apply to a belief based on a mistake of law. I note also that it is an empowering provision and not an immunity provision. However, the majority in Ruddock v Taylor did not treat that distinction as being significant.
It is not easy to find a textual basis in the RTA for drawing a distinction between mistakes of law and mistakes of fact. And I accept the submission by Mr Stratton-Smith that, depending on how the belief is expressed, it might be difficult to determine whether or not an error of law underlies it. A belief that a driver has offended against a prohibition against dangerous driving might, on close scrutiny, be based on a mixture of opinions about the meaning of the word “dangerous” in the legislation and beliefs about or assessments of the driving in question. I agree that the presence of an error of law might be disguised by expressing the belief in relatively general terms.
I am not persuaded that a belief based on a mistake of law falls outside the scope of s 47E(1). There are practical reasons for concluding otherwise.
I am influenced as well by the fact that the power under s 47E(1) is a power that will have to be exercised, in most situations, on the basis of the more or less immediate assessment of the situation, and without time for mature reflection or enquiry. A categorical distinction between mistakes of law and mistakes of fact should not be drawn for the purposes of s 47E(1)(a) of the RTA.
For those reasons I conclude that Constable Lord’s belief that an offence against r 150(1) of the ARR had been committed was capable of being a belief of the kind required to enliven the power conferred by s 47E(1)(a).
But the question remains of whether he held the belief on reasonable grounds. The Magistrate seems to have decided that Constable Lord’s belief that an offence against r 150(1) had been committed was plainly wrong, and that he must have been told something to that effect by the more senior police officer who instructed him to cancel the expiation notice. The short passages from the cross-examination of Constable Lord and Constable Wendt, that I have set out above, support the conclusion that Constable Lord realised that he was plainly wrong.
This is not a case in which Constable Lord’s belief was based on shades of meaning or on a belief about contestable aspects of the precise reach of r 150(1). His belief was based on a plain misreading of r 150(1), causing him to think that it applied to circumstances in which it had no application. I do not consider his belief to be a belief held on reasonable grounds. That is not because it involved a mistake of law, but because of the kind of mistake of law he made.
In all the circumstances I am not able to say that the Magistrate was wrong in concluding that Constable Lord did not reasonably believe that an offence against s 150(1) had been committed. Nor do I consider, in all the circumstances, that the interests of justice would be served by remitting the matter for further cross-examination as to the basis of Constable Lord’s belief, and the reason why the expiation notice was cancelled. The issue was fought and lost before the Magistrate, although possibly on a slightly confused basis.
For those reasons I conclude that the Magistrate’s decision to dismiss count 1, the charge under s 47B, should stand.
I turn to the issue of the availability of the power under s 47E(2a)(b).
A number of decisions and judicial observations support the view, expressed briefly by Fullagar J in Lockwood v The Commonwealth (1954) 90 CLR 177 at 184 that:
It is, I think, a settled principle that an act purporting to be done under one statutory power may be supported under another statutory power …
In Brown v West (1990) 169 CLR 195, dealing with a determination as to allowances payable to members of Parliament, the relevant tribunal made a determination, referring to certain statutory provisions as the source of power. On one view the source of power was to be found in a statutory provision not referred to. In their reasons, the Court (Mason CJ, Brennan, Deane, Dawson and Toohey JJ) said at 203:
However, the validity of the Tribunal’s determinations is unaffected by mistaking the source of power to make them: Moore v Attorney-General (Irish Free State) [1935] AC 484; R v Bevan; Ex Parte Elias and Gordon (1942) 66 CLR 452 at 487.
In Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] HCA 44; (1998) 195 CLR 184 the High Court considered a challenge to an order made under the Family Law Act 1975 (Cth). The order was made by a Judge, invoking s 117 of that Act. In the course of his reasons Kirby J remarked at [40]:
The fact that Faulks J considered that s 117 of the Act was the legal foundation of his order would not deprive that order of validity if, on examination, it was supported by another provision, such as s 68L.
Kirby J dissented in that case, but there is no indication in the reasons of the others members of the Court that they took the view that s 68L was not available to support the order made, if its terms did so. In Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 112 ALR 463 the Full Court of the Federal Court was concerned with the validity of an authorisation given under the Corporations Law. It was argued that s 597 of that Act, the provision invoked to support the authorisation, did not support the authorisation. Black CJ at 465-466 and Lockhart J at 477-478 both said that the authorisation could be supported under s 11(4) of the Australian Securities Commission Act 1989 (Cth), even though that power had not been invoked or referred to. Gummow J expressed the same view at 490-491. As the Court there recognised, there are limits to this approach. Black CJ said at 466:
There must of course be limits to the general principle that an act purporting to be done under one statutory power may be supported under another statutory power. The suggested other source of power may, for example, be seen to be unavailable because its exercise depends upon the fulfilment of some condition precedent peculiar to it and that event has not yet occurred: see Saatchi at FCR 23 per Wilcox J. and R v Bevan: Ex parte Elias and Gordon (1942) 66 CLR 452 at 587 per Williams J. There may also be cases in which the matters to which a decision-maker would be bound to have regard in exercising the other source of power differ materially from the matters relevant to the exercise of the assumed source of power with the result that the other source of power cannot be relied upon to support the decision. Similarly, matters may be taken into account in the purported exercise of a power that would invalidate the attempted exercise of a power derived from another source because, in the context of the other source, they were irrelevant matters. Moreover, for reasons of this nature, where the effect of the exercise of the power upon third parties may differ according to the source of the power, the exercise of the power may not be supportable as a valid exercise of power derived from another source. No difficulties of this sort were present in Brown v West (1990) 169 CLR 195; 91 ALR 197, where the court pointed out, at 203-4, that whether the Remuneration Tribunal's power was to be found in one sub-section or in another, the power was to "determine" a postage allowance and that was the power the Tribunal exercised, and where it was conceded that the power was exercised validly.
And Gummow J said at 490:
In my view, the truth of the matter can only be found by analysis of the particular statute or other written law said to authorise or empower the making of the decision in question. Having regard to any specification of manner and form and, on a more general level, to the subject matter, scope and purpose of the law, is it a requirement that the decision-maker specify in writing the source of the authority relied upon?
Is such a requirement made directory or mandatory by the law in question? That distinction, as now understood, is discussed in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-4; TVW Enterprises Ltd v Duffy (No 3) (1985) 8 FCR 93 at 102, 113-4; 62 ALR 63 Broadbridge v Stammers (1987) 16 FCR 296 at 300 and Formosa v Secretary, Department of Social Security (1988) 81 ALR 687 at 691-3. If there be no such requirement, or if the requirement be directory in character, it must be very difficult to sustain a case that the propriety of the decision in question is to be judged by that head of power expressly relied upon (if any) to the exclusion of any other enabling authority.
Here, none of the heads of power suggested to support the authorisation specify any particular form, nor, indeed, that it be embodied in any written instrument. Nor does reliance upon one rather than another head of power lead to any difference in the consequences for third parties, such as the present applicants. The position was rather different with the legislation considered in Saatchi & Saatchi.
Similar views were expressed by Kiefel J in Harris v Great Barrier Reef Marine Park Authority [1999] FCA 437; (1999) 162 ALR 651 at [14]-[18]. I refer also to the review of authorities by Spigelman CJ in VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631 at [21]-[54].

The Queen v Romeo (1982) 30 SASR 243 concerned search warrants. One of the police officers involved in the relevant search held a search warrant under the Narcotic and Psychotropic Drugs Act 1934 (SA), which warrant authorised him to enter the premises and search them. The other police officer involved held warrants under that Act, but they had been irregularly issued. Those police officers also held general search warrants, which were sufficient to authorise the entry and search. For reasons that do not matter, those police officers probably thought that the general search warrants were not available in the particular circumstances. Had they been challenged and called upon to produce the warrant under which they were acting, they would have produced the irregular search warrants. Cox J said at 277:
However, if the detectives in this case correctly believed that the law authorized them to act as they did that morning, and if in an objective sense they were right about that, I do not think in principle that their acts would be invalidated merely because they had a wrong view about the proper source of their legal authority.
Without expressing a final opinion, he said that he thought that the general search warrants made the entry and search lawful, even though the police officers in question might not have adverted to these warrants as the source of their power to do so. It is implicit in the reasons of White J that he took the same view, and King CJ agreed with White J and Cox J.
In Warke v Daire (1983) 32 SASR 321 Zelling J, dealing with powers of arrest, said at 327-328:
In my opinion, in the instant case this woman was told the essential facts on which she was being arrested and removed from the premises. An arrest is not vitiated by the fact that the arresting police officer wrongly thought, although he did not communicate this thought to the appellant, that he was acting under the powers of s 73 of the Police Offences Act. Clearly he could not use that section but he had other powers on which he could rely, namely Regulation 20 under the Places of Public Entertainment Act and s 7 of the Police Offences Act, with which this woman was ultimately charged.
In R v Long and McDonnell [2002] SASC 426; (2002) 137 A Crim R 263 I said that I regarded the reasoning of Cox J in Romeo as persuasive, but like him I did not have to decide the point: at [31]. The other members of the Court agreed with my reasons.
None of these decisions dealt with powers of the kind in question here. Only the last three deal with the exercise of powers by a member of a police force. However, I can find no reason why the principle underlying these decisions should not apply in the present case. The principle is that a statutory power or authority may be relied upon to support an action or conduct even though the person engaging in the action or conduct does not intend to exercise the statutory power or authority, or advert to its availability.
But this is merely a general principle. It is not a universal and categorical proposition.
The question is whether there is anything in the terms of s 47E(2a) or in the nature of the power it confers, or in the effect or consequences of the exercise of that power, that indicates that Parliament must have intended that a condition of the valid exercise of the power is that the person exercise the power intend to exercise the power, or refer to the power when exercising it, or inform the person the subject of the power that it is being exercised, or follow a particular process or procedure when exercising the power.
The other way of putting the issue is to ask whether there is any indication that it was a purpose of the legislation that an act done in reliance on an inappropriate statutory power, but which could be supported by s 47E(2a), should be invalid.
The power under s 47E(2a)(b) is available in this case. There is nothing in the provision or in s 47E to indicate that the availability of the power is dependent on the member of the police force having a belief that a prescribed period is in operation. Nor is there an indication that the power is available only if the member of the police force intends to exercise that particular power (as distinct from some other power). There is no indication of a requirement that the member of the police force refer to the source of the power when exercising it. There is nothing to indicate that, even if asked about the source of the power, a mistaken identification of the source of the power matters. Neither the manner in which the power is exercised, or the procedures to be followed, can be affected by a failure to identify or refer to the source of power. There are no procedures attached to the exercise of the power under s 47E(2a)(b) that were not followed. In particular, the same two hour limit for the performance of a breath analysis applies under s 47E(2a)(b) as applies under s 47E(1): see s 47E(2c). There is nothing in the section to indicate that a mistaken belief by the member of the police force as to the source of power to make a requirement should invalidate or prevent a later reliance on s 47E(2a)(b).
Nor are there any statutory rights or entitlements that Mr Grozev could have claimed or exercised, had the requirement to submit to an alcotest been exercised by reference to s 47E(2a)(b). If there were, that would suggest that Parliament intended that the power be available only if it was actually relied upon.
For those reasons I conclude, although the result may seem surprising, that if the prosecutor were able to establish that the relevant events occurred during a prescribed period, the requirement to submit to an alcotest could be supported under s 47E(2a)(b). It follows that the Magistrate should not have rejected the tender of the documents intended to prove that the events occurred during a prescribed period. The certificate pursuant to s 47E(10) that was tendered was capable of being proof that a prescribed period was in operation.
The count the subject of the first charge should be remitted for further hearing by the Magistrate. The prosecutor should be permitted to re-open the prosecution case to the extent required to establish, if it can be established, that the requirement to submit to an alcotest was made during a prescribed period. Counsel for Mr Grozev should be permitted to re-open the defence case on the same issue. The Magistrate should then decide whether or not the requirement was made during a prescribed period, and if it was, subject to any other issue that arises, the Magistrate should find count 1 proved.
The dismissal of Count 2
I consider that the Magistrate erred in dismissing this count.
The Magistrate found that Mr Grozev drove his car in a bicycle lane. There is nothing in r 153 to support a conclusion that it is necessary to prove any danger or embarrassment, or potential danger or embarrassment, before an offence can be committed. Nor is there anything to indicate that a minor deviation is not an offence. While it is conceivable that there might be a case in which the intrusion into the bicycle lane is so minor or trifling as to be disregarded, this is not such a case.
On the evidence the Magistrate should have found this count proved. The order dismissing this count should be set aside and the matter should be remitted to the Magistrates Court for a finding that the offence is proved, and for sentence to be imposed.
Conclusion
For those reasons I allow the appeal. I set aside the dismissal of count 1 and of count 2. I order that count 1 be remitted to the same Magistrate for further hearing on the issue of whether the requirement to submit to an alcotest can be supported under s 47E(2a)(b). Count 2 should be remitted to the Magistrate for the purpose of the Magistrate finding that the offence is proved, and for sentence to be imposed.