Police –v- Luciano Buda

[2005] NSWLC 21

Local Court of New South Wales

CITATION:	Police –v- Luciano Buda [2005] NSWLC 21
JURISDICTION:	Criminal
PARTIES:	Police Luciano Buda
FILE NUMBER:
PLACE OF HEARING:	Liverpool Local Court
DATE OF DECISION:	10/31/2005
MAGISTRATE:	Magistrate G Lerve
CATCHWORDS:	“on and from” – meaning of – notice of suspension of driver’s license
LEGISLATION CITED:	Interpretation Act, 1987 Road Transport (Driver Licensing) Act 1999 Road Transport (Driver Licensing) Regulations Road Transport (General) Act s. 44
CASES CITED:	Lindsell –v- O’Brien (1995) 22 MVR 341 Posner –v- Collector Intestate Destitute Persons (Vic) (1946) 74 CLR 461 Proudman –v- Dayman (1941) 67 CLR 537 Sidbotham –v- Holland [1895] 1 QB 378 Trow –v- Ind Coope (West Midlands) Ltd & Anor. [1967] 2 All ER 900 Valentine –v- Eid (1992) 27 NSWLR 615
REPRESENTATION:	Sgt. McDonald Mr. Macri
ORDERS:	I find the offence proved

REASONS FOR DECISION

This matter was one of several matters that came before me for hearing at the Liverpool Local Court on 5 September 2005. Evidence was taken from prosecution witnesses and the accused. The matter raised a number of issues (principally because of clerical errors) concerning the Notice of Suspension served upon the accused. I note that this is not the first occasion on which I have had to decide a matter where the RTA has made clerical errors within a Notice served on a member of the public. Upon hearing the evidence on 5 September 2005 I adjourned the matter for decision. My own researches revealed some authorities. Natural justice required the accused and prosecution to have the opportunity to advance further submissions if they wished to do so. The matter was mentioned before me on 30 September 2005 and the parties supplied with three authorities that I had found.

Factual Background

The facts are not in dispute. The accused had served upon him by the Roads and Traffic Authority a document that purported to be a Notice Of Suspension. Paragraph 1 of that Notice informed the accused that his Driver’s Licence was suspended “for a period of three months” and that the suspension took effect “on and from 27 April 2005”. However, a difficulty arises because paragraph 2 of that same Notice informed the accused that he was not able to drive until 28 July 2005. Given the definition of “calendar month” within s. 21 of the Interpretation Act, 1987 if the accused was suspended on and from 27 April 2005 and that he was not able to drive until 28 July 2005 the suspension imposed was in reality one of three months and one day. The Notice was an exhibit in the hearing before me.

So far as the evidence is concerned, I do not have the benefit of a transcript. I am relying on my recollection and my private notes made during the evidence. I also note that neither the prosecutor nor Mr. Macri provided anything by way of decided cases. At or shortly after 11.30pm on 27 April 2005 the accused was apprehended in Elizabeth Drive, Bonnyrigg riding a motorcycle by Constables Calverley and Nicholls. There was a conversation between the officers – but principally Constable Nicholls – and the accused, which was recorded on an in-car video camera. There was no real dispute with the police evidence. The accused told police that he thought that the suspension started from “tomorrow” – that being 28 April 2005. He was asked a number of questions which he answered. Clearly the accused maintained that he was of the belief that his suspension started from 28 April 2005. There was no dispute that the accused had actually received the Notice of Suspension.

The accused gave evidence and was cross-examined. He gave evidence of being apprehended by police, and that he had received the Notice of Suspension about 4 to 4 and one half weeks before the date on which he was stopped (27.4.05). He read the document once when he received it. After being apprehended he read the Notice again. Significantly, the accused said (according to my note of the evidence) that he “just made a mistake as to when I could drive”. The accused went on to say that he had no intention of driving while suspended, and that he really was of the understanding that the Suspension commenced n 28 April 2005.

During cross-examination the accused said that he received the Notice on 23 March 2005 and that he read it when he received it. He apparently made no effort to confirm the date from which the suspension operated. He maintained that he was of the opinion that the suspension commenced on 28 April 2005 despite the fact that the body of the Notice clearly indicated that the suspension commenced “on and from” 27 April 2005. Significantly, the accused did say, “I knew I made a mistake”. The accused went on to say that he was a plumber and that his driver’s licence was important to him. He was living at his brother’s residence at the time that he received the Notice.

Legislative Provisions

It seems to me that the relevant Legislative provisions are s. 33 of the Road Transport (Driver Licensing) Act, 1998; Regulations 38 and 39 (but particularly Regulation 39) of the Road Transport (Driver Licensing) Regulation 1999; and s. 44 of the Road Transport (General) Act 1999. Section 80 of the Interpretation Act, 1987 may also be relevant.

I have conducted a manual search of the dictionary provisions of the various pieces of Legislation that appear under the tab labelled “Road Transport” in Volume 2 of the Butterworths Practice. There does not appear to be any definition of the words “on and from” within the Legislation to which I have already referred, or for that matter, any other cognate legislation. However, the expression on and from was examined by the English Court of Appeal in Sidebotham –v- Holland [1895] 1 QB 378. That decision concerned a lease. At pp. 382-3 Lindley LJ (Lord Halsbury agreeing) said:

“The contention is that, as the tenancy commenced ‘on’ the 19th and not ‘from’ the 19th, the notice should have been to quit on the 18th and not the 19th. Having regard to Clayton’s Case 5 Rep 1, I think that, although the agreement was signed on the 19th, and the tenant can hardly in fact have been in possession the whole of that day, yet, in point of law, that day must be treated as the first day of the tenancy and as part of the term for which the house was agreed to be let. The tenancy cannot, therefore, be treated as commencing on the 20th to the exclusion of the 19th”.

Although Smith LJ agreed with the ultimate decision of the majority he gave separate reasons. At pp. 386-7 he said:

“I cannot doubt that under the agreement by its express terms the tenancy commenced on May 19, 1890. I cannot bring myself to hold, as I was invited to do by the plaintiff, that when a written agreement states that a person shall become a yearly tenant ‘commencing on the 19th of May’, that it means that he shall become such tenant ‘commencing on the day after the 19th of May’, or, in other words, as the plaintiff contends, ‘commencing from the 19th of May’>

The decision of Sidebotham –v- Holland was referred to with apparent approval in the decision of Salmon LJ in Trow –v- Ind Coope (West Midlands) Limited & Another [1967] 2 All ER 900 at p. 911. I have manually checked the indexes of the authorised law reports for the Commonwealth of Australia and each of the States. I have not been able to find any decision in Australia where Sidebotham –v- Holland has been distinguished or disapproved. For that matter, I cannot find any decision in Australia in which reference has been made to Sidebotham –v- Holland.

Accordingly, on the authorities that I have been able to find, I am satisfied that the first day that the suspension imposed by the Roads and Traffic Authority on the accused was in fact 27 April 2005, that is, the day on which he was apprehended riding a motor cycle on a public road.

The Shorter Oxford Dictionary has as part of the definition of the word “on”:

“Of time, or action implying time. Indicating the day of the occurrence, treated as a unit of time…”

This dictionary definition does not appear to conflict with the judicial considerations extracted above on the expression “on and from”.

Section 33(1) of the Road Transport (Driver Licensing) Act 1998 empowers the Roads and Traffic Authority to suspend a driver’s licence in certain circumstances. Sub-section (3A) of s. 33 provides:

“(3A) If a person’s driver licence is suspended by the Authority under this Section, the person’s licence is suspended for such period as may be determined by the Authority and specified in a notice served on the person by the Authority”.

Section 44(1)(b) of the Road Transport (General) Act 1999 provides for Notices to be served by pre-paid ordinary post to a persons business or home address. In the matter presently under consideration the Notice was in fact served in this fashion. There is not dispute that the Notice was served in accordance with the relevant provisions.

Relevantly, Regulation 39 of the Road Transport (Driver Licensing) Regulation 1999 provides:

“39 (1) If the Authority decides to vary, suspend or cancel a person’s driver licence the Authority must give the person notice in writing of:

(a) the reasons for the proposed variation, suspension or cancellation, and

(b) any action that must be taken by the licence hold in order to avoid or reverse the variation, suspension or cancellation, and

(c) the date after service of the notice on which the variation, suspension or cancellation takes effect.

(2) The notice under subclause (1) must also state:

(a) …

(b) in the case of a notice to suspend a person’s driver licence, that if the licence is suspended, the person will not be authorised to drive a motor vehicle on a road or road related area for the period of suspension specified in the notice, or

(c) …

Section 80 of the Interpretation Act 1987 is not strictly on point. However, as it deals with compliance with forms it may be of some use in determining the issues that I have to in the matter presently under consideration. The provision is:

“80 (1) If a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary, but substantial compliance is sufficient.

(2) If a form prescribed by, or approved under, an Act or instrument requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished in the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to or furnished with it, that information”.

On this aspect, Ipp J. (as he then was) in Landsell –v- O’Brien (1995) 22 MVR 341 at 344 said:

“In Posner –v- Collector for Intestate Destitute Persons (Vic) (19460 74 CLR 461 Dixon J. said at 483:

‘Modern Legislation does not favour the invalidation of orders of magistrates or other inferior judicial tribunals and the tendency is rather to sustain the authority of orders until they are set aside and not to construe statutory provisions as meaning that orders can be attacked collaterally or ignored as ineffectual, if the directions of the statue have not been pursued with exactness’.

Although I am dealing with an administrative decision of the RTA, it seems to me that the comments by Ipp J. (as he then was) are relevant to the matter I am asked to decide.

Jurisdiction to determine validity of Notice

The police Prosecutor made a submission that the Local Court had no power to determine whether the Notice of Suspension served on the accused was a valid Notice. The submission continued that the issue of the validity of the Notice would need to be determined by the Administrative Appeals Tribunal. As is usually the situation when Police Prosecutors make such sweeping submissions there was nothing in the way of assistance with authorities or legislative provisions. In fairness however, there is usually not the time nor opportunity for police prosecutors to be able to provide such assistance.

However, as Regulation 39 of the Road Transport (Driver Licensing) Regulation 1999 makes it mandatory that Notice must be given before any suspension can take effect, in my opinion it must follow that any such Notice must be served, and must contain the information provided by the Act and Regulations. A court would need to be satisfied beyond reasonable doubt that there was in fact a valid Notice of Suspension, containing the necessary information, served on the accused. Accordingly, I reject the submission that the Court is without jurisdiction to determine whether the Notice served on the accused was valid or not.

However, even if I were wrong on the issue of the Court to determine whether or not the Notice of Suspension is valid, the Court would have jurisdiction to determine whether the Notice complied with the relevant legislative provisions, particularly Regulation 39 of the Road Transport (Driver Licensing) Regulation 1999.

Information that must be contained within a Notice of Suspension

Regulations 39(1)(c) and 39(2)(b) of the Road Transport (Driver Licensing) Regulations in combination provide that the Notice of Suspension must indicate the date on which after service of the Notice the suspension takes effect, and that Notice must also indicate the period of the suspension. There is no provision that I can find within any of the relevant Road Transport legislation that provides that the Notice must also state the first date on which a person who is suspended is able to drive.

Finding

Applying the dictionary definition, and indeed common sense, to the words “on and from” as they appear in the Notice of Suspension, and considering all of the legislative provisions set out above, I am of the opinion that the accused’s driver licence was suspended from the beginning of 27 April 2005. That suspension was for a period of three months. Accordingly, when Constables Calverley apprehended the accused and Nicholls shortly after 11.30pm on 27 April 2005 his driver licence was in fact suspended.

It is conceded the accused was riding a motorcycle at the time and at the place alleged by police. Accordingly, there is no need for me to make any finding of fact in this matter.

Accused raises Honest and Reasonable Belief

As I understand the submissions advanced by Mr. Macri for the accused, the issue of honest and reasonable belief was raised as a secondary submission, the primary submission being that because of the clerical error contained within the Notice of Suspension that Notice was therefore invalid, therefore the accused was entitled to an acquittal. For reasons set out above I reject that primary submission.

It seems clear enough from the judgment of Grove J. in Valentine –v- Eid (1992) 27 NSWLR 615 that the “defence” of honest and reasonable belief is available in matters such as that presently under consideration.

In Proudman –v- Dayman (1941) 67 CLR 537 Dixon J. (as he then was) said at p. 540:

“As a general rule an honest and reasonable belief in a state of facts, which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be unlawful”.

…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. 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.

…But, although it has been said that is construing a modern statute a presumption of mens rea does not exist (per Kennedy LJ, Hobbs –v- Winchester Corporation [1910] 2 KB 471 ), it is probably still true, that unless from the words, context, subject matter, or general nature of the enactment some reason to the contrary appears, you are to treat honest and reasonable mistake as a ground of exculpation, even from a summary offence”.

There may be no longer any presumption that mens rea, in the sense of specific state of mind, whether of motive, intention, knowledge or advertence, is an ingredient in an offence created by a modern statute; but to concede that the weakening of the older understanding of the rule of interpretation has left us with no prima facie presumption that some mental element is implied in the definition of any new statutory offence does not mean that the rule that honest and reasonable mistake is prima facie admissible as an exculpation has lost its application also”.

There is nothing within the judgments of Rich ACJ (p. 538) or McTiernan J. (p. 542) that conflicts with what was said by Dixon J. (as he then was).

However, given my finding that the accused was actually suspended at the time of his apprehension by police on the night of 27 April 2005, the mistake made by the accused in this matter is one of law and not one of fact. Further, in the matter presently under consideration the prosecutor submitted that the mistake by the accused was neither honest nor reasonable. Not surprisingly, Mr. Macri on behalf of the accused submitted that the mistake was both honest and reasonable.

The Notice of Suspension received by the accused clearly stated that the suspension took effect “on and from 27 April 2005”. That same Notice indicated that the suspension was for a period of three months. On any fair and logical reading of that Notice it would have plain that the suspension began on 27 April 2005 and that the accused was not entitled to drive (or ride) a motor vehicle on that date. I am fortified in this finding by (i) the evidence of the police that the accused said to them words to the effect of that he had made a mistake as to when he could drive, and (ii) the evidence of the accused under cross-examination that he “knew he made a mistake”.

For the sake of completeness, I indicate that my decision would have been different had the accused been apprehended on 27 July 2005. This is because of the definition of “calendar month” contained within s. 21 of the Interpretation Act, 1987.

Formal Finding

I find the offence proved.

Gordon Lerve

Magistrate