Police v Pace - [2008] SASC 182

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v PACE
[2008] SASC 182
Judgment of The Honourable Justice Gray
4 July 2008
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - IGNORANCE AND MISTAKE OF FACT - HONEST AND REASONABLE BELIEF - GENERALLY
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against magistrate’s dismissal of complaint – in April 2006, the police alleged that respondent drove with an excess of alcohol in his blood, contrary to section 47B Road Traffic Act 1961 (SA) – respondent issued with notice of immediate licence disqualification for 12 months, pursuant to section 47IAA Road Traffic Act (“the instant disqualification”) – in June 2006 Full Court held that a form of notice of immediate licence disqualification in similar terms to that provided to respondent was void due to serious misstatements – on 3 July 2006 respondent pleaded guilty to section 47B offence – magistrate recorded a conviction, imposed a fine and ordered that respondent be disqualified from driving for 12 months (“the court imposed disqualification”) – on 11 July 2006 and 18 July 2006 respondent received letters from SA Police and Deputy Registrar of Motor Vehicles informing him that instant disqualification was invalid in light of Full Court decision – in October 2006 respondent was charged with driving while disqualified contrary to section 91 Motor Vehicles Act 1959 (SA) – respondent raised a defence of honest and reasonable mistake of fact (Proudman v Dayman defence) at trial – respondent claimed that he honestly and reasonably believed he was legally able to drive as a consequence of the invalidity of the instant disqualification – magistrate held that prosecution had not discharged burden of disproving that respondent’s mistaken belief was reasonably held and dismissed complaint.
Held, allowing the appeal: respondent’s mistaken belief was not a mistake of fact – respondent’s mistaken belief was possibly a mixed mistake of fact and law in which mistake of law predominated – complaint should not have been dismissed and conviction should have been recorded – matter remitted for rehearing.
Motor Vehicles Act 1959 (SA) s 91; Road Traffic Act 1961 (SA) s 47B, 47IAA and s 50, referred to.
Ostrowski v Palmer (2004) 218 CLR 493 (2004) 218 CLR 493; Police v Conway; Police v Parker (2006) 95 SASR 83; Power v Huffer (1976) 14 SASR 337, considered.

POLICE v PACE
[2008] SASC 182
Magistrates Appeal
GRAY J

This is an appeal by the police against a dismissal of a complaint by a magistrate.
The respondent, Bartholomew Victor Pace, was charged with the offence of driving a motor vehicle while disqualified from holding or obtaining a driver’s licence, contrary to section 91 of the Motor Vehicles Act 1959 (SA).[1] The complaint alleged that the offence occurred on Magill Road, Kensington Gardens, on 10 October 2006.
[1] Section 91 of the Motor Vehicles Act 1959 (SA) provides:
(1)This section and section 93 apply to suspensions and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Pace

Details

AGLC: Police v Pace [2008] SASC 182
Case: [2008] SASC 182
Decision Date: 4 July 2008

CaseChat Overview and Summary

Bartholomew Victor Pace was charged with driving a motor vehicle while disqualified from holding or obtaining a driver’s licence, contrary to section 91 of the Motor Vehicles Act 1959 (SA). The incident took place on Magill Road, Kensington Gardens, on 10 October 2006. Pace was previously stopped by police in Croyden Park, and upon undergoing a blood alcohol analysis, he was found to have a reading in excess of 0.15 grams of alcohol in 100 millilitres of blood. He was issued with an immediate notice of licence disqualification of 12 months, pursuant to section 47IAA of the Road Traffic Act 1961 (SA). Pace was later served with a complaint alleging that he drove with an excess of alcohol in his blood, in breach of section 47B of the Road Traffic Act. He was required to attend at the Port Adelaide Magistrates Court on 3 July 2006.

The legal issues in this case centred around the validity of the immediate notice of licence disqualification, the defendant's belief that he was legally able to drive due to the invalidity of the notice, and the reasonableness of that belief. The Full Court had previously held that a form of notice of immediate licence disqualification, in similar terms to that provided to Pace, was void due to serious misstatements. Pace argued that the invalidity of the notice meant that he was legally able to drive on 10 October 2006, and that he held an honest and reasonable belief in this regard. The magistrate dismissed the complaint, finding that the prosecution had not discharged the burden of disproving that Pace's mistaken belief was reasonably held.

The appeal was allowed, and the magistrate's order dismissing the complaint was set aside. The court found that Pace's mistaken belief was not a mistake of fact, but rather a mixed mistake of fact and law in which mistake of law predominated. The court held that the complaint should not have been dismissed and that a conviction should have been recorded. The matter was remitted for rehearing before a differently constituted Magistrates Court.

Orders

Orders of the court

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Background

Background to the litigation

The respondent, Bartholomew Victor Pace, was charged with the offence of driving a motor vehicle while disqualified from holding or obtaining a driver’s licence, contrary to section 91 of the Motor Vehicles Act 1959 (SA).[1] The complaint alleged that the offence occurred on Magill Road, Kensington Gardens, on 10 October 2006.[1] Section 91 of the Motor Vehicles Act 1959 (SA) provides:(1)This section and section 93 apply to suspensions and disqualifications imposed under this or any other Act. ...(5)A person must not drive a motor vehicle on a road while his or her licence ... is suspended or while disqualified in this State or another State or Territory of the Commonwealth from holding or obtaining a licence ... . Maximum penalty: For a first offence—imprisonment for 6 months. For a subsequent offence—imprisonment for 2 years.Background On 25 April 2006, the defendant was stopped by police while driving in Croyden Park shortly after 7.00 pm. He underwent a blood alcohol analysis which disclosed a reading in excess of 0.15 grams of alcohol in 100 millilitres of blood. He was given an immediate notice of licence disqualification of 12 months, pursuant to section 47IAA of the Road Traffic Act 1961 (SA). Shortly thereafter, he was served with a complaint alleging that he drove with an excess of alcohol in his blood, a breach of section 47B of the Road Traffic Act. He was required to attend at the Port Adelaide Magistrates Court on 3 July 2006. On 26 June 2006, the Full Court of this Court delivered judgment in the matters of Conway and Parker.[2] The Court there concluded that a form of notice of immediate licence disqualification, in similar terms to that provided to the defendant, was void because of serious misstatements. The South Australian Police took the view that the decision in Conway and Parker was such as to render the notice given to the defendant invalid, and that the period of licence disqualification that had been imposed was not effective. [2] Police v Conway; Police v Parker (2006) 95 SASR 83. On 3 July 2006, the defendant attended before a Magistrates Court, represented by counsel. The Court record notes that the defendant was convicted on his plea of guilty to the offence of driving with excess blood alcohol. The record further notes that the facts as alleged were admitted. A fine was imposed, and an order was made disqualifying the defendant from driving for 12 months backdated to commence at 8.24 pm on 25 April 2006. It was also recorded that the defendant was warned of the consequences of driving while disqualified. An alcohol interlock order was made pursuant to section 50 of the Road Traffic Act. On 11 July 2006, the South Australia Police to the defendant, advising him of the decision in Conway and Parker:The recent decision of the Full Court of the Supreme Court, of Police v Conway and Police v Parker, handed down on 26 June 2006 has a practical impact upon a number of drivers who had been disqualified by a Notice of Licence Disqualification or Suspension Notice.This letter is provided to advise you of the impact of the Full Court’s decision upon your driver’s licence and the period of disqualification that was imposed against you.This letter is not a substitute for legal advice provided to you by a solicitor.You were allegedly detected by police whilst driving or attempting to drive a motor vehicle while the Prescribed Concentration of Alcohol was present in your blood. That alleged offence contravenes section 47B(1) Road Traffic Act, 1961 and is the offence which caused the police to issue a Notice of Licence Disqualification or Suspension Notice to you.The Full Court’s decision made the notice issued to you invalid. Accordingly, any period of licence disqualification imposed by the notice is not effective.Provided that you are not subject to any other licence disqualification or suspension, and your driver’s licence is current, you are now permitted to resume driving.You may, if you haven’t already done so, receive a Summons to attend Court for this matter. You should comply with any Summons that you receive. If you are convicted by the Court for this offence you may be subject to a further period of disqualification or suspension.If your driver’s licence was already suspended or you were already disqualified from holding or obtaining a driver’s licence, when the invalid Notice of Disqualification or Suspension was issued to you, the decision of the Full Court may have no real effect upon your licence status.The Full Court decision does not alter any other type of licence disqualification or suspension, nor does it impact upon Notice of Licence Disqualification or Suspension Notices issued for offences other than driving with the Prescribed Concentration of Alcohol in the bloodstream.In the event that you are unsure of any other licence disqualification or suspension that applies to your licence you should contact the Department for Transport Energy and Infrastructure on 131 084 and seek clarification.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The procedure adopted by the Magistrate had the potential to cause confusion. I do not doubt that the procedure was intended to expedite and simplify the proceedings. However, hindsight suggests that the procedure may have had the effect of focussing the parties’ attention away from the principal issue. The police case was short, consisting of the uncontested tender of documents. On the closing of the prosecution case, the defence of honest and reasonable mistake would have been presented. The attention would then be on the defendant’s state of mind relevant to the suggested mistake and the reasonableness of his state of mind. Conclusion This appeal is allowed. The Magistrate’s order dismissing the complaint is set aside. The order for costs made by the Magistrate is set aside. Having regard to the concession by the police, it is appropriate to remit the matter for further hearing. The matter is remitted for rehearing before a differently constituted Magistrates Court.

Ratio Decidendi

Legal Principle Established

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