Police v Pace
[2008] SASC 182
•4 July 2008
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 182Magistrates 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 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.
On 18 July 2006, the defendant received a letter in the following terms from the Deputy Registrar of Motor Vehicles:
I have received notification from South Australia Police that a Notice of Licence Disqualification or Suspension Notice issued to you for an offence under Section 47B(1) of the Road Traffic Act committed between 1 December 2005 and 26 June 2006 is invalid.
I confirm that the offence has been removed from your record.
Provided that you are not subject to any other licence disqualification or suspension and your driver’s licence is current you may resume driving.
If you have any questions concerning this matter please contact the Licence Review Officer on the above telephone number.
Almost immediately, on receipt of this letter from the Deputy Registrar, the defendant contacted an officer of the Deputy Registrar of Motor Vehicles. The only evidence of the conversation that ensued with a female officer came from the defendant. He gave the following evidence:
Q After you received those letters, what did you do.
AI instantly contacted the motor registry place and spoke to a lady there. I should have remembered her name but I didn’t remember her name and I asked her, I have just received these letters and she said yes, because of legislation problems you would have received those letters and you are to resume driving providing I haven’t got any other convictions, exactly what they have said and that they will send me my driver’s licence copy back out.
The defendant then recommenced driving.
On 10 October 2006, the defendant, while driving, was stopped by police for not wearing a seatbelt. A licence check revealed that his licence had been suspended.
The defendant was then charged with the offence of driving while disqualified, contrary to section 91 of the Motor Vehicles Act. This is the charge that is the subject of this appeal. The matter proceeded to trial before a magistrate. The prosecution presented documentary evidence in support of its case. The documents included an affidavit wherein Constable Fox deposed, inter alia:
At about 10.00am on 10/10/06 I was travelling east on Magill Rd, Kensington Gardens. At about this time I observed a white Isuzu truck SA registration XDF635 also travelling in an easterly direction. I saw that the driver was not wearing a seatbelt and subsequently pulled the vehicle over. I asked the driver for his licence however he did not produce it. On speaking with the driver I completed an expiation notice (D5980776) in the name of Bartholomew Victor Pace of 13 Lincoln Cres, Pooraka and gave it to the driver. As the driver was unable to supply his licence I conducted a licence check that revealed that his drivers [sic] had been disqualified by court from the 25/04/2006 until 24/04/2007.
I then interviewed the driver and asked him why he was driving whilst he was disqualified. He replied that he had been disqualified at court but that three weeks later he had received a letter stating that he could drive. Consequently he stated that he thought he could drive.
Following the close of the prosecution case, the defendant sought a preliminary ruling from the Magistrate. The Magistrate delivered reasons on 28 February 2008, observing:
At the commencement of the trial the court was informed by the parties that a preliminary issue for the court’s determination was whether a Proudman v Dayman defence was available to the defendant. In particular, the court was asked to rule on whether the circumstances of the case gave rise to a mistake of law or fact. If a mistake of fact, then the defendant would give evidence as to his belief at the time of driving.
The proceedings were then adjourned to allow written submissions to be prepared in regard to the preliminary issue. Following further argument, the Magistrate ruled:
The agreed facts in this case are as follows:
(1)On 25 April 2006 the defendant was issued with a notice of licence disqualification pursuant to s.47IAA of the Road Traffic Act. The notice was issued in respect of a prescribed blood alcohol driving offence.
(2)He appeared at the Port Adelaide Magistrates Court on 3 July 2006 when the matter was finalised. He was fined and a 12 month period of disqualification was back dated to 25 April, 2006.
(3)By letter dated 11 July 2006, (P3), the defendant was informed by SAPOL that the notice of licence disqualification previously issued to him was invalid. He was further informed, amongst other things, that he was permitted to resume driving if he was not subject to any other licence disqualification or suspension.
(4)That letter was followed by a letter from the Deputy Registrar of Motor Vehicles dated 18 July 2006 which confirmed that the disqualification notice was invalid and the s.47B offence had been removed from the defendant’s record.
Davis v Bates established that a [sic] s.91 of the Motor Vehicles Act imposes strict liability and a Proudman v Dayman offence is open to a defendant. He must raise the issue supported by evidence and the burden is on the prosecution to prove beyond reasonable doubt that the mistaken belief was not reasonably held.
As pointed out by the parties, a mistake of fact occurs when a mistaken belief is held as to the existence of relevant ‘state of things’.
Having received the Deputy Registrar’s letter of 18 July 2006, advising that the s.47B offence had been removed from his record, the defendant may have had a mistaken belief that such offence had been permanently removed. That was a mistake of fact giving rise to his subsequent driving.
In other words, the issue is not one of the interpretation of P3 and P4, such interpretation would give rise to a mistake of law.
The issue related to the actions of the Department of Transport. The s.47B offence had been expunged from the defendant’s record before 18 July 2006 – that is a fact. He was notified of same. He then may have mistakenly concluded that the offence would not be reinstated, the letter having been written 15 days after he appeared in the Port Adelaide Magistrates Court. That was a mistake of fact.
I will now hear evidence as to the nature of the defendant’s belief and whether it was honestly and reasonably held.
Following this ruling, the defendant gave evidence and was cross-examined. In the course of evidence, the defendant discussed his understanding of the order made in the Magistrates Court on 3 July 2006. In that respect he said:
Q And you had also been disqualified by a court, that is correct.
ANot by my, the court told me that there was no need to disqualify you any further from what the police disqualified me, so left it as that and just gave me my $700.00 fine, so that to me is one time, 12 months they gave me. They didn’t give me no extra or anything like that. The judge said they didn’t need to give me no extra on from what the police had already given me.
Q I understand what you are saying Mr Pace.
AThen they said they would backdate it to the actual date when I did get caught by the police because it was a few months after that when I went to court.
QSo you remember when you were in court that the disqualification was backdated to the day that you were stopped by police and given the instant disqualification notice.
A Yes.
QSo, are you saying then that you believe when your licence was disqualified you were only disqualified from the one source.
A That’s correct.
QComing out of court when you were in Port Adelaide you believe that you were still disqualified at that time.
A Yes.
There was no case in rebuttal. The Magistrate delivered ex tempore reasons for dismissing the complaint. Those reasons were as follows:
The defendant has raised a Proudman v Dayman defence in his sworn evidence in this matter. I will not repeat the background of the case which I set out in my earlier reasons.
The defendant has said that he honestly believed after receipt of the letters [from the Police and the Registrar of Motor Vehicles] and his subsequent communications with the Department of Transport that there was no impediment to his driving. There is no dispute that the belief was honestly held.
The defendant presented in court as a person with basic education who struggled to read out aloud [the letters]. I have no doubt that he struggled with the comprehension of those letters when he received them.
Immediately upon receipt of [the letter from the Registrar of Motor Vehicles], he made enquiries about his licence with the Department of Transport. He was told he could drive and a hard copy of his licence would be returned to him in due course. He made further enquiries about the hard copy of that licence when he re-registered a motor vehicle about one month later. He was told, ‘these things take time’.
It is not for the defendant to prove that his belief was reasonable. He must merely raise the issue through his evidence. He has done that. His reasonable belief was based on a combination of the letters sent and his communication with the authorities. The burden is on the prosecution to prove beyond reasonable doubt that his belief was not reasonably held. That burden has not been discharged given the content of the letters, the fact that the letters were sent out after the court ordered disqualification and, in addition, the information provided to the defendant by the Department of Transport.
The Appeal
The police have now appealed from the order of dismissal. The police contended that, properly understood, the evidence established at best that a mistake of law had occurred, not a mistake of fact, and that as such, no defence to the charge had been made out. It was further argued that insofar as a conclusion may be reached that a mixed mistake of fact and law had occurred, the mistake of law was vital and so, again, no defence arose. The police contended that the Magistrate had erred in her characterisation of the facts and had made findings not supported by the evidence.
It was further argued by the Police that the procedure followed by the Magistrate was unorthodox and unwarranted, and had the unfortunate consequence that at trial all concerned focussed on the wrong issue. It was said that when the defendant came to give evidence, the emphasis of that evidence appeared to be on the reasonableness of his conduct and whether he had been misled by a departmental officer, rather than on the characterisation of the nature of the mistake, if any, that had been made. The police accepted in these circumstances that if the appeal were to be allowed, there would need to be a re-trial as a risk of a miscarriage of justice would otherwise arise due to the unorthodox procedural approach taken at trial.
The defendant submitted that when considered in its entirety, the evidence supported and justified the Magistrate’s conclusions that there was evidence of a mistake of fact made by the defendant, and that that mistake was made honestly and reasonably. Against this background, the Magistrate’s conclusion that the police had not proved beyond a reasonable doubt that the defendant did not have an honest and reasonable mistaken belief should be sustained.
The Legal Principles
In Davis v Bates,[3] the Full Court concluded that a defence of an honest and reasonable mistake of fact was available with respect to an alleged offence against section 91(5) of the Motor Vehicles Act 1959-1983 (SA).[4] King CJ reasoned:
The language in which the prohibition imposed by s 91 of the Motor Vehicles Act is couched, contains no reference to a mental element. The words “knowingly”, “intentionally” or “wilfully” do not appear. The absence of such words is by no means conclusive as to whether mens rea is an element of the offence. When Parliament creates an offence it does so subject to the general principles governing criminal liability including the presumption that mens rea is a condition of the existence of criminal liability for grave crimes. The offence under consideration is not a grave crime but it is serious enough to attract a maximum sentence of six months’ imprisonment. The section creating the offence appears, however, in a statute containing sections creating many offences of which mens rea is plainly not an element and in those circumstances, I think, the absence of words denoting mens rea has some significance. A further consideration against mens rea being an element of the offence, is that the essential wrongdoing which is penalized by the section, is disobedience of a court order. It is to be expected that the legislature would require a person against whom a court order is made to take care to familiarize himself with the terms of the order and to comply with it. It is unlikely that the legislature would have intended that mere subjective ignorance of the terms of the order should exonerate such a person or that the prosecution would be required to prove that such person was aware that he was driving in breach of the order for disqualification. I consider that mens rea is not an element of the offence to be proved by the prosecution.
The next question for consideration is whether the offence is an absolute offence involving no mental element, or whether the common law defence of reasonable mistake of fact is available. The trend of the authorities is towards recognizing reasonable mistake of fact as a defence in the case of all statutory offences except that limited class of regulatory offences, usually relating to public health or safety, in respect of which, from the subject matter of the offence or the context in which the provision creating it is found, it is clear that the legislature intends to penalize the offending conduct irrespective of the subjective guilt of the offender. I think that the penalty provided for the offence under consideration is itself sufficient to exclude any implication that the offence is an absolute offence of that kind.
…
It is now clear that where there is evidence which raises the issue whether the defendant was under a mistaken belief on reasonable grounds as to the existence of facts which, if they existed, would have rendered the conduct innocent, the onus is on the prosecution to exclude such belief. It is immaterial, therefore, whether mistake is regarded as a defence to charges of offences not involving mens rea or whether the offences in the relevant class are regarded as offences involving a particular kind of mens rea, namely the absence of a belief on reasonable grounds in the existence of facts which, if they existed, would render the conduct innocent.
[3] Davis v Bates (1986) 43 SASR 149 at 150-152.
[4] Section 91(5) of the Motor Vehicles Act 1959-1983 (SA) provides: “A person shall not drive a motor vehicle on a road while his licence is suspended or while he is disqualified from holding or obtaining a licence.”
A mistake of law will not give rise to a defence. A mistake of fact may do so. A situation of a mistake of mixed law and fact was addressed in Power v Huffer,[5] where Bray CJ observed:
To some extent perhaps the distinction between mistake of fact and mistake of law depends on how the mistaken belief in question is formulated. The matter is illustrated in the passage cited by Dixon J. in Thomas’ case from the judgment of Jessel M.R. in Eaglesfield v. Marquis of Londonderry. I repeat it here:
“A misrepresentation of law is this: when you state the facts, and state a conclusion of law, so as to distinguish between facts and law. The man who knows the facts is taken to know the law; but when you state that as a fact which no doubt involves, as most facts do, a conclusion of law, there is still a statement of fact and not a statement of law. Suppose a man is asked by a tradesman whether he can give credit to a lady, and the answer is, ‘You may, she is a single woman of large fortune’. It turns out that the man who gave that answer knew that the lady had gone through the ceremony of marriage with a man who was believed to be a married man, and that she had been advised that that marriage ceremony was null and void, though it had not been declared so by any court, and it afterwards turned out they were all mistaken, that the first marriage of the man was void, so that the lady was married. He does not tell the tradesman all these facts, but states that she is single. That is a statement of fact. If he had told him the whole story, and all the facts, and said, ‘Now, you see, the lady is single’, that would have been a misrepresentation of law. But the single fact he states, that the lady is unmarried, is a statement of fact, neither more nor less; and it is not the less a statement of fact, that in order to arrive at it you must know more or less of the law.”
This certainly puts the definition of misrepresentation of fact at its widest. Perhaps it puts it too widely. It is not without interest that the decision of the learned Master of the Rolls in that case that the misrepresentation with which he was concerned was a misrepresentation of fact and not of law was reversed by the Court of Appeal. They held that it was a misrepresentation of law. In any event, and with great respect to those who think otherwise, I do not see that what is or might be true of a misrepresentation would necessarily be true of a mistake. When we are dealing with an alleged misstatement we are concerned with the interpretation of what was said and its objective truth or falsehood, when we are dealing with an alleged mistaken belief we are concerned with the state of a person’s mind. A representation may appear to anyone hearing it as a representation of fact although, unknown to the hearer, it has involved in it hidden propositions of law. On the other hand when we are talking of the nature of a belief we have to try to ascertain what is in the mind of the believer and to disentangle the various components, and if one of the components vital to the total belief is a belief on a question of law I do not see how the mistake can be other than a mistake of law.
The belief posed by the third question is the belief that the appellant was acting under the lawful authority of Senator Cavanagh. That resolves itself into two parts: (a) a belief that she was acting under his authority, (b) a belief that that authority was lawful. Expressed in that way, I think that if her second belief was mistaken the mistake was clearly one of law. Therefore I think that a vital part of the alleged mistaken belief was a mistake as to the law. The defence is not open.
[5] Power v Huffer (1976) 14 SASR 337 at 344-345 (footnotes omitted).
In Ostrowski v Palmer,[6] the High Court had occasion to consider the defence of mistake of fact. The case arose in the context of code legislation in Western Australia. McHugh J specifically approved the above referred to observations of Bray CJ in Power,[7] and noted interstate authority to similar effect.
[6] Ostrowski v Palmer (2004) 218 CLR 493.
[7] Power v Huffer (1976) 14 SASR 337.
Mr Palmer had wished to fish for lobster by using a pot entitlement in a designated zone. He attended a State Government authority seeking to view the regulations that designated the relevant zones. The original regulation was not available, but he was offered a photocopy, which he accepted. However, he was provided with a photocopy of incomplete regulations. As a consequence he fished for lobster in breach of the regulations.
The High Court took the view that he had no defence. Gleeson CJ and Kirby J reasoned:[8]
[8] Ostrowski v Palmer (2004) 218 CLR 493 at [12].
The only mistake that the respondent made was a mistake that resulted from his ignorance of the law. The acts of the respondent would have constituted a breach of reg 34 even if he had been given complete and accurate information by the Department. What the respondent’s argument amounts to is that, in that event, he would not have done the acts. That is not the issue raised by s 24. It is beside the point. The magistrate, and the dissenting member of the Full Court, were right to hold that the case fell within s 22 of the Criminal Code, and not s 24.
McHugh J observed:[9]
[9] Ostrowski v Palmer (2004) 218 CLR 493 at [51], [53], [59].
Nor was the mistake made by Mr Palmer a mistake of mixed fact and law of the type described by Dixon J in Thomas, which for the purpose of s 24 may be regarded as a mistake of fact. The earlier mistakes made by Mr Palmer — as to whether he had a complete set of regulations and whether a regulation existed which prohibited fishing in the area — explain how he came to form his mistaken view as to where he could fish. These earlier mistakes are nevertheless preliminary to the commission of the offence. They do not concern the elements of the offence; they cannot change what is a mistake of law, namely, a belief that Mr Palmer was entitled to fish for rock lobster in the area, into one of fact.
…
It is irrelevant that Mr Palmer’s mistake was induced by the conduct of an employee of Fisheries WA. That conduct cannot convert a mistake as to the applicable law into a mistake of fact. If a defendant knows all the relevant facts that constitute the offence and acts on erroneous advice as to the legal effect of those facts, the defendant, like the adviser, has been mistaken as to the law, not the facts.
…
The four cases show that, without more, a mistaken belief that an activity is lawful or authorised will be a mistaken belief as to a matter of law rather than to a matter of fact. Accordingly, the fact that Mr Palmer’s mistake was induced by the conduct of an employee of Fisheries WA cannot convert what is a mistake of law into a mistake of fact. Moreover, as Mr Palmer acknowledged, for the purposes of s 24 of the Criminal Code, it is irrelevant whether the mistake of law is induced by incorrect information obtained from an official government body or from any other third party or is induced by any other form of mistaken factual understanding. Thus, in any situation where a person's mistaken belief as to the legality of an activity is based on mistaken advice, that person would not have a defence under s 24. To find otherwise would expand the scope of the defence in s 24 to an unacceptable extent. It would also undermine the principle that ignorance of the law is no excuse, a principle expressly provided for in s 22 of the Criminal Code.
Callinan and Heydon JJ reasoned:[10]
Be that as it may, it is the task of this Court to apply the law by answering the question whether the respondent should be regarded merely as having been ignorant of the law, an excuse which s 22 of the Code would deny him, or whether he had an honest and reasonable, but mistaken, belief in the existence of a state of things which if they had in fact existed would have meant that he was not criminally responsible. The question is an important one. A mockery would be made of the criminal law if accused persons could rely on, for example, erroneous legal advice, or their own often self-serving understanding of the law as an excuse for breaking it, however relevant such matters might be to penalty when a discretion, unlike here, in relation to it may be exercised.
The evidence and the findings as to the respondent’s honesty and reasonableness are one way and need no further reference. What then were the mistaken “things” which he honestly and reasonably believed to exist? Olsson AuJ described them as the completeness of the “applicable materials upon which [the respondent] could determine his licence rights”. We do not disagree with that description so far as it goes but do not think that it is a complete one. It is also another matter whether the things to which his Honour referred formed part of or constituted the relevant operative mistake.
…
The difficulty for the respondent is that there were here a series of mistakes, the one to which Olsson AuJ referred, the actual decision to rely on the information with which he had been provided, and the actual reliance, by fishing in the embargoed waters. The last is a different mistake from, for example, a mistake as to the location of his vessel or his lobster pots. The last, it can be seen, is discrete in time, place and physical activity from the other two, although but for them it is unlikely that it would have been made. The offence of which the respondent was convicted was not of failing to obtain, or hold and rely on complete and accurate materials, but of fishing where professional fishing was impermissible. The elements of the offence consisted of fishing in the embargoed waters, an activity which the respondent knew to be proscribed. Unfortunately, in the circumstances he could be no less guilty than a motorist who has done everything reasonably possible to ascertain the speed limits on a stretch of roadway along which he is to travel but having failed to do so, in one or more instances, exceeds those limits because he was unaware of them.
These authorities guide the approach to be taken to the present appeal.
[10] Ostrowski v Palmer (2004) 218 CLR 493 at [85]-[86], [90] (footnotes omitted).
The Present Proceedings
The position in the present case may be summarised as follows. On 10 October 2006, a Court order was in existence that disqualified the defendant from driving. On that date he was driving while disqualified. Absent an honest and reasonable mistake of fact, or mixed fact and law in which the law was not vital, he had no defence.
The defendant was present in Court, represented by counsel, on 3 July 2006, when he was convicted of the offence of driving with excess blood alcohol and was fined. His driver’s licence was disqualified for 12 months, taking effect from 8.24 pm on 24 April 2006. The evidence of Constable Fox included the defendant’s admission that he had been disqualified from driving by the Court. However, the defendant’s evidence, set out above, suggests that he was confused and probably mistaken about the effect of the Court order. If there was a mistake it was a mistake of law. It was a mistake about the effect of a Court order. Had the defendant wished for clarification about the effect of the order at any time, he could have spoken with his lawyer or an appropriate Court officer. He did not do so. Even if he had obtained legal or other advice that incorrectly described the effect of the Court order, this would only mean he was mistaken as to the legal effect of what had occurred. In short, his suggested misunderstanding about the 3 July 2006 order of the Court was a misunderstanding of law.
The letter from South Australia Police, extracted in full above, is clear and accurate. Counsel for the defendant on the appeal accepted that this was so, and made no complaint about this letter.
However, the letter from the Deputy Registrar of Motor Vehicles did contain confusing material. It was suggested that an offence had been removed from his record. This statement was confusing, as the removal related to “a notice of licence disqualification or suspension notice issued to you for an offence under section 47B(1) of the Road Traffic Act”. It is understandable that the terms of the letter of the Deputy Registrar could cause confusion.
The officer of the Registrar who spoke to the defendant by telephone, according to his evidence set out earlier in these reasons, informed the defendant that he could resume driving providing he did not have any other convictions, and that they would send his licence back to him. It was difficult for this evidence to be tested, as the defendant could not remember the name of the person to whom he spoke. The advice given was correct, and as he did have a conviction, and was suspended, he could not legally drive. However, the reference to other convictions and the return of his licence could have caused confusion.
In Ostrowski, in the passages referred to above, it is apparent that incorrect departmental advice about the content of regulations cannot provide the foundation for a defence of honest and reasonable mistake of fact.
In my view, on the evidence led before the Magistrate, it was not open to conclude that a relevant mistake of fact had occurred. It may be possible to conclude that there was a mixed mistake of fact and law, but on any view the mistake of law about the effect of the Court’s orders of 3 July 2006 predominated and was the vital mistake. In these circumstances, in accordance with the authorities of Power and Ostrowski, on the evidence before the Magistrate, the complaint should not have been dismissed. A conviction should have been recorded.
The particular circumstances outlined by the defendant suggest, however, a genuine desire on his part to ascertain his legal rights, and of his receiving advice which may well have been confusing. These circumstances arouse sympathy for his position that could, if he is convicted of the offence, be expected to receive appropriate consideration when determining penalty.
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.
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