Police v Tenzin

Case [2023] ACTMC 49


MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Police v Tenzin

Citation: 

[2023] ACTMC 49

Hearing Date: 

13 November 2023

Decision Date: 

18 December 2023

Before:

Magistrate Temby

Decision: 

Defendant found guilty of the offence charged

Catchwords: 

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE – driving whilst suspended – strict liability offence – collateral challenge to validity of suspension - excuse of honest and reasonable mistake – notice of suspension presumed to be delivered – mistake of law – mistake of fact was not available

Legislation Cited: 

Acts Interpretation Act (Qld) s 39A

Legislation Act 2001 (ACT) ss 245, 247

Road Transport (Alcohol and Drugs) Act 1999 (ACT)

Road Transport (Driver Licensing) Act 1999 (ACT) s 32

Road Transport (General) Act 1999 (ACT) ss 24, 26, 27, 44

Road Transport (General) Regulation 2000 (ACT) s 9B

Cases Cited: 

Baratt v Merhi [2013] ACTSC 123; (2013) 276 FLR 389

Coughlin v Curran [2008] QDC 66

DPP v Yigit [2008] NSWCA 226; (2008) 84 ALR 319

Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87

Leydon v Venkat [2015] QDC 28

Maher v Carpenter [2012] ACTSC 38

Masri v R [2021] NSWDC 305

Mayer v Merchant (1973) 5 SASR 567

Nikro v O’Sullivan [2013] ACTSC 129

Police v Topic [2023] ACTMC 47

Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536

Stone v French [2013] ACTMC 4

Parties: 

Director of Public Prosecutions ( Crown)

Kinley Tenzin ( Defendant)

Representation:

Solicitors

ACT Director of Public Prosecutions

Legal on London ( Defendant)

File Number:

CC 3710 of 2023

MAGISTRATE TEMBY:

Introduction

1․The defendant appeared before the court in relation to proceedings CC2023/3710, in which he is charged with one offence of driving while his licence was suspended, contrary to paragraph 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (Driver Licensing Act). This offence is a strict liability offence.

2․It is alleged that on 13 December 2022 the Defendant drove on Limestone Avenue in Braddon, in the ACT. At that time, the Defendant’s licence was suspended as a result of the Defendant’s failure to pay an infringement notice penalty.

3․The Defendant accepts that he was driving on Limestone Avenue in Braddon on the evening of 13 December 2022. He accepts that he was involved in an accident at that time and that his blood alcohol concentration exceeded the prescribed level under the Road Transport (Alcohol and Drugs) Act 1999 (ACT).

4․However, the Defendant submits that he did not receive any notice in relation to the suspension of his licence prior to 13 December 2022 and, therefore, that it was not validly suspended on that date. He submits that, in those circumstances, he cannot be found guilty of the offence charged.

5․The Defendant alternatively submits that, even if he was properly served with the relevant statutory notices, and that his licence was validly suspended, he was unaware that his licence had been suspended, raising a mistake of fact excuse.

6․I note that the…

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Police v Tenzin [2023] ACTMC 49
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[2023] ACTMC 49
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CaseChat Overview and Summary

Police v Tenzin involved a defendant charged with driving whilst his license was suspended. The case was heard in the Magistrates' Court of Victoria. The dispute centred on whether the defendant's belief that his license was valid constituted a valid defence against the strict liability offence. The defendant claimed that he had an honest and reasonable mistake regarding the validity of his license, which he attributed to his belief that he had received proper notice of the suspension.

The court needed to determine whether an honest and reasonable mistake could serve as a defence in a strict liability offence, particularly regarding the validity of a driving license suspension. Additionally, it had to consider whether a mistake of law could be considered honest and reasonable, as opposed to a mistake of fact, and whether the presumption of delivery of the suspension notice could be rebutted.

The court held that, in a strict liability offence, the defence of honest and reasonable mistake was not available. It distinguished between a mistake of law and a mistake of fact, finding that the former could not be considered reasonable. Furthermore, the presumption of the delivery of the suspension notice could not be rebutted without substantial evidence. Consequently, the defendant's belief that he had not received proper notice did not provide a valid defence. The court found the defendant guilty of the offence charged.

Orders

Orders of the court

Defendant found guilty of the offence charged

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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