Police v Tenzin - [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…

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 Tenzin

Details

AGLC: Police v Tenzin [2023] ACTMC 49
Case: [2023] ACTMC 49
Decision Date: 18 December 2023

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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