Police v Tenzin
[2023] ACTMC 49
•18 December 2023
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 parties made oral submissions at the hearing on 13 November 2023 and submitted written submissions on 22 November 2023 (the Defendant) and 27 November 2023 (the Prosecution).
Principles
7․There are some preliminary matters which I must first address. The Prosecution of course bears the onus of proving the guilt of the Defendant. The Defendant does not have to prove that he did not commit the offences with which he is charged. The standard of proof the Prosecution must meet is proof beyond reasonable doubt and the Defendant cannot be found guilty unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If I am satisfied that there may be an explanation consistent with the innocence of the Defendant, or I am unsure of where the truth lies, then I must find that the charge has not been proved to the standard of proof required by law.
8․I must determine whether each of the witnesses is a reliable witness. That is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence as proved. I can accept part of the witness’s evidence and reject part of that evidence or accept or reject it all. I extend this principle to the persons who statements were tendered at the hearing, even though they did not give evidence at the hearing. The law does not require me to give all evidence the same weight.
9․I must determine the facts in accordance with the evidence, considering it logically and rationally, without acting capriciously or irrationally. I must not let emotion enter into the decision-making process. I must bring an open and unbiased mind to the evidence but I may use my common sense and experience in assessing the evidence. Both the Prosecution and Defendant are entitled to my verdict free of partiality, prejudice, favour or ill-will.
10․I may draw reasonable inferences from the facts that I find are established. I must consider any possible inference to ensure that it is a justifiable inference, and I must not draw an inference from the direct evidence unless it is a rational inference in all the circumstances. It is permissible for the court to rely on an inference, of which the court is satisfied can be drawn beyond reasonable doubt, as proof of an element of an offence.
11․I must deliver my decision according to the evidence.
12․The Defendant gave evidence at the hearing. He was not required to do so. He could have elected not to give evidence. He thereby became a witness in the hearing and I must approach his evidence in the same way that I approach the evidence of any other witness. His evidence is no better or worse, because he is the Defendant, than the evidence of the other witness in the hearing and must be considered in the same way.
13․By giving evidence, the Defendant did not assume any onus to prove anything at the hearing in relation to the elements of the offence with which he was charged. While the Defendant had an evidential burden in relation to the mistake of fact excuse he relied on, the Prosecution bore the legal burden of disproving the excuse beyond reasonable doubt if the evidential onus was discharged by the Defendant.
14․I accept the Prosecution submission that the Defendant bore a legal burden with respect to his challenge to the service of documents by the road transport authority and, in particular, his challenge to the presumption created by paragraph 9B(3)(b) of the Road Transport (General) Regulation 2000 (ACT) (the Regulation), which he was required to discharge on the balance of probabilities.
Summary of decision
15․For the reasons set out in this decision:
(a)I am satisfied, beyond reasonable doubt, that the Prosecution has established the elements of the offence with which the Defendant is charged;
(b)I am not satisfied, on the balance of probabilities, that the Defendant has established the contrary of the presumption created by paragraph 9B(3)(b) of the Regulation, that he was served with all relevant notices under the Road Transport (General) Act 1999 (ACT) (General Act); and
(c)I am not satisfied that the Defendant discharged the evidential burden cast on him with respect to the mistake of fact excuse that he raised. In particular, I am not satisfied that his mistaken belief – being that he believed he had a valid driver licence – was a mistake of fact. In my view, it was a mistake of law.
Elements
16․As I have noted, the Defendant is charged with driving while his licence was suspended.
17․The elements of that offence for the purposes of these proceedings are that:
(a)the Defendant was the driver of a motor vehicle on a road or road related area; and
(b)at the time of driving, the defendant’s Australian driver licence was suspended under a law of any jurisdiction.
18․As also noted above, the Defendant accepts that the first element is satisfied.
Law
19․Subsections 24(1) to (3) of the General Act states:
24 Infringement notices
(1) Subsection (2) applies if an authorised person reasonably believes that a person has committed an infringement notice offence (other than a heavy vehicle infringement notice offence).
(2) A notice for the offence may be served on the person.
Note An authorised officer under the Heavy Vehicle National Law (ACT) may serve a person with a notice if the officer reasonably believes the person has committed a heavy vehicle infringement notice offence (see Heavy Vehicle National Law (ACT), s 591 (1)).
(3) An infringement notice must be served in the way prescribed by regulation.
20․Section 26 of the General Act states:
26 Infringement notice—payment of penalty etc
(1)This section applies if—
(a)an infringement notice for an infringement notice offence is served on a person; and
(b)the infringement notice has not been withdrawn.
Note See s 36 for withdrawal of infringement notices.
(2) The person must do 1 of the following within 28 days after the date the infringement notice is served:
(a)pay the infringement notice penalty stated in the notice;
(b)apply to the administering authority to—
(i) enter into an infringement notice management plan; or
(ii) if the person has an infringement notice management plan—add the infringement notice penalty for the offence to the plan; or
(iii) waive the infringement notice penalty;
Note See s 31A for applications to enter into infringement notice management plans and applications to add infringement notice penalties to plans.
See s 31F for applications for waiver of infringement notice penalties.
(c)apply for withdrawal of the infringement notice;
Note See s 34 for applications for withdrawal of infringement notices.
(d)if the person asserts he or she was not the person who committed the offence—give the administering authority an infringement notice declaration;
(e)if the person disputes liability for the offence—give the administering authority written notice disputing liability.
Note 1 For when a notice sent by post is taken to be given, see the Road Transport (General) Regulation 2000, s 9B.
Note 2 See s 51 for disputing liability for an infringement notice offence.
Note 3 If a person disputes liability for an infringement notice offence (other than a heavy vehicle infringement notice offence), the administering authority may lay an information in the Magistrates Court against the person for the offence (see s 53). For proceedings for heavy vehicle infringement notice offences, see the Heavy Vehicle National Law (ACT), s 707.
Note 4 A person served with an infringement notice may apply for an extension of time to do something mentioned in s (2) (see s 29).
Note 5 If a person served with an infringement notice does nothing under s (2) within 28 days or any extension of time allowed under s 29, a reminder notice will be served on the person (see s 27).
Note 6 A corporation served with an infringement notice for an infringement notice offence involving a registrable vehicle has obligations under div 3.3A.
21․Section 27 of the General Act states:
(1) This section applies if—
(a)an infringement notice for an infringement notice offence is served on a person; and
(b)the infringement notice has not been withdrawn; and
(c)the person—
(i) has not done anything mentioned in section 26 (2) in relation to the infringement notice, has not been granted an extension of time to do something mentioned in section 26 (2), and at least 28 days have passed since the date the infringement notice was served; or
(ii) if the person has been granted an extension of time to do something mentioned in section 26 (2)—has not done anything mentioned in that subsection within the extended time.
Note For when a notice sent by post is taken to be given, see the Road Transport (General) Regulation 2000, s 9B.
(2) The administering authority must arrange for service of a notice (a reminder notice) on the person.
Note If a reminder notice has been served on a person for an infringement notice offence, the total amount payable by the person for the infringement notice penalty for the offence is the prescribed amount of the penalty payable for the offence plus the prescribed amount payable for the cost of serving the reminder notice (see dict, def infringement notice penalty).
(3) The reminder notice must include the information prescribed by regulation.
22․Section 44 of the General Act states:
44Suspension for nonpayment of infringement notice penalties
(1) This section applies if—
(a)an infringement notice and a reminder notice have been served on a person by an authorised person under this part or the Heavy Vehicle National Law (ACT) for an infringement notice offence; and
Note A notice may be served on a person by an authorised officer for a heavy vehicle infringement notice offence (see Heavy Vehicle National Law (ACT), s 591 (1)).
(b)the offence involved a registrable or rail vehicle; and
(c)the infringement notice has not been withdrawn or the infringement notice penalty for the offence has not been waived; and
(d)the person does not have an infringement notice management plan for the infringement notice penalty for the offence; and
(e)the penalty has not been paid to the administering authority within the time for payment under this part; and
(f)notice disputing liability has not been given to the administering authority in accordance with this part.
(2) The road transport authority must—
(a)send the person a written notice (a suspension notice) that contains the information required by subsection (3); and
(b)if the infringement notice penalty is not paid before the suspension date in the suspension notice—take action under subsection (5), (6) or (7) (the suspension action) on the suspension date.
(3) A suspension notice must state—
(a)particulars of the infringement notice and the reminder notice to which the suspension notice relates; and
(b)that if the person does not pay the infringement notice penalty before a stated date (the suspension date), the authority will take suspension action on the suspension date; and
(c)any information prescribed by regulation; and
(d)any other information that the road transport authority considers appropriate.
(4) However, the suspension date must not be earlier than 10 days after the day the suspension notice is sent to the person.
(5) If the person is the holder of a driver licence, the road transport authority must suspend the licence.
(6) If the person is not the holder of a driver licence, or the person’s driver licence is suspended, but the vehicle involved in the offence is registered under the Road Transport (Vehicle Registration) Act 1999 and the person is the responsible person (or a responsible person) for the vehicle, the road transport authority must suspend the vehicle’s registration.
(7) In any other case, the road transport authority must do 1 of the following:
(a)suspend the person’s right to drive the vehicle involved in the offence in the ACT;
(b)suspend the person’s right to drive any vehicle in the ACT;
(c)suspend the right of everyone to drive the vehicle involved in the offence in the ACT.
(8) A suspension under this section takes effect on the suspension date.
(9) If the road transport authority takes suspension action, the authority must send a suspension confirmation notice to the person that states—
(a)the suspension date; and
(b)the action that was taken on the suspension date; and
(c)any information prescribed by regulation; and
(d)any other information that the road transport authority considers appropriate.
(10)In this section:
time for payment, of an infringement notice penalty, includes any extension of time allowed for payment under section 29 (Extension of time to do things).
23․Section 245 Legislation Act 2001 (ACT) (Legislation Act) provides:
This part [Part 19.5] applies to a document that is authorised or required under a law to be served (whether the word ‘serve', ‘give', ‘notify', ‘send' or ‘tell' or any other word is used).
24․Section 247 of the Legislation Act provides:
(1) A document may be served on an individual—
(a)by giving it to the individual; or
(b)by sending it by prepaid post, addressed to the individual, to a home or business address of the individual; or
(c)by faxing it to a fax number of the individual; or
(d)by emailing it to an email address of the individual; or
(e)by leaving it, addressed to the individual, at a home or business address of the individual with someone who appears to be at least 16 years old and to live or be employed at the address.
(2) This section applies to service of a document outside the ACT in the same way as it applies to service of the document in the ACT.
25․Subsections 9B(1) to (3) of the Regulation states:
9BWhen posted notice taken to be given
(1) This section applies to a notice given to a person under the road transport legislation if the notice is sent—
(a)by prepaid post; and
(b)either—
(i)to the person’s home address; or
(ii)if the person has an address for service recorded in a road transport authority record or register—the address for service.
Note It is an offence for the holder of a driver licence or the registered operator of a registered vehicle to fail to notify the road transport authority of a change of address (see Road Transport (Driver Licensing) Regulation 2000, s 74 and Road Transport (Vehicle Registration) Regulation 2000, s 69).
(2) The notice is taken to be given to the person when it is received at the address.
(3) In a proceeding before a court, it is presumed that the notice is—
(a)posted 4 working days after the date of the notice, unless evidence sufficient to raise doubt about the presumption is given; and
(b)received 4 working days after the notice is posted, unless the contrary is established.
26․Paragraph 32(2)(a) of the Driver Licensing Act states:
(2) A person whose Australian driver licence is suspended by a court in Australia or under the law of any jurisdiction must not—
(a)drive a motor vehicle on a road or road related area during the period of suspension except in accordance with a restricted licence issued to the person …
Evidence
Prosecution evidence
27․The Prosecution tendered a number of documents with the consent of the Defendant. I have summarised this evidence below.
28․A number of notices, and a certificate issued under paragraph 72(1)(a) of the General Act (section 72(1)(a) certificate), were tendered by the Prosecution with respect to the suspension of the Defendant’s licence.
29․The material shows that:
(a)the Defendant was detected by a speed camera, exceeding the speed limit on the Monaro Highway, on 3 May 2022;
(b)an infringement notice with respect to the above offence, dated 19 May 2022, was issued to the Defendant;
(c)a reminder notice, dated 20 Jun 2022, was posted to the Defendant at his home address on 5 July 2022;
(d)a notice of suspension, dated 4 August 2022, was posted to the Defendant at his home address, advising him that his ACT driver licence would be suspended on 31 August 2022 unless he took appropriate action before that date; and
(e)a suspension confirmation notice, dated 1 September 2022, was posted to the Defendant at his home address, which stated that his licence was suspended on 1 September 2022.
30․The Prosecution also tendered a certificate issued under paragraph 41(1)(g) and section 41AD of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) which established that a sample of blood taken from the Defendant at 11.14 pm on the night of the incident contained 0.215 grams of alcohol per 100 mL of blood.
31․The Prosecution tendered several photographs which had been taken by a member of the public, Laila McDade, on the night of the incident. The photographs show significant damage to the front of the Defendant’s car and to the rear of another car which had been hit by the Defendant. That car sustained damage to the rear, where it was hit by the Defendant’s car, and also damage to the front, where it collided with a tree.
32․A statement prepared by Ms McDade was tendered. Ms McDade stated that she was at her parent’s house at around 9.15 pm on 13 December 2022 when she heard the squeal of car tyres followed by a loud crash out the front of her parent’s house. Ms McDade went outside, where she observed a car on the road ‘facing the opposite direction’. She called the police and took several photographs of the vehicles involved in the incident. I have described those photographs above. The car hit by the Defendant’s car was Ms McDade’s father’s car.
33․Senior Constable Nisbett attended the scene of the accident. His statement records that he received a call at approximately 9.20 pm on 13 December 2022 requesting police attendance to a motor vehicle accident in the vicinity of 139 Limestone Avenue in Braddon. Senior Constable Nisbett said that a roadside breath screen test was conducted on the Defendant at the request of the ACT Ambulance Service as they suspected that the Defendant may have injuries which were being masked by alcohol.
34․The result of the roadside test indicated the presence of alcohol on the Defendant’s breath. Senior Constable Nisbett also conducted checks of the ACT Road Transport Authority (RTA) driver licence and registration database, which revealed that the Defendant’s ACT driver licence had been suspended as of 1 September 2022 due to non-payment of a traffic infringement.
35․Statements prepared by Detective Senior Constable Harris and Acting Sergeant Knowles were also tendered, however they do not contain any matters of additional significance.
Defendant’s evidence
36․The Defendant’s evidence was focused on whether or not he received the notices that were sent to him by the RTA.
37․He said that he is currently living at an address in Bonython. He said that he moved there after learning that his licence was cancelled because, without a licence, he needs to live close to where he works in Tuggeranong as a chef.
38․The Defendant said that he was living at the address to which the notices were sent – 9 Dobson Place, Watson – throughout the period during which the notices were sent and including when the incident occurred on 13 December 2022. He said he had lived at the Watson address since around January 2017.
39․The Defendant said that he did not receive any of the notices that were sent to him by the RTA. He said that he was not aware that his licence had been suspended until he was told by his lawyers about the charges that had been brought against him. He said that, on 13 December 2022, he honestly believed that his licence was valid.
40․He said that he would have paid the fine if he had received the notices. He said he could not afford to lose his licence as having a licence is important to him in order to commute to work.
41․The Defendant said that there were five people living at the address in Watson. He also said that he had received some mail (a couple of letters and some parcels) at his address in Watson, while he lived there, that were addressed to ‘9 Dobbie Place’ in Watson (being a similar street name to his address, ‘9 Dobson Place’).
42․He said that he checked to see if he had received any mail by post quite often. He did not explain what he meant by that, except by comparison to the frequency with which he checked his email, which he did daily.
43․The Defendant said that he did receive correctly addressed correspondence to his address in Watson during the period of July to September 2022. He said he received correspondence that was addressed to 9 Dobbie Place approximately five to 10 times over the time he lived there.
44․Of some significance, the Defendant did not give any evidence that he had discovered that any mail addressed to him had erroneously been delivered to 9 Dobbie Place.
Assessment of credibility of evidence
45․The Prosecution’s evidence was tendered with the consent of the Defendant. It was thus unchallenged.
46․There is also nothing in the Prosecution evidence which causes me to doubt its reliability.
47․There was nothing in the manner in which the Defendant gave evidence to suggest that he was not honest, and he provided a rational explanation as to why he would pay an infringement notice if he received one, given how important it was to the Defendant to have a licence. Ultimately, however, I do not accept that the Defendant’s evidence, that none of the notices were received at the Defendant’s address, is plausible.
Factual findings
48․The Defendant committed a speeding offence on 3 May 2022.
49․He was sent an infringement notice with respect to that offence, dated 19 May 2022. A reminder notice was posted to his home address on 5 July 2022.
50․A notice of suspension, dated 4 August 2022, was posted to the Defendant at his home address, advising him that his ACT driver licence would be suspended on 31 August 2022. A suspension confirmation notice, dated 1 September 2022, was posted to the Defendant’s home address, confirming that his licence had been suspended on that date.
51․I am of the view that, under subsection 44(8) of the General Act, the Defendant’s licence was suspended on 31 August 2022, given that that was the suspension date identified in the notice of suspension. However, I do not consider that any error in the date specified in the suspension confirmation notice invalidated the effect of the suspension notice (see Nikro v O’Sullivan [2013] ACTSC 129 (Nikro), per Nield AJ at [32]).
52․The Defendant drove on 13 December 2022, during the period when his licence was suspended. He was intoxicated. A test of a sample of the Defendant’s blood taken at 11.14 pm revealed that his blood alcohol concentration was 0.215 grams per 100 mL of blood.
53․At around 9.15 pm, he collided with a stationary car on Limestone Avenue in Braddon. The collision caused substantial damage to the front of his car and to the back and front of the stationary vehicle. The collision caused the stationary vehicle to collide with a tree.
54․I infer that the accident was caused by the manner of the Defendant’s driving, and that a significant contributing factor was the Defendant’s intoxication.
Findings in relation to elements of offence
55․Subject to the challenges raised by the Defendant, with respect to service of the statutory notices, and the purported absence of knowledge on his part that his licence had been suspended, I am satisfied, beyond reasonable doubt, that the Prosecution has proved the elements of the offence.
56․In particular, I am satisfied that:
(a)on 13 December 2022, the Defendant was the driver of a motor vehicle on a road (Limestone Avenue in Braddon); and
(b)at the time of driving, the defendant’s Australian driver licence was suspended under section 44 of the General Act.
57․Accordingly, I am satisfied that the elements of paragraph 32(2)(a) of the Driver Licensing Act have been proven.
Defendant’s challenge to validity of his licence suspension
58․The primary argument relied on by the Defendant is that he has rebutted the service presumption contained in subsection 9B(3) of the Regulation and that, absent service of the relevant notices, the Defendant’s licence was not validly suspended. The Defendant’s related argument is that the Defendant had to receive the notices in order for them to be of any effect.
59․Paragraphs 17 to 19 of the Defendant’s written submissions are reproduced below (as written):
[17] The sending of the notice as required by section 44 is not effective until it has been duly received by the defendant.
[18] To hold otherwise creates an absurd situation where simply by posting a notice under section 44, the defendant commits an offence even if it is not received by him. The Road Transport Authority, to begin the process, discharges its obligation by sending the notice. However, it cannot be argued that if it is proven that is was not received, the prosecution can still rely on section 44 and submit that is immaterial or irrelevant whether it was received or not. That argument would render section 9B of the Road Transport Regulations obsolete and to totally ignore the note in section 25 of the Road Transport Act which reads For when a notice sent by post is taken to be given, see the Road Transport (General) Regulation 2000, s 9B.
[19] There is no argument that the certificates tended confirmed that the notices were sent. However, there is evidence that they were not received.
Consideration of relevant case law
60․There is a threshold jurisdictional issue relevant to the argument raised by the Defendant, which is whether the Court has jurisdiction to entertain a challenge to the validity of a licence suspension. In my view, it does. This view was also taken in Masri v R [2021] NSWDC 305 (Masri) and Stone v French [2013] ACTMC 4 (Stone).
61․As Basten JA said in DPP v Yigit [2008] NSWCA 226 (Yigit), at [8]:
Generally speaking, it may be accepted that a court exercising criminal jurisdiction has power to determine, for the purposes of those proceedings, whether necessary legal preconditions to a finding of guilt have been established by the prosecution.
62․His Honour also noted (at [8]) that: “there may be circumstances in which, as a matter of statutory construction, a challenge based on the suggested invalidity of a statutory process is not available to a defendant charged with an offence”. However, in my view, that is not the case with respect to the process to be followed under section 44 of the General Act in order to suspend a person’s licence, as Chief Magistrate Walker found in Stone.
63․The prosecution conceded in Yigit that, if the notice of suspension was, on its face, void for uncertainty or some other reason, it could be challenged by a defendant resisting the criminal prosecution. Basten JA was of the view that that concession was not self-evidently correct. Nevertheless, in the absence of any objection, his Honour did give consideration to whether the notice of suspension that had been issued to the defendant was valid.
64․The specific issue requiring determination in Yigit was whether ambiguity in the notice of suspension that was sent to the defendant meant that the notice, and therefore the subsequent suspension of the defendant’s licence, was invalid. Basten JA (with whom Beazley JA agreed) found that the notice was capable of construction in a manner which resolved the ambiguity and that the notice contained those elements that were legislatively required to be specified (at [28] – [31]). Accordingly, his Honour concluded that the suspension notice was not invalid.
65․While the focus of the defendant’s challenge to the notice was with respect to ambiguity, Basten JA also considered the nature and purpose of the suspension notice more broadly. His Honour found (at [17]) that:
The suspension of a licence under this provision is effected by a determination of the Authority to suspend for a specified period and the service of a notice on the licence holder. It may thus be seen that in respect of the powers under both ss 16 and 33, no suspension will be effected unless a relevant notice has been served on the licence holder.
66․This is, in essence, the argument advanced by the Defendant in this case.
67․Similar to his Honour’s remarks at [17], Basten JA said at [24] that:
A further issue which can arise in circumstances where there has not been compliance with a statutory requirement is the effect on subsequent action. Whether non-compliance results in invalidity of the subsequent act will also need to be considered having regard to the statutory context: see Project Blue Sky at [97]-[100]. In the present case, that question did not give rise to any separate difficulty. The giving of a notice was necessary for the suspension of the licence to take effect. If there had been a failure to give notice in accordance with the statutory requirements, the licence was not suspended and the charge was properly dismissed.
68․As his Honour concluded in relation to the legislation before him, in my view, a failure to effect service of the statutory notices required by sections 24, 27 and 44 of the General Act, in order to suspend the Defendant’s licence, will mean that the Defendant’s licence was not suspended, and require the dismissal of the charge that has been brought against him. While the Prosecution’s written submissions, at paragraph 4, appeared to concede this result only if the Defendant did not receive the infringement notice or reminder notice (under sections 24 and 27), it is my view that the Defendant’s licence will not have been validly suspended if the notice requirement provided for in any of sections 24 and 27, and subsection 44(2) are not satisfied.
69․In Masri, the Court found that the defendant’s licence had not been validly suspended in circumstances where the notice of suspension specified that the suspension was to take effect on a date that was less than 28 days after the notice was given. This was contrary to a mandatory requirement of the Road Transport Act 2013 (NSW). Accordingly, the prosecution failed.
70․Conversely, in Nikro, Nield AJ found that the fact that the notice confirming the suspension of the defendant’s licence did not state the date of the suspension, as required by paragraph 44(9)(a) of the General Act, did not mean that the suspension of his licence was not valid. His Honour found that the defendant’s licence had been validly suspended following service of a valid notice of suspension, and that the suspension was not rendered invalid by the defective notice of confirmation, the sole purpose of which was to confirm the suspension. His Honour agreed with Chief Magistrate Walker’s decision in Stone to the same effect.
71․The challenges raised in the above cases with respect to the relevant suspension notices involved challenges to the content of the notices. While the defendants in Nikro and Stone also claimed that they did not personally receive the relevant statutory notices (in support of an excuse of honest and reasonable mistake of fact), that was because they had moved address prior to the notices being sent and had not informed the RTA. The defendants did not challenge the fact that the notices had been served on the defendants at their respective addresses for service.
72․The requirements for the service of documents under the road transport legislation in the ACT was considered in Baratt v Merhi [2013] ACTSC 123 (Merhi). In that case, Nield AJ considered a defence of honest and reasonable mistake that was raised by the defendant, in response to a charge that had been brought against the defendant for driving whilst his licence was suspended, in breach of paragraph 32(2)(a) of the Driver Licensing Act. A key issue was whether the defendant had been served with the requisite notice of suspension.
73․In the RTA’s driver licence register, the defendant’s home address and address for service of notices (a PO Box) was recorded. A traffic infringement notice, and reminder notice, were posted to the defendant’s PO Box. He paid the infringement penalty and incurred a demerit point. This process was repeated a second time following another offence. The process was repeated a third time, however on that occasion the defendant incurred six demerit points for the relevant offence. The defendant denied having received or seen the infringement notice.
74․Because the defendant had incurred eight demerit points, the RTA sent him a notice advising that his licence would be suspended for three months. The RTA sent the notice to the defendant’s PO Box, however the defendant denied having received or seen the letter.
75․During the period of the suspension, the defendant was stopped by police whilst he was driving. Relevantly for present purposes, as noted above, he was charged with driving a motor vehicle while his driver licence was suspended.
76․The defendant gave evidence that his PO Box address was a post office box held by his father and that, if mail came to the post office box addressed to him, his father’s secretary would give it to him. He said that he had not received or seen either the traffic infringement notice or the RTA’s letter suspending his driver licence although Nield AJ found that he must have seen the infringement notice.
77․The defendant submitted that, as he did not receive the suspension notice, he did not have knowledge of the suspension of his driver licence, and he drove his motor vehicle in the belief that he had a valid driver licence. As noted above, he relied on the common law defence of honest and reasonable mistake.
78․His Honour noted that section 124 of the Road Transport (Driver Licensing) Regulation 2000 (ACT) required that a notice of licence suspension (in the circumstances of that matter) be served on the defendant and that s 9B of the Regulation provided for the service of notices under the road transport legislation and excludes the operation of s 250 of the Legislation Act 2001 (ACT).
79․At [35], his Honour observed in relation to s 9B of the Regulation that:
It must be noted that this section applies specifically to a notice given to a person under the road transport legislation when the notice is sent by prepaid post to the person’s home address or to an address for service if the person has an address for service recorded in a Road Transport Authority record or register. This section creates a presumption, which may be rebutted, that a notice send [sic] by prepaid post is posted within a specified period of time, namely four days, after the date of the notice, and that the notice is received at the address to which it is sent, either the home address or the address for service, within a specified period of time, namely four days, after it is posted.
80․As to the particular issues raised in Merhi regarding the manner of service of a document under ACT road transport legislation, his Honour concluded, at [37] - [41] and [44] - [46]:
[37] The first question is this: How may a notice given under the road transport legislation be served upon the respondent?
[38] In my view, a notice, whether or not a notice under the road transport legislation, may be served, inter alia, by sending it by prepaid post addressed to the person, upon whom it is to be served, to a home address or to a business address of the person, as provided for by section 247(1)(b) of the Legislation Act 2001 (ACT). Accordingly, the posting by prepaid post of the notice of suspension of provisional driver licence sent by the Road Transport Authority to the respondent was a valid method of service of the notice.
[39] The second question is: What is the home address of the respondent?
[40] In my view, the “home address” of an individual is “the address of the place where the individual usually lives”, as stated in the dictionary to the Legislation Act 2001 (ACT) and, “of an applicant for the issue of a driver licence or of the holder of a driver licence” is, “an address in the ACT where the Road Transport Authority can ordinarily make personal contact with the person”, as stated in section 139(1) of the Road Transport (Driver Licensing) Regulation 2000 (ACT). However, as I have already noted, both “home address” and “business address” are defined by section 246 of the Legislation Act 2001 (ACT) to include, for the purposes of section 247 of the Legislation Act 2001 (ACT), an “address for service of notices.” Accordingly, I think that, if a person or a business provides an address for service of notices in addition to the person’s home address or the business’ business address, then a notice may be served at either the home address or the address for service of the person or the business address or the address for service of the business.
[41] I know that many people who have a home address, that is the place where the person usually lives and the place where an authority may make personal contact with the person, also have an address for the receipt of letters, invoices, bank statements, credit card statements and the like by post, that is a post office box. Some people prefer to have their mail delivered to a post office box for privacy and security. I think that, if a person who has a home address, to which there is a postal service, gives a post office box as an address for service, then service of notices may be made by sending the notice by prepaid post to the post office box. Accordingly, the “home address” of the respondent includes “an address for services of notices.”
…
[44] The last question is: When was the notice of suspension served?
[45] The notice of suspension of the respondent’s provisional driver licence for his having accrued eight demerit points was posted on 19 December 2011 which was a Monday. Pursuant to section 9B(3) of Road Transport (Driver Licensing) Regulation 2000 (ACT), the notice posted on 19 December 2011 was presumed to have been received four working days after 19 December 2011, that is on Friday, 23 December 2011. The suspension was to take effect on 16 January 2012 for three months to and including 15 April 2012. Accordingly, I am satisfied that the notice was served on the respondent on 23 December 2011, more than 21 days before the date on which the notice was to take effect, as required by section 125(1)(c) of the Road Transport (Driver Licensing) Regulation 2000 (ACT).
[46] In the result, I am satisfied that the notice of suspension of the respondent’s provisional driver licence was validly served on the respondent on 23 December 2011 by the Road Transport Authority sending it by prepaid post addressed to him at his address for service, the PO Box in Mawson, 2607.
81․In Coughlin v Curran [2008] QDC 66 (Coughlin) and Leydon v Venkat [2015] QDC 28 (Venkat), the Queensland District Court dealt with challenges raised by the defendants in those cases, to convictions entered against the defendants for driving whilst suspended, based on non-receipt of the relevant suspension notices and related documents.
82․In each case, the court found that the relevant notices had been served as required by the Acts Interpretation Act 1954 (Qld). The relevant provisions were set out by Bowskill QC DCJ (as her Honour then was) in Venkat at [40] of her decision:
“39 Service of documents
(1) If an Act requires or permits a document to be served on a person, the document may be served –
(a) on an individual –
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by post, telex, facsimile or similar facility to, the address of the place of residence or business of the person last known to the person serving the document;
...
(2) Subsection (1) applies whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.
...
39A Meaning of service by post etc
(1) If an Act requires or permits a document to be served by post, service-
(a) may be effected by properly addressing, prepaying and posting the document as a letter; and
(b) is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.”
83․Her Honour considered the effect of the above provisions at [47] – [49] of her decision. She said (citations omitted):
[47] The focus of s 39(1)(a)(ii) and s 39A(1) of the AIA is on delivery (in the sense of the act of sending), rather than upon receipt. As the High Court observed in Fancourt v Mercantile Credits Ltd (1983) HCA 25; (1983) 154 CLR 87 at 97:
“... delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post.”
[48] The policy underlying statutory provisions, such as ss 39 and 39A, enabling the service of all manner of documents by means other than personal service, including service by post, has been described as one of public convenience. Whilst there may be some (albeit low) risk of non-receipt as a result of use of the postal system, the policy underlying such provisions places that risk on the intended recipient. Of course, one means of addressing that risk, is to ensure that relevant official records, such as the records of contact details held by the Department of Transport, are up to date, a responsibility which must be borne by the citizen.
[49] It is well-established that proof of non-receipt is not sufficient to prove that service did not occur. However, s 39A(1)(b), by the words “unless the contrary is proved”, leaves open the possibility of proving non-delivery – that is, proving that the acts which are deemed by s 39A(1)(a) to constitute service were not done. Proof of non-delivery means that service cannot be deemed to have taken place under s 39A(1)(b).
84․Nase DCJ had earlier come to the same conclusion in Coughlin. In that case, a Magistrate dismissed a charge brought against a defendant for driving while his licence was suspended. Although the relevant notice, advising the defendant of the options open to him (accepting an immediate suspension or agreeing to be of good behaviour for 12 months, or having his licence suspended in the absence of a choice being made) was properly posted to the defendant, he claimed that he did not receive it.
85․The Magistrate accepted the defendant’s evidence (and that of other witnesses) that he did not receive the notice. On that basis, he found that the defendant had rebutted the statutory presumption that service of the notice was taken to have occurred at the time at which the letter would have been delivered in the ordinary course of post.
86․On appeal, Nase DCJ said, at [10]:
The mistake made by the Magistrate, in my respectful opinion, was to treat the evidence of non-receipt as decisive evidence of rebuttal of service. Although s 39A Acts Interpretation Act refers to proof of “the contrary”, what has to be contradicted is the proof of delivery. That is, the acts of addressing, prepaying, and posting the letter. The distinction between proof of delivery and proof of non-receipt is essential to the section.
87․On that basis, Nase DCJ was of the view, expressed at [9], that there was no scope for s 24 of the Criminal Code Queensland, which provided for a mistake of fact defence, to operate. His Honour said at [15] – [17]:
[15] To turn now to the second aspect considered by the Magistrate. The possible application of s 24 Criminal Code undoubtedly involves difficulties of analysis. While it is true that s 24 is not expressly excluded, a difficulty lies in identifying a relevant mistaken belief of fact. Mr Curran's evidence was quite short. He understood the system of demerit points. He said he had exercised the choice given in the past and he was expecting to be notified, but, as he had not been notified [he and other witnesses gave evidence that he did not receive the notice], he believed his licence was still valid.
[16] A belief that in these circumstances a licence is still valid until receipt of the notice is really a mistake about the law: it is a question on which we might go to a lawyer for legal advice. But his belief the licence was valid was in turn based on his belief the notice had not yet been sent to him. Is a belief the letter or notice was not delivered, a mistake of fact or law? At one level it is a mistake of fact, but the mistake Mr Curran made is not purely one of fact as the delivery in this case is a deemed delivery (s 39 Acts Interpretation Act). Is a belief of non-delivery consistent with the notion of a deemed delivery? Is the mistake in these circumstances one of law or fact? These are not easy questions to answer.
[17] I think the statutory framework is inconsistent with the application of s 24 Criminal Code to the question of delivery, and that the mistake Mr Curran made about the validity of his licence involved a misunderstanding of the law. And I do not think that a claim based on s 24 is available to him in the circumstances of this case. I therefore propose to allow the appeal.88․In my view, the distinction drawn by the High Court in Fancourt v Mercantile Credits Ltd [1983] HCA 25 between non-delivery and non-receipt of documents, the service of which is governed by the Acts Interpretation Act (Qld), as referred to in Coughlin and Venkat, is equally applicable to s 9B of the Regulation. Like s 39A of the Acts Interpretation Act (Qld), s 9B:
(a)presumes a notice given to a person under the road transport legislation to have been delivered to the address to which it was posted within a particular timeframe (s 9B(3)(b)) (although the word ‘received’ is used – it is used in the sense of delivered (‘received at the address’) rather than received (by a person));
(b)deems that the person to whom the notice has been sent will have ‘received’ the notice (it is taken to have been given to the person) when it is delivered to the address to which it was sent (that is, service is deemed to be effected on delivery to the posted address); and
(c)the aspect of service that a person may challenge is not the deemed receipt of the notice by the person (which is governed by s 9B(2)) but the presumption that the notice was delivered to the postal address four working days after the notice was posted (s 9B(3)(b)) (the person may also challenge the presumption that the notice was sent four working days after the date of the notice but that presumption is not in issue in this case).
89․Accordingly, I consider that the analysis provided in Coughlin and Venkat, with respect to the operation of s 39A of the Acts Interpretation Act (Qld) is equally applicable to the operation of s 9B of the Regulation.
90․I accept that there is an argument that this conclusion may produce a result that seems unfair in cases where a person is deemed to have received the relevant statutory notices in circumstances where they did not in fact receive the notices (that is, they cannot prove that the notices were not delivered to their address (and so they are deemed to have received them), but can establish that they did not personally receive the notices). This will particularly be so in cases where the non-receipt is not the result of any action or inaction on the part of the defendant (for example, failing to update their address with the RTA).
91․However, there are likely to be very few cases where each of the statutory notices are delivered to a defendant’s address and not received by the defendant without there being conduct on the part of the defendant which has contributed to that outcome (for example, moving address, or temporarily living somewhere else without putting in place a system for their mail to be checked).
92․Further, as the High Court observed in Fancourt v Mercantile Credits Ltd [1983] HCA 25 at [48], excerpted above from the decision of Venkat:
The policy underlying statutory provisions, such as ss 39 and 39A, enabling the service of all manner of documents by means other than personal service, including service by post, has been described as one of public convenience. Whilst there may be some (albeit low) risk of non-receipt as a result of use of the postal system, the policy underlying such provisions places that risk on the intended recipient.
93․As I have found above, I consider that section 9B of the Regulation is to similar effect as section 39A of the Acts Interpretation Act (Qld). Indeed, the explanatory statement to the Road Transport (General) Amendment Regulation 2010 (No 1), which inserted section 9B into the Regulation, explained the purpose of section 9B consistently with the above observations of the High Court, stating:
Clause 9B (3) contains certain presumptions regarding timeframes for postage and delivery of computer generated correspondence. By way of background, the road transport authority generates several hundreds of thousands of letters containing notices under the road transport legislation each year. These notices include driver licence and vehicle registration renewal notices, infringement notices and reminder notices, and notices of driver licence or vehicle registration suspension and cancellation. Well over 95% of these notices are generated by computer programs from templates. They are despatched by prepaid post, rather than being manually addressed and stamped.
As there are several provisions in the road transport legislation which provide for something to happen a specified time after a person is given a notice it is desirable to have a means of calculating when a notice that is sent by prepaid post can be said to have been “given” to the person.
Accordingly, new regulation 9B (3) (a) provides for a rebuttable presumption that a notice is posted 4 working days after the date of the notice, while 9B (3) (b) provides for a presumption that the notice is received 4 working days after it is posted, unless the contrary is established. The rebuttable presumption of receipt is based on section 62 of the New South Wales Fines Act 1996. The presumption is consistent with the standard delivery timeframes for postal articles and allows for some additional slippage due to unforeseen circumstances. Australia Post’s Customer Service Charter requires it to deliver 94% of standard letters in metropolitan areas such as the ACT by the next business day and by the second business day between country areas. According to its 2008 - 2009 Annual Report (page 17), Australia Post actually exceeded its community service obligations, by delivering 95.5% of domestic letters on time or early and 97.5% of bulk mail on time or early. The rebuttable presumption of receipt is also consistent with the obligation that clients have to inform the road transport authority when they change their address.
94․Ultimately, a clear choice has been made, in the making of section 9B of the Regulation and sections 24, 27 and 44 of the General Act, to provide for:
(a)service of notices by post;
(b)presumptions as to the service of the notices, including a restriction on any challenge with respect to the operation of those presumptions – being to challenges as to when the notice was posted, and when it was delivered to an address, but not permitting challenges as to receipt by the person; and
(c)the automatic suspension of, here, a person’s driver licence, if they do not adequately respond to the notices through the payment of the infringement notice penalty.
Conclusion – the Defendant was served with all relevant notices
95․Under section 24 of the General Act, the RTA may serve an infringement notice on a person, as it did in this case on or about 19 May 2022. The infringement notice was not in evidence before me, however the Defendant did not challenge the fact that it was sent, as stated in the reminder notice that was sent to the Defendant. Pursuant to paragraph 9B(3)(b) of the Regulation, the infringement notice is presumed to have been delivered to the Defendant’s address on or about 25 May 2022.
96․The Defendant having failed to respond to the infringement notice, the RTA was required by section 27 of the General Act to serve a reminder notice on the Defendant, which the RTA did on 5 July 2022. Pursuant to paragraph 9B(3)(b) of the Regulation, the reminder notice is presumed to have been delivered to the Defendant’s address on 11 July 2022.
97․The Defendant having failed to respond to the reminder notice, the RTA was required by subsection 44(2) of the General Act to send the Defendant a suspension notice. As required by subsection 44(3) of the General Act, the suspension notice identified that, if the Defendant did not pay the infringement notice penalty by the suspension date (being 31 August 2022 in this case), the RTA would take suspension action.
98․The suspension notice was dated 4 August 2022. The section 72(1)(a) certificate establishes that this notice was posted by prepaid post on 4 August 2022 to the Defendant’s home address. Pursuant to paragraph 9B(3)(b) of the Regulation, the notice is presumed to have been delivered to the Defendant’s address on 10 August 2022.
99․As the nominated suspension date (31 August 2022) was more than 10 days after the date the suspension notice was sent to the Defendant, there is no issue with the RTA’s compliance with subsection 44(4) of the General Act. I note that the Defendant did not raise any issues with respect to the content of the suspension notice (or any of the notices).
100․As the Defendant did not pay the infringement notice penalty, under subsection 44(8) of the General Act, his licence was suspended on the suspension date. As required by subsection 44(9) of the General Act, the RTA sent the Defendant a suspension confirmation notice, dated 1 September 2022. The section 72(1)(a) certificate establishes that this notice was posted by prepaid post on 1 September 2022 to the Defendant’s home address. Pursuant to paragraph 9B(3)(b) of the Regulation, that notice is presumed to have been delivered to the Defendant’s address on 7 September 2022.
101․Pursuant to subsection 9B(2) or the Regulation, the notices are deemed to have been served on the Defendant on the dates that they were delivered to his address.
102․I note that, in the Prosecution’s written submissions, the Prosecution submitted at paragraph 3a that:
The application of regulation 9B(3)(b) of the Road Transport (General) Regulation 2000 is limited to section 44(1) of the Road Transport (General) Act 1999. Regulation 9B(3)(b) does not need to be satisfied in order for the entirety of section 44 can [sic] be applied.
103․It is unclear what “Regulation 9B(3)(b) does not need to be satisfied” means. Section 9B of the Regulation contain a presumption that applies by operation of law, unless the Defendant establishes the contrary. I have discussed the Defendant’s position with respect to the presumption below.
104․Further, I do not agree that section 9B of the Regulation is limited in its application to subsection 44(1) of the General Act (which provides, as a precondition to the operation of the remainder of the section, that an infringement notice and reminder notice must have been served on the Defendant). In my view, the presumptions contained in section 9B of the Regulation apply to service of an infringement notice under section 24 of the General Act, to the service of the reminder notice under section 27 of the General Act, to the service of the suspension notice under subsection 44(2) of the General Act, and to the service of the suspension confirmation notice under subsection 44(8) of the General Act.
105․As explained in Merhi, service of documents under the road transport legislation is governed by a combination of sections 245 and 247 of the Legislation Act and section 9B of the Regulation. I note that the Defendant’s written submissions refer to section 250 of the Legislation Act, however subsection 9B(4) states that section 250 of the Legislation Act does not apply to a notice given under the road transport legislation.
106․As section 245 of the Legislation Act makes clear, the concept of serving a document includes a requirement under law (which includes the General Act and the Regulation) to ‘serve’ (the word used in sections 24 and 27 and subsection 44(1) of the General Act), to ‘send’ (the word used in subsections 44 (2) and 44(9) of the General Act) and to ‘give’ (the word used in section 9B(1) of the Regulation). In my view, while section 9B of the Regulation states that it applies to a notice ‘given’ to a person under the road transport legislation (if the notice is sent by prepaid post), the use of that word should be understood as incorporating giving by way of service (under sections 24 and 27 and subsection 44(1) of the General Act) and giving by way of sending (under subsections 44(2) and 44(9) of the General Act).
107․The presumptions set out in section 9B of the Regulation are rebuttable presumptions. Logically, the capacity to rebut the presumption that a notice was delivered to a person’s address within four working days of it being sent, also includes the capacity to challenge the presumption that the notice was delivered at all.
108․The Defendant has given evidence that he did not receive any of the notices that were sent to him. He submits that his evidence is sufficient to rebut the presumption contained in section 9B of the Regulation that he was served with notices on the dates I have identified in the paragraphs [95] to [101] above.
109․In assessing this submission it is important to keep in mind, as I have explained in paragraph [88(c)] above, that the aspect of service that a person may challenge is (relevant to this case) not the deemed receipt of the relevant notice by the person (which is governed by subsection 9B(2) of the Regulation), but the presumption that the notice was delivered four working days after the notice was posted (paragraph 9B(3)(b) of the Regulation).
110․I am not satisfied, on the balance of probabilities, that the notices were not delivered to the Defendant’s address and I am, therefore, not satisfied that the Defendant has rebutted the presumption provided for in paragraph 9B(3)(b) of the Regulation. The consequence is that he is presumed to have received the notices (subsection 9B(2)).
111․The reason I have reached this conclusion is that:
(a)despite the rationality of the explanation provided by the Defendant, as to why he would pay an infringement notice if one was sent to him, his evidence that he did not receive any of the notices that were sent to him (and the implication from that evidence that none of the notices were delivered to his address) is inherently implausible. I am of the view that, in the usual course of events, mail is delivered to the place to which it is addressed. Although the statistics are somewhat dated now, I find support for that view in the delivery performance of Australia Post referred to in the explanatory statement to the Road Transport (General) Amendment Regulation 2010 (No 1) (excerpted above). I consider that it is implausible that the four notices that were sent to the Defendant’s address by the RTA were all misdirected. This is particularly the case in circumstances where the Defendant said that he did receive correspondence to his address during the period the notices were sent to him;
(b)despite the similarity in address between the Defendant’s address and the 9 Dobbie Place address, the Defendant gave evidence of mail that was intended for 9 Dobbie Place being delivered to his address on only five to 10 occasions over six years – that is, on average, only once or twice a year;
(c)the Defendant did not give any evidence that any of his mail had ever been delivered to 9 Dobbie Place. There was not one instance of a resident from that house delivering mail that had been incorrectly delivered to them (in the way that the Defendant had delivered mail that he had received that was intended for 9 Dobbie Place). In circumstances where the Defendant had delivered mail to 9 Dobbie Place, I would expect that the favour would be returned had the Defendant’s mail been delivered to 9 Dobbie Place; and
(d)the Defendant did not give any evidence that any other piece of mail addressed to him had ever gone missing, or that any mail had needed to be re-directed from an incorrect address.
112․To the extent that the Defendant’s evidence was directed at him personally not having received the notices (as distinct from him giving evidence that the notices were not delivered to his address), I note that he is deemed to have received notices that were delivered to his address. In any case, for similar reasons to those I have set out above, I have considerable doubt as to the Defendant’s evidence that he did not receive any of the notices. Further, I note that the Defendant had a number of housemates, such that it is likely that it was not just the Defendant who collected mail that had been delivered to the house, and it is not clear how often the Defendant checked the mail. His evidence that he checked for mail ‘quite often’ was vague. There is the possibility that mail was delivered to the Defendant’s address without the Defendant knowing.
113․For the above reasons, I am not satisfied that the Defendant has rebutted the presumption that the notices were delivered to his address on the dates identified in paragraphs [95] – [101] and, in accordance with subsection 9B(2) of the Regulation, I am therefore satisfied that the Defendant was served with each of the relevant notices on those dates.
Excuse of honest and reasonable mistake of fact
114․In the event that the Defendant did not succeed in his challenge to the validity of his suspension, he sought to rely on the common law defence of honest and reasonable mistake of fact – the so-called Proudman v Dayman defence.
115․In Proudman v Dayman [1941] HCA 28, Dixon J stated at 541:
The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe.
116․The Defendant must assert an actual and positive belief in those facts (Proudman v Dayman at 541). The Defendant has the onus of proving the existence of facts which give rise to the excuse on the balance of probabilities. If the Defendant succeeds in discharging this evidential burden, the Prosecution bears the onus of disproving the excuse beyond reasonable doubt.
117․To adapt the words of Refshauge J in Maher v Carpenter [2012] ACTSC 38, at [45]-[46], the Defendant must raise by evidence a real question as to whether he had a belief in particular facts and that his belief was reasonable in the circumstances.
118․The belief relied on by the Defendant is that he had a valid driver licence (see paragraph [47] of the Defendant’s written submissions). His evidence was that, as at 13 December 2022, he honestly believed that he held a valid driver licence, although it is unclear whether he turned his mind to the question of the validity of his licence on that date.
119․On one view, it does not matter whether he specifically adverted to the question of the validity of his licence on the night in question. His belief might be seen as a continuing one, formed at some point in the past (perhaps as long ago as his licence was granted or renewed) and continuing until at least 13 December 2022. Support for that view can be found in the comments of Chief Magistrate Walker in Stone v French [2013] ACTMC 4, where her Honour said, at [13], in a discussion of the reasonableness of the defendant’s belief in that case:
… the Defendant in this case clearly knew that, ordinarily, he was licensed. There is no particular onus on a person to enquire as to whether they continue to be licensed. In the absence of notification to the contrary, a reasonable person will ordinarily assume that they continue to be licensed within the parameters of their license, such as date and vehicle type. Indeed, it would be unduly onerous to expect a person to make specific enquiry, or even contemplate the issue, each time they drove.
120․The alternative view is that, if the Defendant did not specifically consider whether or not his licence was valid on 13 December 2022, but he had considered that question in the past and nothing had changed to alter that belief, he could rely on the principles developed in Mayer v Merchant (1973) 5 SASR 567. In that case, a tanker owner was prosecuted with respect to an overweight truck. Some months prior to the day of the offence, he had calculated that the truck would not be overweight with a particular volume of liquid. On the day of the offence, his tanker was carrying a particularly dense liquid, which resulted in the truck being overweight.
121․Hogarth J sated, at 576:
[A] defendant is not required to advert particularly to the circumstances each time a recurring act occurs. If he applies his mind on one occasion, and then forms the honest and reasonable belief that he is not in breach of the law so long as the same set of circumstances is repeated, then I think that he is only required to establish a belief that in the particular instance those circumstances were being repeated.
122․As I have found above, I am not satisfied, on the balance of probabilities that the relevant notices were not delivered to the Defendant’s address as the Defendant needed to establish in order to rebut the presumption as to delivery of the notices. Whether the Defendant in fact received the notices is, as I have sought to explain, a different thing. Once delivered, he is deemed to have received them, by subsection 9B(2) of the Regulation, even though he might not have done so.
123․As noted above, I have considerable doubt in relation to the Defendant’s evidence that he did not receive any of the notices. If he did receive them, he could not rationally hold any belief that his licence was valid when he drove on 13 December 2022.
124․However, even if I was to accept his evidence that he did not receive the notices, I would conclude that the Defendant is not entitled to rely on the excuse of honest and reasonable mistake of fact, because his belief related to a matter of law.
The Defendant’s belief concerned a matter of law
125․I recently considered the question whether a person’s belief that they had a right to drive in the ACT (that right having been suspended) concerned a matter of law or a matter of fact in Police v Topic [2023] ACTMC 47. The relevant discussion is at [79] to [102].
126․At [93], I identified four propositions that I considered could be drawn from the cases I considered. They are:
(a)where a licence disqualification or suspension (or suspension of a right to drive) is discretionary and depends on a court or an administrative decision being made, whether the decision has been made, the duration of the disqualification or suspension and the existence of any conditions, are matters of fact;
(b)whether the disqualification or suspension operates automatically by operation of law, then any mistake about the disqualification or suspension is a matter of law;
(c)the suspension of a person’s licence under subsection 44(5) of the General Act occurs automatically by operation of law; and
(d)even in an ‘automatic cancellation case’, there may be scope for a defendant to rely on a mistake of fact as to whether the underlying events which gave rise to the disqualification or suspension occurred.
127․At [94], I noted my view that, as to the last of the above propositions, the circumstances where that are so are likely to be limited but, if a defendant could prove that a condition precedent to a person’s licence being disqualified or suspended was not satisfied (for example, a failure to provide a statutory notice), then the defendant could challenge the validity of the disqualification of suspension itself (as I have found earlier in this decision).
128․The Defendant’s licence was suspended pursuant to section 44 of the General Act. Consideration must therefore be given to whether the suspension of the Defendant’s licence under that provision concerned a matter of fact or a matter of law.
129․In my view, the suspension of the Defendant’s licence occurred automatically by operation of law. Section 44 of the General Act provides for a scheme for the automatic suspension of a person’s licence on the giving of notice, as Nield AJ found in Nikro.
130․The infringement notice, reminder notice and suspension notice having been served on the Defendant, as required by sections 24, 27 and 44(2) of the General Act, and the infringement penalty not having been paid by the Defendant, the RTA was required by subsection 44(5) to suspend the Defendant’s licence. There was no discretion. Pursuant to subsection 44(8), the suspension automatically took effect on the suspension date stated in the suspension notice (being 31 August 2022).
131․Accordingly, it is my view that the belief relied on by the Defendant concerned a matter of law and that, as a result, the excuse of honest and reasonable mistake of fact is not available to the Defendant.
Verdict
132․For the foregoing reasons, I find the Defendant guilty of the offence charged.
| I certify that the preceding one-hundred and thirty-two [132] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby. Associate: Mason Britton Date: 18 December 2023 |
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