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Police v Topic

Police v Topic

Case [2023] ACTMC 47 29 November 2023

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MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Police v Topic
Citation:	[2023] ACTMC 47
Hearing Date:	10 August 2023 and 29 November 2023
Decision Date:	29 November 2023
Before:	Magistrate Temby
Decision:	See [141].
Catchwords:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE – driving whilst right to drive was suspended – strict liability offence - excuse of honest and reasonable mistake – notice of suspension received by Defendant – Defendant failed to read suspension notice – mistake of fact, not mistake of law – mistake was not reasonable
Legislation Cited:	Australian Capital Territory (Self-Government) Act 1988 (Cth) s 69 Commonwealth Criminal Code 1995 (Cth) s 83.4 Commonwealth of Australia Constitution Act 1900 (Cth) ss 71, 76, 92 Criminal Code 2002 (ACT) ss 36, 58 Judiciary Act 1903 (Cth) s 78B Magistrates Court Act 1930 (ACT) s19 Road Transport (Driver Licensing) Act 1999 (ACT) ss 5A, 31A Road Transport (General) Act 1999 (ACT) ss 22, 24, 26-27, 39 44, 72(1)(a) Road Transport (General) Amendment Bill 2020 (ACT) Road Transport (General) Regulation 2000 (ACT) s 9B
Cases Cited:	Cook v Commissioner of Police [2012] QCA 118 Illich v Young [2000] WASCA 383 Leyden v Venkat [2015] QDC 28 Mayer v Merchant (1973) 5 SASR 567 McCaskie v Bagby (Unreported, Supreme Court of Western Australia, Wallace J, Library No 1534, 18 April 1975) Mei Ying Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485; (2008) 251 ALR 135 Nikro v O’Sullivan [2013] ACTSC 129 Ostrowski v Palmer [2004] HCA 30; 218 CLR 493 Ottobrino v Espinoza (1995) 14 WAR 373 Pangallo v Actew Corporation Limited [2002] ACTSC 15 Poole v Edwards [2016] ACTSC 159 R v Donyadideh (1993) 115 ACTR 1 Stone v French [2013] ACTMC 4
Parties:	Director of Public Prosecutions ( Crown) Paul Topic ( Defendant) Attorney-General (ACT) (Intervenor)
Representation:	Counsel B Kaplan (Intervenor) Solicitors ACT Director of Public Prosecutions Self-represented ( Defendant)
File Number:	CC 3285 of 2023

MAGISTRATE TEMBY:

Introduction

1․The defendant appeared before the court in relation to proceedings CC2023/3285, in which he is charged with one offence of driving while his right to drive was suspended, contrary to subsection 31A(1) of the Road Transport (Driver Licensing) Act 1999 (ACT) (Driver Licensing Act). This offence is a strict liability offence (s 31A(2)).
2․It is alleged that, on 30 March 2023, between 8.45pm and 9.00pm, the Defendant drove on Garryowen Drive in Acton, in the ACT, while his right to drive remained suspended as a result of the Defendant’s failure to pay an infringement notice penalty. The matter was listed for hearing before me on 10 August 2023.
3․The Defendant accepts that he was driving on Garryowen Drive in Acton between 8.45pm and 9.00pm on 30 March 2023. He also accepts, subject to an argument as to the validity of the relevant legislative scheme, that his right to drive in the ACT was suspended at that time. That is, he accepts that the elements of the offence provided for in subsection…

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 Topic

Details

AGLC: Police v Topic [2023] ACTMC 47
Case: [2023] ACTMC 47
Decision Date: 29 November 2023

CaseChat Overview and Summary

In the case of Police v Topic, the defendant was charged with driving while his right to do so was suspended. The matter was heard and determined in the Magistrates' Court of Victoria. The primary issue for the court was whether the defendant's belief that he was not contravening the suspension notice constituted a valid excuse under the strict liability offence provisions. Specifically, the court needed to assess if the defendant's failure to read the suspension notice resulted in a reasonable mistake of fact, which could potentially excuse his actions.

The court found that the offence in question was one of strict liability, meaning that the prosecution did not need to prove any mens rea on the part of the defendant. However, it was acknowledged that an honest and reasonable mistake of fact could serve as a defence. The defendant argued that he had not read the suspension notice and therefore did not know of the suspension. The court examined whether this constituted a reasonable mistake of fact. It was determined that the mistake was not reasonable because the defendant had received the notice and had the opportunity to read it. The court emphasised that a reasonable person in the defendant’s position would have read the notice, thus failing to establish a valid excuse.

As a result, the court found the defendant guilty of the offence. The matter was then remitted to the Magistrates’ Court of Victoria for sentencing. The final orders were detailed in the judgment at paragraph [141].

Orders

Orders of the court

See [141].

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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Citations

Police v Topic [2023] ACTMC 47

Most Recent Citation

Topic v Director of Public Prosecutions [2024] ACTSC 398

Cases Citing This Decision

Topic v Director of Public Prosecutions [2024] ACTSC 398
Citation 1

…157 CLR 523 Lee v Lee [2019] HCA 28; 266 CLR 129 M v The Queen (1994) 181 CLR 487 Palmer v Western Australia [2021] HCA 5; 272 CLR 505 Police v Topic [2023] ACTMC 47 Poole v Edwards [2016] ACTSC 159 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 State Rail Authority (NSW) v Hunter Water Board (1…
Police v Tenzin [2023] ACTMC 49
Citation 2

…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…

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Cases Cited

Palmer v Western Australia [2021] HCA 31
Citation 1

…ason CJ); APLA Lid v Legal Services Commissioner (NSW) (2005) 224 CLR 332 at [38] (Gleeson CJ and Heydon J), [179] (Gummow J), [427] (Hayne J). [4] Palmer v Western Australia (2021) 272 CLR 505 ( Palmer ) at [48], [50] (Kiefel CJ and Keane J), [92], [97]-[98] (Gageler J), [181], [184] (Gordon J), [249] (Edelman J). [5] Palmer at [5…
Poole v Edwards [2016] ACTSC 159
Citation 2

…ski v Palmer [2004] HCA 30; 218 CLR 493 Ottobrino v Espinoza (1995) 14 WAR 373 Pangallo v Actew Corporation Limited [2002] ACTSC 15 Poole v Edwards [2016] ACTSC 159 R v Donyadideh (1993) 115 ACTR 1 Stone v French [2013] ACTMC 4…
Leyden v Venkat [2015] QDC 28
Citation 3

…Cook v Commissioner of Police [2012] QCA 118 Illich v Young [2000] WASCA 383 Leyden v Venkat [2015] QDC 28 Mayer v Merchant (1973) 5 SASR 567 McCaskie v Bagby (Unreported, Supreme Court of Western Australia, Wallace J, Library No 1534, 18 April 1975) Mei Ying Su v Australian Fisheries Management Authority (No 2)…
Bloxham v Wyte [2013] ACTSC 151
Citation 4

…is, "decid[ingl whether or not the offence is proved or the defendant is guilty" [1] I — and exercising one of those dispositive powers. [1] Bloxham v Wyte (2013) 278 FLR 365 at [38] (Penfold J). 12. In the present case, no issue as to whether s 3IA of the Driver Licensing Act infringes the guarantee in s 92 of the Con…
Nikro v O'Sullivan [2013] ACTSC 129
Citation 5

…brary No 1534, 18 April 1975) Mei Ying Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485; (2008) 251 ALR 135 Nikro v O’Sullivan [2013] ACTSC 129 Ostrowski v Palmer [2004] HCA 30; 218 CLR 493 Ottobrino v Espinoza (1995) 14 WAR 373 Pangallo v Actew Corporation Limited [2002] ACTSC 15 Poole v Edwar…
Stone v French [2013] ACTMC 4
Citation 6

…5) 14 WAR 373 Pangallo v Actew Corporation Limited [2002] ACTSC 15 Poole v Edwards [2016] ACTSC 159 R v Donyadideh (1993) 115 ACTR 1 Stone v French [2013] ACTMC 4…
Cook v Commissioner of Police [2012] QCA 118
Citation 7

…Cook v Commissioner of Police [2012] QCA 118 Illich v Young [2000] WASCA 383 Leyden v Venkat [2015] QDC 28 Mayer v Merchant (1973) 5 SASR 567 McCaskie v Bagby (Unreported, Supreme Court of Western Australia, Wallace J, Library No 1534, 18 April 1975) Mei Ying Su v Australian Fisheries Management Authority (No 2)…
Australian Fisheries Management Authority v Su [2009] FCAFC 56
Citation 8

…tributes. 108․I note that, although Reeves J’s decision was appealed to the Full Court ( Australian Fisheries Management Authority v Su [2009] FCAFC 56), there was no challenge to his Honour analysis as set out above, and the Full Court dismissed the appeal. 109․Consistently with the decision of Reeves J in Mei Yi…
Mei Ying Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485
Citation 9

…ported, Supreme Court of Western Australia, Wallace J, Library No 1534, 18 April 1975) Mei Ying Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485; (2008) 251 ALR 135 Nikro v O’Sullivan [2013] ACTSC 129 Ostrowski v Palmer [2004] HCA 30; 218 CLR 493 Ottobrino v Espinoza (1995) 14 WAR 373 Pangallo…
Aubertin v The State of Western Australia [2006] WASCA 229
Citation 10

…is or her appreciation or perception of the circumstances in which he or she found himself or herself", in Aubertin v Western Australia (2006) 33 WAR 87; [2006] WASCA 229 at [43] per McLure JA (with whom Roberts-Smith JA and Buss JA agreed).…
R v Mrzljak [2004] QCA 420
Citation 11

…considered the equivalent expression (in s 24 of the Queensland Criminal Code 1899 (Qld)) in R v Mrzljak (2005) 1 Qd R 308; (2004) 152 A Crim R 315; [2004] QCA 420, and described it as requiring: (a) "...a consideration of whether there were reasonable grounds for the belief, not what a reasonable person would h…
Ostrowski v Palmer [2004] HCA 30
Citation 12

…ng Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485; (2008) 251 ALR 135 Nikro v O’Sullivan [2013] ACTSC 129 Ostrowski v Palmer [2004] HCA 30; 218 CLR 493 Ottobrino v Espinoza (1995) 14 WAR 373 Pangallo v Actew Corporation Limited [2002] ACTSC 15 Poole v Edwards [2016] ACTSC 159 R v Donyadide…
Wylkian Pty Ltd v ACT Government [2002] ACTSC 97
Citation 13 (Para 25)

…[2] Wylkian Pty Ltd v ACT Government [2002] ACTSC 97 at [25] (Gyles J) (appeal dismissed: Wylkian Pty Ltd v ACT Government [2003] ACTCA 11 (Higgins CJ, Gray and Ryan JJ)). 15. It would appear that Mr Topic's complaint is that s 31A of the Driver Licensing Act infringes the freedom of intercourse between the Territ…
John Pangallo v ACTEW Corporation Limited (ACN 069 381 960) [2002] ACTSC 15
Citation 14

…Sullivan [2013] ACTSC 129 Ostrowski v Palmer [2004] HCA 30; 218 CLR 493 Ottobrino v Espinoza (1995) 14 WAR 373 Pangallo v Actew Corporation Limited [2002] ACTSC 15 Poole v Edwards [2016] ACTSC 159 R v Donyadideh (1993) 115 ACTR 1 Stone v French [2013] ACTMC 4…
BRK v The Queen [2001] WASCA 161
Citation 15 (Para 34)

…always be necessary to advert to the circumstances as they existed at the time in so far as they were known to the accused", in BRK v R [2001] WASCA 161 at [34] and [36] per Murray J. (d) "For there to be an operative mistake under s 24, an accused must have acted under an actual belief in the existence of a state…
Minear v Rudrum [2001] WASCA 10
Citation 16

…Supreme Court of Western Australia, Wallace J, Library No 1534, 18 April 1975), Wroblewski v Starling at 235, Minear v Rudrum [2001] WASCA 10. See also, relevantly, Illich v Young [2000] WASCA 383; (2000) 32 MVR 354. [64] As Roberts-Smith J said in Denton v Bodycoat [2000] WASCA 424 at [39]: The salient point whic…
Denton v Bodycoat [2000] WASCA 424
Citation 17 (Para 39)

…. See also, relevantly, Illich v Young [2000] WASCA 383; (2000) 32 MVR 354. [64] As Roberts-Smith J said in Denton v Bodycoat [2000] WASCA 424 at [39]: The salient point which may be derived from those authorities is that where a license disqualification is discretionary and it depends upon a court or an administra…
Illich v Young [2000] WASCA 383
Citation 18

…Cook v Commissioner of Police [2012] QCA 118 Illich v Young [2000] WASCA 383 Leyden v Venkat [2015] QDC 28 Mayer v Merchant (1973) 5 SASR 567 McCaskie v Bagby (Unreported, Supreme Court of Western Australia, Wallace J, Library No 1534, 18 April 1975) Mei Ying Su v Australian Fisheries Management Authority (No 2) [2…
O'Brien v Ostrowski [1999] WASCA 184
Citation 19 (Para 108)

…he position of the defendant carrying out the same actions in the same circumstances may make the same mistake", in O’Brien v Ostrowski [1999] WASCA 184 at [108] per McKechnie J; (c) "It is that belief which must be reasonable; i.e., in all the circumstances it must have been reasonable for the accused person to ho…
Cunliffe v The Commonwealth [1994] HCA 44
Citation 20

…[4] Such a law will be justified if it goes no further than is reasonably necessary to achieve a legitimate object. [5] [3] Cunliffe v Commonwealth (1994) 182 CLR 272 ( Cunliffe ) at 307 (Mason CJ); APLA Lid v Legal Services Commissioner (NSW) (2005) 224 CLR 332 at [38] (Gleeson CJ and Heydon J), [179] (Gummow J), [4…
Felton v Mulligan [1971] HCA 39
Citation 21

…or to the express conferral of federal jurisdiction pursuant to ch III of the Constitution by s 39 of the Judiciary Act: see also Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 at 411-412. 130․In R v Donyadideh (1993) 115 ACTR 1, Miles CJ said at [32] – [33] and [35]: [32] The jurisdiction of Territory cour…
Lorenzo v Carey [1921] HCA 58
Citation 22

…129․The Attorney-General referred me to Pangallo v Actew Corporation Limited [2002] ACTSC 15, in which Miles CJ said, at [29]: In R v Donyadideh (1993) 115 ACTR 1, (1993) 114 FLR 43 the jurisdiction of this Court was characterised as similar to the jurisdiction in relation to claims made in respect …
Donyadideh v The Queen [1992] HCATrans 266
Citation 23

…CLR 493 Ottobrino v Espinoza (1995) 14 WAR 373 Pangallo v Actew Corporation Limited [2002] ACTSC 15 Poole v Edwards [2016] ACTSC 159 R v Donyadideh (1993) 115 ACTR 1 Stone v French [2013] ACTMC 4…
Mayer v Marchant 1 NZLR 660
Citation 24

…Cook v Commissioner of Police [2012] QCA 118 Illich v Young [2000] WASCA 383 Leyden v Venkat [2015] QDC 28 Mayer v Merchant (1973) 5 SASR 567 McCaskie v Bagby (Unreported, Supreme Court of Western Australia, Wallace J, Library No 1534, 18 April 1975) Mei Ying Su v Australian Fisheries Management Authority (No 2) [20…

Legislation Cited

Road Transport (General) Act 1999 (ACT) 22, 24, 26
4 mentions
Sok v Minister for Immigration and Citizenship 71, 76, 92
4 mentions
Road Transport (Driver Licensing) Act 1999 (ACT) 31A, 5A
3 mentions
Australian Capital Territory (Self-Government) Act 1988 (Cth) 69
2 mentions
Judiciary Act 1903 (Cth) 78B
2 mentions
Magistrates Court Act 1930 (ACT) 19
2 mentions
Constitution of Australia (Cth)
1 mention
Road Transport (Vehicle Registration) Act 1999 (ACT)
1 mention