Police v Topic
[2023] ACTMC 47
•29 November 2023
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 31A(1) of the Driver Licensing Act are made out.
4․However, the Defendant raises two issues. He submits that:
(a)the Driver Licensing Act is inconsistent with section 92 of the Commonwealth of Australia Constitution Act 1900 (Cth) (Commonwealth Constitution), and is therefore invalid; and
(b)even if the Driver Licensing Act is not inconsistent with the Commonwealth Constitution, he was not aware that his right to drive in the ACT had been suspended.
5․Given the Defendant’s concessions in relation to the elements of the offence, the hearing on 10 August 2023 focused on whether the Defendant was unaware that his right to drive in the ACT had been suspended and, if so, whether he could avail himself of the excuse of mistake of fact for the purposes of section 36 of the Criminal Code 2002 (ACT) (Criminal Code).
6․The hearing of the Defendant’s submissions in relation to the Constitutional validity of the Driver Licensing Act was adjourned until 29 November 2023. This was done in order to allow time for the Commonwealth and State Attorneys-General (including the Attorney-General of the ACT) to be given notice of the constitutional challenge for the purposes of section 78B of the Judiciary Act 1903 (Cth) (Judiciary Act).
7․The Attorney-General of the Australian Capital Territory intervened in the proceedings. On 8 November 2023, the Attorney-General filed written submissions in relation to the Defendant’s constitutional challenge. On 27 November 2023, I received written submissions from the Defendant.
8․On 29 November 2023, the hearing resumed. The Attorney-General made oral submissions with respect to the jurisdiction of the Court to determine the Defendant’s constitutional challenge. The Defendant made submissions with respect to what he saw as a procedural irregularity and with respect to the jurisdiction of the court.
Principles
9․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.
10․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. The law does not require me to give all evidence the same weight.
11․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.
12․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 should be drawn beyond reasonable doubt, as proof of an element of an offence.
13․I must deliver my decision according to the evidence.
14․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.
15․By giving evidence, the Defendant did not assume any onus to prove anything at the hearing. 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.
Summary of decision
16․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 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 right to drive in the ACT as a result of possessing a valid NSW driver licence – was a mistake of fact. In my view, it was a mistake of law; and
(c)even if the Defendant’s mistaken belief had concerned a matter of fact, I would have found that his mistake was not reasonable. The information available to the Defendant clearly put him on notice that his right to drive in the ACT was suspended from 7 July 2022, well before the date of the present offending.
17․I am also satisfied that there is no merit to the Defendant’s argument that section 31A of the Driver Licensing Act is inconsistent with s 92 of the Commonwealth Constitution. I accept the submissions of the Attorney-General that:
(a)the present matter does not raise any issue under section 92 of the Commonwealth Constitution, as section 92 is only concerned with trade, commerce and intercourse among the States (which does not include the ACT); and
(b)further, that section 31A of the Driver Licensing Act is not invalid by reason of any infringement of section 69 of the Australian Capital Territory (Self-Government) Act 1988 (Cth), which is a provision that reflects, as between the ACT and the States, the operation of s 92 of the Commonwealth Constitution.
18․Accordingly, the Defendant is guilty of the offence charged.
Elements
19․As I have noted, the Defendant is charged with driving while his right to drive in the ACT was suspended.
20․The elements of that offence for the purposes of these proceedings are that:
(a)the Defendant was the driver of a vehicle in the Australian Capital Territory; and
(b)at the time of driving, the Defendant’s right to drive was suspended under a law of the Territory.
21․As noted above, the Defendant accepts that both of these elements are satisfied in this case, for the reasons I have identified at the beginning of this judgment (see [3]).
Law
Relevant legislative provisions
22․Subsections 24(1) to (3) of the Road Transport (General) Act 1999 (ACT) (General Act) state:
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 Vehicle National Law (ACT), s 591 (1)).
(3)An infringement notice must be served in the way prescribed by regulation.
23․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.
24․Section 27 of the General Act states:
27 Reminder notice—service and contents
(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.
25․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).
26․Subsections 9B(1) to (3) of the Road Transport (General) Regulation 2000 (ACT) (the Regulation) state:
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.
27․Section 31A of the Driver Licensing Act states:
31AOffence—driving while right to drive suspended
(1)A person commits an offence if—
(a)the person’s right to drive is suspended under a law of the territory; and
(b)the person drives a vehicle in the ACT.
Maximum penalty: 20 penalty units.
(2)An offence against this section is a strict liability offence.
28․Section 5A of the Driver Licensing Act provides that the Criminal Code applies in relation to offences against section 31A of the Driver Licensing Act.
29․Section 36 of the Criminal Code provides that:
36Mistake of fact—strict liability
(1)A person is not criminally responsible for an offence that has a physical element for which there is no fault element if—
(a)when carrying out the conduct making up the physical element, the person considered whether or not facts existed, and was under a mistaken but reasonable belief about the facts; and
(b)had the facts existed, the conduct would not have been an offence.
(2)A person may be taken to have considered whether or not facts existed when carrying out conduct if—
(a)the person had considered, on a previous occasion, whether the facts existed in the circumstances surrounding that occasion; and
(b)the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as the circumstances surrounding the previous occasion.
Note Section 24 (Absolute liability) prevents this section applying to offences of absolute liability.
30․Section 58 of the Criminal Code provides that:
(2)A defendant who wishes to deny criminal responsibility by relying on a provision of part 2.3 (Circumstances where there is no criminal responsibility) has an evidential burden in relation to the matter.
(3)Subject to section 59, a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence (whether or not it accompanies the description of the offence) has an evidential burden in relation to the matter.
…
(7)In this Act:
evidential burden, in relation to a matter, means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
Evidence
Prosecution evidence
31․Senior Constable Holwell gave evidence for the Prosecution. Several documents were tendered through his evidence. They were:
Document
Date sent to Defendant
Address
1
Infringement notice issued on 15/02/2022 in relation to a speeding offence committed by the Defendant on 12/02/2022
19/03/2022
Defendant’s residential address
2
Reminder notice issued on 25/04/2022 in relation to the speeding offence committed by the Defendant on 22/02/22
10/05/2022
As above
3
Notice of suspension – advised that Defendant’s suspension of right to drive in the ACT would take effect 06/07/2022 if infringement penalty was not paid
09/06/2022
As above
4
Suspension confirmation notice – confirmed that Defendant’s right to drive in the ACT was suspended on 07/07/2022
07/07/2022
As above
5
Certificate issued under s72(1)(a) of General Act – summary of above documents and confirmation that Defendant had, as at 30/03/2023, never held an ACT driver licence
N/A
(Dated 05/04/2023)
N/A
32․I note that the infringement notice was issued in relation to a speeding offence committed on 12 February 2022. The infringement notice and suspension notice identify that the Defendant was detected by a speed camera to be travelling at 47 kilometres per hour in a 40 kilometre per hour zone.
33․In cross-examination, Senior Constable Holwell gave evidence that:
(a)there was nothing in the manner of the Defendant’s driving that brought him to the attention of police on the evening of 30 March 2023;
(b)once Senior Constable Holwell and his partner stopped the Defendant, Senior Constable Holwell accessed a database which contained the information that is reflected in the above documents and he spoke to the Defendant about the fact that his right to drive in the ACT had been suspended;
(c)Senior Constable Holwell recalled the Defendant asking why his right to drive had been suspended and recalled his colleague saying that it was because the Defendant had an unpaid speeding fine; and
(d)Senior Constable Holwell could not recall what the Defendant then said, but did remember the Defendant saying that he couldn’t understand Senior Constable Holwell when he was arrested.
Defendant’s evidence
34․The Defendant gave evidence that he did not realise that he had lost the right to drive in the ACT. He said that he doubted that he would have driven if he had known. He said that he drove from NSW to the ACT about once a month between the date of the speeding offence (February 2022) and the date of the present offence (March 2023) to attend protests in Canberra.
35․The Defendant said that he did not give consideration to whether he had a right to drive in the ACT because he had a current NSW driver licence. I note that, prior to the Defendant giving evidence, he said from the bar table, when setting out his position as to why the Driver Licensing Act is invalid, that he believed that his NSW driver licence allowed him to drive anywhere. I assume from that statement that he meant that he could drive anywhere in Australia, including in the ACT.
36․While the Defendant gave no evidence as to when he formed that belief, in fairness to him I note that I only asked him specifically, when he was giving evidence, whether he considered whether he had a right to drive in the ACT on 30 March 2023. I consider that it is likely that the Defendant formed the belief that he could drive in the ACT prior to the time he first drove to the ACT. I consider that that is likely to have been the case, given:
(a)the common experience of people in Australia of driving interstate without needing any approval or permission if they hold a driver licence issued in their home jurisdiction; and
(b)the number of times that the Defendant has driven to Canberra (in circumstances where the Defendant gave evidence that he would probably not have driven to the ACT if he had known that his right to drive in the ACT had been suspended).
37․The Defendant gave evidence that he remembered receiving correspondence from an entity with the word “Canberra”. He now realises that it was probably Access Canberra but at the time he did not read the correspondence. That was because he does not trust unsolicited correspondence and does not consider envelopes that do not have the address printed directly on the envelope to be addressed to him (as opposed to an envelope with an address window where the address is printed on the documentation visible through the address window).
38․The Defendant also suggested that the correspondence received was not addressed to him because the address was written in all capital letters, and that text written in all capitalised letters is not English.
39․Finally, the Defendant said that he thought correspondence coming from an entity, called Access Canberra, or “Access to Canberra”, was likely to be tourist information. The Defendant said that he likely returned the correspondence marked ‘unclaimed’, as this was his standard practice when he did not recognise the sender.
40․In cross-examination, the Defendant gave evidence that:
(a)he had been living at the residential address to which the notices were sent for 10 years, and was living there in 2022 when the notices were sent to him;
(b)he reviews mail received at his house every day;
(c)he received mail from other persons during the time the notices were sent to him by Access Canberra; and
(d)he recalled receiving three or four pieces of correspondence from an entity with the word ‘Canberra’ (which he now accepts was probably Access Canberra).
Assessment of credibility of evidence
41․I found Senior Constable Holwell to be both an honest and reliable witness.
42․However, the reliability of least some parts of the Defendant’s evidence is less clear. In particular, I have reservations in relation to the evidence that he gave regarding the notices that were sent to him by the Road Transport Authority (RTA) (through Access Canberra).
43․Two inconsistencies in his evidence in that respect were that:
(a)while the Defendant suggested that he did not trust the correspondence that was sent to him because the address was written in all capital letters, I note that it was only the suburb and state that was written that way, and not the Defendant’s name or street number and address; and
(b)while the Defendant gave evidence that he thought that the correspondence likely concerned tourist information, his action in returning the correspondence to Access Canberra is more consistent with the actions of someone who took objection to receipt of the correspondence (because of its content or form, and/or the identity of the sender), rather than the actions of someone who thought that they had received worthless tourist information (which could easily have been thrown away).
44․I have discussed the Defendant’s evidence in further detail below.
Factual findings
45․The Defendant committed a speeding offence in the ACT on 12 February 2022. He was detected to have driven at 47 kilometres per hour in a 40 kilometre per hour zone. An infringement notice was issued on 15 February 2022 and sent to the Defendant, at his home address, on 19 March 2022. Under the Regulation the notice is presumed to have been received by the Defendant on or about 31 March 2022.
46․The infringement notice gave the Defendant until 18 April 2022 to pay the infringement penalty.
47․The Defendant was sent a reminder notice, to his home address, on 10 May 2022. Under the Regulation, this notice is presumed to have been received by the Defendant on or about 22 May 2022.
48․The Defendant was sent a notice on 9 June 2022, to his home address. It identified that one of three decisions would be made under section 44 of the General Act, depending on the Defendant’s circumstances. In his case (being a person who did not hold an ACT driver licence and where the car involved in the speeding offence was not registered in the ACT), the foreshadowed decision was suspension of his right to drive in the ACT.
49․The suspension notice advised that his right to drive in the ACT was to be suspended from 6 July 2022 as a result of non-payment of the infringement penalty. Under the Regulation, this notice is presumed to have been received by the Defendant on or about 22 June 2022. As the notice was sent more than 10 days prior to the foreshadowed suspension date, it satisfied the timing requirement set out in subsection 44(4) of the General Act.
50․The Defendant was sent a notice on 7 July 2022, to his home address, confirming that his right to drive in the ACT had been suspended on 7 July 2022. Under the Regulation, this notice is presumed to have been received by the Defendant on or about 19 July 2022.
51․I find that the Defendant in fact received all of the notices that were sent to him by the RTA.
52․While the Defendant said that he was uncertain as to the identity of the sender of the notices, I find that the Defendant did know that the notices had been sent by Access Canberra and at least suspected (if he did not positively know) that the correspondence was of an official nature. It would be unusual to receive repeated correspondence with tourist information (as he claimed he thought it was), particularly in the form that the letters were sent, addressed directly to the Defendant using what appears, from the Defendant’s evidence, to have been standard business envelopes. As noted above, I consider that the Defendant’s action, in returning the correspondence to sender, exhibited a knowledge that the correspondence was of an official nature and reflected his objection to being sent the correspondence.
53․Nevertheless, with some reservation, I accept his evidence that he did not open the envelopes which contained the notices and did not know that his right to drive in the ACT had been suspended. The nature of the speeding offence (driving at 47 kilometres per hour in a 40 km per hour zone) is not such that he would necessarily have been expecting to receive an infringement notice (as compared, for example, with a high range speeding offence which was committed whilst driving past a speed camera van).
54․On 30 March 2023, between 8.45 am and 9.00 pm, the Defendant drove on Garryowen Drive in Acton, in the ACT, while his right to drive remained suspended.
55․The Defendant did not give specific consideration to whether he had a right to drive in the ACT on 30 March 2023, however he held a general belief, formed prior to February 2022 that, because he held a NSW driver licence, he had a right to drive in the ACT.
56․Having regard to my findings that the Defendant did not open the envelopes which contained the notices, it might be true that the Defendant honestly believed that nothing had changed, between the time when he formed the view that he was entitled to drive in the ACT, and the date of the present offence, on 30 March 2023, to cause him to doubt his belief that he continued to have an entitlement to drive in the ACT as at 30 March 2023.
57․I note that there was nothing about the Defendant’s driving that brought him to the attention of police on 30 March 2023.
Findings in relation to elements of offence
58․I find, beyond reasonable doubt, that the Prosecution has proved the elements of the offence.
59․In particular, I am satisfied that:
(a)on 30 March 2023, the Defendant was the driver of a vehicle in the ACT; and
(b)at the time of driving, the Defendant’s right to drive is suspended under a law of the Territory, being the General Act.
60․Accordingly, I am satisfied that the elements of section 31A of the Driver Licensing Act have been proven.
61․I note that, at the resumption of the hearing on 29 November 2023, the Defendant stated that there had been procedural unfairness arising from the fact that he had received a summons to appear in court in relation to the offending conduct (speeding) which led to the issue of the infringement notice (the non-payment of which led to the suspension of the Defendant’s right to drive in the ACT). He indicated that it was unfair for him to be dealt with in relation to the present offence when proceedings with respect to the underlying speeding offence had not been determined.
62․There are two reasons why I do not accept the Defendant’s submissions in this respect:
(a)the first is that the Defendant did not raise by evidence or submission any challenge to the facts which founded the issue of the infringement notice. In particular, he did not give evidence that he was not driving his car at 47 kilometres per hour in a 40 kilometres per hour zone on 12 February 2022; and
(b)the second reason is that the General Act provides for an infringement system for certain offences as an alternative to prosecution (section 22 of the General Act). If a person issued with an infringement notice, and pays the infringement notice penalty, they cannot be prosecuted for the relevant offence and are not taken to have been convicted of the offence (subsection 39(2) of the General Act). However, the failure of a person to pay an infringement notice leaves them open to prosecution in the usual way. It is not in dispute, that at the time of the present offence, the Defendant’s right to drive in the ACT had been suspended.
Consideration of mistake of fact excuse
63․I understand the Defendant’s position to be that:
(a)he believed that, because he had a NSW driver licence, he had a right to drive in the ACT;
(b)he formed that view prior to February 2022;
(c)he honestly believed that nothing had changed, since he formed that view, to cause him to doubt his belief as to his entitlement to drive in the ACT; and
(d)it was reasonable for the Defendant to hold the belief that his right to drive in the ACT continued as he had not read the notices sent by Access Canberra, and he was therefore unaware that his right to drive in the ACT had been suspended when he drove in the ACT on 30 March 2023.
64․The Prosecution accepted that this may raise the possibility of a mistake of fact excuse under section 36 of the Criminal Code but submitted, as a primary position, that the Defendant’s asserted absence of knowledge, that his right to drive in the ACT had been suspended, concerned a matter of law. The Prosecution’s alternative position was that, if the Defendant’s mistake was one of fact, his mistake was not reasonable.
What needs to be established to satisfy section 36 of the Criminal Code?
65․Pursuant to subsection 58(2) of the Criminal Code, in order to rely on the mistake of fact excuse, the Defendant had an evidential burden in relation to the matter. Subsection 58(7) of the Criminal Code provides that an “evidential burden”, in relation to a matter, “means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist”.
66․The mistake of fact excuse is set out in section 36 of the Criminal Code. The Defendant bore an evidential burden in relation to each of the matters set out in that section.
67․Section 36 may be satisfied in two ways. The first is by establishing that the matters set out in subsection 36(1) existed. That is, by the Defendant presenting or pointing to evidence that suggests a reasonable possibility that, at the time when the Defendant was driving in the ACT on 30 March 2023 (that is, when he was carrying out the conduct making up the physical element of the offence):
(a)he considered whether a particular fact (or facts) existed;
(b)his belief in the fact was reasonable (albeit mistaken); and
(c)had the fact existed, his driving in the ACT on 30 March 2023 would not have been an offence.
68․Subsection 36(2) allows for a second way in which section 36 may be satisfied. It provides that the Defendant need not show that he considered the relevant fact at the time he was driving on 30 March 2023 if:
(a)he considered whether the fact existed on a previous occasion;
(b)he honestly and reasonably believed that the circumstances surrounding the occasion when he drove on 30 March 2023 were the same (or substantially the same) as the circumstances surrounding the previous occasion when he considered whether the fact existed.
69․Again, the Defendant only has an evidential burden in relation to the above matters.
70․Subsection 36(2) of the Criminal Code seeks to reflect the common law rule 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.
71․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.
What was the Defendant’s belief?
72․The Defendant’s evidence was that he believed that:
(a)he had a current NSW driver licence; and
(b)having a current NSW driver licence allowed him to drive in the ACT.
73․The Defendant did not give consideration to any particular facts regarding his right to drive in the ACT, including with respect to the beliefs identified above, at the time that he was driving in the ACT on 30 March 2023. His belief was formed at an earlier point in time.
74․On one view, the Defendant’s belief was a continuing one, formed at some point in the past and continuing until 30 March 2023. 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.
75․On this view, determination of the Defendant’s mistake of fact excuse would be made by reference to subsection 36(1) of the Criminal Code.
76․The alternative view is that, the Defendant not having specifically considered whether or not he had a right to drive in the ACT on 30 March 2023, but having considered that issue on a previous occasion, subsection 36(2) of the Criminal Code is the operative provision.
77․Having regard to the way that subsection 36(1) is drafted, I prefer the latter view, although for the reasons that follow I consider that both paths lead to the same result.
Application of subsection 36(1) of the Criminal Code
78․The first question is whether the Defendant’s belief (that he had a current NSW driver licence and, having a current NSW driver licence allowed him to the drive in the ACT) concerned a matter of fact or a matter of law.
79․In my view, the Defendant’s belief that he had a current NSW driver licence was a matter of fact. However, his belief in that respect was not mistaken – that fact in fact existed – and thus it is not a belief that engages subsection 36(1). The existence of a valid NSW driver licence did not mean that the conduct engaged in by the Defendant was not an offence.
80․On the other hand, I consider that the Defendant’s belief, that having a current NSW driver licence allowed him to drive in the ACT, concerned a matter of law. Further, even if his belief did concern a matter of fact, it is my view that the belief was not reasonably held. I have discussed my reasons for coming to these views in further detail below.
Application of subsection 36(2) of the Criminal Code
81․As is the case with respect to the application of subsection 36(1), it is my view that:
(a)the Defendant’s belief that he had a current NSW driver licence (at some point in the past) was a matter of fact, but was not a belief about which he was mistaken at any time – again, the existence of a valid NSW driver licence did not mean that the conduct engaged in by the Defendant was not an offence; and
(b)the Defendant’s belief (at some point in the past) that having a current NSW driver licence allowed him to drive in the ACT concerned a matter of law and, even if his belief did concern a matter of fact, his belief that he continued to have a right to drive in the ACT on 30 March 2023 was not reasonable. In particular, I do not consider that the Defendant reasonably believed that the circumstances surrounding the occasion of the offending conduct were the same (or substantially the same) as the circumstances surrounding the occasion when he had formed the view that having a NSW driver licence allowed him to drive in the ACT.
82․I have discussed these views in further detail below.
The Defendant’s right to drive in the ACT was a matter of law
83․The Prosecution drew my attention to two cases, in support of the proposition that the Defendant’s mistake was one of law, namely Ostrowski v Palmer [2004] HCA 30 (Ostrowski) and Poole v Edwards [2016] ACTSC 159 (Poole). As Refshauge J noted in Poole, at [53]: “The nature of the mistake is critical … for a mistake as to the law will not excuse an act which contravenes the law”.
84․Ostrowski is a decision that is often cited in relation to cases dealing with a mistake of fact excuse. In Ostrowski, the Defendant had been charged with fishing for rock lobster in a prohibited area. He had been led to believe, by an employee of Fisheries WA that the area was not so prohibited.
85․The court concluded that the mistake was one of law. It is clear why that was so. As Gleeson CJ and Kirby J found at [13]:
This is not a case that gives rise to the difficulties that are sometimes involved in distinguishing between mistakes of law and mistakes of fact, or in applying the common law, or [the relevant provisions of the WA legislation] to what are sometimes describes as mixed questions of fact and law. Here the mistake that was made, however it is characterised, was not relevant to any element of the offence charged. Rather, it was a mistake that resulted in ignorance of the existence of the prohibition in reg 34, that is to say, ignorance of the law.
86․The defendant was not mistaken as to the area where he was located (a mistake about which Gleeson CJ and Kirby J noted may have constituted a mistake of fact). The issue was that he was not aware that there was a regulation prohibiting fishing for rock lobster in that location. That existence and application of that regulation was a matter of law.
87․There are a number of decisions of this and other jurisdictions which have considered the mistake of fact excuse in the context of road transport cases. In Poole, Refshauge J noted at [63] – [64]:
[63] There is a long line of cases, particularly in Western Australia, that make it clear that, when the suspension of licence or disqualification of a person from holding or obtaining a licence is made automatically by virtue of the provisions of legislation, a mistake about that matter, which seems to me to include both the fact of suspension or disqualification or the statutory length, is a question of law, ignorance of which is no excuse. See McCaskie v Bagby (Unreported, 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 which may be derived from those authorities is that where a license disqualification is discretionary and it depends upon a court or an administrative decision whether or not a disqualification is made and if so, the duration of it, those are matters of fact. On the other hand where the disqualification is effectively automatic by operation of law, then any mistake by a defendant about it is a mistake of law...
88․Examples of cases in which it was found that the mistake was one of law include:
(a)Poole, in which the defendant was aware that his licence had been disqualified, but he was mistaken as to the length of the disqualification. He mistakenly thought that the disqualification period was co-extensive with the period of a good behaviour order that had been imposed by the court. However, the Driver Licensing Act provided that, if a person was convicted of the offence for which the defendant had been convicted, the person is automatically disqualified from holding a driver licence for 12 months (or such longer period as ordered by the court). Refshauge J found that the defendant’s licence was disqualified for 12 months by operation of law;
(b)Illich v Young [2000] WASCA 383 (Illich), in which the defendant drove with a blood alcohol concentration that exceeded 0.02, unaware that he was subject to that limit. The reason why he was, was that he had been convicted of a traffic offence and disqualified from holding or obtaining a driver’s licence for a period of 6 months. Because he was a “recently disqualified driver” (as statutorily defined), he was prohibited from driving a motor vehicle with a percentage of alcohol in his blood of 0.02 per cent or greater;
(c)McCaskie v Bagby (Unreported, Supreme Court of Western Australia, Wallace J, Library No 1534, 18 April 1975), in which the defendant was convicted for a speeding offence, which resulted in the automatic cancellation of his licence under the relevant legislation. He was not present in court when the conviction was entered, and the notice the defendant received from the court referred only to the court-ordered fine and fees that had been imposed. Nevertheless, when he was subsequently arrested for driving a motor vehicle while not being the holder of a licence, the court found that he could not rely on a mistake of fact excuse as his licence had been cancelled by operation of law; and
(d)Leyden v Venkat [2015] QDC 28 (Venkat), in which the defendant submitted that his belief that he held a valid licence was brought about by the conduct of a police officer who had pulled him over for a speeding offence. The officer had taken his licence, returned it without comment and permitted the defendant to drive away after issuing him with an infringement notice. Her Honour found that the suspension of the defendant’s licence occurred automatically under the relevant legislation in circumstances where the registrar has served a notice of intention to suspend a licence and the defendant did not pay the unpaid amount within the prescribed period. There was no evidence of any mistake on the part of the defendant about whether the underlying events which gave rise to the suspension had occurred and her Honour found that the assumption the defendant made based on the actions of the police officer did not transform a mistake of law into a mistake of fact.
89․Similarly, I note that that the Explanatory Statement to the Road Transport (General) Amendment Bill 2020 (ACT), which amended section 44 of the General Act, stated (in part):
The purpose of the amendments is to clarify the requirements for giving notice to clients of the road transport authority about impending suspension action or fine enforcement action, and to provide that suspension or fine enforcement action takes effect by operation of law if payment of the outstanding amount is not received by the relevant date …
90․This statement is reflected in the decision of Neild AJ in Nikro v O’Sullivan [2013] ACTSC 129 (Nikro), in which his Honour described the suspension of the defendant’s licence under subsections 44(5) and (8) of the General Act as having occurred by operation of law (at [9]). The defendant’s position in that case was that he had not received the infringement notice or suspension notice that had been sent to him because he had changed his residence a number of times without informing the RTA of his change of address. Neild AJ did not decide whether the defendant’s mistake (that he had a right to drive) was one of fact or law but focused instead on the reasonableness of his belief.
91․Examples of cases in which it was found that the mistake was, or might be, one of fact include:
(a)Ottobrino v Espinoza (1995) 14 WAR 373, in which the defendant’s licence had been suspended because of a number of unpaid fines. While a valid suspension order had been made, and he had been sent a notice of suspension, he did not receive the notice because he had been away on holidays (and was, accordingly, unaware that his licence had been suspended at the time he was identified by police to be driving whilst his licence was suspended). Commissioner Buss QC found at page 21:
Under s19 of the Fines Act a licence suspension order does not take effect immediately upon 28 days having elapsed since the date of issue of a notice of intention to suspend licences, the modified penalty and enforcement fees specified in that notice not having been paid to the Registry and the alleged offender not having made an election under s21. If those circumstances occur the Registrar may make a licence suspension order as to such of the matters in s19(3) and (4) as the Registrar thinks fit ... In particular, the order may disqualify the alleged offender from holding or obtaining a licence in respect of any vehicle or only in respect of those vehicles specified in the order. Also, the order takes effect only on the date and at the time specified by the Registrar in the order …
In my opinion, neither the provisions of s19 nor any other provisions of the Fines Act indicate an intention to exclude the operation of s24 of the Criminal Code … In my opinion, a person charged under s49(1) may have a defence under s24 if at the material time he has not received a notice confirming licence suspension. Section 19(6), (7) and (8) [providing for the provision of notice of the suspension of an alleged offender’s licence] can operate harmoniously with s19(5) [which provided that a licence suspension order has effect on the date specified in the order] …
I note that, in Illich v Young [2000] WASCA 383, Roberts-Smith J said of Commissioner Buss QC’s decision, at [22]:
The point of distinction, it seems to me, between that case and the present is that the learned Commissioner was dealing with a situation in which administrative action had to be taken to effect the suspension; it was not something which operated automatically, that is not simply as a matter of law. In those circumstances one can readily see, I think, the validity of an argument that the mistake is one of fact, the relevant fact being whether or not the administrative action has been taken.
(b)Cook v Commissioner of Police [2012] QCA 118 (Cook), in which Holmes JA (with whom Fraser JA and Ann Lyons J agreed) said at [16]:
The applicant is correct, in my view, in saying that even in an automatic cancellation case, there may be scope for mistake of fact about whether the underlying events which will give rise to cancellation have occurred. Such a mistake might arise in relation to whether conduct attracting demerit points had in fact occurred; or how the Chief Executive had actually exercised what appears to be a discretion in relation to the recording of points against a traffic history; or whether a choice to be of good behaviour rather than have the licence suspended had successfully been notified to the Chief Executive...
92․I do note, however, that in Venkat, Bowskill QC DCJ, referring to the above passage from Cook, cautioned that (at [79]):
Having said that, such mistakes as were adverted to by the applicant in that case (including a general belief that his licence was not suspended, because he did not appreciate that he had accrued sufficient demerit points for that to occur, and a belief that renewal of his licence meant his demerit points would be expunged) were not found to be such as to raise s 24.
93․The following propositions may be drawn from the above cases:
(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)where 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.
94․As to the last of the above propositions, I would think that the circumstances where that are so are likely to be limited. If, however, 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 statutory notice), then the defendant could challenge the validity of the disqualification or suspension itself.
95․In this case, the Defendant’s assumption that his NSW driver licence permitted him to drive in the ACT was, when he first drove to the ACT, correct. Under section 31 of the Driver Licensing Act, a person may drive on a road or road related area in the ACT if they are the holder of an Australian driver licence that authorises the person to drive a motor vehicle of the kind they are driving.
96․However, that entitlement is subject to any decision made under section 44 of the General Act to the contrary, arising from non-payment of infringement notice penalty. Accordingly, from July 2022, when the defendant’s right to drive in the ACT was suspended, his belief that his NSW driver licence entitled him to drive in the ACT was no longer correct.
97․Consideration must therefore be given to whether the suspension of the Defendant’s right to drive under section 44 of the General Act was a matter of fact or a matter of law.
98․In my view, the suspension of the Defendant’s right to drive in the ACT occurred automatically by operation of law. Indeed, section 44 of the General Act provides for a scheme for the automatic suspension of a licence or right to drive on the giving of notice.
99․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(7) to suspend his right to drive. There was no discretion. Pursuant to subsection 44(8), the suspension automatically took effect on the suspension date stated in the suspension notice.
100․I note that, in contrast to the circumstances of Nikro, where the defendant’s licence was suspended under subsection 44(5) because that was the only result permitted by section 44, in this case the RTA had options, as set out in subsection 44(7), as to the nature of the suspension. However, whichever option was taken would result in the Defendant being prohibited from driving his car in the ACT. Further, the particular option that was chosen was identified in the suspension notice and it was therefore that option that was automatically imposed on the suspension date.
101․As noted earlier in these reasons, the Defendant raised no challenge to the underlying events giving rise to the suspension. I also note that the Defendant did not dispute that he had been validly served with the relevant notices. In particular, he did not seek to rebut the statutory presumptions in subsection 9B(3) of the Regulation and was thus taken to have been given the notices on the dates identified in paragraphs [45]-[50] above.
102․For the above reasons, I consider that the Defendant has not discharged the evidential burden of presenting or pointing to evidence supporting a mistake of fact excuse under section 36 of the Criminal Code because his mistaken belief concerned a matter of law, and not a matter of fact.
The Defendant’s belief was not reasonable
103․As noted earlier in these reasons, even if I was of the view that the Defendant’s mistaken belief concerned a matter of fact, I would conclude that his belief was not reasonably held (even if honestly held). In particular, I am of the view that the Defendant did not reasonably believe:
(a)that he had a right to drive in the ACT on 30 March 2013 (and that paragraph 36(1)(a) is therefore not satisfied); nor
(b)that the circumstances surrounding the occasion of the offending conduct were the same (or substantially the same) as the circumstances surrounding the occasion when he had formed the view that having a NSW driver licence allowed him to drive in the ACT (and that paragraph 36(2)(b) is therefore not satisfied).
104․An excellent discussion of the law with respect to the requirement for a mistaken belief to be reasonable is contained in the decision of Reeves J in Mei Ying Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485 (Mei Ying Su). In Mei Ying Su, a foreign fishing boat was seized by the Royal Australian Navy when it was found in the Australian fishing zone. The owners of the boat said that a mistake of fact excuse was open to them because the Master of the boat plotted his position using the boat’s onboard GPS and he believed that he was 11 nautical miles outside the relevant zone.
105․Justice Reeves accepted that the Master had a mistaken belief that particular red lines which appeared on the GPS represented the location of the relevant zone (and that he had not crossed the line which was depicted). In determining whether his belief in that respect was reasonable, his Honour referred, at [104] and [105], to various statements of principle that had been made by the Western Australian Court of Appeal and Full Court, and Queensland Court of Appeal, with respect to the expression “honest and reasonable belief”, as follows:
[104] In the Criminal Code jurisdictions of Queensland, Western Australia and Tasmania, the defence of acting under an honest and reasonable, but mistaken belief, has been said to reflect the common law with "complete accuracy": see Thomas at 305 – 306 per Dixon J and CTM at [3] per Gleeson CJ and Gummow, Crennan and Kiefel JJ. Different judges of the Western Australian Court of Appeal (and the Full Court) have described the expression "honest and reasonable belief" (in s 24 of the West Australian Criminal Code) in the following terms:
(a) "...it must be reasonable, which is to say that it must be based on his appreciation of primary objective fact which is in reason capable of sustaining the belief ...", in GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183 at 187 per Burt CJ, Brinsden and Smith JJ;
(b) "... a reasonable man or woman in the 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 hold the belief which, in this case, would render his conduct innocent"; and "....it is the actual belief of the accused with which the section is concerned, in judging reasonableness it will 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 of things (subjective element) and the accused belief must be reasonable (mixed element) ... the mixed element is not wholly objective; reasonableness is not to be judged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his 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).
[105] The Queensland Court of Appeal 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 have believed" per McMurdo P at [21];
(b) "...that the critical focus is on the offender rather than the theoretical reasonable person. It is the information available to the offender which must determine whether the belief was honest and also was reasonable ..." per Williams JA at [53];
(c) that "[t]he section directs attention to the actual belief of the accused; nothing in its language invites reference to the reasonable man’s putative belief. What must be considered, in my view, is the reasonableness of an accused’s belief based on the circumstances as he perceived them to be", per Holmes JA at [81].
106․His Honour concluded, at [106]:
[106] From these authorities it is apparent that the word ‘reasonable’ in s 9.2:
(a) does not involve the hypothetical ordinary or reasonable person test;
(b) requires that the belief be that of the accused;
(c) requires that the accused’s belief be objectively reasonable i.e. rational, based on reason, or capable of sustaining belief; and
(d) requires the objective reasonableness of the accused’s belief to be assessed by reference to the subjective circumstances in which the accused was placed, including the accused’s personal attributes and the information available to him or her at the time.
107․Reeves J found, at [109] – [110], that while it is not appropriate to ask whether the circumstances reasonably required the defendant to make enquiries that would have revealed his mistake (as that would be likely to render nugatory the excuse of mistake of fact), a question could be asked as to why the defendant failed to have regard to certain information that was actually available to him when he formed his mistaken belief. His Honour said, at [110]:
It would seem that a question along the lines of: ‘did the Master unreasonably fail to have regard to any information that was available to him at the time that would have revealed his mistake’, would be permissible. Of course, in making that assessment it remains necessary to have regard to the Master’s personal attributes.
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 Ying Su, Refshauge J made the following observations in Poole, at [57] – [59], with respect to the relevance of enquiries that might be open to a defendant (albeit that that was not an issue that needed to be resolved, as his Honour held that the defendant’s mistake was one of law):
[57] Mr Poole knew that his licence had been suspended, he simply did not know for how long as he mistook that the disqualification was co-extensive with the term of the Good Behaviour Order.
[58] That he had made no inquiry seems to have been suggested by the prosecution to have shown that any mistake was unreasonable. That, in my view, is not correct, for it very much depends on the circumstances. As Rowland J said in Wroblewski v Starling [1987] WAR 233 at 235, when allowing an appeal and acquitting the appellant:
One usually deals with [the excuse of honest and reasonable mistake] on the premise that the person who seeks to support the ‘mistaken belief in the existence of a state of things’ has in fact turned his mind to the matter of facts in issue. This is not that situation. The appellant’s case is that he knew that he had a licence that had just been, or was about to be, renewed. His case is really that there was nothing to cause him to question whether or not the licence was still of full force.
[59] In this case, if Mr Poole honestly believed that he had been disqualified from holding or obtaining a licence for six months, there was no occasion for him to make inquiry and that cannot necessarily undermine his excuse.
110․Having regard to the decision of Justice Reeves (and the authorities his Honour cited), I find that any belief that the Defendant held, that he retained a right to drive in the ACT on 30 March 2023, may have been honest but was not reasonable. Based on the information available to the Defendant, it was not an objectively reasonable belief.
111․The information available to the Defendant comprised the infringement notice, the reminder notice, the suspension notice, and the notice confirming the suspension of the Defendant’s right to drive in the ACT.
112․He had therefore received four pieces of correspondence from Access Canberra, an entity within the ACT government, that I have found he at least suspected was of an official nature. The Defendant did not live in the ACT and there would seem to be a very limited range of subject matters about which the ACT government would wish to correspond with the Defendant. Given that he attended the ACT to protest, the Defendant must have been aware that the correspondence might relate to his conduct while visiting the ACT to protest.
113․More significantly than that, though, is that the notices were statutory notices served in accordance with the General Act and the Regulation. The suspension notice advised the Defendant that his right to drive in the ACT would be suspended from 6 July 2022 and the notice confirming his suspension advised that the suspension had taken effect on 7 July 2022. Despite the minor discrepancy in the date, the information available to the Defendant made clear that the Defendant no longer had a right to drive in the ACT from at least 7 July 2022.
114․Pursuant to section 9B of the Regulation, the notices were presumed to have been received at the Defendant’s address on particular dates, as identified in paragraphs [45]-[50] above. As noted earlier in these reasons, the Defendant did not dispute that he received the notices at his home address. Pursuant to subsection 9B(2) of the Regulation, the notices were taken to be given to the Defendant when they were received at his address.
115․In my view, it does not matter whether the Defendant in fact read the notices or not. The notices had been served on him and the information contained in them was available to him.
116․In those circumstances, a question could properly be asked, to adopt the words of Justice Reeves, as to why the Defendant failed to have regard to the information that was available to him. For the reasons I have set out earlier in this decision, I consider that the Defendant’s explanation, that he returned the correspondence to Access Canberra because he thought it was tourist information, was disingenuous.
117․His further explanation, that he does not trust unsolicited correspondence and that he had issues with respect to the type of envelope used to send the notices and the use of capital letters in the suburb and street names printed on the notices, is inadequate. This is particularly so in the context of the scheme established by the General Act and the Regulation for the service of notices (and the presumed receipt of those notices) with a self-executing effect.
118․In my view, it would be contrary to the purpose of this aspect of the legislation, which is to provide for a suspension to take effect automatically on the failure of a person to pay an outstanding infringement penalty by its due date, to permit the Defendant to rely on his disregard of the relevant notices in defence of the charge that has been brought against him.
119․At least from 22 June 2022, when the Defendant received the suspension notice, he could no longer have reasonably held the view that he retained a right to drive in the ACT because he was given explicit notice to the contrary. Accordingly, he could not reasonably have believed on 30 March 2023 that he had a right to drive in the ACT and, similarly, he could not reasonably have believed, as at 30 March 2023, that nothing had changed from the time when he first formed the view that he had a right to drive in the ACT.
Conclusions
120․Having regard to the above reasons, I am not satisfied that the Defendant is able to rely on the mistake of fact excuse set out in section 36 of the Criminal Code in defence of the charge brought against him.
Constitutional challenge
121․The Defendant contended that the Driver Licensing Act is inconsistent with section 92 of the Commonwealth Constitution, and is therefore invalid.
122․As noted at the beginning of these reasons, at the initial hearing of the matter on 10 August 2023, I directed the Informant to prepare a notice under section 78B of the Judiciary Act.
123․The question of interpretation I identified from the Defendant’s challenge was:
Is section 31A of the Road Transport (Driver Licensing) Act 1991 (ACT), insofar as it provides a power to suspend a person’s right to drive in the ACT in circumstances where that person has a current interstate licence, inconsistent with section 92 of the Commonwealth Constitution?
124․As noted above, the Attorney-General of the ACT intervened in the proceedings to make submissions in relation to this question.
Attorney-General’s submissions
125․On 18 October 2022, I directed that the Attorney-General file written submissions in relation to the above question, which the Attorney-General did on 8 November 2023.
126․I have set out those submissions in full below.
3. The position of the Intervenor is that:
a. the question is inaptly described in the Notice. The present case raises no issue under s 92 of the Constitution, including for the reason that that section is concerned only with trade, commerce and intercourse "among the States"; and
b. in any event, s 3IA of the Road Transport (Driver Licensing) Act 1991 (ACT) (Driver Licensing Act) is not invalid by reason of any infringement of the limitation on the power of the Legislative Assembly for the Australian Capital Territory (Legislative Assembly) imposed by s 69 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self-Government Act).
B. Background
4.On 30 March 2023, the Defendant (Mr Topic), was arrested and charged in Canberra with an offence of driving while right to drive suspended, contrary to s 3IA of the Driver
Licensing Act. Section 31 A of that Act provides as follows:
Offence—driving while right to drive suspended
a.A person commits an offence if—
i.the person's right to drive is suspended under a law of the territory; and
ii.the person drives a vehicle in the ACT.
Maximum penalty: 20 penalty units.
b.An offence against this section is a strict liability offence.
5.On 10 August 2023, the proceeding came before Magistrate Temby for hearing. At the hearing, Mr Topic gave evidence that he held a New South Wales driver licence and contended that s 3IA of the Driver Licensing Act was invalid because it infringed s 92 of the Constitution.
c. Jurisdiction
6.Before addressing the issue raised in the Section 78B Notice, it is desirable to make submissions about this Court's jurisdiction.
7.Section 19 of the Magistrates Court Act 1930 (ACT) (MCA) vests jurisdiction in this
Court to hear and determine criminal matters summarily. It provides:
Jurisdiction of court
If, by any law in force in the ACT, any offence is punishable on summary conviction or any person is made liable to a penalty or punishment or to pay an amount for any offence, act or omission, and no other provision is made for the trial of the person committing the offence, the matter may be heard and decided by the court in a summary way under the provisions of this Act.
8.Section 3IA(I) of the Driver Licensing Act provides that the offence of 'driving while right to drive suspended' is punishable by the payment of a sum of money. An offence contrary to s 31A is thus a matter that may be heard and decided by this Court in a summary way. This Court has jurisdiction to hear and determine the charge brought against Mr Topic.
9.
Part 3.4 of the MCA contains general provisions on how criminal proceedings are to be conducted in this Court. Relevantly, s 54 provides that the Court "must hear and decide an information if both parties to the information appear personally or by lawyers or anyone else appearing for them"10.Part 3.6 of the MCA sets out the procedures for proceedings for offences punishable summarily. Relevantly, s 114 provides:
If defendant does not admit the case
(1)This section applies if the defendant does not admit the truth of the information.
(2)The court must hear—
(a) the informant and the informant's witnesses (if any); and (b) if the defendant wants to give evidence—the defendant; and
(c)the defendant's witnesses (if any); and
(d)if the defendant has given evidence other than about the defendant's general character—the informant's witnesses in reply (if any).
(3)Having heard each party and the evidence, the court must decide the information and do 1 of the following as justice requires:
(a) convict the defendant; (b) make an order on the defendant;
(c) dismiss the information.
11.Section 114(3) sets out the Court's dispositive powers. There is nothing in the text of s 114 or elsewhere in the MCA that would operate to prevent the Court from forming a view about the validity — including, in a case where the issue arises, the constitutional validity — of s 31A of the Driver Licensing Act along the way to "decid[ing] the information" — that 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 Constitution arises. That is because s 92 of the Constitution is concerned with "trade, commerce, and intercourse among the States" (emphasis added). The Territory not being a State, the s 92 argument raised by Mr Topic must fail for at least that reason. For this reason also, the question referred to in the Section 78B Notice is inapt. While not requiring the issue of any Section 78B Notice, the real issue being agitated by Mr Topic is whether s 3IA of the Driver Licensing Act is invalid because it infringes the guarantee in s 69 of the Self-Government Act, being the Territory analogue of s 92 of the Constitution. The submissions that follow address that issue.
D. Section 69 of the Self-Government Act
13.Section 69 of the Self-Government Act provides as follows:
Trade and commerce to be free
(1)Subject to subsection (2), trade, commerce and intercourse between the Territory and a State, and between the Territory and the Northern Territory, Norfolk Island, the Jervis Bay Territory, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands, shall be absolutely free.
(2)Subsection (l) does not bind the Commonwealth.
14.Section 69 reflects the terms of the guarantee in s 92 of the Constitution, albeit that it guarantees trade, commerce and intercourse not among the States but, relevantly, between the Territory and a State. Section 69 of the Self-Government Act, a law of the Commonwealth, serves as a limitation on the legislative power of the Legislative Assembly, which is sourced in the Self-Government Act. It also operates to have effect over a State law that might otherwise infringe on trade, commerce and intercourse between that State and a Territory. Because the terms of s 69 are largely identical to those of s 92 of the Constitution, authorities dealing with the latter are relevant to the interpretation and application of the former.[2]
[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 Territory and New South Wales (and not trade or commerce, for s 3IA of the Driver Licensing Act has nothing directly to do with those matters in this case). "Intercourse", as that word is used in s 92 of the Constitution (and s 69 of the Self-Government Act), covers the physical movement of individuals between States (or between a State and a Territory). [3] What is important to note for present purposes is that the freedom of interstate intercourse or intercourse between a Territory and a State guarantees freedom from discriminatory burdens — that is, as compared with intra-state or intra-territory intercourse. If the law is directed to discriminating against, or does in fact discriminate against, such movement, it will be invalid unless it is justified by reference to a non-discriminatory purpose. [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), [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 [50] (Kiefel CJ and Keane J), [93], [97], [131] (Gageler J), [192] (Gordon J).
16.Section 31A of the Driver Licensing Act does not infringe the guarantee in s 69(1) of the Self-Government Act. That is because it does not in any way interfere with intercourse between the Territory and a State. All that it does is to make it an offence for a person whose right to drive on a Territory road has been suspended under another law of the Territory to drive on such a road. No part of the question before the Court otherwise concerns the validity of the law under which Mr Topic's right to drive in the Territory was suspended — s 44 of the Road Transport (General) Act 1999 (ACT) (Road Transport Act).
17.However, even if Mr Topic were to challenge the validity of s 44 of the Road Transport Act, any such challenge could not succeed. Section 44 does not impose any discriminatory burden on intercourse between the Territory and a State. The only burden that s 44 might be seen as placing on intercourse in the form of movement between a State and the Territory is that it prevents a person who holds a driver licence issued under a law of a different jurisdiction from entering the Territory as the driver of a vehicle and driving on a Territory road (s 44(7)). But that burden is no greater than that imposed on intra-Territory intercourse: s 44(5) of the Road Transport Act requires the road transport authority to suspend a person's driver licence — that is, the licence of a person resident in the Territory issued under the Driver Licensing Act — if they fail to pay an infringement notice penalty. Like action under s 44(7), action under s 44(5) has the effect that a person cannot drive a vehicle on a Territory road lawfully. In this way, s 44 does not have unequal application between persons ordinarily resident in the Territory (who hold a driver licence issued under the Driver Licensing Act) and those who are ordinarily resident in a State (who hold a driver licence issued under a law of that jurisdiction).
18.Furthermore, even if s 44 imposed a discriminatory burden on intercourse between the Territory and a State (which the Intervenor denies), it is not invalid, as the burden is reasonably necessary to achieve legitimate objects which are appropriate and adapted to the preservation of an ordered society. [6] Those objects include "to provide for the administration and enforcement of the road transport legislation" (s 3(a)(i)) and "to improve road safety and transport efficiency" (s 3(d)).
[6] Cunliffe at 307-308 (Mason CJ), 346 (Deane J), 392 (Gaudron J).
19.The same may be said in relation to the Driver Licensing Act, the objects of which include "to provide for a driver licensing system in the ACT that is part of a uniform national approach to driver licensing" (s 3(a)), "to facilitate the regulation of drivers of motor vehicles in the interests of road safety and transport efficiency and law enforcement generally" (s 3(d)), "to provide a way of enforcing safety standards relating to the driving of motor vehicles on roads and road related areas" (s 3(e)) and "to improve road safety and transport efficiency" (s 3(h)).
E. Conclusion
20.For the foregoing reasons, the challenge by Mr Topic to the validity of s 31A of the Driver Licensing Act should be rejected. That provision does not infringe the guarantee in s 92 of the Constitution. Nor does it infringe the guarantee in s 69(1) of the Self Government Act.
127․At the hearing, the Attorney-General made oral submissions in relation to the jurisdiction of the Court to hear and determine the Defendant’s constitutional challenge. I accept the submission made by the Attorney-General that the Court does have jurisdiction.
128․In summary, the submissions of the Attorney-General were that:
(a)the challenge raised by the Defendant, properly articulated, was a challenge that section 31A of the Driver Licensing Act (or, perhaps, section 44 of the General Act) infringed his rights under subsection 69(1) of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self-Government Act);
(b)accordingly, the challenge concerns a matter arising under a law made by the Commonwealth Parliament, a matter that falls within the original jurisdiction of the High Court under section 76(ii) of the Commonwealth Constitution; and
(c)while the jurisdiction of State Courts to determine such matters arises from section 39 of the Judiciary Act 1903 (Cth) (Judiciary Act), this Court’s jurisdiction does not depend on section 39 of the Judiciary Act because the courts of the ACT have always held jurisdiction to determine matters falling within section 76(ii) of the Commonwealth Constitution.
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 of rights under Commonwealth laws that the Supreme Courts of the States had prior 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 courts is like that exercised by State courts before State courts were invested with federal jurisdiction by sub-s.39(2) of the Judiciary Act 1903. The jurisdiction exercised by State courts prior to 1903 included jurisdiction in the matters enumerated in s.75 of the Constitution. Jurisdiction in those matters prior to 1903 was exercised by State courts as part of the judicial power of the State; in 1903 jurisdiction in those matters became exercisable by State courts as part of the judicial power of the Commonwealth. The process was explained in Felton v. Mulligan by Windeyer J at 124 CLR p394:
"Courts in the Australian colonies were before federation linked by the authority of the Privy Council. Subject to the Colonial Laws Validity Act, they administered, as the law of the land in each colony, statute law of the Imperial Parliament along with the inherited law and the statutes of their own Parliaments. Upon federation s.5 of the Constitution Act made all valid laws made by the Commonwealth Parliament "binding on the courts, judges and people of every State and of every part of the Commonwealth". This and s.109 of the Constitution assured the paramountcy of federal law. As Higgins J noticed in Lorenzo v. Carey (1921) 29 CLR at p 255, the effect of s.39 of the Judiciary Act was really to withdraw from State courts a jurisdiction to apply federal laws which they would have had by s.5 of the Constitution Act, and then to restore it sub modo as an invested federal jurisdiction."
[33] Walsh J said at 411:
"Section 39(1) of the Judiciary Act took away the jurisdiction of the State courts in matters in which this Court had jurisdiction. It did so by making the jurisdiction of this Court exclusive (except as provided in the section) of that of the State courts. No provision of the Act was expressed to take away the jurisdiction of the State courts in those matters in which this Court did not have original jurisdiction but in which original jurisdiction might be conferred upon it. By s.39(2) the courts of the States were invested with federal jurisdiction in both classes of matter.
[35] Territory courts have not been subject to the process of having their "belonging" jurisdiction stripped from them and replaced by "invested" jurisdiction by s.39 of the Judiciary Act or any other Act. The "belonging" jurisdiction which they continue to exercise includes jurisdiction in the matters enumerated in s.75 of the Constitution, or at least in those matters which are relevant for the present case, namely matters affecting representatives of other countries and matters in which the Commonwealth or a person suing on behalf of the Commonwealth is a party.
131․I accept the submission of the Attorney-General that the comments made by Miles CJ in the above are equally applicable to a matter falling within section 76(ii) of the Commonwealth Constitution as they did to the matter before the Court in that case, which fell within section 75 of the Commonwealth Constitution.
132․I accept the submission made by the Attorney-General that, having regard to the above matters, the Court does have jurisdiction to determine the Defendant’s challenge to the validity of section 31A of the Driver Licensing Act and section 44 of the General Act. That jurisdiction is contained in section 19 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act), which gives the Court jurisdiction to decide and hear a matter, in a summary way, where (as is here) the matter involves the application of an ACT law by which a person ‘is made liable to a penalty or punishment or to pay an amount for any offence, act or omission, and no other provision is made for the trial of the person committing the offence’.
Defendant’s submissions
133․The Defendant filed submissions on 27 November 2023. Those submissions focus on the Defendant’s argument that section 92 of the Commonwealth Constitution is infringed because the suspension of the Defendant’s right to drive in the ACT impacts his capacity to protest against the Australian Government and to support individuals and groups in those endeavours. He says that: “These are entirely acts of communication or dealings between individuals and groups” and that: “As my freedom of movement is hindered at the Australian Capital Territory border, so then is my Constitutional right of absolutely free intercourse among the states”.
134․The Defendant also asserts that:
(a)“the Australian Capital Territory has authorised criminal activity by interfering with my political right to peacefully protest”. The Defendant refers to section 83.4 of the Commonwealth Criminal Code 1995 (Cth) in this respect; and
(b)“the entire ACT is invalid as the Self-Government ACT was brought forth by the will of the government and not the will of the people”.
135․The Defendant also made a number of additional submissions that are unrelated to the constitutional argument that he raised. As the making of further submissions was limited to his constitutional argument, I have regard to those additional submissions only to the extent necessary to ensure that they did not raise any issue which could support a not guilty finding in this matter. I am satisfied that they do not.
136․At the hearing on 29 November 2023, the Defendant made oral submissions which, on the one hand, seemed to accept that the Court had jurisdiction to determine the constitutional argument that he raised and, on the other, submitted that the Court could not determine the matter because it involved a federal matter, relying on section 71 of the Commonwealth Constitution.
Conclusion
137․I agree with the submissions made on behalf of the Attorney-General, which clearly address the relevant issues. In particular, I accept that:
(a)section 92 of the Commonwealth Constitution is not relevant to the question of the validity of s 31A of the Driver Licensing Act because the ACT is not a “State” for the purposes of section 92;
(b)section 31A of the Driver Licensing Act is also not invalid by reason of any infringement of section 69 of the Self-Government Act, which is a provision that reflects, as between the ACT and the States, the operation of s 92 of the Commonwealth Constitution. That is because:
(i)section 31A of the Driver Licensing Act does not interfere with intercourse (relevantly including the physical movement of individuals) between a State and the ACT, as it simply makes it an offence to drive in the ACT while a person’s right to do so is suspended under a law of the ACT; and
(ii)while section 44 of the General Act is the relevant law under which the Defendant’s right to drive in the ACT was suspended, it does not impose any discriminatory burden on intercourse between the ACT and a State. Under subsection 44(5) of the General Act, the failure of a person holding an ACT driver licence to pay an infringement notice leads to the suspension of their driver licence. Accordingly, section 44 imposes the same restriction on a person ordinarily resident of the ACT as it does on a person who is ordinarily a resident in a State.
138․Further, I am of the view that neither section 31A of the Driver Licensing Act, nor section 44 of the General Act is inconsistent with section 83.4 of the Commonwealth Criminal Code 1995 (Cth). Nor, in my view, is there otherwise any evidence that the ACT has authorised criminal activity by interfering with the Defendant’s right to peacefully protest, as the Defendant submits.
139․I am not satisfied that the entire ACT is invalid, as also submitted by the Defendant. While it is true that there was not public support for self-government in the ACT prior to self-government being legislated, no change to the Commonwealth Constitution was required in order for the Commonwealth Parliament to make laws providing for self-government. Section 122 of the Commonwealth Constitution permitted it to do so. The Defendant has not otherwise identified any basis for me to find that the Self-Government Act is invalid.
140․Finally, in relation to the oral submission made by the Defendant with respect to the jurisdiction of the Court, I have found, as set out above, that the Court does have jurisdiction in this matter, under section 19 of the Magistrates Court Act. The Court is not exercising the judicial power of the Commonwealth and, accordingly, section 71 of the Commonwealth Constitution is not relevant in this case.
Verdict
141․I find the Defendant guilty of the offence charged.
| I certify that the preceding one-hundred and forty-one [141] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby. Associate: Mason Britton Date: 29 November 2023 |
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