R v Smith No. Sccrm-00-111

[2000] SASC 173

R v SMITH
[2000] SASC 173

Court of Criminal Appeal:  Doyle CJ, Prior and Martin JJ (ex tempore)

1................ DOYLE CJ........ The appellant was convicted on the verdict of a jury of the offence of driving while disqualified. That charge was tried before a jury because it was tried jointly with certain other charges tried on Information. The appellant appeals against the conviction.

1. At trial, his defence was that he had been given no notice that he was disqualified from holding or obtaining a driving licence at the relevant time, and that he believed he held a valid licence at the time.

2. In my opinion, on the evidence before them, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant did not honestly and reasonably believe that he held a valid licence that had not been suspended.

3. The facts are not really in dispute. The appellant incurred speeding fines which he apparently failed to pay. As a result of that, the Magistrates Court, acting under the then s 61A of the Criminal Law (Sentencing) Act 1988, disqualified him from holding a driver’s licence from 8 June 1999 until the penalty was paid. The Registrar of Motor Vehicles sent written notices of these orders to the appellant by notices printed on 20 May 1999 and posted on about 21 May 1999. The notices were not sent to the appellant’s postal address or residential address as recorded in the register of licences. They were sent to the place at which he was employed. The disqualification took effect 14 days after notice of disqualification was given under s 61A(2): see s 61A(3).

4. At about the relevant time, that is when the notices were sent, the appellant was no longer at the recorded residential address but was still using the recorded postal address. That address was a box number.  The appellant gave evidence that at the relevant time he was no longer employed by the firm to which the notices were sent. He said that the notices were not forwarded to him. Although the appellant did not in terms say he was unaware of the licence disqualification, that was the clear tenor of his evidence.  The appellant’s evidence about changing his place of work was supported by evidence from his new employer. The prosecution did not lead any evidence to close the gap in its case by showing that the appellant was, or must have been, aware of his licence disqualification.

5. In Davis v Bates (1986) 43 SASR 149, this Court held that a person is not guilty of the offence created by s 91 of the Motor Vehicles Act 1959 if, when the evidence raises the issue of a mistaken belief on reasonable grounds as to the existence of facts which would render the driving not a breach of the section, the prosecution fails to exclude such mistaken belief on reasonable grounds.

6. In the present case, the appellant’s evidence raised, as a reasonable possibility, that the appellant was unaware of the licence disqualification, and on reasonable grounds, believed mistakenly that he held a valid licence that he was not disqualified from holding.

7. The Judge correctly directed the jury on the issue, although he did not point out to the jury, in any detail, the gap in the prosecution case.

8. In his address to the jury, counsel for the prosecution relied on the fact of disqualification, the sending of the notice, and the suggestion that, as a professional driver, the appellant must have known that if he did not pay the fines, his licence might be disqualified. That submission, even at its highest, does not really address the question of whether the appellant realised, and I now ignore the question of onus, at the relevant time that his licence had already been disqualified.

9. In my opinion, on the evidence, the verdict of the jury on this count cannot be supported, having regard to the state of the evidence. There was insufficient evidence to support a finding of guilt beyond reasonable doubt.

10. Accordingly, in my opinion, the appeal should be allowed, the conviction should be set aside, and a verdict of acquittal should be substituted.

12.............. PRIOR J:......................... I agree.

13.............. MARTIN J:........ I agree.

14.............. DOYLE CJ:....... The order of the court is as follows:

1...... That the appeal be allowed.

2. That the conviction be set aside.

3...... That a verdict of acquittal be substituted.