Richardson, Roger v Pullen, Darren Arthur
[1998] TASSC 167
•23 December 1998
167/1998
PARTIES: RICHARDSON, Roger
v
PULLEN, Darren Arthur
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 17/1998
DELIVERED: 23 December 1998
HEARING DATE/S: 2 and 3 December 1998
JUDGMENT OF: Evans J
CATCHWORDS:
Traffic Law - Licensing of drivers - Tasmania - Offences - Driving without licence - Whether guilty knowledge or intent requisite element of offence - Driving without a licence strict liability offence.
Proudman v Dayman (1941) 67 CLR 536, applied.
He Kaw Teh v R (1985) 157 CLR 523; Kidd v Reeves [1972] VR 563; R v Vlahos [1975] 2 NSWLR 580; Franklin v Stacey (1981) 27 SASR 490, considered.
Traffic Act 1925 (Tas), s14(4)(a).
Aust Dig Traffic Law [28]
Traffic Law - Offences - Tasmania - Other offences - Driving whilst not holding authority to drive with alcohol present in body - Whether unintentional failure to comply with administrative requirement - Defence not established - Whether should be discharged from additional charge where latter arises out same or substantially same set of facts.
Wood v Major A49/1992; Dellar v Crawford A55/1992, considered.
Road Safety (Alcohol & Drugs) Act 1970 (Tas), ss6(1), 6(2), 6(3A), 4(a).
Aust Dig Traffic Law [80]
Traffic Law - Offences - Tasmania - Other offences - Driving with more than prescribed concentration of alcohol in blood - Whether driving vehicle - Evidence - Failure to give adequate reasons for rejecting evidence.
Burr v Strickland A67/1995, considered.
Briscoe v Turner 128/1997, applied.
Road Safety (Alcohol & Drugs) Act 1970 (Tas), ss6(1), 6(2).
Aust Dig Traffic Law [80]
REPRESENTATION:
Counsel:
Appellant: L A Mason
Respondent: No Appearance
Solicitors:
Appellant: Office of the Director of Public Prosecutions
Respondent: No Appearance
Judgment category classification:
Court Computer Code:
Judgment ID Number: 167/1998
Number of pages: 6
Serial No 167/1998
File No LCA 17/1998
ROGER RICHARDSON v DARREN ARTHUR PULLEN
REASONS FOR JUDGMENT EVANS J
23 December 1998
On 29 July 1998, the respondent was acquitted in the Court of Petty Sessions on the following charges:
Driving a motor vehicle while exceeding a prescribed alcohol limit in breach of the Road Safety (Alcohol and Drugs) Act 1970, s6(1).
Particulars: Driving a motor vehicle on 26 March 1998, on Church Street, a public street at Stanley in Tasmania, whilst alcohol was present in his blood in a concentration greater than the prescribed concentration of 0.05 of a gram of alcohol in 100 millilitres of blood, namely 0.108 grams of alcohol in 100 millilitres of blood.
Driving a motor vehicle while not holding authority to drive a motor vehicle with alcohol in his body in breach of the Road Safety (Alcohol and Drugs) Act 1970, s6(2).
Particulars: While being a person to whom the Road Safety (Alcohol and Drugs) Act 1970, subs(3), s6, applied, namely, he was not the holder of an authority to drive a motor vehicle, he drove a motor vehicle on 26 March 1998, on Church Street, a public street at Stanley in Tasmania, while alcohol was present in his body, namely 0.108 grams of alcohol in 100 millilitres of blood.
Unlicensed driving in breach of the Traffic Act 1925, s14(4)(a).
Particulars: Driving a motor vehicle on 26 March 1998, on Church Street, a public street at Stanley in Tasmania, without a driver's licence authorizing him to do so.
Unlicensed driving in breach of the Traffic Act 1925, s14(4)(a).
Particulars: Driving a motor vehicle on 27 March 1998, on Smith Street, a public street at Smithton in Tasmania, without a driver's licence authorizing him to do so.
The applicant has appealed against the acquittals.
I deal first with the appeal against the respondent's acquittal on the charges of unlicensed driving.
On the night of 26 March 1998, the respondent was observed driving a motor vehicle. He was taken to the police station at Smithton to provide a breath analysis. Whilst at the police station, the respondent was informed by a police officer that the police computer showed that his driver's licence had expired about one year previously. He was charged with two breathalyser offences and with being an unlicensed driver. The next morning the respondent drove his vehicle back to the police station and then to the Service Tasmania office at Smithton where he renewed his driver's licence. This driving resulted in the respondent's second unlicensed driving charge.
The respondent's evidence was that until he checked at the Service Tasmania office, he was quite certain he was a licensed driver. When pronouncing his decision, the learned magistrate said he accepted that the respondent believed he was a licensed driver. The learned magistrate said that "since the decision of He Kaw Teh … every offence … must have some criminal intent". He found that the respondent genuinely believed he was a licensed driver and that he did not have the requisite guilty intent to be convicted. He dismissed the unlicensed driving charges.
The learned magistrate dealt with the unlicensed driving charges on the basis that the prosecution had to establish the respondent's guilty knowledge or intent, that is, that the respondent drove knowing that he was an unlicensed driver. Whilst the learned magistrate did not express his reasons in greater detail, it is clear from what he said that he was assessing whether the prosecution had established the respondent's guilty knowledge. He did not assess the evidence on the basis that the offence was one of strict liability, in which case he would have had to focus on whether there were reasonable grounds for the respondent's belief that he was licensed to drive. The applicant contends that the guilty knowledge or intent is not an ingredient of the offence of unlicensed driving, and that on a proper construction of the Traffic Act 1925, s14(4)(a), unlicensed driving is a strict liability offence.
In broad terms, statutory offences fall into three categories if distinguished on the basis of the mental element involved in them.
Offences which include as an element that the accused had guilty knowledge or intent.
Offences which include as an element that the accused did not have an honest belief on reasonable grounds that the circumstances were such as to make his or her behaviour innocent. These are offences of strict liability.
Offences which do not include either of the above elements. These are offences of absolute liability.
The Traffic Act, s14(4), provides:
"(4) Any person who -
(a)on a public street, drives a motor vehicle, or drives a motor vehicle for any purpose, without a driver's licence authorising him so to do;
(b)on a public street, drives a motor vehicle without complying with, or in contravention of, the prescribed conditions or restrictions; or
(c)employs or permits another person to drive a motor vehicle in contravention of paragraph (a) or paragraph (b) -
is guilty of an offence against this Act."
Nothing in the Traffic Act proscribes any mental ingredient for the offences created by s14(4). In He Kaw Teh v R (1985) 157 CLR 523, Brennan J, at 582, summarised the general principles to be applied when considering the mental element involved in statutory offences as follows:
"1 There is a presumption that in every statutory offence, it is implied as an element of the offence that the person who commits the actus reus does the physical act defined in the offence voluntarily and with the intention of doing an act of the defined kind.
2 There is a further presumption in relation to the external elements of a statutory offence that are circumstances attendant on the doing of the physical act involved. It is implied as an element of the offence that, at the time when the person who commits the actus reus does the physical act involved, he either – (a) knows the circumstances which make the doing of that act an offence; or (b) does not believe honestly and on reasonable grounds that the circumstances which are attendant on the doing of that act are such as to make the doing of that act innocent.
3 The state of mind to be implied under (2) is the state of mind which is more consonant with the fulfilment of the purpose of the statute. Prima facie, knowledge is that state of mind.
4 The prosecution bears the onus of proving the elements referred to in (1) and (2) beyond reasonable doubt except in the case of insanity and except where statute otherwise provides."
Earlier in Brennan J's decision at 566, he cited the following five propositions from the judgment of the Privy Council in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] 1 AC 1 at 14:
"'(1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is 'truly criminal' in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.'"
As to these propositions, Brennan J observed at 567:
"The first three propositions correctly emphasize the strength which contemporary authority gives to the presumption that mens rea is an essential element of an offence. The fourth proposition, if I may say so with respect, seems to be too categorical an approach to what is, after all, a question of statutory interpretation. It is not possible to decide that mens rea can be excluded only where the subject matter answers a given description (even so general a description as 'an issue of social concern'), without regard to the whole of the statutory context."
As to the offence created by the Traffic Act, s14(4)(a), the following can be said in light of the passages set out above. The offence of unlicensed driving is not criminal in character. An objective of the legislation is to restrict the right to drive on public streets to those who satisfy the requirements for obtaining a driver's licence. Those requirements include passing a driving test. That is a public safety objective. It could be difficult to prove that a driver whose licence had not been renewed knew that he or she was driving without a licence. To make proof of that an element of the offence of unlicensed driving would frustrate the legislation. The legislative scheme places on those who wish to drive obligations to qualify for a licence and renew the licence. It is inconsistent with the placement of those obligations on drivers to require the prosecutor of a charge of unlicensed driving to prove that the driver knowingly or intentionally drove without a licence.
These matters satisfy me that the presumption that guilty knowledge or intent is an ingredient of the offence created by the Traffic Act, s14(4)(a), is displaced. I do not consider that the presumption that it is an element of the offence that the accused does not have a belief on reasonable grounds that he or she was a licensed driver is also displaced. To allow an unlicensed driver to avoid liability because of an honest and reasonable mistake satisfies the objectives of the legislation. In my view, the offence created by s14(4)(a) is an offence of strict liability.
Whilst each statutory provision must be construed within its own framework, it is pertinent to note that it has been held that the offence of permitting an unlicensed driver to drive a vehicle (Traffic Act, s14(4)(c)) has been held to be a strict liability offence, Proudman v Dayman (1941) 67 CLR 536, Dixon J at 53. I also note that it has been held that guilty knowledge or intent is not an ingredient of the offence of driving whilst disqualified, Kidd v Reeves [1972] VR 563, and R v Vlahos [1975] 2 NSWLR 580, or the offence of driving an unregistered and uninsured vehicle, Franklin v Stacey (1981) 27 SASR 490.
In my view, the learned magistrate was in error in considering guilty knowledge or intent to be an element of the offence of unlicensed driving. I allow the appeal against the respondent's acquittal on charges 3 and 4.
After dismissing the two unlicensed driving charges, the learned magistrate turned to charge 2, the charge that the respondent drove a motor vehicle while not holding authority to drive with alcohol in his body, in breach of the Road Safety (Alcohol and Drugs) Act, s6(2). He referred to a section in the Road Safety (Alcohol and Drugs) Act:
" … whereby if a person has made an inadvertent error in relation to an administrative requirement the courts … accept that as being an answer to a charge of being a driver not holding authority."
He did not specify the section as he was unable to locate it as he was announcing his decision. He dismissed the charge on the basis of that section and added that, "in any event, applying the decision of Major's case" the charge should be dismissed.
As to the learned magistrate's first reason for dismissing charge 2, I assume that the provision he had in mind was the Road Safety (Alcohol and Drugs) Act, s6(3A) which provides that a person is to be taken not to hold an authority to drive a motor vehicle unless the person "satisfies the court that he or she would, but for an unintentional failure to comply with an administrative requirement", be the holder of the necessary authority. Having in effect dismissed the unlicensed driving charges because the prosecution had failed to prove that the respondent had the requisite guilty knowledge or intent, he concluded that the charge that the respondent drove without holding an authority to drive with alcohol in his body should also be dismissed because the respondent had made an inadvertent error in relation to an administrative requirement.
For the purposes of a defence pursuant to s6(3A), it was necessary for the learned magistrate to consider any relevant evidence and decide whether the respondent had satisfied the court that but for an unintentional failure to comply with an administrative requirement, he would have been licensed to drive. The learned magistrate did not do so. In announcing his reasons for decision, he did not expressly refer to the fact that the onus of proving this defence was on the respondent, or deal with the evidence in order to establish whether the respondent had satisfied him of the ingredients of the defence. I am unable to discern why the learned magistrate found that this defence was established.
"In general terms a judicial officer is required to expose sufficient of his reasoning process so as to enable an appellate tribunal to properly understand the basis upon which an ultimate conclusion has been reached." (Muir v Strickland A67/1995, Zeeman J at 5).
As the learned magistrate did not do so, the first basis for dismissing charge 2 cannot be sustained.
The second reason given for dismissing charge 2 was the decision of Major's case. I take that to be a reference to Wood v Major A49/1992, which is authority that an offender convicted of a charge of driving under the influence of alcohol in breach of the Road Safety (Alcohol and Drugs) Act, s4(a), should be discharged from an additional charge of driving with a blood alcohol content in excess of the prescribed concentration in breach of s6(1), where the latter charge arose out of the same or substantially the same set of facts. See also Dellar v Crawford A55/1992.
These decisions reflect the principle that a person should not be convicted of two offences which are virtually the same where the offences relate to the same, or substantially the same set of facts. Having been convicted of one offence, an offender is entitled to be discharged in relation to further offences which are virtually the same. A pre-condition to the consideration of the application of this principle is the conviction of the offender. The respondent was not convicted of any charges referable to the incident before the learned magistrate, and, accordingly, there was no occasion for a consideration of whether the principle applied.
As neither of the reasons given by the learned magistrate for dismissing charge 2 can be sustained, the appeal against that acquittal is allowed.
As to charge 1, that the respondent drove a motor vehicle with a blood alcohol content in excess of the prescribed concentration, the respondent denied having driven the vehicle.
Constable Fox gave evidence that at about 10.45pm on the night in question he was on a mobile patrol in Church Street, Stanley. He noticed a vehicle on the incorrect side of the road with its headlights directed towards him. That vehicle was travelling at a slow speed, approximately five kilometres per hour. Constable Fox drove past the vehicle and saw the respondent driving it. The gap between the vehicles as they passed was about one metre. The respondent was the only person in the vehicle he was driving. Constable Fox was also alone. Constable Fox continued past the respondent's vehicle for a short distance and did a U-turn and returned to the respondent's vehicle. When Constable Fox approached the respondent, he was sitting in the front passenger seat of his vehicle, not the driver's seat. Constable Fox asked the respondent why he had changed seats and he replied "I was just moving the car while my girlfriend was having a piss."
Constable Rhodes gave evidence that whilst on mobile patrol he came upon Constable Fox with the respondent. He stopped his vehicle and joined them. Constable Fox informed him that the respondent had been given a breath test which was positive. The respondent said to Constable Rhodes:
"I only drove it down here while my girlfriend was having a piss. She was behind the shop so she could go to the toilet. Come on this is unfair. I only moved it a little way down across the road."
The respondent gave evidence that as he was waiting in his vehicle for his partner, Kelly Lynch, to return from the toilet he saw a police officer come around the corner and drive past. He said the police officer turned his vehicle round and returned to the scene and spoke to the respondent. The police officer was Constable Fox. The respondent said he was given a breath test and just as that had finished Kelly returned to the vehicle. Constable Rhodes, whom the respondent knew, pulled up at about that time.
In pronouncing his decision, the learned magistrate said:
"On the evidence from the police alone, one could very easily reject the defendant's evidence and say that the Court would have to accept that the police officers had not made a mistake in relation to their evidence and that the defendant was in fact driving."
He went on to consider the evidence of the respondent and Kelly Lynch, whom he referred to as the respondent's wife, and concluded:
"Whilst I accept the evidence of Constable Fox, there are the difficulties as to identification as being clear. Taking into account the evidence of the defendant and his wife, I am left with doubts and must therefore dismiss the complaint."
The learned magistrate's reference to the difficulty as to identification is a reference to Constable Fox's evidence identifying the respondent as the person he saw driving the vehicle. Earlier in the course of his decision, the learned magistrate said that authorities in relation to identification had to be considered referable to that evidence. Whilst he did not name the authorities to which he was alluding, it is apparent from what he said that one of the authorities he had in mind was the decision of Zeeman J in Burr v Strickland A67/1995, which dealt with the danger involved in acting on disputed identification evidence. In summary the learned magistrate said that applying the various authorities on identification he could not be totally satisfied of Constable Fox's evidence identifying the respondent as the driver of the vehicle.
With respect, there was no disputed identification evidence before the learned magistrate. Constable Fox's identification of the respondent as the only person in the respondent's vehicle as the vehicles passed was not disputed. The respondent's evidence was to the same effect. The issue was whether the respondent was then driving the vehicle. The learned magistrate was in error in considering he was confronted with disputed identification evidence, and finding that difficulties as to identification were a reason for dismissing the charge.
As to the dispute over whether the respondent had been driving his vehicle, the learned magistrate had before him the evidence of Constable Fox's observations, and the evidence of Constable Fox and Constable Rhodes of the respondent's admissions that he had been driving. The leaned magistrate said he accepted the evidence of Constable Fox. That being the case, it was incumbent upon the learned magistrate to give adequate reasons for rejecting Constable Fox's evidence of seeing the respondent driving and of the respondent's admissions. In order to properly exercise his right of appeal, the applicant was entitled to be given reasons why the learned magistrate accepted part of Constable Fox's evidence but rejected other parts of it. Briscoe v Turner 128/1997, Underwood J. The learned magistrate did not say whether, and if so why, he rejected Constable Rhodes' evidence of the respondent's admissions. I am unable to perceive why that evidence was rejected.
In dismissing charge 1, the learned magistrate proceeded on the basis of a misconception that there was a dispute about the identification of the respondent; he failed to explain why, having accepted Constable Fox's evidence, he rejected portions of that evidence, and also failed to explain his apparent rejection of the evidence of Constable Rhodes.
For these reasons the appeal against the respondent's acquittal on charge 1 is allowed.
I set aside all the orders dismissing the charges and order that the two complaints containing the charges be retried before another magistrate.
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