Rowe v Miller - [2018] WASC 405

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ROWE -v- MILLER [2018] WASC 405
CORAM:   DERRICK J
HEARD:   20 DECEMBER 2018
DELIVERED          :   20 DECEMBER 2018
PUBLISHED           :   21 DECEMBER 2018
FILE NO/S:   SJA 1093 of 2018
BETWEEN:   KIM WILLIAM ROWE
Appellant
AND
JAKE DANIEL MILLER
Respondent

ON APPEAL FROM:
For File No:   SJA 1093 of 2018
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G R SMITH
File Number            :   MI 7850 of 2017

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted on plea of guilty of an offence of driving without authority while under suspension contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA) - Whether plea entered in circumstances giving rise to a miscarriage of justice - Whether appellant acted under an honest and reasonable but mistaken belief in the existence of a state of things

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Rules 2005 (WA)
Road Traffic (Authorisation to Drive) Act 2008
Road Traffic (Authorisation to Drive) Regulations 2014 (WA)
Road Traffic Act 1974 (WA)

Result:

Application for extension of time refused
Application for leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr E C I Fearis

Solicitors:

Appellant	:	Not applicable
Respondent	:	State Solicitor for Western Australia

Case(s) referred to in decision(s):

Brooks v Roberts (1997) 25 MVR 83
De Bono v Southam [2018] WASCA 218
Denton v Bodycoat [2000] WASCA 424
Eastough v The State of Western Australia [No 2] [2010] WACSA 88
Hondema v Carroll [2008] WASC 155; (2008) 50 MVR 401
Illich v Young [2000] WASCA 383
Kadmos v Nesina [2013] WASC 253
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
McCaskie v Bagby (Unreported, WASC, No 197 of 1974, 18 April 1975)
Minear v Rudrum [2001] WASCA 10; (2001) 33 MVR 119
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Ottobrino v Espinoza (1995) 14 WAR 373
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Topuz v The State of Western Australia [2017] WASCA 186
Wroblewski v Starling [1987] WAR 233

DERRICK J:

(These reasons were delivered extemporaneously and have been edited from the transcript)

Introduction

On Thursday 8 June 2017 the appellant was driving a Mitsubishi Magna sedan registered number 1ARK437 on Farrall Road in Midvale. The appellant was not authorised to drive. He was subject to a demerit point suspension which commenced on 31 May 2017 and expired on 30 November 2017.
Police stopped the appellant. They ascertained that the appellant was not authorised to drive due to the demerit point suspension. They advised the appellant that he would be charged for the offence.
On 12 June 2017 the appellant was charged under s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA) (the RTA) with one offence of driving a motor vehicle while not being a person authorised by pt 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) (the RTADA) by reason of his authority to drive having been suspended.[1]
[1] Charge No. MI 7850/17.
On 18 July 2017 the appellant appeared in the Magistrates Court in answer to the charge. He pleaded guilty to the charge and was convicted.[2]
[2] ts 2. Although the magistrate did not, following the appellant's guilty plea, expressly state that a judgment of conviction was entered against the appellant following his plea, the judgment of conviction is recorded on the prosecution notice containing the charge.
The magistrate did not require the prosecutor to read the facts of the offence. Rather he informed the prosecutor that he 'just' wanted to hear about the appellant's record.[3] The prosecutor informed the magistrate that the conviction was the appellant's 'third, going back to 2000 though'.[4]
[3] ts 2.
[4] ts 2.
At this point in the proceedings the magistrate asked the appellant if he wanted to say anything about the charge.[5] In response to the magistrate's invitation the appellant said the following:[6]
I received a notice to my door of the disqualification period for breaching a good behaviour period. At the time, the person that gave me the paper to sign told me I had a month before that suspension started, which is why I was driving the car in the first place. I also didn't realise that my licence for the car was expired.
[5] ts 2.
[6] ts 2.
The appellant also told the magistrate that at the time of his apprehension he had been driving to the shops.[7]
[7] ts 2.
Having heard from the appellant the magistrate fined the appellant $1,200 and disqualified him from holding or obtaining a driver's licence for nine months.[8] His Honour ordered that the nine month period of disqualification was a cumulative disqualification.[9]
[8] ts 3.
[9] ts 3.
The appellant now applies for an extension of time within which to appeal and for leave to appeal against his conviction.[10]
[10] The applications are made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
On 25 July 2018 Archer J ordered that the appellant's application for an extension of time and for leave to appeal be heard together with the appeal.

The non-appearance of the appellant

The appellant was notified of the hearing date of his appeal by a letter from the court dated 16 August 2018. The letter was sent to the appellant by email to the email address specified in the 'details for service' section of his appeal notice. It is clear that the appellant had been receiving communications sent to him at his nominated email address because he had responded from that email address to an earlier email communication sent to him by the court.
On 3 December 2018 my associate sent an email to the appellant to his nominated email address copied to the respondent's solicitors. In her email my associate reminded the appellant that his appeal was listed for hearing on 20 December 2018. She also pointed out that by orders made by the court on 25 July 2018 he was required to serve an outline of submissions in support of his appeal by no later than 22 November 2018. She asked the appellant to advise as a matter of urgency when he would be filing his submissions. She did not receive a response to her email.
On 12 December 2018 my associate sent a further email to the appellant to his nominated email address copied to the respondent's solicitors. In her email my associate referred to her earlier email dated 3 December 2018 and asked the appellant to advise 'if and when' he was proposing to file and serve his submissions. She asked the appellant to confirm that it was his intention to appear at the hearing of his appeal. She informed the appellant that if he did not appear at the hearing of his appeal it was likely that the court would deal with the appeal in his absence. She did not receive a response to her email.
On 19 December 2018 my associate telephoned the appellant on the mobile telephone number specified in the 'details for service' section of his appeal notice. There was no answer. She left a message in accordance with recorded directions of a person named Kim, obviously the appellant. In her message my associate referred to her previous emails to the appellant. She confirmed that the appellant's appeal was listed for hearing at 10.00 am on 20 December 2018. She inquired if the appellant intended to appear at the appeal hearing. She informed the appellant that if he did not appear at the hearing of the appeal it was likely that the judge would deal with the appeal in his absence. My associate did not receive a return call from the appellant.
At 8.12 pm on 19 December 2018 the appellant sent an email to my associate in the following terms:
I need to adjourn hearing till the new year please.
When the appellant's appeal was called on for hearing the appellant did not appear.
The respondent opposed any adjournment of the hearing of the appeal.
The only inference that could be drawn from the above outlined sequence of events is that the appellant had, for whatever reason, lost interest in the prosecution of his appeal at least up until the night before the listed hearing. Further, in the absence of any information having been put before the court by the appellant in support of his emailed request for the hearing to be adjourned, and bearing in mind that the appellant had first been notified of the hearing date for his appeal in mid‑August, I was not satisfied that his emailed request for an adjournment should be granted. I therefore refused the appellant's request for an adjournment. I also decided, as permitted by r 61(2) of the Criminal Procedure Rules 2005 (WA), to proceed with the hearing of the appeal in the appellant's absence.

The application for an extension of time

The last day for the appellant to appeal against his conviction was 15 August 2017.[11] The appellant filed his appeal notice on 9 July 2018, that is, approximately 11 months out of time.
[11] CAA, s 10(3) and s 10(4).
The appellant has filed an affidavit in support of his application for an extension of time within which to appeal sworn by him on 20 July 2018. In his affidavit the appellant puts forward the following reasons for not commencing his appeal within time:
(1)When he was convicted of the offence he did not realise that he could appeal;
(2)At the time of his conviction he had a 'lot going on' including his daughter going to a learning development centre, his work commitments and a son in the care of the Department of Child Protection.
The respondent opposes the application for an extension of time.
Ultimately the question is whether it is in the interests of justice to grant an extension of time. There may be cases where an extension of time is not granted even where there is merit in a ground of appeal.[12]
[12] Eastough v The State of Western Australia [No 2] [2010] WACSA 88 [12] ‑ [14].
The appellant's delay in filing the appeal notice is very lengthy. Moreover, the appellant's explanations for such a lengthy delay are, with respect to him, inadequate. Nonetheless, I will defer making a final decision on the appellant's application for an extension of time within which to appeal until I have dealt with the merits of his application for leave to appeal.

Leave to appeal

The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[13] A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[14] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[15]
[13] CAA, s 9(2).
[14] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[15] CAA, s 9(3).

Ground of appeal

The appellant is not legally represented. Consequently his grounds of appeal as expressed in his appeal notice and as briefly elaborated upon by him in his above referred to affidavit, are not expressed in a manner which would be expected if they had been drafted as grounds of appeal by a lawyer. Nonetheless, it is tolerably clear from the grounds of appeal as expressed that the essence of the appellant's complaint is that his guilty plea was entered, and his conviction was recorded, in circumstances that have given rise to a miscarriage of justice because at the time that he was apprehended driving his vehicle he, based on what he had been told by the person who delivered to him the notice of disqualification, honestly and reasonably believed that the suspension of his driver's licence had not come into effect. In other words the appellant, albeit not expressly, raises the issue of honest and reasonable but mistaken belief under s 24 of the Criminal Code (WA) (the Code).
I propose to approach the matter on the basis that the appellant's sole ground of appeal is as I have expressed it in the preceding paragraph.

The merits of the ground of appeal

Appeal against conviction after guilty plea - applicable legal principles

Section 8(2) of the Criminal Appeals Act 2004 (WA) permits an appeal against conviction even where a plea of guilty has been entered.
In Lawson v The State of Western Australia [No 2][16] the well‑established principles relating to an appeal against conviction entered after a plea of guilty were stated by the Court of Appeal in the following terms:
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is, in truth, guilty or not guilty. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a person does act on such a plea, even if the person entering it is not, in truth, guilty of the offence [Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141].
A person may plead guilty upon grounds which extend beyond that person's belief in his or her guilt. As Dawson J pointed out in Meissner, a person may plead guilty for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he or she would if convicted after a plea of not guilty [Meissner (157)]. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all of the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on an appeal unless it can be shown that a miscarriage of justice has occurred [Meissner (157)].
It has often been observed that it is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. That is particularly so when, as here, the appellant was legally represented when the plea of guilty was entered. While the categories of miscarriage of justice are not closed, the cases reveal that there are three well‑recognised circumstances in which courts are prepared to set aside pleas of guilty, being:
(1)where the appellant did not understand the nature of the charge or intend to admit guilt;
(2)where, upon the admitted facts, the appellant could not, in law, have been guilty of the offence; and
(3)where the guilty plea has been obtained by improper inducement, fraud or intimidation and the like [Vella v The State of Western Australia [2006] WASCA 129 [26]; Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [154]].^[17]
[16] Lawson v The State of Western Australia [No 2] [2018] WASCA 204 [17] ‑ [19].
[17] The statement of the applicable principles in Lawson v The State of Western Australia was recently reaffirmed in De Bono v Southam [2018] WASCA 218 [18]. See also Topuz v The State of Western Australia [2017] WASCA 186
The principles as stated in Lawson v The State of Western Australia must, however, be read in light of a further well established principle, namely that where a person pleads guilty before a magistrate but then qualifies their plea by a statement which, if true, may show that they are not guilty of the charged offence, the magistrate should refuse to accept the plea and should direct that a plea of not guilty be entered. A failure by a magistrate to adopt such a course will constitute an error of law.[18]
[18] Ottobrino v Espinoza (1995) 14 WAR 373, 384; Hondema v Carroll [2008] WASC 155; (2008) 50 MVR 401 [57] ‑ [62]; Kadmos v Nesina [2013] WASC 253 [15] ‑ [17].
The material before the court does not leave open the possibility of the appellant contending that he did not understand the nature of the charge laid against him, or that he did not intend to admit his guilt or that his guilty plea was obtained by improper inducement, fraud or intimidation and the like. Nor does the material before the court leave open the possibility of the appellant contending that upon the admitted facts, that is, the facts relied upon by the prosecution in support of the charge, he could not in law have been guilty of the offence. Rather, the only argument that could realistically be advanced by the appellant on the material before the court in support of his ground of appeal is that his statement to the magistrate, made by him after he had entered his guilty plea, about what he had been told by the person who delivered the notice of disqualification to him, revealed that he may have a defence to the charge under s 24 of the Code, that in these circumstances the magistrate should have refused to accept his guilty plea and entered a plea of not guilty, that the magistrate's failure to do so amounted to an error of law, and that the error of law has resulted in a miscarriage of justice.

The relevant statutory provisions

It is necessary at this point to refer to the statutory provisions which are relevant to the appellant's ground of appeal.
As I have already indicated, the appellant was convicted of an offence under s 49(1)(a) and s 49(3)(c) of the RTA. Section 49 of the RTA relevantly provides:
(1)A person who -
(a)drives a motor vehicle on a road while not authorised under the Road Traffic (Authorisation to Drive) Act 2008 Part 2 to do so; or
(b)employs or permits another person to drive a motor vehicle as described in paragraph (a),
commits an offence.
Penalty for this subsection:
(a)unless subsection (3) applies -
(i)for a first offence, 6 PU;
(ii)for a subsequent offence, 12 PU;
(b)if subsection (3)(d), but no other paragraph of subsection (3), applies -
(i)a fine of not less than 4 PU or more than 30 PU; and
(ii)imprisonment for not more than 12 months,
and the court may order that the offender be disqualified from holding or obtaining a driver's licence for a period of not more than 3 years;
(c)if subsection (3)(a), (b), (ca), (c) or (da) applies -
(i)for a first offence, a fine of not less than 8 PU or more than 40 PU, and imprisonment for not more than 12 months;
(ii)for a subsequent offence, a fine of not less than 20 PU or more than 80 PU, and imprisonment for not more than 18 months,
and the court shall order that the offender be disqualified from holding or obtaining a driver's licence for a period of not less than 9 months and not more than 3 years.
…
(3)If an offence under subsection (1)(a) is committed by a person -
...
(c)whose authority to drive, whether under an Australian driver licence or otherwise, is for the time being suspended other than for the reason described in paragraph (d); or
(d)who is no longer authorised to drive because of penalty enforcement laws, as described in subsection (9)
a police officer may, without warrant, arrest the person.
…
As is apparent from what I have already said, the appellant's authority to drive was suspended other than for the reason described in s 49(3)(d), namely as a result of the accrual of demerit points.
The next relevant statutory provision is s 49 of the RTADA. Section 49, so far is as relevant, provides:
(1)If the number of current demerit points recorded against a person in the demerit points register reaches at least 12, the CEO is to give the person, in accordance with section 59, an excessive demerit points notice stating -
(a)the day on which that number of current demerit points was reached; and
(b)the number of current demerit points reached on that day; and
(c)the period of disqualification fixed under subsection (2); and
(d)the day on which the period of disqualification will commence if the person cannot, or for any other reason does not, make a section 51 election.
(2)The period of disqualification to be stated in the notice is -
(a)for less than 16 points, 3 months;
(b)for at least 16 but less than 20 points, 4 months;
(c)for at least 20 points, 5 months,
and the day on which the period is stated to commence is to be the 28th day after the notice is given or a later day.
(3)Whether or not the person makes a section 51 election, demerit points recorded against the person in the demerit points register on or before the day on which, according to the notice, the stated number of demerit points was reached are cancelled.
(4)If the person cannot, or for any other reason does not, make a section 51 election, the person is disqualified from holding or obtaining a driver's licence for the period of disqualification fixed under subsection (2).^[19]
…
[19] If a person is disqualified from holding or obtaining a driver's licence pursuant to s 49 of the RTADA, the person's licence and hence his or her authority to drive is suspended within the meaning of s 49(3)(c): RTADA, s 21; Road Traffic (Authorisation to Drive) Regulations 2014 (WA), reg 53C

Section 51 of the RTADA provides:
(1)A person who is given an excessive demerit points notice may, unless prevented by subsection (2) from doing so, avoid being disqualified from holding or obtaining a driver's licence because of the notice by making an election under this section for the year commencing when, having regard to section 54, the period of disqualification specified in the notice would have commenced.
(2)In order to be able to make a section 51 election a person must hold a driver's licence other than a provisional licence and must not be a novice driver.
(3)By making a section 51 election the person elects not to commit, during the year for which the election is made -
(a)an offence for which 2 or more demerit points can be recorded under this Part against the person; or
(b)offences for which a total of 2 or more demerit points can be recorded under this Part against the person; or
(c)an offence for which the court convicting the person is required by law to disqualify the person from holding or obtaining a driver's licence; or
(d)an offence the conviction of which results in the person being disqualified by operation of this Act from holding or obtaining a driver's licence.
(4)The election is to be made in writing, in the form approved by the CEO, and given to the CEO within 21 days after the day on which the CEO gave the excessive demerit points notice.
(5)A section 51 election applies for the period ending at the end of the year for which it is made or, if the period ends earlier under this Part, until the earlier end of the period.
Finally, reference needs to be made to s 52 of the RTADA. Section 52, so far as is relevant, provides:
(1)If -
(a)the CEO records in the demerit points register a total of 2 or more demerit points for an offence or offences committed or allegedly committed by a person during a section 51 election period; or
(b)a court convicts a person of an offence committed during a section 51 election period as a result of which conviction -
(i)the court is required by law to disqualify the person from holding or obtaining a driver's licence but the disqualification is not required to be permanent; or
(ii)the person is disqualified by operation of a road law from holding or obtaining a driver's licence,
the CEO is to give the person, in accordance with section 59, a notice in writing disqualifying the person from holding or obtaining a driver's licence.
[(2)deleted]
(3)The notice is to state -
(a)if it is given under subsection (1)(a) -
(i)the number of demerit points because of which the notice is given; and
(ii)the day on which each offence to which any of those points relates was committed or allegedly committed;
and
(b)if it is given under subsection (1)(b) -
(i)the conviction because of which the notice is given; and
(ii)the day on which the offence of which the person was convicted was committed;
and
(c)the period of disqualification fixed under subsection (4) and the day on which that period commences.
(4)The period of disqualification to be stated in the notice is to be double the period of disqualification that was stated in the excessive demerit points notice that led to the person making the section 51 election.
(5A)The day stated in the notice as the day on which the period of disqualification is to commence is to be -
(a)a day that is after the notice is given; and
(b)if subsection (1)(b) applies, a day that is after the period of disqualification referred to in that paragraph has ended.
(5)The person to whom the notice is given is disqualified from holding or obtaining a driver's licence for the period of disqualification stated in the notice.^[20]
…
[20] If a person is disqualified from holding or obtaining a driver's licence pursuant to s 52 of the RTADA, the person's licence and hence his or her authority to drive is suspended within the meaning of s 49(3)(c): RTADA, s 21; Road Traffic (Authorisation to Drive) Regulations 2014 (WA), reg 53C.
As I have already indicated the appellant, having entered his plea of guilty, said to the magistrate that he received notice of the disqualification period 'for breaching a good behaviour period'. It can safely be inferred from this statement to the magistrate that the appellant had made an election under s 51(1) of the RTADA, that he had contrary to s 52(1) of the RTADA accrued two or more demerit points for an offence or offences committed during the s 51 election period, and that the notice given to him was given to him pursuant to s 52(1) of the RTADA.[21]
[21] That this was the position is also borne out by the period of disqualification that the magistrate imposed which was double the minimum period of disqualification that could have been imposed if the appellant had not made an election under s 51(1): RTADA, s 49(2)(a) and s 52(4).
It is to be noted, as is apparent from what the appellant said to the magistrate, that there is no dispute in this case that the appellant was given the notice pursuant to s 52(1) in accordance with s 59 of the RTADA.

The appellant's mistake

The 'defence' created by s 24 of the Code is available to a person charged with an offence under s 49(1)(a) of the RTA.[22] Accordingly, in order for the appellant to establish that a miscarriage of justice has occurred by reason of the magistrate failing to refuse to accept his plea of guilty to the charged offence based on the statements that he made to the magistrate, the appellant needs to demonstrate that his mistake as to when the period of suspension came into effect was an honest and reasonable mistake as to the existence of a state of things (in other words, a mistake of fact) as opposed to a mistake of law. A mistake of law is no defence to the charge of which the appellant was convicted.[23]
[22] Wroblewski v Starling [1987] WAR 233; Ottobrino v Espinoza (1995) 14 WAR 373, 385; Minear v Rudrum [2001] WASCA 10; (2001) 33 MVR 119 [11].
[23] Code, s 22.
It is clearly established by the relevant case law that where the suspension of a person's driver's licence arises automatically by operation of law, rather than as a result of the exercise of a discretion by an administrative authority or a court, any mistake by the person as to the existence of the suspension is a mistake of law.[24]
[24] Wroblewski v Starling (235-236); Ottobrino v Espinoza; McCaskie v Bagby (Unreported, WASC, No 197 of 1974, 18 April 1975); Brooks v Roberts (1997) 25 MVR 83, 85 ‑ 86; Illich v Young [2000] WASCA 383 [14] ‑ [31]; Denton v Bodycoat [2000] WASCA 424 [39]; Minear v Rudrum [11] ‑ [19]. In the respondent's written outline of submissions it is pointed out that all these cited cases were decided before Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493. It is suggested by the respondent that in light of Ostrowski v Palmer it is now unclear whether a defence under s 24 is available in the situation where the suspension of the person's driver's licence occurs as a result of the exercise of a discretion by an administrative authority or a court. For reasons that are apparent from my below expressed views as to the nature of the appellant's mistake, this is not a question that I need to resolve in order to decide the appeal.
In the present case, once the CEO recorded in the demerits point register a total of two or more demerit points for an offence committed by the appellant during the s 51 election period, the CEO was required to give the appellant, in accordance with s 59, a notice in writing disqualifying the appellant from holding or obtaining a driver's licence.[25] The period of disqualification to be stated in the notice was required to be double the period of disqualification that was stated in the excessive demerit points notice that led to the appellant making the s 51 election.[26] Further, on being given the notice the appellant was disqualified from holding or obtaining a driver's licence for the period of the disqualification stated in the notice.[27] In short, there was nothing discretionary about either the circumstances in which the appellant's authority to drive came to be suspended, or the period for which the appellant's authority to drive was suspended. There was no discretion of the CEO at play. Rather, the appellant's authority to drive was suspended purely and automatically by operation of law. Accordingly, it necessarily follows that the appellant's mistaken belief that the suspension of his driver's licence had not come into effect and that he was therefore authorised to drive was a mistake of law (that is, a mistake as to the operation of the relevant legislative provisions), not a mistake as to the existence of a state of things within the meaning of s 24 of the Code.
[25] RTADA, s 52(1).
[26] RTADA, s 52(4).
[27] RTADA, s 52(5).
It is the case that the appellant's mistake was as to an element of the offence, namely the element that he was not a person authorised by pt 2 of the RTADA to drive a motor vehicle on a road. However, the mere fact that the mistake was as to an element of the offence does not of itself mean that the mistake was one of fact.[28] It clearly was not. It was, as I have said, a mistake as to the operation of the law. The only mistake that the appellant made resulted from his ignorance of the law.
[28] Ostrowski v Palmer [48] ‑ [49].
The fact that the appellant was given incorrect advice as to when the suspension of his driver's licence came into effect by the person who delivered to him the notice disqualifying him from holding or obtaining a driver's licence (assuming he was given the asserted incorrect advice) does not alter the position. The advice given could not affect the legal position whether it was right or wrong.[29]

No miscarriage of justice

[29] Minear v Rudrum [18]; Ostrowski v Palmer [59].

The appellant has failed to establish that the magistrate made an error of law in failing to refuse to accept his plea of guilty to the charged offence. The appellant's statements to the magistrate did not disclose that he may have a defence to the charge under s 24 of the Code. Moreover, the material before me does not disclose any other ground or basis for concluding that to allow the appellant's guilty plea to stand would amount to a miscarriage of justice. Accordingly, I am not satisfied that any miscarriage of justice arose in the present case from the circumstances in which the appellant pleaded guilty to the offence of which he was convicted.

Conclusion

For the reasons I have stated in my opinion the appellant's ground of appeal has no reasonable prospects of success. I would therefore, taking into account the length of the delay in commencing the appeal and the inadequacy of the appellant's explanation for the delay, refuse the application to extend time within which to appeal and refuse to grant leave to appeal. It follows that the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CP
Associate to the Honourable Justice Derrick

21 DECEMBER 2018

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: ROWE -v- MILLER [2018] WASC 405 (S)
CORAM:   DERRICK J
HEARD:   ON THE PAPERS
DELIVERED          :   4 FEBRUARY 2019
FILE NO/S:   SJA 1093 of 2018
BETWEEN:   KIM WILLIAM ROWE
Appellant
AND
JAKE DANIEL MILLER
Respondent