Simon Lance David Broadstock v SA Police No. SCCRM 96/1725 Judgment No. 6035 Number of Pages 7 Criminal Law

[1997] SASC 6035

IN THE SUPREME COURT OF SOUTH AUSTRALIA

MATHESON J

Criminal law - Application for leave to appeal out of time against sentence suspended on defendent entering into bond for three years with conditions including community service - plea of guilty by unrepresented defendent to driving whilst disqualified - disqualification imposed for non payment of fines - consideration of ss3, 61A, 66 and 72 of Criminal Law (Sentencing) Act - plea by defendant that he was never served with order and in any event never informed that the disqualification remained until he had fully paid fines - whether learned Magistrate should have adjourned hearing to enable legal advice to be obtained - time to appeal extended in all the circumstances - appeal allowed and complaint remitted to Magistrate to hear evidence from defendant and prosecution - question raised as to whether relevant administrative and other procedures should be tightened. Proudman v Dayman
(1941) 67 CLR 536; Davis v Bates (1986) 43 SASR 149; Khammash v Rowbottom
(1989) 51 SASR 172, considered.

ADELAIDE, 11, 23 September 1996 (hearing), 28 February 1997(decision)

#DATE 28:2:1997

#ADD 24:3:1997

Appellant

Counsel: Ms C M O'Connor

Solicitors: Claire M O'Connor

Respondent

Counsel: Ms L Chapman

Crown Solicitor (SA

Appeal allowed.

MATHESON J

1. The appellant appeared before Mr P M Liddy SM sitting in the Magistrates Court at Elizabeth on 23 August 1995 charged on a complaint for that on 13 May, 1995 at Davoren Park in the State of South Australia he drove a motor vehicle on a road, namely Heytesbury Road while he was disqualified from holding or obtaining a driver's licence, contrary to s91 of the Motor VehiclesAct, 1959.

2. The appellant was present at the hearing before Mr Liddy SM, but unrepresented by counsel. Prior to a plea being taken, his Honour explained to the appellant his rights, including his right to have the matter adjourned to seek legal advice. His Honour also explained the nature of the offence and the likely penalty for an offence of this type. The appellant said he wished the matter to proceed, and he pleaded guilty to the charge. The learned Magistrate then advised the appellant that he must listen to the facts carefully as he would be asked to comment on them. The police prosecutor, Ms Alison Moyle, then said the following: "Your Honour, at about 11.45pm on Saturday the 13th day of May, 1995 police were travelling north on Heytesbury Road, Davoren Park. At this time, police were behind a blue station wagon and observed that the right rear tail light was out. Police stopped the vehicle on Heytesbury Road and had the following conversation with the driver, the defendant:

Police: 'Are you the registered owner of this vehicle?' Defendant: 'No, it's my boss's car.' Police: 'The reason we stopped you is because one of your rear lights is out.' Defendant: 'I didn't realise.' Police: 'Are you the holder of a current SA driver's licence?' Defendant: 'Yes.'

The defendant then produced a driver's licence and police conducted some checks on that licence. It was ascertained that the defendant was disqualified from the 7th day of October, 1994 until further order. This was a fines disqualification. Police then had a further conversation with the defendant:

Police: 'Checks reveal that you are disqualified from driving. Is that correct?' Defendant: 'Yeah that sounds about right.' Police: 'When were you notified of your disqualification?' Defendant: 'September last year, when I went to Court.' Police: 'Are you aware that you have non payment fines?' Defendant: 'Yeah. Obviously I have.' Police: 'When did you make your last payment on your fines?' Defendant: 'March I'd say.' Police: 'Do you understand that by not paying your fines you are disqualified from driving?' Defendant: 'Yeah. That's an honest mistake. I was paying them off until March, when I stopped making payment. But yeah, I knew it would be.' Police: 'You will be reported for driving whilst disqualified.' Defendant: 'Yeah, yeah.'

The defendant was reported for the offence, and arrested for outstanding fines. There were no passengers, no embarrassment to other road users and the defendant was cautioned for the tail light. I then informed the Court of the defendant's criminal history. I alleged that:. - On the 4th day of June, 1986 he appeared in the Elizabeth Magistrates Court on a charge of PCA. The defendant was convicted, fined $300, and had his licence disqualified for 6 months. On the same date the defendant was also charged with no lights for which he was convicted.

On the 16th day of March, 1994 he appeared in the Elizabeth Magistrates Court on a charge of driving an unregistered vehicle, the defendant was convicted and fined $60. On the same date the defendant was also charged with driving an uninsured vehicle. He was convicted, fined $60 and had his licence disqualified for 1 month."

3. The learned Magistrate then invited the appellant to make submissions. The Magistrate's notes read: "DEFENDANT - dispute nil. Nil re offence. I thought I would get my licence back if I started making payments. I didn't realise I had to fully pay Court off. 31. Married. Wife not drive. Doing roofing $370 per week. No heavy commitments. No community service work or church work. No character reference or character witness. No other offences. Two children living with me."

4. In the course of his sentencing remarks the learned Magistrate said: "I take all those matters into account in imposing penalty on you. I realise your licence disqualification is not one imposed by the court and you were not driving under circumstances of aggravation. You have pleaded guilty promptly and you have no relevant previous convictions."

5. He convicted the appellant and sentenced him to twenty-eight days imprisonment but suspended the sentence on the appellant entering into a bond to be of good behaviour for a period of three years with the following conditions: 1 That he perform eighty hours of community service within six months.

2 That he obey all reasonable directions of the Community Services Officer to whom he is assigned.

3 That he report to the Department of Correctional Services Office at Elizabeth within two working days of having entered the bond.

6. His Honour also disqualified the appellant from holding or obtaining a driver's licence for a period of four months to commence forthwith. The Court file does not indicate that the appellant produced his licence to the Court, and there is no evidence before me as to whether the appellant used a motor vehicle during the ensuing four months.

7. In an affidavit sworn on 6 August 1996, the appellant said: "1. I appeared before the Elizabeth Magistrates Court on the 23rd day of August 1995 in relation to a charge of drive disqualified.

2. I was unrepresented. I pleaded guilty.

3. I had received a summons in relation to the charge of drive disqualified, after being pulled over by the police. The police stopped me and spoke to me about the state of my licence. I had my licence on me and was surprised to learn from the police that I was disqualified. I had apparently been disqualified because I had failed to pay fines. I had received the time to pay the fines through the Clerk of Court at Elizabeth and had fallen behind in my payments. However I received no notice from the Court about my licence.

3.[sic] I do not know why I didn't receive any communication in relation to this, however, I had moved from Mallala to Davoren Park and it may be that the Court was not aware of my new address, although the police at Mallala knew.

4. When I appeared in the Elizabeth Magistrates Court in relation to the charge of drive disqualified I was unrepresented. I informed the Court that I was not aware that I had been disqualified. I then received a suspended sentence of 28 days and a bond. A condition of the bond was that I complete 80 hours of community service.

5. I have completed none of the community service to date. I was able to obtain casual employment working for a roofing company called Absolute Roofing Systems. This work meant that I would be called with no notice to attend work. I explained to the Community Service system that I had this work and this was the reason for my non-attendance on the first two occasions.

6. I had a letter from my employer to this effect and the Correctional Services Department told me that they had no choice but to breach me for failing to do my community service.

7. I then applied for legal aid in relation to the breach. I understood from my solicitor that if it was the case that I genuinely and honestly believed I was not disqualified then I had a defence to the charge. I received no legal advice or representation in relation to this matter until I spoke to my solicitor, Claire O'Connor, on the 4th day of July 1996. I instructed her to immediately instigate an appeal to the Supreme Court in relation to my plea."

8. The appellant's Notice of Appeal was received in the Magistrates Court on 8 August 1996, nearly eleven months out of time. He applies for an order extending the time within which to appeal.

9. Constable Darren Scott Cornell, one of the two police officers who apprehended the appellant on 17 May 1995, has sworn in an affidavit that the conversation he had with the appellant after he made enquiries about his licence was recorded in his notebook during the course of his conversation. I refer to the conversation that the prosecution read out to the learned Magistrate and which I quoted earlier in these reasons. Cornell said that the appellant did not sign the notes he made in his notebook. The other officer Constable Peter Loch deposed in his affidavit that he had no independent memory of the arrest and did not make any notes. The appellant, however, in a further affidavit sworn on 11 December 1996, states: "2. I have now been provided with affidavits of Darren Scott Cornell, Police Officer and Peter Lock, Police Officer and annexures.

3. My recollection of the conversation with the police is not as deposed to by the two police officers.

4. At no time was I given the notes of the conversation by the police at the scene. I agree that I was asked by the police if I was the registered owner of the car and agree I told them it was my boss' car. I agree when the police asked me if I was the holder of a current S.A. driver's licence, I told them I was.

5. I agree the police then made inquiries on their radio and informed me that I was disqualified.

6. I deny that I ever told the police that I agreed that I was disqualified, I was aware there was a conversation about non payment of fines, but I told the police it was my understanding that my non payment of fines had been sorted out and that I was no longer disqualified from driving.

7. My memory of the incident is that at all times the police knew and understood that I believed I was not disqualified, and that my being informed by the police that I was disqualified at the scene, was the first that I had learned of the disqualification.

8. To confirm this I attended at the Elizabeth Court on the following day to ascertain whether the police were correct, as it was still my belief that I was not disqualified from driving. I was then informed that until I paid my fines I would be disqualified.

9. I have a number of fines which I am still paying off and yet I still have my licence. I believed this to be the position when I was stopped by the police on the 13th day of May 1995."

10. On the date charged, namely, 13 May 1995, the appellant was "in default of payment of [pecuniary sums] imposed in relation to ... [offences] committed by him", to use the language of s61A(1) of the Criminal Law (Sentencing) Act ("the Act"), namely fines in relation to convictions for driving an unregistered and uninsured vehicle imposed on or about 15 March 1994. Amongst the affidavits I admitted was an affidavit of Robert Speer, Registrar at the Adelaide (Criminal Registry) Magistrates Court, one of whose responsibilities being the oversight of the payment of pecuniary penalties imposed by the court in relation to offences arising out of the use of a motor vehicle. He deposed that on 10 September 1994 the appellant was disqualified from holding or obtaining a driver's licence with effect from 12.01 am on 7 October 1994 as he was in default in the payment of his fines for over one month. Pursuant to s61A(1), the court had a discretion so to disqualify "until the pecuniary sum has been fully satisfied". By dint of s72(1) of the Act, the powers of a court under s61A are exercisable by any appropriate officer, and the words I have just underlined are defined to mean, inter alia, a registrar of the Magistrates Court (s3(1)). Mr Speer also deposed to the fact that it was recorded on computer that the appellant had contacted the court on at least three occasions, and alternative arrangements had been agreed for payment of instalments. My attention was drawn to sub-section (4) of s61A, which provides: "(4) The court - (a) may, on application by the person in default, revoke the disqualification if the court is satisfied that the sum in default, although not paid in full, has been reduced and that continued disqualification would result in undue hardship to the person; and (b) must, on the person entering into an undertaking under section 67 to work off the sum in default by community service, revoke the disqualification."

11. It is clear that the order of disqualification made on 10 September 1994 was made without hearing the appellant, and the order should have been served by the Registrar of Motor Vehicles personally or by post (s61A(2)). There is no proof before me that it was so served. Parenthetically I am surprised that Parliament did not require the service to be undertaken by the court.

12. I also admitted an affidavit sworn by Denis Balacco, who is employed within the Registration and Licensing division of the Department of Transport, and currently has the conduct of matters involving the disqualification of driver's licences and to default in the payment of pecuniary penalties. He exhibited copies of written notices which he said were forwarded by Australia Post to the appellant, one of which, Exhibit "DB1", read: "SIMON L BROADSTOCK
53 AERODROME ROAD MALLALA 5502 OFFICE COPY As a result of your failure to satisfy a Court imposed penalty, the Court has disqualified you from holding or obtaining a driver's licence pursuant to 61A CRIMINAL LAW (SENTENCING) ACT 1988 I advise you that this disqualification will be effective from 12.01am on 07/10/94 UNLESS THE PENALTY IS PAID OR OTHERWISE SATISFIED, AT A COURT LISTED OVERLEAF, DURING OFFICE HOURS, BEFORE THAT DATE. Failure to pay the penalty before the effective date will mean that you will be PROHIBITED FROM DRIVING and that any driver's licence held by you will be of NO FORCE OR EFFECT UNTIL THE COURT ORDERS THAT THE DISQUALIFICATION BE REVOKED.If you drive, the penalties are severe and you could face a term of imprisonment. This notice relates ONLY to the following Court imposed penalty: PENALTY NUMBER MCPAR94001997002 OFFENCE DATE 15/01/94 ELIZABETH MAGISTRATES' COURT (CRIMINAL) Name of Court UNREGISTERED VEHICLE Details of Offence Amount Outstanding $207.00 If this letter is unclear to you or you have any questions please contact the Court mentioned above or one of the Courts listed on the back of this letter. Yours faithfully, (Signed) OF MOTOR VEHICLES"

13. I draw attention to the fact that it does not spell out clearly that the disqualification continues notwithstanding payment of instalments and continues until the penalty is fully paid. Moreover, it contains no reference to subs4 of s61A.

14. Another affidavit I admitted was sworn by Clayton Pethick, Deputy Registrar of the Elizabeth Magistrates Court. He deposed: "3. A person who has received notification from the Registrar of Motor Vehicles that he or she has been disqualified from holding or obtaining a driver's licence pursuant to section 61ACriminal Law (Sentencing) Act 1988 due to default in the payment of a pecuniary penalty ('a disqualified person'), may attend at this Court as a result of receiving the said notification. The disqualified person may make an application to an appropriate officer of the Court ('an officer') to pay the outstanding pecuniary penalty by way of instalments.

4. When I commenced duties as the Deputy Registrar at the Court in November 1992, I arranged training and development for officers. Training and development is ongoing and is undertaken by each officer who works at the Court. As part of the said training and development, I have and continue to instruct the officers that if an arrangement is made for a disqualified person to pay off the outstanding pecuniary penalty by way of instalments, the officer must, at the time the arrangement is made, advise the disqualified persons that he or she will continue to be disqualified from holding or obtaining a driver's licence until the outstanding pecuniary penalty has been paid in full.

5. I am satisfied that, as a matter of general practice from early in 1993, all officers should have advised disqualified persons who entered into an arrangement to pay off an outstanding pecuniary penalty by way of instalments that they would continue to be disqualified from holding or obtaining a driver's licence until the outstanding pecuniary penalty was fully paid off."

15. The appellant's counsel has conceded that he was driving whilst disqualified, but she has raised the defence of "honest, mistaken belief, based on reasonable grounds", see Proudman v Dayman (1941) 67 CLR 536. Such a defence is open to a defendant on this charge, see Davis v Bates (1986) 43 SASR 149. However, if the mistaken belief was a mistake of law, the "defence" is not available, see Khammash v Rowbottom (1989) 51 SASR 172. It may well be that this appellant's mistake was a mistake of law, but I think in all the very unusual circumstances of the case the learned Magistrate should actually have informed the appellant that he may have a defence, and should actually have advised him to get legal advice having regard to what the appellant said to him.

16. Not without considerable hesitation, I have reached the conclusion that I should extend the time within which to appeal to and to include 8 August 1996. The delay is significant, but I have reached the conclusion that if I refuse the extension, a miscarriage of justice might occur. The appeal will be allowed, the conviction and orders of the learned Magistrate will be set aside and the complaint remitted to him to hear the appellant's evidence and any evidence that might be called as to service on him of the order of 20 September 1994, and any evidence called as to what, if anything, he was advised on the various occasions upon which he made contact with the Magistrates Court at Elizabeth.

17. During the course of the argument, it occurred to me that some of the relevant procedures may need tightening. I say "may" deliberately because I have not heard argument on them. They include the fact that the appellant still had physical possession of his licence on 13 May 1995 which, moreover, contained no endorsement of his disqualification and the fact that he apparently was not required to hand it to the Magistrate on 23 August 1995. No affidavit evidence was tendered before me confirming the telephone or other contacts of the appellant with the Magistrates Court and whether or not he was told that his disqualification remained until he had paid his fines in full. Surely these contacts should be documented and signed by the person with whom contact was made, and available to a court. Finally, I incline to the view that the pro forma notice, of which Exhibit DB1 was an example, should perhaps be redrafted to follow the wording of s61A more precisely.