Stanojlovic v Kokas
[2020] VSC 305
•23 June 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 02466
| ROBERT STANOJLOVIC | Plaintiff |
| v | |
| STEVEN EMIL KOKAS | First Defendant |
| THE COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 November 2019 |
DATE OF JUDGMENT: | 23 June 2020 |
CASE MAY BE CITED AS: | Stanojlovic v Kokas & anor |
MEDIUM NEUTRAL CITATION: | [2020] VSC 305 |
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JUDICIAL REVIEW – Criminal Law – Probationary driver failing to display P Plate – Construction of Reg 55(1) of the Road Safety (Drivers) Regulations 2009 (Vic) – Whether ‘driving a motor vehicle other than a motor cycle’ is an essential element of the charge – Criminal Procedure Act 2009 (Vic) ss 6, 8 and Schedule 1, clause 4 – Ex parte Lovell; Re Buckley and anor (1938) 38 SR (NSW) 153; Alwer v McLean (2000) 37 MVR 125, Goodey v Clarke (2002) 37 MVR 121, referred to and applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr PJ Billings | Patten Robins Lawyers |
| For the First Defendant | Dr J Harkess | Solicitor for the Director of Public Prosecutions |
HER HONOUR:
Background and procedural history
Probationary drivers in the State of Victoria are required to display a red or green P plate on their vehicles when driving a motor vehicle. On 14 August 2015, the applicant, then a probationary driver, was issued an infringement notice for failing to display a P plate at the front of the tow truck he was driving. The applicant seeks judicial review of a decision by a County Court judge (‘judge’), who determined that the applicant had committed the offence created by r 55(1) of the Road Safety (Drivers) Regulations 2009 (‘Regulations’). This decision followed a successful application for judicial review by the informant of an earlier decision by the same judge to quash the applicant’s conviction for the offence. The sole issue in this proceeding is whether the charge sheet (‘charge’) detailing the applicant’s offending was defective. For the following reasons, I have determined the answer to this question is ‘yes’. The application for review is therefore allowed.
On 14 August 2015, there was a collision involving multiple vehicles in Noble Park. A police officer attended and requested tow trucks attend the scene. The applicant attended the scene. However, he did not have a P plate attached to the front window of his tow truck, although he did in his rear window. Accordingly, a police officer present at the scene issued an infringement notice to the applicant for breach of r 55(1) of the Regulations. The penalty for infringement of r 55(1) is a fine of $152 and the loss of three demerit points.
The charge filed in the Magistrates’ Court on 26 November 2015 contained the following description of the charge:
The accused at Corrigan Road on 14/08/2015, being a probationary driver, did drive a motor vehicle not being a tractor on a highway namely Corrigan Road without having a ‘P’ plate conspicuously displayed out from the front of such vehicle.
On 5 April 2016, the informant filed a further charge sheet (‘amended charge’) with respect to the same alleged offences, but with amended particulars, as follows:
The accused at Noble Park on 14/8/2015, being a probationary driver, did drive a motor vehicle not being a tractor on a highway without having a ‘P’ plate conspicuously displayed out from the front of the vehicle.
The amended charge was filed within the twelve month limitation period prescribed by s 7 of the Criminal Procedure Act 2009 (Vic) (‘CPA’).
The applicant initially contested the infringement notice at the Magistrates’ Court at Dandenong on 31 May 2016. The applicant was convicted and ordered to pay the statutory fine and costs.
The applicant then appealed against the conviction to the County Court pursuant to s 254 of the CPA, on the basis that the offence in r 55(1) of the Regulations was one of strict liability , and also on the basis that the charge was invalid, because it did not specify all of the elements of the offence with which the charge was concerned. The informant argued the offence was one of absolute liability. The judge allowed the appeal, accepting the applicant’s contention that the Proudman v Dayman[1] defence is available to a person charged under r 55(1). Accordingly, the prosecution needs to disprove beyond reasonable doubt the defendant’s honest and reasonable belief in a set of facts at the time which, if they existed, would have made him innocent of the offence.[2] Accordingly, it was not necessary for the judge on that occasion to determine the question of whether the charge was valid, although counsel for the applicant did in fact address him on that issue.
[1](1941) 67 CLR 536.
[2]Stanojlovic v Director of Public Prosecutions (‘Stanojlovic’) [2018] VSCA 152 [2], referring to Proudman v Dayman (1941) 67 CLR 356, and Jiminez v The Queen (1992) 173 CLR 572.
The Director of Public Prosecutions (‘DPP’), on behalf of the informant, applied to this Court for judicial review of the judge’s order allowing the appeal.[3] Jane Dixon J held that the judge had erred in law by holding that the offence under r 55 was one of strict liability, rather than absolute liability, holding that an honest and reasonable, but mistaken, belief that a P plate was properly displayed was not relevant to the proof of the offence created by r 55(1). Her Honour remitted the proceeding to the County Court for determination according to law.
[3]Director of Public Prosecutions v Stanojlovic (2017) 53 VR 90.
The applicant sought leave to appeal to the Court of Appeal, on grounds which were expressed as a single question by the Court of Appeal: ‘is the relevant element of the offence one of absolute liability?’. The Court of Appeal upheld her Honour’s decision, refusing leave to appeal on 12 June 2018.[4]
[4]Stanojlovic [2018] VSCA 152.
At the remitted hearing before the judge on 25 September 2018, the applicant advanced substantially similar arguments regarding the validity of the charge to those advanced in this application for judicial review, that is, that the charge was defective because the charge failed to specify that the applicant was driving a motor vehicle other than a motor cycle. Those submissions did not find favour with the judge, who provided ex tempore reasons at the conclusion of the hearing, as follows:
This is a prosecution for failing to have P-plates on the front of the vehicle that was being driven by the defendant on Corrigan Road on 14 August 2015. Evidence was run before me of the defendant driving a truck that was intercepted and there was no P-plate. As is apparent from the Court of Appeal’s determination and the judgment of Justice Dixon, (a), my determination that Proudman v Dayman gave the defendant an excuse that he had an honest and reasonable belief that there was a P-plate was in error, and the matter has now been returned to me for further dealing with according to law.
At the previous hearing, submissions were made among the line that are made here and the transcript … of that hearing, will make it clear that for the start of that hearing, a preliminary point was taken by Mr Billings that is now repeated in the written submissions that he filed in this court in relation to interpretation, he says, of the legislation and in essence, his submission is based on the proposition that a proper reading of section, Regulation 55, under which this charge is brought, makes the fact that the vehicle was not a motorbike, an element of the offence, effectively.
And if the requirement to be not a motor vehicle is an element of the offence, it needs to be pleaded effectively in the summons. That clearly, as a principle, is right. If it is clear that from all the authorities that a charge must adequately set out a description of the offence and it must usually be done in the - set out in the words of the regulation itself. Elements of the offence need to be pleaded and established.
I just do not accept that the motorcycle provision in paragraph 55(1)(b) of the Regulations makes the ‘other than a motorcycle’ an element of the offence. The offence is created by a person driving a motor vehicle having a probationary licence and not having P-plates as described in ss A and B.
An exception to that requirement is if you are a motorcycle, you do not need one on the front. That does not in any way, make that an element, the motorcycle provision, an element of the offence. It is no more than an exception created by Parliament to the requirements of a probationary licence either having P-plates‑. The case that was referred to of Orla v McClain[5] sets out principles which are unimpeachable and the application in that case, totally different. If you are going to charge somebody with exceeding a particular speed, or travelling at a particular speed, you have got to allege that they are in a particular speed zone before the offence is committed.
[5]This reference is to the decision of Smith J in Alwer v McLean (2000) 32 MVR 125 - see paragraphs [47]-[49] of these reasons.
In this proceeding, the applicant has applied to this Court under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to review the decision of the County Court, seeking the following relief:
(a) an order in the nature of certoriari that the decision of the judge to convict the applicant be quashed; and
(b) an order in the nature of mandamus directing the County Court to record that the charge under r 55(1) of the Regulations is dismissed.
Given the lapse of time since the original alleged infringement, it is difficult to see what practical benefits a favourable outcome of this proceeding will confer upon the applicant, save for removing a blemish on his driving record, and, perhaps, some partial recompense for what must be substantial legal costs incurred by him in seeking to overturn his conviction for what is a relatively minor traffic infringement.
As noted above, the sole issue for consideration in this proceeding is whether the charge was defective, on the basis that it did not specify an essential element of the offence described in r 55(1) of the Regulations. If the applicant is correct, the charge would be invalid, as the period within which the charge could be amended pursuant to s 8 of the CPA has expired.
In his originating motion, the applicant identified the following grounds of review:[6]
[6]Originating Motion.
(1) The trial judge:
(i)refused to exercise a jurisdiction he had and/or
(ii)exercised a jurisdiction he did not have and/or
(iii)erred at law and/or
(iv)there was an error of law on the face of the record in finding the plaintiff was guilty of an offence under reg 55(1) of the Regulations by not holding that:
(a) the said charge was defective insofar that it did not allege or disclose or adequately describe an identifiable offence or an offence know to the law and/or was otherwise bad: and
(b) under the circumstances the said charge should stand dismissed.
(2) The trial judge erred in law in refusing to dismiss the charge.
The alleged defect in the charge is said by the applicant to enliven each of the above grounds.
Relevant legislation
Before turning to the charge itself, the issue and conduct of criminal proceedings in Victoria is governed by the CPA. Section 5 of the CPA provides as follows:
A criminal proceeding is commenced by –
(a) filing or signing a charge sheet in accordance with section 6; or
(b) filing a direct indictment in accordance with s 159; or
(c) a direction under s 415 that a person be tried for perjury.
Section 6(3) of the CPA provides as follows:
A charge sheet must –
(a) be in writing; and
(b) be signed by the informant personally; and
(c) comply with Schedule 1.
The relevant clauses of Schedule 1 are reproduced below:
1 Statement of offence
A charge must—
(a)state the offence that the accused is alleged to have committed; and
(b)contain the particulars, in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge.
2 Statement of particulars
(1)Subject to subclause (2), particulars of the offence charged must be set out in ordinary language and the use of technical terms is not necessary.
(2)If a rule of law or a statute limits the particulars that are required to be given in a charge, nothing in this clause requires any more particulars than those required.
3 Statutory offence
(1) In this clause—
‘statutory offence’ means an offence created by an Act or subordinate instrument, or by a provision of an Act or subordinate instrument.
(2)For the purposes of clause 1(a), a statement of a statutory offence is sufficient if it—
(a)identifies the provision creating the offence; and
(b)describes the offence in the words of the provision creating it, or in similar words.
(3) If a statutory offence states—
(a) the offence to be committed in alternative ways; or
(b) any element or part of the offence in the alternative—
a charge may state the commission of the offence or the element or part of the offence in the alternative.
4 Exceptions, exemptions etc.
Any exception, exemption, proviso, excuse or qualification need not be specified or negatived in a charge.
Sections 7(1) and 8 of the CPA provide as follows:
Section 7 - Time limits for filing a charge-sheet
(1)A proceeding for a summary offence must be commenced within 12 months after the date on which the offence is alleged to have been committed except where—
(a) otherwise provided by or under any other Act; or
(b)the accused gives written consent, and the DPP or a Crown Prosecutor consent, to the proceeding being commenced after the expiry of that period.
Section 8 - Order for amendment of charge-sheet
(1)The Magistrates' Court at any time may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.
(2)If a charge-sheet is amended by order under this section, the charge-sheet is to be treated as having been filed in the amended form for the purposes of the hearing and all proceedings connected with the hearing.
(3)An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced.
(4)If a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if—
(a)the charge-sheet before the amendment sufficiently disclosed the nature of the offence; and
(b)the amendment does not amount to the commencement of a proceeding for a new offence; and
(c) the amendment will not cause injustice to the accused.
The question of whether the requirements of the CPA supersede, or merely supplement the common law principles governing the validity of a charge is not entirely settled.[7] In any event, that debate is not material here, as the test in clause 1(b) of Schedule 1 reflects the common law principle that ‘fair information and reasonable particularity as to the nature of the offence must be given to the defendant.’[8] As stated by the High Court in Kirk v Industrial Court of New South Wales[9] (omitting citations):
The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge ... In John L Pty Ltd v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508, it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed: …In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet: ... The common law requirement is that an information, or an application containing a statement of offences, ‘must at the least condescend to identifying the essential factual ingredients of the actual offence’: ...[10]
[7]Baiada Poultry Pty Ltd v Inspector Mark Kenneth Glenister (Victorian WorkCover Authority) & Anor [2015] VSCA 344 [12]-[13].
[8]Johnson v Miller (1937) 59 CLR 467, 469.
[9](2010) 239 CLR 531.
[10]Ibid [26].
In any event, the parties agree that a charge must refer to the essential elements of the offence. The dispute here is what constitutes the essential elements of the offence, having regard to the terms of r 55(1).
Regulation 55(1) provides as follows:
Probationary driver must display P plates
(1)A person who holds a probationary driver licence or a diver licence issued on a probationary basis in another jurisdiction must not drive a motor vehicle (other than a tractor) on a highway unless –
(a)an appropriate P plate is displayed facing out from the rear of the vehicle so that the letter “P” is clearly visible and the colour of the plate is distinguishable from a distance of 20 meters behind the vehicle; and
(b)in the case of a vehicle other than a motor cycle, an appropriate P plate is displayed facing out from the front of the vehicle so that the letter “P” is clearly visible and the colour of the plate is distinguishable from a distance of 20 meters ahead of the vehicle.
Regulation 55(2) prohibits individuals who are not probationary drivers to drive with P plates displayed in their motor vehicle. Regulation 55(3) excludes people engaged in certain occupations, like firefighters and police officers, from the operation of r 55(1).
In Stanojlovic,[11] the Court of Appeal referred to the Regulatory Impact Statement which accompanied the Regulations, which identified the policy reason for the introduction of the requirement to display L plates or red or green P plates as being to:
enable all road users to identify young inexperienced drivers, be more tolerant and take preventative action to avoid any potential traffic incidents. The display of plates enables the police to identify the status of drivers and to enforce the regulations.[12]
[11]Ibid.
[12]Ibid [42].
In the decision which was the subject of the Court of Appeal decision in Stanojlovic,[13] Jane Dixon J, while not concerned with the question currently before the Court, enumerated the elements of the offence created by r 55(1) as follows:
(1)a person holding a probationary driver licence in Victoria or another jurisdiction; and
(2)driving a motor vehicle (other than a tractor) on a highway; and
(3)not displaying a P plate facing out from the front or rear of the vehicle (rear only in the case of a motor cycle); or
(4)not displaying an ‘appropriate P plate’ (ie white ‘P’ on red background for P1 probationary drivers and white ‘P’ on green background for P2 probationary drivers, within prescribed dimensions); or
(5)not displaying an ‘appropriate P plate’ so that the letter ‘P’ is clearly visible and the colour of the plate is distinguishable at a distance of 20 metres when viewed from the front or back (as the case may be).[14]
[13]Ibid.
[14]Director of Public Prosecutions v Stanojlovic (2017) 53 VR 90 [17].
Submissions
The applicant submitted, in summary, as follows:
(a) the gravamen of the offence in r 55(1)(b) is that the vehicle driven was not a tractor or a motor cycle, and the vehicle did not have a P plate displayed at the front of the vehicle. The essential element that the vehicle was not a motor cycle was omitted from the charge, and therefore the charge is a nullity;
(b) the incorrect formulation of the charge breaches s 6(3)(c) and Schedule 1 of the CPA, as well as the common law principles with respect to the contents of charges; and
(c) any amendment to the charge now would breach s 8(3) of the CPA, as it would create a new offence outside the limitation period allowed for such amendments under the CPA. Further, the common law prohibits a charge from being amended after the relevant limitation period.
The applicant submitted that clause 4 of Schedule 1 of the CPA does not apply, because ‘other than a motor cycle’ is not an ‘exception, exemption, proviso, excuse or qualification’. Rather, it is, along with ‘other than a tractor’, an element of the charge, with the prosecution bearing the burden of proof of that element of the offence.
Counsel for the applicant submitted that the language of r 55(1) should be contrasted with that of r 55(3), which provides exceptions for certain classes of emergency workers. Rule 55(3) provides no exemption for motor cycle riders. Rather, motor cycle riders are dealt with in the regulation imposing the obligation to display a P plate. The provisions applicable to motor cycle riders are not an exception, and as such, the prosecution bears the onus of not only proving this element of the offence, but also particularising this element of the offence in the charge.
Counsel for the applicant relied upon the decision of the High Court in Chugg v Pacific Dunlop Ltd[15] in support of the proposition that, compared with the specific exemptions in r 55(3), there is no specific exemption from the requirements of r 55(1) provided to a motor cycle rider. In particular, he referred to the following statement of the plurality (citations omitted):
For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an ‘exception’), which serves to take a person outside the operation of a general rule. … The distinction does not depend on the rules of formal logic: … Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislate intention ‘to impose upon the accused the ultimate burden of bringing himself within it’: ... The intention may be discerned from express words or by implication. … [16]
[15](1990) 170 CLR 249.
[16]Ibid, 253.
Counsel for the applicant submitted that the decision in Chugg v Pacific Dunlop Limited[17] confirms that the task before this Court is that of statutory construction rather than language interpretation. He submitted that:
The onus of proof is assigned by making a distinction between the requirement which forms part of the statement of the general rule and a statement of some matter of answer, whether by way of exception, excuse, qualification, exculpation or otherwise which serves to take a person outside the operation of the general rule.
[17]Ibid.
Counsel for the applicant submitted that the fact that the vehicle in question was not a motor cycle was equivalent to a condition precedent to a cause of action, relying upon the following statements in Vines v Djordjevitch[18] (citations omitted):
When an enactment is stating the grounds of some liability that it is imposing or the condition giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words, it may embody the principle which the legislature seeks to apply generally.[19]
[18](1955) 91 CLR 512.
[19]Ibid, 519.
Counsel for the applicant submitted that r 55(3), which exempts emergency personnel from the requirement to display a P-plate, would clearly attract the operation of clause 4 of Schedule 1 of the CPA. He then went on to submit:
When as a whole, reg. 55(1) clearly prohibits probationary licence holders from driving a motor vehicle without P plates facing out from the front and the rear. The reg. specifically excludes ‘tractors’ from the prohibition in the sub-regulation. It is submitted that the only difference between the requirement to display a P plate on a motor cycle and any other vehicle is the placement thereof. That is to say, it is inferred that a P plate is not required to be displayed on the front of a motor bike; however, a motor cycle is not exempt from displaying a P plate. In other words, a motor cycle is not exempt from sub-regulation 55(1) and not exempt from the overall prohibition of reg. 55(1).
And further:
It is submitted that reg. 55(1) amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the regulation. Thus, the general rule applies, the prosecution has the onus of proof, and Clause 4 of Schedule 1 of the CPA does not apply. The prosecution is obliged to prove the accused was not driving a tractor and that the vehicle was not a motor cycle.
The DPP did not take issue with the proposition that in every case, the prosecution needs to plead and prove the essential elements of the relevant offence. Here, the question is whether the phrase ‘other than a motor cycle’ is an essential element of the offence, or is an exception. If it is the latter, then the fact that the motor vehicle driven by the applicant was an exception means that it did not have to be specified in the charge.
The DPP submitted, in summary, as follows:
(a) the charge was valid, as the phrase ‘is not a motor cycle’ is not an essential element of the charge, and thus there is no legal requirement for the charge to specify that the vehicle in question is not a motor cycle;
(b) clause 4 of Schedule 1 of the CPA provides that ‘any exception, exemption, proviso, excuse or qualification need not be specified or negatived in a charge’.
The DPP submitted:
The expression ‘other than a motorcycle’ creates an exception to the general offence that applies to all vehicles under regulation 55(1)(b). By the operation of clause 4 of Schedule 1 of the CPA, that exception did not need to be specified or negatived in the charge. It is not an element of the charge by operation of that legislative provision.
Counsel for the DPP referred to the Oxford English Dictionary definition of ‘other’, which includes: ‘separate or distinct from that or those already specified or implied; different(ence) further, additional’. Further, ‘other than’ is defined as: ‘besides, except, apart from’.
Accordingly, the DPP submitted, one only needs to rely upon the basic principles of natural language interpretation to conclude that there is no material difference between the phrase ‘other than a motor cycle’ with ‘except for motor cycles’ or ‘not including motor cycles’.
Counsel for the DPP submitted that the decision of the High Court in Chugg v Pacific Dunlop Limited[20] was not particularly helpful to the applicant in the current case, given that the legislation with which that decision was concerned bears no similarity to what is before the Court in the current proceeding. Further, the presence of r 55(3) does not assist the applicant: there are many ways in which exceptions can be formulated and expressed. In r 55(3), the exceptions concern types of people, while the exceptions in r 55(1) concern types of motor vehicles. The inclusion of exceptions in r 55(3) does not preclude there being other exceptions in r 55(1).
[20](1990) 170 CLR 249.
Discussion
There was no dispute between the parties regarding the principle that, if the fact that the motor vehicle driven by the applicant was not a motor cycle was an element of the charge, rather than an exception, the charge was invalid, and the application for judicial review must be allowed.
The observations of Jordan CJ in Ex Parte Lovell; ex parte Buckley and anor[21] (‘Lovell’) are instructive:
A magistrate has no jurisdiction to convict a person except for a statutory offence; and it is contrary to natural justice to convict a person of a statutory offence with which he has not been charged. Hence, in order to support a conviction for an offence, it is necessary either that the information and summons upon which it is based should accurately state the acts necessary to constitute all the ingredients of that offence, or else, if they do not, that the accused person should have been accurately charged orally before the magistrate and should have raised no objection to the absence of information or summons [a reference to procedure not applicable in Victoria] . . . If the magistrate convicts upon an information or charge which discloses no offence, or for an offence with which the accused has not been duly charged, the conviction is bad. [22] [emphasis added].
[21](1938) 38 SR (NSW) 153
[22]Ibid, 173. See also Goodey v Clarke (2002) 37 MVR 121 per Bongiorno J.
The determination of the issue in this proceeding involves the orthodox application of the principles of statutory construction. As explained by Higgins J in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd:[23]
The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it, and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.[24]
[23](1920) 28 CLR 129.
[24]Ibid, 161-162.
This is not a case where the Court’s task is assisted by more modern approaches to statutory construction than set out above. There is no ambiguity in the language used in r 55(1), no absurdity arises out of any particular construction of r 55(1), and, unlike in the case before Jane Dixon J, any analysis of the purpose of the Regulations provides no great assistance in determining whether the phrase ‘other than a motor cycle’ is an exception for the purpose of clause 4 of Schedule 1 of the CPA. Further, no assistance is able to be derived from any extrinsic materials, and no material changes were made in the successor regulations to the Regulations enacted in 2015 which shed any light on the question at hand. Accordingly, a linguistical analysis of the relevant provision, viewed as a whole, is appropriate.
It is clear from the language of r 55(1) that an essential element of the offence is that the motor vehicle in question must be a motor vehicle other than a tractor, and, the charge did in fact specify that the applicant’s motor vehicle was not a tractor. The question remains as to whether the use of the term ‘other than a motor cycle’ in r 55(1)(b) amounts to an exception within the meaning of clause 4 of Schedule 1, or is used to define the vehicle to which the additional requirement in r 55(1)(b) (being the fixing of a P plate to the front of the motor vehicle) applies. In other words, is it an essential element of the offence of not displaying a P plate on the front of the motor vehicle that the motor vehicle not be a motor cycle?
In my view, the matter is finely balanced, given the ordinary grammatical meaning of the words ‘other than a motor cycle’, which would, one might think, characterise that part of the regulation as an exception. However, when r 55(1) is viewed as a whole, it seems to me that r 55(1) creates two separate offences. First, in r 55(1)(a) it is an offence for any motor vehicle other than a tractor (including motor cycles) to fail to display a P plate at the rear of the vehicle. Further, under r 55(1)(b), it is an offence for a motor vehicle other than a motor cycle to fail to display a P plate at the front of the vehicle (r 55(1)(b)).
In my view, while the use of the term ‘other than a motor cycle’ is, on its face, exclusionary, when viewed within the context of r 55 as a whole, that phrase defines the type of vehicle to which the offence of failing to display a P plate at the front of the motor vehicle attaches, that is, a motor vehicle other than a tractor, and other than a motor cycle. As such, an essential element of the offence created by r 55(1)(b) is that the motor vehicle is not a motor cycle. Put another way, if a motor cycle rider was charged with failing to display a P plate at the front of the vehicle, the fact that the person charged was riding a motor cycle would not amount to an exception, exemption, proviso, excuse or qualification: rather, no such offence exists.
It was not suggested by the DPP that the current case is one where the missing ingredient (the fact that the motor vehicle driven by the applicant was not a motor cycle) can be implied into the charge by reason of the reference to r 55(1)(b) in the charge. However, for completeness, the following statement of Smith J in Alwer v McLean,[25] referred to by the judge in his reasons, provides a complete answer to any such suggestion:
While this reference provided an information from which the elements could be identified and in that sense protects the accused and informs the court, it seems to me that the law is clear that the information must describe the offence and so in a way in which the essential ingredients are spelt out. Considering the rationale behind the law, the accused and the court would not be able to identify the essential elements to be proved from the charge and information but would have to obtain the regulations and analyse them to establish all the elements of the offence to be proved. The law’s requirements, and the rationale underlying it prevent the respondent’s above solution being adopted. I note that the strict approach of the law and the justification for that approach were discussed by Kirby J in Walsh v Tattersall (1996) 139 ALR 27 at 51, 52. While in the circumstances of this case, a less strict approach may not have in fact caused an unfair trial, that is not the test. The law is of general application and must be applied.[26]
[25](2000) 32 MVR 126.
[26]Ibid [19].
The issue and the resolution of the issue in Alwer v McLean,[27] is succinctly summarised in the headnote to the reported decision of Smith J, as follows:
[27]Ibid.
The defendant was charged with and convicted of exceeding 60 km per hour on a section of a highway against reg 1001(1)(a) of the Road Safety (Traffic) Regulations 1988 (Vic). He appealed on the ground that the charge failed to specify what, if any, speed limit was applicable to that section of the highway.
Regulation 1001(1)(a) relevantly provided that a person must not drive a vehicle at a speed exceeding in a built up area (not being a speed zone, a local traffic precinct or a shared zone) 60 km per hour. Paragraphs (b)-(e) specify other speed limits. It was common ground that the alleged offence occurred in both a built up area and in a speed zone. Regulation 1001(1)(c) applied to a speed zone. The charge did not specify whether the alleged offence occurred in a built up area or in a speed zone.
Held, allowing the appeal:
(i)Regulation 1001(1) attempts to create mutually exclusive zones and areas to which different speed regimes are to be applied. Each of the subparagraphs creates and defines distinct offences.
(ii)The charge against reg 1001(1)(a) should have specified that it was in a built up area.
(iii) The charge failed to specify an essential ingredient.[28]
[28]Ibid.
His Honour considered that the question of whether the relevant regulations created a series of mutually exclusive offences was critical to the question of whether the charge before him was valid. The statement in his Honour’s reasons reproduced in paragraph 47 above acknowledges that while there was (as in this case) no particular unfairness to the accused by reason of the defect in the charge, the law must be strictly applied.
A similar issue was faced by Bongiorno J in Goodey v Clarke,[29] where his Honour held that the offence created by s 55(1) of the Road Safety Act 1986 (Vic) (‘RSA’), which concerned a failure to provide a breath sample to test for a motorist’s blood alcohol level, was a separate offence to that contained in s 55(2A) of the RSA, which concerned a failure to provide further breath samples in certain circumstances. Section 49(1)(e) of the RSA made it an offence for a person to comply with a requirement made under, among others, ss 55(1) and (2A). Notwithstanding the fact that a failure to meet those requirements, or either of them, constituted an offence under s 49(1) of the RSA, Bongiorno J held that s 55(1) and (2A) created separate offences. His Honour rejected a submission advanced on behalf of the prosecution that a more liberal approach to the construction of a charge laid under s 49(1) of the RSA should be taken, given the clear legislative intention of taking measures to deal with the major social problem of drink driving, stating:
That major social problem is one which the legislature has addressed and in respect of which the court should be careful to ensure that its decisions reflect the intentions of the legislature in proscribing such conduct and ensuring that those who commit it are properly dealt with. But that is not to say that the ordinary rules of criminal pleading on those safeguards which exist for the protection of all with respect to criminal matters should be thrown out.[30]
[29](2002) 17 MVR 121, upheld on appeal: see Clarke v Goodey [2002] VSCA (8867 of 2002).
[30]Ibid, 123.
Similarly, in Stanojlovic,[31] the Court of Appeal recognised that r 55(1) served an important role in ensuring that inexperienced drivers are capable of being readily identifiable on public roads, and to enable the police to identify the status of drivers and to enforce the regulations peculiar to probationary drivers. However, the fact that the omission in the charge of any reference to the applicant’s motor vehicle being a vehicle other than a motor cycle may be considered a relatively trivial matter, resulting in no great unfairness to the applicant, does not alter the position that r 55(1)(a) and r 55(1)(b) create separate offences, and the ordinary rules of criminal pleadings must be complied with.
[31](2018) 84 MVR 386.
Accordingly, despite the exclusionary language used in r 55(1)(b), I consider that, in bringing a charge under r 55(1)(b), the charge must specify that the motor vehicle concerned must be a motor vehicle other than a tractor, and a motor vehicle other than a motor cycle. It would not be necessary to do so where the offence of failing to display a P plate at the rear of the vehicle was the subject of a charge: the only essential element of that offence is that the motor vehicle be a motor vehicle other than a tractor.
Further, contrary to the submissions advanced by the DPP, I agree that the reference to the phrase ‘other than a motor cycle’ being included in r 55(1)(b), rather than in r 55(3), is relevant to the statutory interpretation issue the Court is concerned with here. As stated by the plurality in Chugg v Pacific Dunlop Ltd:[32]
… if a matter accompanies the description of an offence, then it would ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of poof.[33]
[32](1990) 170 CLR 249.
[33]Ibid, 258.
The plurality then went on to observe that:
If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.[34]
[34]Ibid, 258-9.
In the current case, the phrase ‘other than a motor cycle’ accompanies the offence created by r 55(1)(b) of the Regulations. Further, the fact that the motor vehicle driven by the applicant was not a motor cycle is not a matter which is peculiarly within the knowledge of the applicant: it was directly observable by the informant.
As a consequence, the charge was invalid, and the decision of the judge to uphold the decision of the Magistrates’ Court to convict the applicant should be quashed.
I shall hear further from the parties on the appropriate form of orders, and the question of costs.
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