Stephen Barratt v Ali Merhi
[2013] ACTSC 123
•25 June 2013
STEPHEN BARRATT v ALI MERHI
[2013] ACTSC 123 (25 June 2013)
Road Transport (Driver Licensing) Act 1999 (ACT)
Road Transport (General) Act 1999 (ACT)
Road Transport (Alcohol and Drugs) Act 1977 (ACT)
Road Transport (Driver Licensing) Regulation 2000 (ACT)
Legislation Act 2001 (ACT)
Magistrates Court Regulation 2009 (ACT)
Proudman v Dayman (1941) 67 CLR 536
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 1 of 2013
Judge: Nield AJ
Supreme Court of the ACT
Date: 25 June 2013
IN THE SUPREME COURT OF THE )
) No. SCA 1 of 2013
AUSTRALIAN CAPITAL TERRITORY )
Stephen Barratt
Applicant
v
Ali Merhi
Respondent
ORDER
Judge: Nield AJ
Date: 25 June 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal is allowed.
The order of Magistrate Mossop made on 14 December 2012 dismissing the information is set aside.
The respondent is guilty of the offence of driving a motor vehicle upon a public road on 18 March 2012 when his driver licence had been suspended by the Road Transport Authority.
The proceedings are remitted to the Magistrates Court on 28 June 2013 for mention to fix a date for the determination of a penalty for the offence.
The Director of Public Prosecutions is to pay the respondent’s costs of and incidental to the appeal, such costs to be agreed or, if not agreed, assessed in accordance with section 4(2) of the Magistrates Court Regulation 2009 (ACT).
The appellant is the Crown represented by the ACT Director of Public Prosecutions. The Crown has appealed from the dismissal of a charge brought against the respondent by the Director of Public Prosecutions for the respondent’s driving of a motor vehicle upon a public road on 18 March 2012 when his driver licence had been suspended by the Road Traffic Authority for three months from 16 January 2012 to 15 April 2012 in breach of section 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT).
The respondent is Mr Ali Merhi.
The circumstances which brought the respondent before the Magistrates Court are not really in dispute. Those circumstances are contained in Exhibits 1 to 9 inclusive admitted into evidence during the proceedings in the Magistrates Court. Taken from those exhibits, these are the circumstances.
On a date before December 2010, the exact date is not revealed by the evidence, the records of the Road Traffic Authority in its driver licence register were changed to record that the respondent’s home address was a home in Loma Rudduck Street, Forde, 2914, and that his address for service of notices was a PO Box in Mawson, 2607.
On 29 November 2010 the respondent committed a driving offence, the type of offence is not revealed by the evidence. On 2 December 2010 a traffic infringement notice was posted to the respondent. The notice was sent to the respondent at the PO Box in Mawson, ACT, 2607. The notice was presumed to have been served on the respondent on 9 December 2010. On 10 January 2011 a reminder notice was sent to the respondent at the PO Box. The reminder notice was presumed to have been served on the respondent on 17 January 2010. On 17 February 2011 a second reminder notice was sent to the respondent at the PO Box. On 13 May 2011 the penalty imposed by the Traffic Infringement Notice and an administration fee were paid. The respondent incurred one demerit point for this offence. I assume that, in some way, the traffic infringement notice or one of the reminder notices came to the attention of the respondent sometime before 13 May 2011.
On 9 May 2011 the respondent committed another driving offence. Again, the type of offence is not revealed by the evidence. On 12 May 2011 the traffic infringement notice was posted to the respondent. Again, the notice was sent to the respondent at the PO Box in Mawson, 2607. The notice was presumed to have been served on the respondent on 19 May 2011. However, on 13 May 2011 the penalty imposed by the traffic infringement notice was paid. The respondent incurred another demerit point for this offence. Again, I assume that, in some way, the traffic infringement notice came to the attention of the respondent on 13 May 2011.
On 30 September 2011 the respondent committed a third driving offence. The offence was driving a motor vehicle at a speed in excess of the applicable speed limit by more than 15 but less than 30 kilometres per hour. After being stopped by police, he was issued with a traffic infringement notice. He failed to pay the penalty imposed by the notice. On 10 November 2011 a reminder notice was sent to him by post at the PO Box in Mawson, 2607. The reminder notice was presumed to have been served on him on 17 November 2011. On 15 December 2011 the penalty imposed by the notice and an administration fee were paid. The respondent accrued six demerit points for this offence. I note that, although, as I have said, the penalty and administration fee were paid on 15 December 2011, the respondent denies having received or seen the traffic infringement notice.
On 19 December 2011 the Road Transport Authority of the ACT sent a notice to the respondent at the PO Box informing him that, as he had incurred eight demerit points, his provisional driver licence would be suspended for three months commencing on 16 January 2012. The respondent denied having received or seen this letter.
At about 3.55 am on 18 March 2012 Sergeant Bird caused a motor vehicle, which was being driven by the respondent, to be stopped because he had seen that the vehicle’s hazard lights were on and then they were off. He spoke with the respondent, who, when requested, produced an ACT provisional driver licence. While speaking with the respondent, he was joined by Constable Fitzroy and Constable Barratt. On checking with ACT Policing Operations, he ascertained that the respondent’s driver licence had been suspended because of accrued demerit points. When speaking further with the respondent, he noticed alcohol on the respondent’s breath, and he asked Constable Fitzroy to conduct a breath test for alcohol on the respondent.
When asked by Sergeant Bird, Constable Fitzroy subjected the respondent to a breath test for alcohol. The test was positive for alcohol on the respondent’s breath in excess of the prescribed concentration of alcohol on the breath. Constable Fitzroy and Constable Barratt took the respondent to Tuggeranong Police Station for breath analysis. At the police station, Constable Barratt subjected the respondent to breath analysis for the concentration of alcohol on his breath. The concentration of alcohol on the respondent’s breath was 0.63 grams of alcohol per 210 litres of breath. Constable Barratt issued a notice, pursuant to section 61(b) of the Road Transport (General) Act 1999 (ACT), to the respondent suspending his driver licence effective immediately for 90 days.
Later, on 18 March 2012 the respondent was charged with:
(1) Driving a motor vehicle while his driver licence was suspended, contrary to section 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (CC 2741/2012), and
(2) Driving a motor vehicle with the prescribed concentration of alcohol on his breath, contrary to section 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (CC 2740/2012).
In due course, on 6 December 2012 the respondent appeared before Magistrate Mossop (as Master Mossop then was) in the Magistrates Court on the hearing of the charges. He pleaded not guilty to the first charge, that of driving a motor vehicle while his driver licence was suspended, and guilty to the other charge, that of driving a motor vehicle with the prescribed concentration of alcohol on his breath. Magistrate Mossop heard evidence from Constable Barratt, who repeated what he had said in his statement, and Ms Benn-Clibbon, the manager of Operations from the Road Transport Authority of the ACT, who gave evidence about the procedures of the Authority relating to the issue of traffic infringement notices and suspension notices and to the accrual of demerit points, both called by the Crown Prosecutor, and the respondent, called by his solicitor, who said that the PO Box in Mawson was a post office box held by his father, that, if mail came to that post office box addressed to him, his father’s secretary would give it to him and that he had not received or seen either the traffic infringement notice related to the offence of 30 September 2011 or the Authority’s letter suspending his driver licence. Then Magistrate Mossop heard submissions from the Crown Prosecutor and the respondent’s counsel, after which he reserved his judgement related to the charge of driving a motor while the respondent’s driver licence was suspended. I comment that the respondent must have seen and received the traffic infringement notice as it was handed to him by police after the vehicle he had been driving had been stopped by police.
The respondent’s solicitor submitted that, as the respondent did not receive the Authority’s letter suspending his driver licence, the respondent did not have knowledge of the suspension of his driver licence, and he drove the motor vehicle on 18 March 2011 in the belief that he had a valid driver licence. The respondent’s solicitor submitted that the so-called Proudman v Dayman (1941) 67 CLR 536 defence of honest and reasonable belief was applicable to the respondent’s circumstances.
The Crown Prosecutor submitted that, if the respondent was mistaken about the suspension of his driver licence, then the mistake was one of law, not one of fact but, if the mistake was one of fact, then the respondent did have an honest and reasonable belief as to that fact.
On a date after 6 December 2012 and before 12 December 2012 Magistrate Mossop invited submissions from the Crown Prosecutor and the respondent’s solicitor as to whether service of the letter suspending the respondent’s driver licence by sending it by prepaid post to the post office box was effective service for the purposes of the Road Transport (Driver Licensing) Regulation 2000 (ACT).
On 12 December 2012 both the Crown Prosecutor and the respondent’s solicitor filed written submissions with Magistrate Mossop. The Crown Prosecutor submitted that service of the letter by posting it to the post office box nominated by the respondent was valid service of it. The respondent’s solicitor submitted that, if service of the letter by posting it to the post office box was “effective” service of it, the presumption of effective service was displaced by the respondent’s evidence which, if accepted, would allow Magistrate Mossop to find that it had not been served.
On 14 December 2012 Magistrate Mossop gave his judgement. He posed these questions for himself:
(1) Whether or not the defendant was effectively served with a notice giving him notice of the suspension of his licence.
(2) If he was effectively served, whether or not any mistake that the defendant made was a mistake of law that does not exculpate him from the liability for the offence.
(3) If not, whether or not any mistake that the offender made was an honest and reasonable one.
He concluded that:
(1) An address for service of a notice under sections 124 and 125 of the Road Transport (Driver Licensing) Regulation 2000 (ACT) must be an address obtained by the Road Transport Authority under section 139 of the Regulation.
(2) The respondent’s post office box at the Post Office in Mawson was not an address for service of notices.
(3) The notice of suspension of the respondent’s provisional driver licence was not served at the respondent’s “home address”.
(4) If the notice had been validly served, the respondent’s belief that he held a provisional driver licence, even if honest, would not have been a reasonable belief.
On 11 January 2013 the Director of Public Prosecutions filed the Crown’s notice of appeal seeking orders that:
(1) The order of Magistrate Mossop made on 14 December 2012 that information CC 2714 of 2012 be dismissed be set aside; and
(2) The proceedings be remitted to the Magistrates Court for hearing to be determined according to law.
The Crown’s notice of appeal specified that the grounds of appeal were that Magistrate Mossop erred:
(a) in the construction of section 9B of the Road Transport (General) Regulation 2000 (ACT);
(b) in the construction of section 139 of the Road Transport (Driver Licensing) Regulation 2000 (ACT);
(c) in finding that the post office box was not a statutory address for service of the notice,
(d) in finding that section 139 of the Road Transport (Driver Licensing) Regulation 2000 (ACT) was not applicable; and
(e) in failing to apply section 247 of the Legislation Act 2001 (ACT).
On 30 April 2013 the Crown’s appeal came on for hearing by me. The Crown Prosecutor relied upon his written submissions, which he handed to me, and the respondent’s counsel relied upon his instructing solicitor’s written submissions filed with Magistrate Mossop on 12 December 2012. After hearing submissions, I stood over the appeal to a date to be fixed for my judgement.
The respondent was charged with an offence contrary to section 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) which provides:
(2) A person whose Australian driver licence is suspended by a court in Australia or under the law of any jurisdiction must not—
(a) drive a motor vehicle on a road or road related area during the period of suspension except in accordance with a restricted licence issued to the person.
The reason for the respondent being charged with an offence contrary to section 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) was that his driver licence had been suspended for three months from 16 January 2012 by the Road Transport Authority of the ACT because he had accrued eight demerit points for the driving offences committed on 29 November 2010, 9 May 2011 and 30 September 2011.
Division 2.3 of the Road Transport (Driver Licensing) Act 1999 (ACT) provides a “demerit points system”. Section 22, which relates to, inter alia, a holder of a provisional driver licence, provides that:
(1) The regulations may make provision in relation to—
(a) the issue (including renewal), suspension or cancellation by the road transport authority of a learner licence, probationary licence, provisional licence or restricted licence (a relevant licence) if the applicant for the licence incurs the prescribed number or more of demerit points for the licence; or
(b) the suspension or cancellation by the authority of any other driver licence if the holder of the licence has incurred the prescribed number or more of demerit points for a relevant licence held by the person; or
(c) the suspension or cancellation by the authority of an additional provisional class of a driver licence if the holder of the licence incurs the prescribed number or more of demerit points for the additional provisional class.
(2) Without limiting subsection (1), a regulation may make provision in relation to—
(a) warning, suspension and cancellation notices in relation to demerit points; or
(b) periods of suspension and periods of inability to obtain a driver licence; or
(c) the circumstances when suspension rather than cancellation may be imposed; or
(d) disregarding demerit points, or deleting demerit points from the demerit points register, and the circumstances when such action may or must be taken; or
(e) other consequences for a person in relation to demerit points incurred by the person.
Division 8.1 of the Road Transport (Driver Licensing) Regulation 2000 (ACT) provides for the taking into account of demerit points incurred by, inter alia, a holder of a provisional driver licence. Section 124 provides that:
(1) This section applies to a person if the person incurs the relevant number or more demerit points within the previous 3 years while the person is the holder of a learner or provisional licence issued by the road transport authority.
(2) The road transport authority must serve a notice of licence suspension on the person under section 125.
(3) If the person's licence is already suspended (the current suspension ) under a territory law, before serving a notice of licence suspension the road transport authority must serve a notice on the person stating that—
(a) the person has incurred the demerit points; and
(b) the licence suspension under section 125 is additional to, not concurrent with, the current suspension; and
(c) the person will be served with a notice of licence suspension under section 125.
(4) Failure to comply with subsection (3) does not affect the validity of anything done by the road transport authority or a court.
(5) In this section:
previous 3 years means the 3 year period ending on the day when the person last committed an offence for which demerit points have been recorded against the person.
“relevant number”, of demerit points, means—
(a) for a learner licence—12; or
(b) for a provisional licence—
(i) if the holder has provided evidence (under section 36 (3) (b) or section 37 (3) (b)) acceptable to the road transport authority that the person has successfully completed an approved provisional driver training course—8; or
(ii) if the holder is at least 26 years old and has held a provisional licence for at least 6 months—8; or
(iii) in any other case—4.
As section 124 of the Road Transport (Driver Licensing) Regulation 2000 (ACT) requires, a notice of licence suspension must be served on the holder of the provisional driver licence. The notice of licence suspension must comply with section 125 which provides that:
(1) A notice of licence suspension served on a person by the road transport authority under this section—
(a) must state the date of the notice; and
(b) must state details of the demerit points recorded in the demerit points register taken into account for the notice; and
(c) must state the date, not earlier than 21 days after the notice is served on the person, when the suspension of the person’s driver licence is to begin (the date of effect); and
(d) must state the period of licence suspension; and
(e) may include any additional information the road transport authority considers appropriate.
(2) The period of licence suspension is 3 months, beginning on the date of effect.
(3) If the person is served with a notice of licence suspension under this section, any driver licence held by the person is suspended for the period of licence suspension even though the person may not have incurred the relevant number of demerit points under the Act (or this regulation) for the suspension of the kind of driver licence held by the person.
(4) A person whose driver licence is suspended under this section is not entitled to apply for, or be issued with, a restricted licence during the suspension period.
(5) At the beginning of the period of licence suspension under this section, all demerit points recorded in the demerit points register on the date of the notice of licence suspension under this section, and taken into account for the notice, are taken to be deleted.
(6) Subsection (5) does not prevent the road transport authority from keeping records of deleted demerit points.
The dictionary to the Road Transport (Driver Licensing) Regulation 2000 (ACT) defines “address for service of notices” to mean “the address for the service of notices mentioned in section 139(2).”
Section 139 of the Road Transport (Driver Licensing) Regulation 2000 (ACT) is headed “Home address and addresses for services” and provides that:
(1) For this regulation, the home address of an applicant for the issue of a driver licence, or of the holder of a driver licence, must be an address in the ACT where the road transport authority can ordinarily make personal contact with the person.
(2) If there is no postal service to the person's home address, the person must also give to the road transport authority an address for the service of notices.
In my view subsection (2) means that, if there is a postal service to the person’s home address, then the person need not, but may, give an address for the services of notices, but, if there is not any postal services to the person’s home address, then the person must give an address for the service of notices. I think that, if the person has a home address to which there is a postal service, and, nevertheless, the person gives an address other than the home address for the service of notices, then notices may be served at either address.
However, as to “service of documents”, section 245 of the Legislation Act 2001 (ACT) provides that:
This part applies to a document that is authorised or required under a law to be served (whether the word ‘serve', ‘give', ‘notify', ‘send' or ‘tell' or any other word is used).
And section 247 of the Act provides that:
(1) A document may be served on an individual—
(a) by giving it to the individual; or
(b) by sending it by prepaid post, addressed to the individual, to a home or business address of the individual; or
(c) by faxing it to a fax number of the individual; or
(d) by emailing it to an email address of the individual; or
(e) by leaving it, addressed to the individual, at a home or business address of the individual with someone who appears to be at least 16 years old and to live or be employed at the address.
(2) This section applies to service of a document outside the ACT in the same way as it applies to service of the document in the ACT.
Subsection (1)(b) provides for the services of a document, which includes a notice, upon an individual by sending it by prepaid post addressed to the individual to a home address or to a business address of the individual. I comment that a person who has a home address may have an address for service of notices, i.e. a post office box address, although the person does not have a business address.
For the purposes of section 247 of the Legislation Act 2001 (ACT), section 246 of the Act defines “business address” to mean:
"business address", of an individual, corporation or agency in relation to anything done or to be done under a law, includes the latest business address, or address for service of notices (however described), of the individual, corporation or agency (if any) recorded in a register or other records kept by the administrator of the law.
and “home address” to mean:
"home address", of an individual in relation to anything done or to be done under a law, includes the latest home address, or address for service of notices (however described), of the person (if any) recorded in a register or other records kept by the administrator of the law.
And, curiously, the dictionary to the Act defines “home address” to mean “for an individual, the address of the place where the individual usually lives.” Accordingly, both “home address” and “business address” includes “address for services of notices.”
As to when a document is taken to have been served, section 250 of the Legislation Act 2001 (ACT) provides:
(1) A document served by post under this part is taken to be served when the document would have been delivered in the ordinary course of post.
(2) However, subsection (1) does not affect the operation of the Evidence Act 2001.
(3) If the sender has no reason to suspect that a document served by fax or email under this part was not received by the recipient when sent, the document is presumed to be served when sent unless evidence sufficient to raise doubt about the presumption is given.
(4) For subsection (3), the sender has reason to suspect that a document served by fax or email under this part was not received by the recipient when sent only if, on the day the document was sent or on the next working day, the equipment the sender used to send the document indicated by way of a signal or other message that—
(a) the equipment did not send the document when the equipment was used to send the document; or
(b) for a fax—the number to which the fax was sent to the recipient was not a fax number of the recipient; or
(c) for an email—the address to which the email was sent was not an email address of the recipient.
(5) A document addressed to the recipient, and left for the recipient as mentioned in section 247 (e), section 248 (e) or section 249 (e), is taken to be served when it was left.
(6) In this section:
recipient for a document, means the individual, corporation or agency on whom the document is intended to be served.
sender for a document served, or to be served, by fax or email, means the person sending, or seeking to send, the document.
However, it must be noted that the section does not apply to a notice given under the road transport legislation.
Section 251 of the Legislation Act 2001 (ACT) must not be overlooked or ignored. This section provides that:
(1) This part does not affect the operation of any other law that authorises or requires service of a document otherwise than as provided under this part.
(2) Despite this part, a law (or, if the law is an Act, a regulation under the Act) may provide—
(a) that a document of a particular kind may or must be served (however described) only in a particular way or to a particular address or number; or
(b) for the date (or date and time) when service (however described) of a document is taken to have been made.
Thus, if another law makes provision for the service of notices in a particular way, then that law prevails over the provisions of the Legislation Act 2001 (ACT).
Therefore, section 9B of the Road Transport (General) Regulation 2000 (ACT) must be considered. This section provides that:
(1) This section applies to a notice given to a person under the road transport legislation if the notice is sent—
(a) by prepaid post; and
(b) either—
(i) to the person’s home address; or
(ii) if the person has an address for service recorded in a road transport authority record or register—the address for service.
(2) The notice is taken to be given to the person when it is received at the address.
(3) In a proceeding before a court, it is presumed that the notice is—
(a) posted 4 working days after the date of the notice, unless evidence sufficient to raise doubt about the presumption is given; and
(b) received 4 working days after the notice is posted, unless the contrary is established.
(4) The Legislation Act, section 250 (1) does not apply to a notice given under the road transport legislation.
(5) In this section:
road transport authority record or register means—
(a) the demerit points register or driver licence register kept under the Road Transport (Driver Licensing) Act 1999; or
(b) the registrable vehicles register kept under the Road Transport (Vehicle Registration) Act 1999; or
(c) the CTP insurer licence register kept under the Road Transport (Third Party Insurance) Act 2008; or
(d) any other record kept by the authority under the road transport legislation.
It must be noted that this section applies specifically to a notice given to a person under the road transport legislation when the notice is sent by prepaid post to the person’s home address or to an address for service if the person has an address for service recorded in a Road Transport Authority record or register. This section creates a presumption, which may be rebutted, that a notice send by prepaid post is posted within a specified period of time, namely four days, after the date of the notice, and that the notice is received at the address to which it is sent, either the home address or the address for service, within a specified period of time, namely four days, after it is posted.
Turning now to consider the facts of the subject appeal.
The first question is this: How may a notice given under the road transport legislation be served upon the respondent?
In my view, a notice, whether or not a notice under the road transport legislation, may be served, inter alia, by sending it by prepaid post addressed to the person, upon whom it is to be served, to a home address or to a business address of the person, as provided for by section 247(1)(b) of the Legislation Act 2001 (ACT). Accordingly, the posting by prepaid post of the notice of suspension of provisional driver licence sent by the Road Transport Authority to the respondent was a valid method of service of the notice.
The second question is: What is the home address of the respondent?
In my view, the “home address” of an individual is “the address of the place where the individual usually lives”, as stated in the dictionary to the Legislation Act 2001 (ACT) and, “of an applicant for the issue of a driver licence or of the holder of a driver licence” is, “an address in the ACT where the Road Transport Authority can ordinarily make personal contact with the person”, as stated in section 139(1) of the Road Transport (Driver Licensing) Regulation 2000 (ACT). However, as I have already noted, both “home address” and “business address” are defined by section 246 of the Legislation Act 2001 (ACT) to include, for the purposes of section 247 of the Legislation Act 2001 (ACT), an “address for service of notices.” Accordingly, I think that, if a person or a business provides an address for service of notices in addition to the person’s home address or the business’ business address, then a notice may be served at either the home address or the address for service of the person or the business address or the address for service of the business.
I know that many people who have a home address, that is the place where the person usually lives and the place where an authority may make personal contact with the person, also have an address for the receipt of letters, invoices, bank statements, credit card statements and the like by post, that is a post office box. Some people prefer to have their mail delivered to a post office box for privacy and security. I think that, if a person who has a home address, to which there is a postal service, gives a post office box as an address for service, then service of notices may be made by sending the notice by prepaid post to the post office box. Accordingly, the “home address” of the respondent includes “an address for services of notices.”
The third question is this: Is the respondent’s home address and/or address for services of notices recorded in a Road Transport Authority record or register?
Section 14 of the Road Transport (Driver Licensing) Regulation 2000 (ACT) requires the Road Transport Authority to keep a driver licence register recording, inter alia, the person’s full name, sex, date of birth, home address and, if applicable, address for services of notices in relation to each driver licence that it issues. I do not doubt that the Authority has a register recording those particulars. The existence of the register is referred to the evidence of Ms Benn-Clibbon (see transcript, page 20, line 20). The register contains the respondent’s name, Ali Merhi; his sex, M for male; his date of birth, 29/08/1984; his home address, Loma Rudduck Street, Forde, 2914; his address for service, the PO Box in Mawson, 2607; his driver licence number, 2100904; the class of his licence, C; and the expiry date of his current driver licence, 18/04/13.
The last question is: When was the notice of suspension served?
The notice of suspension of the respondent’s provisional driver licence for his having accrued eight demerit points was posted on 19 December 2011 which was a Monday. Pursuant to section 9B(3) of Road Transport (Driver Licensing) Regulation 2000 (ACT), the notice posted on 19 December 2011 was presumed to have been received four working days after 19 December 2011, that is on Friday, 23 December 2011. The suspension was to take effect on 16 January 2012 for three months to and including 15 April 2012. Accordingly, I am satisfied that the notice was served on the respondent on 23 December 2011, more than 21 days before the date on which the notice was to take effect, as required by section 125(1)(c) of the Road Transport (Driver Licensing) Regulation 2000 (ACT).
In the result, I am satisfied that the notice of suspension of the respondent’s provisional driver licence was validly served on the respondent on 23 December 2011 by the Road Transport Authority sending it by prepaid post addressed to him at his address for service, the PO Box in Mawson, 2607.
As to whether the respondent had an honest and reasonable belief that he held on 18 March 2012 a valid provisional driver licence, although, from my reading of the transcript of the evidence, I would have a doubt about the truthfulness of the respondent’s evidence, I agree with Magistrate Mossop’s finding that the respondent’s belief was not a reasonably held one.
Accordingly, I make these orders:
(1) The appeal is allowed.
(2) The order of Magistrate Mossop made on 14 December 2012 dismissing the information is set aside.
(3) The respondent is guilty of the offence of driving a motor vehicle upon a public road on 18 March 2012 when his driver licence had been suspended by the Road Transport Authority.
(4) The proceedings are remitted to the Magistrates Court on 28 June 2013 for mention to fix a date for the determination of a penalty for the offence.
(5) The Director of Public Prosecutions is to pay the respondent’s costs of and incidental to the appeal, such costs to be agreed or, if not agreed, assessed, in accordance with section 4(2) of the Magistrates Court Regulation 2009 (ACT).
I certify that the preceding forty eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.
Associate:
Date: 27 June 2013
Counsel for the applicant: Mr M Fernandez
Solicitor for the applicant: ACT Director of Public Prosecutions
Counsel for the respondent: Ms R Bird
Solicitor for the respondent: Rachel Bird & Co
Date of hearing: 30 April 2013
Date of judgment: 25 June 2013
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