Talbot v Police - [2005] SASC 94

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TALBOT v POLICE
Judgment of The Honourable Justice Duggan
23 March 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - OTHER OFFENCES
Appeal against sentence on charge of drive while disqualified - plea of guilty - whether appellant aware of disqualification - appellant's awareness of the disqualification was a matter of aggravation and relevant to question of penalty - as a contested circumstance of aggravation it should not have been taken into account unless proved beyond reasonable doubt - appeal allowed, sentence of imprisonment set aside and matter remitted to Magistrates Court.
Motor Vehicles Act 1959 s 91, referred to.
Police v Cadd (1997) 69 SASR 150; Johns v Police [1998] SASC 6729, applied.
The Queen v Olbrich (1999) 199 CLR 270; Marker v The Queen [2002] WASCA 282, discussed.
El Sayed v Commissioner for Consumer Affairs [2002] SASC 416, considered.

TALBOT v POLICE
[2005] SASC 94
Magistrates Appeal

DUGGAN J. The appellant has appealed against the penalty imposed on him in the Adelaide Magistrates Court on an admitted charge of driving while disqualified contrary to s 91 of the Motor Vehicles Act 1959. The appellant was sentenced to imprisonment for seven days.
The appellant was apprehended while driving a vehicle in the Adelaide city area on 30 September 2004. The vehicle was stopped by police who observed that the appellant was not wearing a seat belt. When questioned, he said that his name was Robert Peter Talbot, the name of his brother.
Further enquiries revealed that the appellant had been disqualified from holding or obtaining a driving licence for the period from 1 June 2004 to 30 November 2004. The disqualification was a consequence of the appellant incurring an aggregate of 12 or more demerit points.
The presiding magistrate was also advised that the appellant had been dealt with in the Holden Hill Magistrates’ Court on 30 June 2004 for driving an unregistered and uninsured vehicle while disqualified. This offending took place on 10 June 2004.
The principal issue raised on appeal is whether the defence disputed the prosecution’s claim that the appellant was aware of the disqualification and, if there was a dispute, whether it was resolved satisfactorily by the court. The appellant’s awareness or otherwise of the disqualification was a matter clearly relevant to the question of penalty.
The magistrate appears to have proceeded on the basis that the appellant was aware of the disqualification. If the appellant’s awareness was a contested issue, the only way in which it could be resolved in the circumstances of the present case was by the calling of evidence in accordance with the principles discussed below. No evidence on the issue was led before the magistrate.
I received affidavits relating to the procedure at the hearing before the magistrate from the police prosecutor and counsel who appeared for the appellant at that hearing. They also gave evidence before me along with the appellant’s step-father who was present at the lower court hearing.
It is not in dispute that on the morning of the hearing before the magistrate the appellant pleaded guilty to the offence. It is also apparent that the magistrate directed a withdrawal of the plea after he had heard some of the submissions made by defence counsel.
In her affidavit dated 17 February 2005 the police prosecutor described what occurred after the plea of guilty was entered. She stated:
“I recall that there was then some discussion as to the basis of the appellant’s driver’s licence disqualification. This resulted in His Honour striking out the pleas as Mr Vagenas [defence counsel] had indicated that at the time of the offending the appellant did in fact have a current, valid, driver’s licence. His Honour held the matter in the list until 11.30 am that day to enable Mr Vagenas to take further instructions from the appellant and confirm the details of his driver’s licence.”
The evidence before me establishes that shortly after the plea of guilty was withdrawn the appellant, his counsel and his step-father went to Police Headquarters in Wakefield Street to enquire about the history of the appellant’s disqualification from driving. There they were given a document written out by one of the police officers on duty (Exhibit A1). The document records that the appellant had been disqualified from driving from 1 June 2004 to 30 November 2004. There had been a further disqualification, this time by the Magistrates Court, from 30 June 2004 to 6 July 2004. This was in relation to the earlier offence of driving while disqualified. It was also stated in the document that there had been an earlier disqualification from driving by reason of the incurring of demerit points and that this was for the period 15 July 2003 to 14 January 2004.
The matter was called on later in the day and the appellant again pleaded guilty to the offence of driving while disqualified, presumably because the enquiries at the police station left no doubt that he was disqualified from driving at the date of the alleged offence. Further submissions were made and the magistrate sentenced the appellant.
There was some confusion on the evidence taken before me as to what was said to the magistrate by defence counsel concerning the appellant’s awareness at the time of the offence that he was driving while disqualified.
Mr Vagenas said in evidence that, in the early stages of the proceedings before the magistrate, he informed the court that his client did not believe that he was disqualified at the time of the offending. When asked what he said to the magistrate he replied:
“I said to him that my client was unaware that he was disqualified during that period or during the day that the prosecutor was referring to; that he had previously been disqualified for driving, but was not aware that he had been disqualified for a second period of time, and the second period being the relevant time of that particular offence.”
In cross-examination he agreed that he submitted to the magistrate that the appellant’s conduct was not contumacious and that the appellant did not know he had been disqualified.
Mr Vagenas was asked whether he said anything to the court about the appellant’s state of mind when the court resumed after the enquiries with the police had been made. He said:
“I can’t recall other than saying I referred to the submissions that I had made earlier in the day.”
The police prosecutor said in evidence that during the morning sitting of the court she told the magistrate that the appellant had told police he was sorry he lied about his name and address, but he did so because he was disqualified and he was aware of that fact. She said she repeated that submission in the afternoon. The reference to the apology and the reason why the appellant is said to have lied about his name was not referred to by the prosecutor in her original affidavit.
I accept that both Mr Vagenas and the police prosecutor were truthful witnesses, but it is clear that both had difficulty in recalling these events. It is apparent that there was some confusion both at the hearing before the magistrate and in the attempts in the affidavits and oral evidence to recall what had been said. This is not surprising in view of the lapse of time and the difficulty in recalling events in one of many cases.
I am satisfied that Mr Vagenas did make a submission during the morning that the appellant was unaware that he had been disqualified at the time of the driving. I am also satisfied that the question as to whether the appellant had, in fact, been disqualified from driving at the relevant time also arose.
The latter issue was resolved following the enquiries made at the police station. It was ascertained that the appellant was, in fact, disqualified at the relevant time. However, although there is some doubt as to whether Mr Vagenas repeated during the afternoon hearing his earlier submission that the appellant was unaware he was disqualified, I am confident that he did not withdraw that submission. Accordingly, there remained a dispute as to the appellant’s state of mind at the time of the offence.
The magistrate’s remarks on sentence do not reveal with any precision how he dealt with the issue. The only reference he made to it was when he said:
“It is said that you were aware of the fact of that disqualification but that you drove nevertheless.”
In making this comment the magistrate seems to have done no more than note the prosecution submission. On the other hand, I think it is reasonable to draw the inference from his remarks as a whole that he accepted the prosecution submission.
In my view, the appellant’s awareness of the disqualification remained a live issue throughout the proceedings. It may be that it was lost in the discussion which occurred during the hearing concerning the dates of the disqualification.
I have said that the contested issue could not be resolved without the calling of evidence. This gives rise to questions of onus and standard of proof in a situation such as the present. In this respect it is appropriate to have regard to the remarks in the joint judgment of Gleeson CJ, Gaudron, Hayne and Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270 at 281:
“… it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say ‘if necessary’ because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.”
A distinction is drawn between aggravating and mitigating factors. In Markerv The Queen [2002] WASCA 282 Murray J said at [22]:
“The primary facts, as Burt CJ described them, extending beyond the elements of the offence, may be either aggravating factors which, in the Court’s opinion, increase the culpability of the offender: Sentencing Act s 7(1), or mitigating factors which, in the Court’s opinion, decrease the culpability of the offender or the extent to which he or she should be punished: Sentencing Act s 8(1). Aggravating factors must be proved by the Crown beyond reasonable doubt. Mitigating factors must be established by the offender on the balance of probabilities: Langridge v The Queen (1996) 17 WAR 346; R v Olbrich (1999) 199 CLR 270. Shortly put, what is stated from either side of the bar table may be accepted unless challenged. If challenged, it will be for the Crown to prove any aggravating circumstance upon which it wishes to rely, beyond reasonable doubt, and for the offender to prove any mitigating circumstance upon which he or she wishes to rely, on the balance of probabilities.”
See also El Sayed v Commissioner for Consumer Affairs [2002] SASC 416.
In my opinion, the appellant’s state of mind in relation to the existence of any period of disqualification is, in the circumstances of the present case, a matter of aggravation. Knowledge of disqualification is an essential, although not the sole ingredient, in contumacious conduct of the type relevant to penalty in cases of driving while disqualified: see Police v Cadd (1997) 69 SASR 150 at 179. It was necessary for the magistrate to consider whether the offence was contumacious in the sense discussed in Police v Cadd: Johns v Police [1998] SASC 6729. It is not apparent from his sentencing remarks that he did so. However he appears to have accepted the prosecution submission that the appellant was aware of the disqualification. This circumstance of aggravation was contested and should not have been taken into account unless proved beyond reasonable doubt.
The appeal will be allowed and the sentence of imprisonment will be set aside. The matter will be remitted to the Magistrates Court to be dealt with by another magistrate in accordance with these reasons.