TAYLOR -v- ROGERS - [2013] WASC 391

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: TAYLOR -v- ROGERS [2013] WASC 391

CORAM: SIMMONDS J

HEARD: 24 JUNE 2013

DELIVERED : 28 OCTOBER 2013

FILE NO/S: SJA 1007 of 2013

BETWEEN: RONALD HOLT TAYLOR
Appellant
AND
PETER EDWARD ROGERS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :PE 54056 of 2012

Catchwords:

Criminal law and procedure - Appeal against conviction on plea of guilty in Magistrates Court of driving while under motor vehicle driver's licence disqualification - Request for adjournment to seek legal representation - Whether magistrate inappropriately provided legal advice to unrepresented accused leading to him plead guilty - Matter put before magistrate indicating possible defence - Whether miscarriage of justice - Whether substantial miscarriage of justice
Road traffic offences - Meaning of 'given' for the purposes of election under Road Traffic Act 1974 (WA) s 104J(4) to avoid motor vehicle driver's licence disqualification for excess demerit points

Legislation:

Acts Interpretation Act 1901 (Cth), s 28A, s 29
Corporations Act 2001 (Cth), s 109X(1)(a), s 459F
Criminal Appeals Act 2004 (WA), s 8, s 9, s 14
Criminal Code (WA), s 24
Interpretation Act 1984 (WA), s 75, s 76
Road Traffic Act 1974 (WA), s 49, 104I, s 104J, s 104K, s 104O, s 104R
Social Security Act 1947 (Cth), s 168

Result:

Appeal against conviction allowed

Category: B

Representation:

Counsel:

Appellant: Mr C L Hollett
Respondent: Mr J F Bennett

Solicitors:

Appellant: Bowen Buchbinder Vilensky
Respondent: State Solicitor for Western Australia

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

Bassett v Board [2011] WASC 317
Beattie v Prime [2002] WASCA 111
Borsa v The Queen [2003] WASCA 254
Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869
Carney v The State of Western Australia [2010] WASCA 90
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
F Hoffman‑La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183
Hogue v The State of Western Australia [2005] WASCA 102
Lasscock v Seidner [2013] WASC 94
Lim v Bateman [2001] WASCA 307
Lyster v Kemp [2010] WASC 47
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575
Murray v Northcott (1989) 97 FLR 393; [1990] WAR 219
Onus v Sealey [2004] VSC 396
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69
Pallett v Paul [2007] WASC 290
Re Monger; Ex parte Browne [2003] WASCA 281
Secretary, Department of Social Security v Garratt (1992) 109 ALR 149
Secretary, Department of Social Security v Sevel & O'Connell (1992) 38 FCR 540; (1992) 110 ALR 627
Tihanyi v The Queen [1999] WASCA 226; (1999) 21 WAR 377
Vella v The State of Western Australia [2006] WASCA 129
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Williams v Beverly (1998) 103 A Crim R 326
SIMMONDS J:

Introduction

This is an appeal by leave previously granted against conviction by a magistrate on a plea of guilty to a charge of an offence of driving with licence suspended for excessive demerit points (the charge).
In these reasons I first set out the background to the appeal.
I then describe the appeal including its ground, which as will be seen has seven particulars.
Next, I consider each of the particulars.
The last section of these reasons is my conclusion and call for orders.
I turn now to the background.

Background

The following matters are not in contest before me.
By prosecution notice PE 54056 of 2012 the appellant was charged that on 27 October 2012, at Burswood, contrary to Road Traffic Act 1974 (WA) s 49(1)(a) and s 49(3)(c), he drove the motor vehicle identified in the notice while not being a person authorised by pt IVA of the Road Traffic Act and whose authority to drive was at the time suspended (the offence).
On 11 December 2012, at the appellant's first appearance for the offence in the Perth Magistrates Court, the hearing was adjourned to 27 December 2012. This was to enable the appellant to obtain legal advice.
I note that the transcript of the hearing of 11 December 2012, only made available to me after the hearing of the appeal, shows that the appellant indicated to the magistrate, who was not the magistrate who heard the matter on 27 December 2012, that the adjournment was sought to enable the appellant to act on advice he had received at that earlier hearing from a duty lawyer. However, it is not apparent to me that anything turns on this.
On 21 December 2012 the Perth Magistrates Court received a letter from the appellant stating that his lawyer would not be available for the next hearing on 27 December 2012 and requesting a further adjournment so that the appellant might be represented.
On 27 December 2012, the appellant appeared self‑represented at the Perth Magistrates Court. He indicated to the magistrate, Magistrate Lane, that he wished to be represented. Ultimately, however, he pleaded guilty to the offence. I will return to the exchange between the appellant and the magistrate that preceded the taking of that plea.
Following the plea of guilty, and after brief submissions from the prosecutor, the magistrate invited the appellant to make a statement to the court and the following exchange ensued (27 December 2012, ts 4 ‑ 5):
TAYLOR, MR: Your Honour, the circumstances are that I bought a new car and I went to the Department of Transport to pay the appropriate fees. I was then told that my licence had totted up in March 2012 but I hadn't been informed. I had changed my address but I did have a redirection order and I can show the court the redirection order.
HER HONOUR: So you didn't get the demerit point suspension - - -
TAYLOR, MR: I was unaware that there had been a suspension. The person at the Department of Transport said, well look, you can elect to, for good behaviour double the points.
HER HONOUR: Yes.
TAYLOR, MR: But she said but before you do that, you should check that you don't have any fines outstanding.
HER HONOUR: Yes.
TAYLOR, MR: So I went back to my office immediately, contacted the fines registry because I didn't have the numbers. They confirmed there were no outstanding fines. I immediately went to the post office with the form they gave me. I took a copy which I have here, and they [sic I] wrote on the bottom, 'As per your advice, I confirm no fines outstanding. Check fines registry today'. Sent that immediately and then assumed, and I think fairly reasonably, that I was then able to drive on the basis of no points.
HER HONOUR: Did you receive any communication from them saying that they've received your letter and you could drive?
TAYLOR, MR: No, I did not. I honestly will swear on a stack of Bibles that I, as far as I was concerned, that advice - and I - sorry, I did take a copy of what I sent and I have it here and I can show the court.
The correction of the transcript above is to reflect what was not in contest that the appellant, not any one else, made the annotation in the post office.
The magistrate then stated '[o]n the basis of that' she imposed a sentence of a fine of $400 with $125.70 in costs and 9 months licence disqualification, cumulative on the disqualification for excessive demerit points (27 December 2012, ts 5).
It is not in dispute that the appellant's reference to going to the Department of Transport following his acquisition of the new car was to his visit to an office of the Department on 18 September 2012. At that time, the person who served the appellant had informed him that he had incurred 15 demerit points, which was in excess of the 12 demerit points that he was permitted to accrue on his driver's licence.
The appellant was then given a document entitled 'Excessive Demerit Points Notice Section 104I of the Road Traffic Act 1974 (as amended)' (the EDPN).
The EDPN included the following:
On 04/05/2012 you accumulated 15 demerit points and are now liable to a disqualification period of 3 months. The attached notice details the particulars of the offences and demerit points you have incurred.
Alternatively, instead of being disqualified, you may elect to continue driving subject to your compliance with a 'good behaviour period' for twelve months. In order to be eligible to undertake a good behaviour period, your licence must be current and not subject to cancellation, fines suspension or disqualification at the date of application. In addition, your application must be received within 21 days of service of this notice.
…
To elect for the good behaviour period option, you must complete the attached election form, which must be RECEIVED by the Director General within 21 days from the date of service of this notice ...
If you do not make an election, or your election is not received within the time period allowed, your disqualification will commence:
•28 days from the date of service of this notice; ...
Road Traffic Act s 104I in material part reads as follows:
(1)If the number of current demerit points recorded against a person in the demerit points register reaches at least 12, the Director General is to give the person, in accordance with section 104R, an excessive demerit points notice stating -
(a)the day on which that number of current demerit points was reached; and
(b)the number of current demerit points reached on that day; and
(c)the period of disqualification fixed under subsection (2); and
(d)the day on which the period of disqualification will commence if the person cannot, or for any other reason does not, make a section 104J election.
(2)The period of disqualification to be stated in the notice is -
(a)for less than 16 points, 3 months; …
and the day on which the period is stated to commence is to be the 28th day after the notice is given or a later day.
…
(4)If the person cannot, or for any other reason does not, make a section 104J election, the person is disqualified from holding or obtaining a driver's licence for the period of disqualification fixed under subsection (2).
Road Traffic Act s 104R provides, among other things, that an excessive demerit points notice is given in accordance with the section if it is given to the person to whom it is addressed personally. I return to it in more detail below.
It is not in dispute that the EDPN was a valid excessive demerit points notice. I will note below the appellant's complaint in respect of the form's use of the word 'received'. However, I did not understand the appellant to be pressing on me that the EDPN should be treated as if it had not been given.
It was also not in contest that, if the appellant had not made a Road Traffic Act s 104J election, then the period of disqualification for the purposes of s 104I commenced on 16 October 2012. Thus, on that assumption the period of disqualification was running at the time of the offence.
Finally, it was not in contest that the effect of Road Traffic Act s 104I(2) and (4) in that case was that the appellant was not authorised by pt IVA of the Road Traffic Act and his authority to drive was on 27 October 2012 suspended within s 49(1)(a).
Road Traffic Act s 104J in material parts reads as follows:
(1)A person who is given an excessive demerit points notice may, unless prevented by subsection (2) from doing so, avoid being disqualified from holding or obtaining a driver's licence because of the notice by making an election under this section for the year commencing when, having regard to section 104M, the period of disqualification specified in the notice would have commenced.
…
(3)By making a section 104J election the person elects not to commit, during the year for which the election is made -
(a)an offence for which 2 or more demerit points can be recorded under this Part against the person; or
(b)offences for which a total of 2 or more demerit points can be recorded under this Part against the person; or
(c)an offence for which the court convicting the person is required by law to disqualify the person from holding or obtaining a driver's licence; or
(d)an offence the conviction of which results in the person being disqualified by operation of this Act from holding or obtaining a driver's licence.
(4)The election is to be made in writing, in the form approved by the Director General, and given to the Director General within 21 days after the day on which the Director General gave the excessive demerit points notice.
(5)A section 104J election applies for the period ending at the end of the year for which it is made or, if the period ends earlier under this Part, until the earlier end of the period.
I note that Road Traffic Act s 104M, referred to in s 104J(1), has no application in this case.
The following matter from the affidavit of the appellant sworn 20 March 2013 in support of the appeal is also not in contest.
The appellant deposes that, after being told by the person at the office of the Department of Transport on 18 September 2012 that he should first check he had no fines outstanding before he could lodge his election ([10]), he had 'immediately' ([12]) returned to his office, where he contacted the Fines Enforcement Registry by telephone. The person the appellant spoke to in that telephone conversation had informed him he had no outstanding fines ([13]).
The appellant then '[i]mmediately … completed' the 'Application for Election for Good Behaviour Period (Section 104J Road Traffic Act 1974)' ([14]) which it is not in contest was a form attached to the EDPN (the application). After signing the application he dated it 18 September 2012 ([14]). He then posted the application 'by ordinary post to the address provided by the Department of Transport on the application' ([15]).
It is common ground that that address was, as stated in the appellant's affidavit of 20 March 2013 [15], Driver and Vehicle Services, GPO Box R1290, Perth, WA, 6844. It appeared not to be in contest that he posted the affidavit from the post office where he had written on the bottom of the form the words he quoted to the magistrate in the submission quoted above.
The appellant retained a copy of the application for his records ([15]).
The appellant's affidavit of 20 March 2013 also states that, by letter dated 11 December 2012 (the appellant's letter of 11 December 2012), prepared after the appellant had been charged with driving while not being authorised to do so, the appellant had written to the Department of Transport concerning the status of the application ([17]). That letter (annexure RHT3) enclosed a copy of the application.
It is not in contest before me that the Department of Transport had not received the application before it received a copy of it enclosed with the appellant's letter of 11 December 2012. I note for this purpose the affidavit of Dianne Lysle affirmed 21 May 2013 filed for the purpose of this appeal (the Lysle affidavit of 21 May 2013). Ms Lysle deposes (see [1]) she is the Manager of the Demerit Sanction Management in the Driver and Vehicle Services at the Department of Transport of Western Australia. From the Lysle affidavit of 21 May 2013 I note in the present respect [25] ‑ [28].
I turn now to the appeal.

The appeal

By appeal notice dated 24 January 2013 (the appeal notice), the appellant applied for leave to appeal against his conviction for the offence.
There was a single ground of appeal with seven particulars as follow:
1.There has been a miscarriage of justice in circumstances where:
•The Appellant requested a further adjournment of the charge for legal advice which request was refused by the Learned Magistrate.
•The Appellant informed the Learned Magistrate that he wanted to be represented by a solicitor but was not afforded that opportunity.
•The Learned Magistrate provided legal advice to the Appellant when it was not appropriate that she do so.
•The Learned Magistrate advised the Appellant that he was guilty of the charge as a matter of law in circumstances where such advice was incorrect.
•The Learned Magistrate failed to take into account that the Appellant had raised an arguable defence to the charge in that he had made an election pursuant to Section 104J of the Road Traffic Act and held an honest and reasonable, but mistaken, belief that his election permitted him to continue driving throughout the good behaviour period provided for by the election.
•The Learned Magistrate failed to inform the Appellant that he could enter a not guilty plea to the charge as an alternative to entering a guilty plea to the charge.
•The Appellant relied upon the advice provided to him by the Learned Magistrate in entering a guilty plea to the charge.
Criminal Appeals Act 2004 (WA) pt 2 governs this appeal. Criminal Appeals Act s 8 and s 9 in material parts read as follow:
8.Grounds for appealing
(1)An appeal may be made under this Division on one or more of these grounds -
(a)that the court of summary jurisdiction -
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
(2)An appeal may be made under this Division against a decision even if the decision was made after a plea of guilty or an admission of the truth of any matter.
…
9.Leave to appeal required in all cases
(1)The leave of the Supreme Court is required for each ground of appeal in an appeal under this Division.
(2)After an appeal is commenced, the Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.
By orders made on 26 February 2013, Hall J of this court granted leave to appeal in respect of the ground in the appeal notice.
I have for the purposes of the appeal the following documents among others:
•the appellant's affidavit of 20 March 2013;
•the Lysle affidavit of 21 May 2013;
•the appellant's outline of submissions and list of authorities dated 18 June 2013 (the appellant's written submissions);
•the respondent's outline of submissions and list of authorities dated 19 June 2013 (the respondent's first written submissions); and
•the respondent's supplementary submissions dated 21 June 2013 (the respondent's supplementary written submissions).
I note that no objection was taken to the admission of any part of the appellant's affidavit of 20 March 2013 or to any part of the Lysle affidavit of 21 May 2013, in the written or oral submissions in this appeal.
I turn now to consider each of the particulars of the ground of appeal, including the applicable law. I begin with the first particular.

Ground 1, first particular: refusal of request for adjournment

It is not in contest that at the commencement of the hearing before the magistrate on 27 December 2012 the appellant requested an adjournment on the basis his lawyer was unavailable and he wished to be legally represented. He did so in the following exchange, which occurred immediately after the matter was called.
In that exchange it is not in contest he referred to an undated letter from him to the Magistrates Court received on 21 December 2012 in which he stated his lawyer would 'not be available' on 27 December and requesting 'a further adjournment so that I might be represented' and which he offered to hand up to the magistrate.
That exchange between the appellant and the magistrate, following the calling of the matter and immediately preceding the appellant's entry of a plea of guilty, was the following (27 December 2012, ts 2 ‑ 4). I add certain emphases. I also separately label them, because of their importance not only in the present context but also in the context of my analysis of other particulars.
HER HONOUR: Yes, now Mr Taylor, this was adjourned from 11 December 2012 until today for you to enter your plea. Were you there on the last occasion?
TAYLOR, MR: Yes, I was, your Honour.
HER HONOUR: Okay. I wasn't quite sure. So are you ready to plead?
TAYLOR, MR: Your Honour, I wrote to the court. May I hand up - I haven't had a response.
HER HONOUR: You won't get a response if you wrote to the court because we don't respond to letters.
TAYLOR, MR: The point of my letter was to say that there was some confusion with my lawyer. I wanted to be represented.
HER HONOUR: So you want was suspended imprisonment order? Are you currently on a suspended imprisonment order?
TAYLOR, MR: No, no, not at all.
HER HONOUR: How many priors?
TAYLOR, MR: None, ma'am.
HER HONOUR: None, so why? For a first, the court doesn't normally imprison. Certainly for a third, fourth and fifth, they do.
TAYLOR, MR: There was some circumstances surrounding it that I wanted to bring to the court's attention [first set of remarks by the appellant emphasised].
HER HONOUR: Yes, that's fine. If you're pleading guilty that's called mitigation and then I'm happy to read the letter that you have written.
TAYLOR MR: The letter in fact referred to asking the court for an adjournment until such time as my lawyer was available. I - - -
HER HONOUR: You will not be gaoled for this if it's a first unless there are very aggravating circumstances such as high-speed chase with the police, stolen motor vehicle or anything like that [first set of remarks by the magistrate emphasised] because then it becomes part of the offending behaviour. If you've driven under suspension - was it a demerit point suspension?
TAYLOR, MR: Yes, it was, your Honour, but there was some confusion with the department over - - - [second set of remarks by the appellant emphasised]
HER HONOUR: There always is, unfortunately.
PROSECUTOR: Double or nothing, ma'am.
HER HONOUR: Yes, there's always a lot of confusion.
TAYLOR, MR: Yes, there was honest confusion [third set of remarks by the appellant emphasised].
HER HONOUR: And it is. Most people are honest about it but it's a question of law, not a question of fact [second set of remarks by the magistrate emphasised].
TAYLOR, MR: Yes, I mean I've never been in a court in my life. It's the first time I've ever appeared and I wanted to be represented.
HER HONOUR: In relation to this usually and with previous people, have been dealt all the same. If it's a plea of guilty at the first opportunity, I always impose the minimum unless there are aggravating circumstances and if it's a straightforward reason for it, confusion or misunderstanding in relation to receiving documents, then I usually just give the minimum that I can give. I can't go below it. I can certainly, certainly go above it [third set of remarks by the magistrate emphasised].
Even for a first, it carries a 12-month imprisonment term, but - it does, and for a second and third it carries 18 months and usually for your fourth - I start imprisoning on the third. Other magistrates on the fourth or the fifth but certainly the fifth, you're really looking at a significant term of imprisonment. Usually most people learn after the first and don't do it again.
TAYLOR, MR: Well, this has been a salutary lesson, I can tell you.
HER HONOUR: I'm sure it has. So what do you want to do, Mr Taylor?
TAYLOR, MR: Well, obviously I'll take your Honour's advice.
HER HONOUR: I'll put the charge to you.
TAYLOR, MR: I would prefer, to be honest, to be represented but if, as you've explained how it is, I will in that case then enter a plea of guilty with mitigation, if I may [fourth set of remarks by the appellant emphasised].
HER HONOUR: Yes. Now, what happens is I read the charge to you. You enter your plea of guilty. The sergeant reads the facts very briefly. Often they're just the same as the prosecution notice and then if you want to you can do your plea in mitigation on your own behalf [fourth set of remarks by the magistrate emphasised].
TAYLOR, MR: Yes, if I may.
HER HONOUR: Yes, absolutely.
TAYLOR, MR: I mean, I'm a bit of an amateur at this, but - - -

In my view, having regard to the fourth set of remarks by the appellant emphasised, the appellant was influenced to enter 'a plea of guilty with mitigation', without pressing a request for adjournment to enable him to have legal representation, by what the magistrate said to the appellant in the previous sets of remarks of hers I have emphasised. In my view the fourth set of remarks of the magistrate emphasised indicates she understood this.
However, it is not apparent to me that the magistrate refused the appellant's request for an adjournment so he could obtain legal advice.
Further, counsel for the appellant did not press on me that the magistrate had refused the request for an adjournment.
Rather, as I understood the submissions for the appellant, the magistrate ought to have granted the appellant an adjournment or changed the appellant's plea to not guilty or both in the circumstances addressed in the fourth and fifth particulars.
I reach those circumstances below.
However, I consider that the first particular has not been made out.
I turn now to the second particular.

Ground 1, second particular: denial of opportunity to be represented by solicitor

I approach the present particular first on the basis that it is contended there was a 'miscarriage of justice' within the meaning of Criminal Appeals Act s 8(1)(b) in the terms of the particular alone. Then I approach the present particular on the basis it is contended there was such a miscarriage by reference to the terms of the particular among other matters.
Approaching the present particular on the first basis, the difficulty for the appellant is that the authorities establish that the lack of legal representation itself, that is, without more, is not sufficient to constitute a miscarriage of justice. See Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 311 (Mason CJ & McHugh J), 343 (Dawson J), 356 (Toohey J); McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575, 579 (Barwick CJ).
However, those same authorities indicate that a lack of representation may with 'all the circumstances' of the case mean that a miscarriage of justice occurred. See Dietrich (311). Those other circumstances relied upon by the appellant in this appeal for that purpose, leaving aside the first particular, are the ones relied upon by the remaining particulars.
As will become apparent, I consider that a number of those particulars are made out. Those I consider made out are the third, fourth and seventh particulars. On that basis, there was a miscarriage of justice.
I turn to the third particular.

Ground 1, third particular: magistrate inappropriately provided legal advice to the appellant

For the appellant, it was contended that there was inappropriate legal advice provided by the magistrate in all of the sets of the remarks of hers emphasised in the passage from the transcript of 27 December 2012 quoted above under the first particular. The respondent without conceding the matter did not appear to strongly contest this.
In any event, it is not in contest that the presiding judicial officer should not provide advice to an unrepresented accused about the legal issues which might arise at a trial: see Dietrich (335) (Deane J).
Here I consider the magistrate provided advice of two kinds.
One kind of advice was as to the nature of the relevance of any confusion in the appellant's dealings with the 'department' to the appellant's guilt or innocence of the charge. See the second set of remarks by the magistrate emphasised.
The other kind of advice is the indications as to penalty in the first and third set of remarks by the magistrate emphasised.
I consider (without finally deciding) that it might be taken from the principle in Dietrich (335) that a presiding judicial officer should not provide an unrepresented accused with an indication of penalty, at least where that indication is calculated, as it appears to have been here, to affect the unrepresented accused's decision whether or not to plead guilty.
However, a presiding judicial officer's provision of such advice of either kind does not of itself mean a miscarriage of justice has occurred. Whether or not provision of such advice means that a miscarriage of justice has occurred depends upon such considerations as whether or not the advice had the potential to overbear an unrepresented accused's original intention to have a matter adjourned so that the accused might seek legal advice, at least in a context in which the accused had indicated he would defend the charge. See Onus v Sealey [2004] VSC 396 [36] ‑ [37] (Kaye J).
In Onus v Sealey an appeal against a decision of a magistrate was allowed on the basis that the appellant in those circumstances was denied 'natural justice' by the failure of the magistrate to adjourn the mention hearing when he had been asked to do so: see [45].
In this case, I accept Onus v Sealey is distinguishable on two of the five bases put forward by counsel for the respondent. However, as I will explain, those bases for distinction do not in the circumstances of this case lead me to the conclusion that the third particular is not made out.
One basis on which I agree Onus v Sealey is distinguishable is that the court there was concerned only with whether or not the appellant had been denied natural justice, not with whether a miscarriage of justice had occurred. I accept without deciding that it is not (yet) clear in this jurisdiction whether or not a denial of natural justice represents in every case a miscarriage of justice. See Carney v The State of Western Australia [2010] WASCA 90 [44] (Pullin JA); but see also [2] (Owen JA), and [201] (Jenkins J).
However, on my conclusions as to the fourth and seventh particulars, his lack of legal advice meant the appellant lost a real opportunity of acquittal of the charge. On my view of the advice of the magistrate in the second and third sets of quoted remarks of hers emphasised, read together, she indicated to the appellant that there was no such opportunity. I have previously indicated my view that the appellant was influenced by this advice to proceed to a plea of guilty without pressing a request for adjournment to enable him to have legal representation.
On those conclusions and that view I consider for the reasons explained under the fourth particular that a miscarriage of justice is shown in such circumstances.
The other basis on which I agree Onus v Sealey is distinguishable from this case is that there was no concern in the former for whether or not the appeal in that case might yet have been dismissed for lack of a substantial miscarriage of justice. See Criminal Appeals Act s 14(2) and Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [18] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
That provision is relied upon in this case. I consider it below, where I conclude that it is not engaged.
However I do not agree that Onus v Sealey is distinguishable on the remaining grounds the respondent put forward.
One of those bases was that the appellant in this case, unlike the other, had not sought to have an adjournment so he could obtain legal advice. Counsel for the respondent distinguished between legal advice and legal representation. He correctly pointed out that it was the latter, not the former, that the appellant referred to in his exchanges with the magistrate quoted under the first particular above.
However, it seems to me, for reasons I will develop in relation to the fourth particular, that the legal representation the appellant proposed to resort to would, in the discharge of the professional responsibilities of the representative, have advised the appellant in relation to the question of guilt, whether or not the legal representative was specifically asked for such advice.
Further, I do not agree that Onus v Sealey is distinguishable on the basis put forward by the respondent that the appellant had not clearly indicated an intention to plead not guilty. I consider that there was sufficient indication of the possibility of such a plea in the fourth set of remarks by the appellant emphasised.
Finally, I do not agree that Onus v Sealey is distinguishable on the basis that the advice of the magistrate in the present case did not have the 'potential to overbear the appellant's original intention to have the matter adjourned so [he] might seek legal advice [here, legal representation]' [36]. I have already indicated why I consider that the advice of the magistrate in this case influenced the decision of the appellant to enter a plea of guilty with mitigation. I consider that influence, while possibly not as strong as the conduct of the magistrate in Onus v Sealey, sufficient to make the latter decision of relevance to the present case.
I consider the third particular is made out.
I turn now to the fourth particular.

Ground 1, fourth particular: magistrate incorrectly advised appellant he was guilty of the charge

I have already quoted passages from the hearing on 27 December 2012 under the first particular in which the magistrate advised the appellant. I have considered the nature of that advice under the third particular.
I do not consider any of that advice was expressly to the effect of the fourth particular. However, I consider that advice in the second set of remarks by the magistrate emphasised, in the context of those remarks, was substantially to that effect.
The advice of the magistrate I consider to be substantially to that effect was that the matter, of the 'confusion' the appellant referred to which he wished to raise, was a question of 'law', not of 'fact', when read with the reference in the first sentence of the third set of remarks by the magistrate emphasised.
I consider the appellant was, as I have said, influenced by this advice to plead guilty.
It seems to me that the advice was at least to the effect that the beliefs of the appellant as to whether or not he was disqualified at the material time were irrelevant, as the matter of disqualification was a matter of law, not of fact. That on its face was not incorrect. See Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493.
However, I consider that the advice went further, as indicated in the exchange prior to the plea of guilty when the appellant raised the matter of confusion, and the exchange during the appellant's plea in mitigation immediately before the magistrate pronounced sentence on the appellant. I have previously quoted the first exchange, and will quote the second in its fuller context below. However, I quote both of them here for convenience (27 December 2012, ts 2 ‑ 3, 5):
TAYLOR, MR: … there was some confusion with the department over - - -
HER HONOUR: There always is, unfortunately.
PROSECUTOR: Double or nothing, ma'am.
HER HONOUR: Yes, there's always a lot of confusion.
…
HER HONOUR: Did you receive any communication from them saying that they've received your letter and you could drive?
TAYLOR, MR: No, I did not. I honestly will swear on a stack of Bibles that I, as far as I was concerned, that advice - and I - sorry, I did take a copy of what I sent and I have it here and I can show the court.
I take from that that the magistrate's advice earlier was to the effect that the question of whatever the appellant believed ('confusion') as to his having taken steps to avoid disqualification (as by an election) was irrelevant to his guilt or innocence of the charge. This was, although the magistrate did not prior to the plea of guilty set the matter out in these terms, because that matter turned as a matter of law on what the Director General had received and when, as to which the appellant had (prior to the plea of guilty) given the magistrate no indication and as to which the appellant (subsequently) indicated he had no notification of any receipt.
At the hearing before me the parties appeared to approach the fourth particular in the terms I have just described and addressed the issue of the correctness of that advice.
That issue was framed, as I understood it, in terms of whether or not upon the 'admitted facts' before the magistrate the appellant could not in law have been guilty of the offence.
It is clear law that where on the 'admitted facts' a person who has pleaded guilty could not in law have been found guilty of the offence, the court should be prepared to set aside the plea of guilty, on the basis a miscarriage of justice has been done. See Vella v The State of Western Australia [2006] WASCA 129 [26] (Steytler P, Wheeler & Buss JJA agreeing) and Hogue v The State of Western Australia [2005] WASCA 102 [22] (Wheeler JA), with the authority there referred to, including Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray ACJ & Hasluck J agreeing).
I consider that the 'admitted facts' include those facts which in a sentencing hearing on a plea of guilty the prosecution puts which the defence does not contest, or which the defence puts. See Hogue [22], [25] and [30] (Wheeler JA, Malcolm CJ & Le Miere AJA agreeing) and Tihanyi v The Queen [1999] WASCA 226; (1999) 21 WAR 377 [47] ‑ [51] (Murray J, Malcolm CJ & Parker J agreeing) referred to in Borsa [20].
I note in this regard that counsel for the respondent appeared to put to me that 'admitted facts' could only be those in the statement of material facts with which an accused did not disagree. However, the statement of material facts here provided to me included that the appellant provided to the relevant authority an '[e]xplanation' in terms 'I elected to have good behaviour'. This was in fact a matter to which the prosecutor drew attention in his description of the facts to the magistrate (27 December 2012, ts 4), as will become apparent from my quotation of that part of the transcript shortly.
As I will indicate, the appellant at the sentencing hearing following his plea of guilty elaborated on that explanation in a way with which it was not in contest before me the prosecutor did not disagree.
On Hogue [22], [25] and [30] and Tihanyi [51] I consider the 'admitted facts' include such an elaboration.
I should add that both the prosecution notice and statement of material facts I will shortly quote include a statement to the effect that the appellant's authority to drive at the time of the offence was 'suspended'. However, I consider that statement must be treated as one of the effect in law of the matters of fact I will reach under the provisions of the Road Traffic Act I will consider in detail and any agreement by the appellant with it had to be treated, in my view, as qualified by his explanation.
The prosecution notice for the charge read that on 27 October 2012 at Burswood the appellant
drove a motor vehicle, registered number 45MP, on a road, namely Victoria Park Drive, whilst not being a person authorised by Part IVA of the Road Traffic Act 1974 and whose authority to drive was at the time suspended.
The statement of material facts provided to me read as follows:
At 1:55 pm on Saturday the 27th of October 2012, the accused drove a Mercedes Benz convertible, registration number 45MP, in a northerly direction on Victoria Park Drive near The Circus, Burswood.
The accused was stopped and it was ascertained that he was not authorised to drive that class of motor vehicle.
The accused's driver's licence was suspended on the 16/10/2012 until 16/01/2013 for excessive demerit points.
Explanation: 'I elected to have good behaviour.'
I note it is not clear from the transcript of the hearing on 27 December 2012 which I will shortly set out that the magistrate had that statement before her. I do not consider that the matter is significant for my purposes in view of what else emerges from that transcript as I quote from it below.
After the appellant had pleaded guilty, and the magistrate had asked the prosecutor to 'very briefly read the facts to the court' (27 December 2012, ts 4), the following ensued (ts 4 ‑ 5):
PROSECUTOR: Thank you, ma'am. The facts are as per the prosecution notice. The only thing I can really add to that is that when stopped, the accused are said that I elected to have good behaviour. The demerit points actually ran from 16 October to 16 January. He was driving of course in October. I don't have any details as to when he elected that good behaviour period and as I said, ma'am, a first and 125.70 in costs. Thank you.
HER HONOUR: All right. Now, Mr Taylor, what would you like to say to the court?
TAYLOR, MR: Your Honour, the circumstances are that I bought a new car and I went to the Department of Transport to pay the appropriate fees. I was then told that my licence had totted up in March 2012 but I hadn't been informed. I had changed my address but I did have a redirection order and I can show the court the redirection order.
HER HONOUR: So you didn't get the demerit point suspension - - -
TAYLOR, MR: I was unaware that there had been a suspension. The person at the Department of Transport said, well look, you can elect to, for good behaviour double the points.
HER HONOUR: Yes.
TAYLOR, MR: But she said but before you do that, you should check that you don't have any fines outstanding.
HER HONOUR: Yes.
TAYLOR, MR: So I went back to my office immediately, contacted the fines registry because I didn't have the numbers. They confirmed there were no outstanding fines. I immediately went to the post office with the form they gave me. I took a copy which I have here, and they [sic I] wrote on the bottom, 'As per your advice, I confirm no fines outstanding. Check fines registry today'. Sent that immediately and then assumed, and I think fairly reasonably, that I was then able to drive on the basis of no points.
HER HONOUR: Did you receive any communication from them saying that they've received your letter and you could drive?
TAYLOR, MR: No, I did not. I honestly will swear on a stack of Bibles that I, as far as I was concerned, that advice - and I - sorry, I did take a copy of what I sent and I have it here and I can show the court.
The magistrate then imposed her sentence.
I consider that the 'admitted facts' also included the facts stated in the appellant's response in the following exchange between him and the magistrate before the appellant pleaded guilty. I quoted that exchange and its context under the first particular above. I quote it again for convenience (27 December 2012, ts 2):
HER HONOUR:… If you've driven under suspension - was it a demerit point suspension?
TAYLOR, MR: Yes, it was, your Honour, but there was some confusion with the department over - - -
I consider that the 'admitted facts' were as follows:
1.The Department of Transport had provided the appellant with a form relating to his demerit point suspension by giving it to him personally on 18 September 2012, a date I find as indicated below: see Road Traffic Act s 104I(1) above read with s 104R.
2.The appellant had taken the steps he described to make a s 104J election: see s 104J(3) above ('elected to have good behaviour').
3.The steps in 2 were (all on 18 September 2012, a date I find as part of the 'admitted facts' as I indicate below):
(a)obtaining from the 'fines registry' confirmation he had no outstanding fines and annotating the form the Department had provided to him accordingly;
(b)(by implication) otherwise completing that form; and
(c)at (by implication) a post office having 'sent' that form, to (by implication) the address on that form.
4.He had not received any indication from the relevant authority whether or not they had received the form.
I note that the copy of that form, the application, annexure RHT2 to the appellant's affidavit of 20 March 2013, and [12] ‑ [15] of that affidavit, make explicit what I have indicated I find implicit from the hearing on 27 December 2012. However, on the authorities on 'admitted facts' it is not clear to me that the 'admitted facts' may be taken from other than what occurred at the hearing. See Tihanyi [47], quoting from Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 510 ‑ 511 (Dawson & McHugh JJ). It is the failure of the presiding judicial officer to obtain an 'unequivocal' plea of guilty in such circumstances that is the miscarriage of justice.

At the same time I note that the appellant offered without objection from the prosecutor a copy of the application to the magistrate, who did not decline it, as indicated in the transcript above.
In those circumstances, I consider I am able to treat the application as part of the admitted facts. In so doing I consider I am able so to treat the fact that the Department provided the form, and the applicant took the steps in 3 above, on 18 September 2012, the date the application bears.
At the same time, I do not consider it necessary to determine whether there would be a miscarriage of justice from facts additional to those 'admitted' at the hearing but consistent with them. That is because it is not apparent to me that there are any such facts of significance in this case.
It was common ground before me that the issue raised by the fourth particular was whether or not, on the admitted facts, the appellant could not in law have been guilty of the offence because the form to which the appellant referred (which it was common ground should be seen for my purposes as the application) had been 'given to the Director General within 21 days after the day on which the Director General gave the excessive demerit points notice' (Road Traffic Act s 104J(4)).
It was further common ground that two matters were involved in resolving that issue. One was the meaning of 'given' in Road Traffic Act s 104J(4). The other was whether or not on that meaning the admitted facts sufficiently showed that the application was 'given'.
In respect of the first matter, I note that it appeared to be common ground that 'making an election under [Road Traffic Act s 104J]' within s 104J(1), that is making 'a section 104J election' as described in s 104J(2) and (3), or more simply 'a section 104J election' within s 104O(2)(e) to which I return below, entailed both the election being 'made in writing, in the form approved by the Director General' and the 'election' being 'given to the Director General within 21 days after the day on which the Director General gave the excessive demerit points notice'.
However, there was no contention before me that the appellant had not sufficiently indicated to the magistrate he had made his election 'in writing, in the form approved by the Director General'.
Rather, the contest before me was whether or not the appellant had sufficiently indicated to the magistrate he had, within the meaning of s 104J(4), 'given' the election in that form within the period of time referred to.
The appellant contended that that meaning was given by Interpretation Act 1984 (WA) s 75(1), by virtue of s 76, and no contrary intention appears in the Road Traffic Act to make s 75(1) inapplicable.
The respondent for its part contended that that meaning was not so given; and in any event there was such a contrary intention. In the respondent's submission, the word 'given' in Road Traffic Act s 104J(4) meant that the Director General must receive the election within the period indicated.
It was common ground before me that there was not, and could not have been, any evidence before the magistrate that the appellant's election, that is, the application, had been received by the Director General within the period indicated.
It may be noted that the meaning contended for by the respondent is reflected in the language of the application, which includes under the heading 'Important Information' the following:
4.Election forms received outside the 21 day time period will not be accepted and your licence disqualification will commence on the day that would have applied, if an election had not been made (ie 28 days from the date of service of the Excessive Demerit Points Notice).
However, it was not contended, nor could it be contended, that that determined or even affected the present matter of statutory interpretation.
I consider the appellant's contended for meaning is to be preferred, for the following reasons.
Interpretation Act s 75(1) and (3) and s 76 in material part read as follows:
75.Service of documents by post
(1)Where a written law authorises or requires a document to be served by post, whether the word 'serve' or any of the words 'give', 'deliver', or 'send' or any other similar word or expression is used, service shall be deemed to be effected by properly addressing and posting (by pre‑paid post) the document as a letter to the last known address of the person to be served, and, unless the contrary is proved, to have been effected at the time when the letter would have been delivered in the ordinary course of post.
…
(3)Subsections (1) and (2) apply unless the contrary intention appears and subsection (2) does not apply where a written law requires the production of an acknowledgment signed by a person to whom a document was addressed to the effect that the document was delivered to that person.
76.Service of documents generally
Where a written law authorises or requires a document to be served, whether the word 'serve' or any of the words 'give', 'deliver', or 'send' or any other similar word or expression is used, without directing it to be served in a particular manner, service of that document may be effected on the person to be served -
(a)by delivering the document to him personally; or
(b)by post in accordance with section 75(1); …
For the respondent, I was directed to authority which it was said, when that authority was read with the legislative scheme for the Director General to take administrative action on a Road Traffic Act s 104J election (under s 104K, as I will describe below), strongly supported the conclusion that Interpretation Act s 75(1) did not apply to s 104J(4); or that at least a 'contrary intention' within Interpretation Act s 75(3) appeared from the Road Traffic Act.
That authority was Secretary, Department of Social Security v Garratt (1992) 109 ALR 149 (Gummow J), followed in Secretary, Department of Social Security v Sevel & O'Connell (1992) 38 FCR 540; (1992) 110 ALR 627, 552 ‑ 553 (Wilcox, French & Lee JJ).
In Garratt (157) Gummow J in obiter considered the question whether or not Social Security Act 1947 (Cth) s 168(4)(a) should be construed to mean that 'a notice was given' for the purposes of that provision in a case where the notice was not received but where the requirements of Acts Interpretation Act 1901 (Cth) s 29 were met after taking account of s 28A.
The requirements of s 29 I take to be equivalent to those of Interpretation Act s 75(1), while s 28A I take to be equivalent to Interpretation Act s 76, with a qualification I will note.
Gummow J answered the question in the negative.
Social Security Act s 168(3) and (4)(a) at the material time read as follows, as set out in Garratt (153):
(3)If, having regard to any matter that affects the granting of a claim for, or the payment of, a pension, benefit or allowance under this Act, the Secretary decides that the claim should be granted, a payment of the pension, benefit or allowance should be made or the rate of the pension, benefit or allowance is less than it should be, the Secretary may, by determination, grant that claim, direct the making of that payment or increase that rate, as the case may be.
(4)A determination under subsection (3) takes effect:
(a)if the determination is made following a person having applied to the Secretary under subsection 173(1) for review of a previous decision where:
(i)a notice was given to the person to whom the relevant pension, benefit or allowance was or could have been payable advising the person of the making of the previous decision and the review was sought, or the appeal made, within 3 months after that notice was given; or
(ii)no notice was given to the person referred to in subparagraph (i) advising the person of the making of the previous decision;
on the day on which the previous decision took effect.
It will be seen that the date of the determination in Social Security Act s 168(3) by virtue of s 168(4)(a) related back to the date of the previous decision if the person to whom the relevant amount was or could have been payable either sought review or made an appeal within three months after the notice was given, or no notice was given to that person.
Gummow J said this as to the application of Acts Interpretation Act s 29, read with s 28A, to Social Security Act s 168(4)(a):
Paragraphs (a) and (b) of s 168(4) are not directed to any particular manner of service of notices. They are concerned with the fixing of a date which is determinative of the right of persons in relation to pensions, benefits and claims under the Act. The date is fixed by criteria which operate favourab1y or adversely to those persons by reference to their action or inaction over a particular period after notice was given. The paragraphs operate after there has been, upon application by person or persons affected by it, a review by the Secretary under s 173(1) of the decision of which notice was given.
In this setting, the rights of persons should not readily be construed so as to fix upon something less than the giving of notice and to accept an imputed notification as sufficient for the operation of the legislation. The delay which has adverse consequences as specified in paras (a) and (b) is delay after notice.
Section 28A of the Interpretation Act states:
'28A(1)For the purposes of any Act that requires or permits a document to be served on a person, whether the expression 'serve', 'give' or 'send' or any other expression is used, then, unless the contrary intention appears, the document may be served:
(a)on a natural person
(i)by delivering it to the person personally; or
(ii)by leaving it at, or by sending it by pre‑paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
…
(2)Nothing in subsection (1):
(a)affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or
(b)affects the power of a court to authorize service of a document otherwise than as provided in that subsection.'
In my view, s 28A has no immediate operation in the circumstances arising under paras (a) and (b) of s 168(4). In a review under s 173 the decision-maker may be satisfied by the applicant that despite notice having being sent by pre-paid post to the address of the place of residence or business of the person in question which was last known to the department (within the meaning of s 28A of the Interpretation Act) the addressee had no notice given to him or her. The operation of the criteria in paras (a) and (b) under s 168(4) will follow the outcome of the review. The result will be that persons will not be subjected to an adverse operation of those paragraphs by the fixing of the three months' period there referred to by reference to notice they never had.
In that special sense s 168(4) displays a contrary intention within the meaning of s 28A of the Acts Interpretation Act (157).
It may be noted that Acts Interpretations Act s 28A, unlike Interpretation Act s 76, refers to its displacement by a contrary intention. However, I accept that that qualification on the equivalence of the two provisions is one of form, not substance. That is, Interpretation Act s 76 may be displaced by a contrary intention, and Garratt is relevant to the application of that provision: see Pearce DC, and Geddes RS, Statutory Interpretation in Australia, (7th ed, 2011) [6.55].
However, in my view there is no right or obligation under the Road Traffic Act which flows from any action or any failure to take action of the Director General on the giving or failure to give to him of an election form as provided by s 104J(4), that is, the making of a s 104J election (see s 104K read with s 104J(1) and (3)).
The effect of making a s 104J election is that described in s 104K, which in material part reads as follows:
104K.Double disqualification after s 104J election
(1)If -
(a)the Director General records in the demerit points register a total of 2 or more demerit points for an offence or offences committed or allegedly committed by a person during a section 104J election period; or
(b)a court convicts a person of an offence committed during a section 104J election period as a result of which conviction -
(i)the court is required by law to disqualify the person from holding or obtaining a driver's licence but the disqualification is not required to be permanent; or
(ii)the person is disqualified by operation of this Act from holding or obtaining a driver's licence,
the Director General is to give the person, in accordance with section 104R, a notice in writing disqualifying the person from holding or obtaining a driver's licence.
[(2) deleted]
(3)The notice is to state -
(a)if it is given under subsection (1)(a) -
(i)the number of demerit points because of which the notice is given; and
(ii)the day on which each offence to which any of those points relates was committed or allegedly committed;
(b)if it is given under subsection (1)(b) -
(i)the conviction because of which the notice is given; and
(ii)the day on which the offence of which the person was convicted was committed;
(c)the period of disqualification fixed under subsection (4) and the day on which that period commences.
(4)The period of disqualification to be stated in the notice is to be double the period of disqualification that was stated in the excessive demerit points notice that led to the person making the section 104J election.
(5A)The day stated in the notice as the day on which the period of disqualification is to commence is to be -
(a)a day that is after the notice is given; and
(b)if subsection (1)(b) applies, a day that is after the period of disqualification referred to in that paragraph has ended.
(5)The person to whom the notice is given is disqualified from holding or obtaining a driver's licence for the period of disqualification stated in the notice.
It may be noted that if the Director General has not received an election form at all it would not be readily apparent to him whether or not there is any question of the failure to make any such election, on the construction I prefer. It would thus not be readily apparent to him whether or not, if s 104K otherwise applies, he is to act as s 104K(1) provides.
However, it is not in contest that there is no obligation on the Director General, under the Road Traffic Act or otherwise, to notify the person giving the s 104J election notice of its receipt.
It may also be noted that Road Traffic Act s 104O(2)(e) requires the demerit points register to 'contain details of … the day on which a section 104J election, if any, was received'. I accept that this provides some support for the alternative construction. However, I consider the support to be limited. That is because, even on that construction, it is not evident to me that a failure of the register to comply with s 104O(2)(e), where a s 104J election in compliance with s 104J(4) was given (that is, received, on the alternative construction) but not recorded, affects the application of s 104K.
On either construction the Director General is still to take action under s 104K(1) if that provision applies, whatever the state of the register in respect of the s 104J election. Compare a failure to record demerit points in the register for the purposes of s 104I(1) or s 104K(1)(a).
In my view, s 104O(2)(e) is to maintain best practice for the assistance of the Director General and those who advise him; but, as I have noted, non‑compliance with the provision does not prevent the operation of s 104K.
There is a further provision in the Road Traffic Act, s 104R, which in my view provides some support for the construction I prefer. That provision concerns how the Director General is to 'give' a number of notices provided for under the Act, including excessive demerit points notices and a notice under s 104K, to the relevant person: see s 104I(1) and s 104K(1).
Road Traffic Act s 104R(2) reads:
(2)The notice is given in accordance with this section if it is given to the person to whom it is addressed either personally or in any other way prescribed in the regulations that ensures that it is received by that person and results in a written record of that person having received the notice.
I note that there appear to have been no regulations for the purposes of Road Traffic Act s 104R(2) as at all times material to this appeal.
It may be taken from that provision that where by the Road Traffic Act it is intended that a notice in writing or similar documents required to be given is only effectively given when it is received the legislation explicitly so provides.
However, it may be noted that the provision goes further than to provide for actual receipt, at least where the regulations so provide (as at all material times as I have indicated they did not). The support, then, that the provision provides for the construction I prefer is in my view limited.
I note from Secretary, Department of Social Security v Sevel & O'Connell the distinction drawn there between service of a notice and the giving of notice. See (639). However, it is notable in my view that Road Traffic Act s 104J(4) does not provide for a notice to be given but rather a document ('the election … made in writing, in the form approved by the Director General') to be 'given' to the Director General.
The effect of the construction I prefer is that the application is 'deemed' for the purposes of Road Traffic Act s 104J(4) to have been given to the Director General by properly addressing and posting (by prepaid post) the application as a letter to the last known address of the Director General, and, unless the contrary is proved, to have been given at the time when the letter would have been delivered in the ordinary course of post (Interpretation Act s 75(1)).
Proof to the contrary qualifies the time of delivery, not the fact of delivery: Re Monger; Ex parte Browne [2003] WASCA 281 [15] (Steytler J, McLure & Johnson JJ agreeing).
Further, proof of non-receipt is not proof of non-delivery: see Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 95 (Mason, Murphy, Wilson, Deane & Dawson JJ); Monger [19].
This takes me to the matter of whether or not on the construction I prefer the admitted facts sufficiently showed that the application was 'given' within s 104J(4), that is, within 21 days after 18 September 2012, with the effect in s 104J(1). That effect, it will be recalled, is (in a case of the present type, to which s 104M has no application) the avoidance of being disqualified from holding or obtaining a driver's licence for the year commencing when the period of disqualification specified in the EDPN would have commenced.
The respondent, for this purpose, took me to Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869 (Barrett J).
That case concerned whether or not a statutory demand had been served on a company for the purposes of the presumption of insolvency in Corporations Act 2001 (Cth) s 459F. Corporations Act s 109X(1)(a) provided that a document might be 'served on a company' by, inter alia, 'posting it to … the company's registered office'. This had been put in issue by the defendant by interlocutory process. Bluestone was the decision on that process.
Barrett J in Bluestone said this:
In order to prove service by post, it is necessary that the evidence of one or more witnesses establish a number of core and indispensable matters: that the document said to have been served by posting of it to a given address was placed inside an envelope, that the envelope had that address written or typed on its face, that a postage stamp or franking of the necessary amount was affixed to the envelope and that the envelope so addressed and stamped or franked was physically deposited in the post either at a post office or by being dropped into a post box for the reception of mail articles.
The plaintiffs have not proved these things. The evidence says nothing about an envelope or the placing of anything into an envelope (in particular, the letter dated 26 February 2010 and the documents listed in it). The evidence says nothing about the writing or typing of a name and address on the face of any envelope or about any stamp or franking. No one deposes to having handed over a stamped and addressed envelope at a post office or deposited it into a post box for the reception of mail articles [13] ‑ [14].
See by contrast the evidence presented in Monger referred to at [5].

Counsel for the respondent quite correctly points out that the appellant in this case had not before the magistrate asserted any more than that he had 'sent' the application, by implication from the 'post office' which he had gone to, by implication also on 18 September 2012, and by further implication to the address on the application. There is no reference to any placing of the application in an envelope; no reference to any writing of the address on that envelope; no reference to a postage stamp or franking being placed on the envelope in the necessary amount; and no indication whether the envelope used had been handed over at the post office or placed into a post box for the reception of mail articles there.
At same time, I would add that there was a clear indication to the magistrate, in my view, that the appellant might have evidence to present in each of those respects: see his use of 'sent that immediately' in 27 December 2012, ts 5.
Further, as counsel for the respondent correctly pointed out, there was no reference by or for the appellant, either before the magistrate or in the evidence before me, to the 'ordinary course of post' in this case. That matter of course goes to determining the time of delivery: see Interpretation Act s 75(1) and Monger [15]. Compare the evidence of an acting manager of Australia Post referred to in Monger [5].
At same time, I would also add that there was, from the date at which the appellant had indicated (by implication) he had sent the application, clear indication, in my view, that the appellant might have evidence to present in that respect also.
Counsel for the respondent contended that in the absence of at least assertions by the appellant in the terms counsel contended for there could be no question of miscarriage of justice in the present respect.
However, in my view, that is to apply the standard appropriate to the final determination of the matter. That was the standard applied in Bluestone and Monger.
The standard to be applied in the present case is whether or not the magistrate, in the circumstances of having been presented with the 'admitted facts' I have previously listed, failed to obtain an unequivocal plea of guilty so as to produce a miscarriage of justice.
In my view, those admitted facts pointed clearly, as I have indicated, to the possibility of a defence to the charge the appellant faced, based on Road Traffic Act s 104J(1). The proper evaluation of and presentation of evidence in relation to such a defence would in my view have required the appellant to proceed with correct legal advice.
In my view, in applying the standard in the present case, it is also relevant that the appellant was unrepresented at the time, that he had indicated to the magistrate his wish to obtain legal representation and that he was influenced to enter 'a plea of guilty with mitigation', without pressing a request for adjournment to enable him to have legal representation, by what the magistrate said, including what she had said in respect of the matter of the 'confusion' the appellant said had characterised his dealings with the relevant authority.
True it is there was matter before the magistrate, in the form of the appellant's request to be allowed the opportunity for legal representation, to indicate the appellant had or had had legal assistance of some sort previously. However, it was not clear from that material that the appellant had received advice on the matters in respect of the 'confusion' referred to.
In those circumstances in my view there could not be any question of the magistrate having before her evidence of a forensic choice having been made in relation to proceeding as the appellant ultimately did.
In all of those circumstances, with all respect to the magistrate, she had, by failing to obtain an unequivocal plea of guilty, as by adjourning the proceedings to permit the applicant to obtain legal representation for a further hearing at which with the benefit of that legal representation the appellant on a different plea, if appropriate, might have adduced evidence of the matters subsumed by the 'admitted facts' I have previously listed, produced a miscarriage of justice.
The magistrate had done this by denying the appellant an opportunity to present a defence which he may have had and upon which the appellant had addressed the magistrate. The terms of that address had indicated the appellant might well have had a case to present that he had avoided being disqualified by making a Road Traffic Act s 104J election. That case, resting upon what the appellant had indicated he had done, and upon what I have indicated is in my view the correct construction of Road Traffic Act s 104J(4), is one it might be expected proper legal advice might well have ensured was put before the court trying the matter. See on this form of miscarriage of justice Criminal Law in Western Australia, Lexis Nexis, loose‑leaf, as at 17 October 2013 [CA 1100.10] and the authorities there referred to, Murray v Northcott (1989) 97 FLR 393; [1990] WAR 219; Williams v Beverly (1998) 103 A Crim R 326; Lim v Bateman [2001] WASCA 307; and Beattie v Prime [2002] WASCA 111.
I should not leave the present particular without dealing with the matter put to me by counsel for the respondent, which counsel submitted indicated that in fact, as I understood the submission, the advice of the magistrate might be seen to have been correct if not for the reason she appears to have had in mind.
Counsel for the respondent put to me that the disqualification of the appellant's licence upon which the prosecution relied should be seen to have been an administrative act. That act should be presumed to have been valid until it was set aside on a challenge to the validity of the act. The appellant had taken no steps to set it aside before the driving the subject of the prosecution. I was referred to a number of authorities from which, as I understood counsel for the respondent, I was invited to draw that conclusion. See Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, 130 ‑ 131 (Gummow J); F Hoffman‑La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 365 ‑ 366; and Bassett v Board [2011] WASC 317.
In my view those authorities have no application here. That is because the question whether the appellant's licence was disqualified at any material time involved no challenge to any administrative action. Nor as in Bassett was there any question of determining the effect of the setting aside any other decision on which a disqualification rested, such as setting aside a judicial decision imposing a licence disqualification.
The avoidance of disqualification under Road Traffic Act s 104J(1) by satisfying the requirements of s 104J(4) is by operation of the statute, not by any administrative act taken under it. If those requirements were satisfied, there was avoidance of disqualification at all material times. If those requirements were not satisfied there was no such avoidance: see also s 104I(2). The possible defence case here was that those requirements were satisfied.
True it is the avoidance of disqualification also results in the substitution of a regime provided for in s 104K which in the circumstances there described produces a doubling of the disqualification described in s 104K(4). However, this is again the result of the operation of the legislation, not an administrative decision by the Director General.
For these reasons I consider the fourth particular made out.

Ground 1, fifth particular: magistrate failed to take into account appellant had raised an arguable defence of honest and reasonable mistake

It was not in contest that if, on the matter before the magistrate as to the beliefs of the appellant, the appellant had given sufficient indications of evidence to discharge the evidentiary onus for the defence of honest and reasonable mistake under Criminal Code (WA) s 24, there was a miscarriage of justice in the magistrate accepting his guilty plea.
As this particular was contended for by the appellant, it was as an alternative argument to that in relation to the fourth particular. I took this to be on the assumption that Road Traffic Act s 104J(4) required receipt by the Director General.
So approached, it is difficult for me to see how the fifth particular can be made out. That is because I was not referred to any evidence, in matter the appellant put before the magistrate or indeed otherwise, that the appellant had indicated at any material time a belief as to receipt. Rather, the belief he indicated he had was that he had done all that was required to meet Road Traffic Act s 104J(4) by posting the application. See on the importance of identifying the belief a person had who seeks to rely on Criminal Code s 24 GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183, 187 ‑ 188 (Burt CJ).
If receipt was required as a matter of law, the appellant had made a mistake as to law, not as to fact, as appeared to be the position of the magistrate as I have described it. Such a mistake is not sufficient for the purposes of Criminal Code s 24. See Ostrowski v Palmer.
However, on my conclusion as to the fourth particular, the fifth particular does not arise.

Ground 1, sixth particular: magistrate failed to inform appellant he could enter a not guilty plea

On my review of the transcript of the hearing of 27 December 2012, this particular may be dealt with in short terms.
The exchange I quoted under the first particular immediately preceding the appellant's plea cannot, in my view of it, be understood as other than a request from the magistrate for the appellant to enter a plea, whether guilty or not guilty. I particularly refer to the exchange below, which I quote again for convenience (27 December 2012, ts 3):
TAYLOR, MR: Well, this has been a salutary lesson, I can tell you.
HER HONOUR: I'm sure it has. So what do you want to do, Mr Taylor?
TAYLOR, MR: Well, obviously I'll take your Honour's advice.
HER HONOUR: I'll put the charge to you.
As I have previously indicated, the 'advice' which I find the magistrate provided to the appellant influenced his decision to enter a plea of guilty.
However, the magistrate did not fail to inform him that he could enter another plea.
I consider the sixth particular not made out.

Ground 1, seventh particular: appellant relied upon magistrate's advice in entering a guilty plea

Under the first particular I have indicated that in my view the appellant relied upon the magistrate's advice in entering a guilty plea. I have also previously indicated there why I am of that view.
It follows that the seventh particular has been made out.

The proviso

I have indicated in my discussion of the fourth particular, where I draw also on my discussion of the first, second and third particulars, and my conclusion as to the seventh particular, that in my view the appellant has shown a miscarriage of justice.
As I understand the submissions for the respondent, on conclusions of that kind this appeal should still be dismissed, on the basis that the court should conclude no substantial miscarriage of justice occurred: Criminal Appeals Act s 14(2), which I will call the proviso. This would be on the basis that the appellant has not presented any evidence which demonstrates a defence to the charges with any reasonable prospects of success. See for that basis Lyster v Kemp [2010] WASC 47; Pallett v Paul [2007] WASC 290; and Lasscock v Seidner [2013] WASC 94.
However, it will be apparent from my discussion of the admitted facts for the purposes of the fourth particular that I am unable to accept that basis applies in this case.
On the construction of Road Traffic Act s 104J(4) which I have indicated I prefer, and the matter the appellant put before the magistrate, the appellant had put sufficient matter before the magistrate to demonstrate a defence with some reasonable prospect of success. Nothing had been put for the prosecution going to rebut that defence: compare Pallett v Paul.
I accept that for the purposes of the proviso a showing from other matter, such as the appellant's affidavit of 20 March 2013, that the appellant did not have the capacity to present evidence to make out the defence would be sufficient for the purposes of the respondent's submission.
However, in my view there is nothing in the appellant's affidavit of 20 March 2013 to indicate that the appellant would not be in a position to present such a defence. I accept that the appellant's affidavit of 20 March 2013 does not add anything significant to what the appellant put before the magistrate. However that does not indicate to me that the appellant does not have the capacity to put evidence of the kind required by Bluestone [13], such as evidence of the kind referred to as having been before the court in Monger [5].
Accordingly, I do not consider the respondent has made out a case that the proviso applies in this appeal.

Conclusion and orders

I have concluded that the appellant has shown a miscarriage of justice.
I have also concluded that this appeal should not be dismissed by reference to the proviso.
It follows in my view that this appeal should be allowed.
My preliminary view is that the conviction and sentence of the appellant should be set aside and the matter remitted to the Magistrates Court to be further dealt with.
However, I will hear further from the parties as to the appropriate orders to make, including orders as to costs.