Topic v Director of Public Prosecutions
[2024] ACTSC 398
•16 December 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Topic v DPP |
Citation: | [2024] ACTSC 398 |
Hearing Date: | 5 August 2024 |
Decision Date: | 16 December 2024 |
Before: | McWilliam J |
Decision: | The appeal is dismissed and the order of the Magistrates Court made on 29 November 2023 is confirmed. |
Catchwords: | APPEAL – CRIMINAL – Review appeal from Magistrates Court – drive while licence suspended – appellant had received infringement notices and reminders from Access Canberra for a speeding charge – mail unopened and sent back as unclaimed – right to drive in ACT automatically suspended for non-payment of fine – where speeding charge ultimately withdrawn – whether magistrate erred in finding appellant guilty – appeal dismissed |
Legislation Cited: | Australian Capital Territory (Self-Government) Act 1988 (Cth) s 69 Bill of Rights 1688 1 Will and Mary sess 2 c 2 Commonwealth Constitution s 92 Criminal Code 2002 (ACT) ss 23, 36 Human Rights Act2004 (ACT) s 22(1) Judiciary Act 1903 (Cth) s 78B Magistrates Court Act 1930 (ACT) ss 207, 208, 214, 218 Road Transport (Driver Licensing) Act 1999 (ACT) s 31A Road Transport (General) Act 1999 (ACT) pt 3, ss 22, 28(2), 44 |
Cases Cited: | Alexander v Bakes [2023] ACTCA 49 Bergin v Stack (1953) 88 CLR 248 CTM v The Queen [2008] HCA 25; 236 CLR 440 Cunliffe v Commonwealth (1994) 182 CLR 272 He Kaw Teh v The Queen (1985) 157 CLR 523 Lee v Lee [2019] HCA 28; 266 CLR 129 M v The Queen (1994) 181 CLR 487 Palmer v Western Australia [2021] HCA 5; 272 CLR 505 Police v Topic [2023] ACTMC 47 Poole v Edwards [2016] ACTSC 159 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 State Rail Authority (NSW) v Hunter Water Board (1992) 28 NSWLR 721 Warren v Coombes (1979) 142 CLR 531 Wylkian Pty Ltd v ACT Government [2002] ACTSC 97 Wylkian Pty Ltd v ACT Government [2003] ACTCA 11 |
Texts Cited: | D Mossop, The Constitution of the Australian Capital Territory (Federation Press, 2021) |
Parties: | Paul Topic ( Appellant) ACT Director of Public Prosecutions ( First Respondent) Attorney-General of the ACT ( Second Respondent) |
Representation: | Counsel Self-represented ( Appellant) K McCann ( First Respondent) B Kaplan (Second Respondent) |
| Solicitors Self-represented ( Appellant) ACT Director of Public Prosecutions ( First Respondent) ACT Government Solicitor (Second Respondent) | |
File Number: | SCA 68 of 2023 |
Decision Under Appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Temby Date of Decision: 29 November 2023 Case Title: Police v Topic Citation: [2023] ACTMC 47 Court File Number: CC 3285 of 2023 |
McWILLIAM J:
1․The appellant in this appeal proceeding, Mr Paul Topic, held a New South Wales driver’s licence and drove a vehicle registered in New South Wales. He was issued with a penalty notice (CAN 41611/2023) for driving over the speed limit in the Australian Capital Territory on 12 February 2022. The notice was issued following detection by a speed camera of a vehicle registered in NSW, driving at 47km/h in a 40km/h zone in Civic. The original penalty notice was sent by Access Canberra to the appellant’s home address in New South Wales. Subsequent notices, including the confirmation of suspension, were also sent to the same address. As a result of not opening his mail (a finding made by the magistrate and not challenged on appeal), the appellant was unaware that a penalty notice had been issued and did not pay the fine, nor dispute the notice.
2․Proceedings were commenced in the Magistrates Court and ultimately on 18 June 2024, the relevant penalty notice was withdrawn and the proceeding relating to the offence on 12 February 2022 (CAN 41611/2023) was dismissed. On the same day, Mr Topic pleaded guilty to a separate driving offence (CAN 41605/2023) that is unrelated to the appeal.
3․In the meantime, however, because there was an outstanding fine that remained unactioned or unpaid up to the hearing, the appellant’s licence was automatically suspended. Again, the appellant was unaware of that fact because he did not open the warning notice indicating that the appellant’s licence was about to be suspended, nor the confirmation of suspension of licence notice sent by Access Canberra on 7 July 2022.
4․The appellant then drove in the Territory on 30 March 2023. He was arrested and was charged with one offence of driving whilst his right to drive in the Territory was suspended, contrary to s 31A(1) of the Road Transport (Driver Licensing) Act 1999 (ACT) (Licensing Act). That section is in the following terms:
31AOffence—driving while right to drive suspended
(1)A person commits an offence if—
(a)the person's right to drive is suspended under a law of the territory; and
(b)the person drives a vehicle in the ACT.
Maximum penalty: 20 penalty units.
(2)An offence against this section is a strict liability offence.
5․On 29 November 2023, he was found guilty of that offence in the Magistrates Court: Police v Topic [2023] ACTMC 47 (primary judgment). By this appeal, the appellant seeks to overturn the guilty finding.
Grounds of Appeal
6․The appellant raised two grounds of appeal in the Notice of Appeal filed 18 December 2023: error in law and error of fact.
7․Content was given to those grounds in written submissions filed by the appellant and refined further orally at the hearing.
8․The appellant’s complaints may be described as follows:
(a)The magistrate erred in the factual finding that the “Defendant committed a speeding offence in the ACT on 12 February 2022”: [45] of the primary judgment (Issue 1a). Further, the appellant was not guilty of the offence of driving while suspended, because the underlying conduct which gave rise to a fine, which he then did not pay and which in turn caused the automatic suspension, was ultimately not proven. That is, the appellant was ultimately not liable to pay the speeding fine (Issue 1b).
(b)The magistrate erred in finding that the appellant’s belief that he had a right to drive in the Territory was “unreasonable” and that therefore the appellant was guilty of the offence: [103]-[120] of the primary judgment (Issue 2).
(c)The offence in question was invalid or an overreach or power insofar as it constitutes a criminal offence, in circumstances where there was no victim and no intent to commit the offence. There is extreme harshness arising from the appellant ending up with a criminal record for not opening a letter (Issue 3).
(d)Section 31A of the Licensing Act or s 44 of the Road Transport (General) Act 1999 (ACT) (General Act) infringes s 69 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self-Government Act) and is therefore invalid (Issue 4).
(e)Section 31A of the Licensing Act is invalid because it impermissibly vests judicial power in the Executive. There should not be the power to remove someone’s right to drive before the offence giving rise to the fine has been proven in a court of law (Issue 5).
The role of the second respondent
9․As s 69 of the Self-Government Act guarantees the application of the terms of s 92 of the Commonwealth of Australia Constitution Act (Cth) (Constitution) in the Territory, Issue 4 gives rise to a constitutional question. Issue 5 also concerned invalidity by reference to the Constitution because it was an argument directed to the impermissible vesting of judicial power. As set out in the primary judgment at [6]-[8], following the issue of a notice of a constitutional matter pursuant to s 78B of the Judiciary Act 1903 (Cth), the Attorney-General of the ACT has intervened in the proceedings, both in the court below and on appeal. The extent of the intervention relates only to Issues 4 and 5 above.
The powers of the Court on appeal
10․Sections 207, 208 and 218 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act) empowers the Supreme Court to hear and decide the criminal matter on appeal. This includes appeals on both sentence and conviction.
11․The nature of this appeal is by way of a rehearing. It is necessary to demonstrate that there is a material legal, factual or discretionary error in the magistrate’s decision: Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 (Alexander) at [16]-[18]. The onus is on the appellant to demonstrate error in the Magistrate’s findings: Alexander at [22].
12․Where the error asserted is that the verdict is unreasonable, the Court must ask whether upon the whole of the evidence it was open to the court below as fact finder to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen (1994) 181 CLR 487 at 493.
13․An appeal by way of rehearing requires the Court to conduct “a real review of the evidence given at first instance and the judge’s reasons for judgment and while respecting any advantage that the primary judge enjoyed, should not shrink from giving effect to its own conclusion”: Alexander at [13] citing Warren v Coombes (1979) 142 CLR 531 at 551 and Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]-[56].
14․If error is established, the Court is obliged to make its own findings and to formulate its own reasoning based on those findings: Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 at [43].
Should the Court admit the additional evidence?
15․At the hearing of the appeal, the appellant sought to adduce fresh evidence pursuant to s 214 of the Magistrates Court Act. That evidence was:
(a)An information and summons requiring the appellant to appear in the Magistrates Court on 5 December 2023 in relation to the speeding offence on 12 February 2022 (CAN 41611/2023); and
(b)A fine order and penalty notice dated 18 June 2024 indicating the dismissal of CAN 41611/2023 and setting out the monetary penalty for the separate driving offence of CAN 41605/2023.
16․The Court has the power to admit fresh or new evidence on appeal pursuant to s 214 of the Magistrates Court Act. The relevant parts of that section are in the following terms (emphasis added):
214 Appeals in cases other than civil cases
(1)This section applies to an appeal mentioned in section 208 (Appeals to which div 3.10.2 applies).
(2)In an appeal to which this section applies, the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact.
(3)In an appeal to which this section applies, the Supreme Court must—
(a)if it considers it necessary or expedient to do so in the interests of justice—
(i) order the production of [any document in or connected with the appeal] ...; and
(ii) order any person who was ... a compellable witness in the proceeding to attend for examination ...; and
(iii) receive the evidence, if tendered, of any witness; and
(b)receive evidence with the consent of the parties to the appeal.
(4)If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if—
(a)it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and
(b)the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
17․As a matter of pragmatism, the first respondent helpfully consented to the evidence being before the Court. The second respondent did not seek to be heard, given the limited nature of the basis for intervening.
18․I was satisfied that the evidence was likely to be credible, that it would have been admissible in the proceeding, and that there was a reasonable explanation the evidence in the proceeding was not yet adduced, namely the fact that the prosecution of the charge had been withdrawn did not exist at the time of the hearing in the court below.
19․Accordingly, I granted leave to rely on the additional evidence on appeal.
Chronology of events
20․Before considering each issue, it is helpful to set out the chronology of what occurred as the timing of what happened is material to the legislative framework and the resolution of Issue 1a and 1b.
21․On 12 February 2022, the appellant drove his vehicle in a 40 km/h zone and was detected by a speed camera located to have been driving at 47 km/h. An infringement notice from Access Canberra dated 15 February 2022 was sent by post on 19 March 2022 to the appellant’s residential address in New South Wales. The appellant was given until 18 April 2022 to pay the infringement notice. The appellant received the letter but did not open it.
22․On 10 May 2022, the appellant was sent a reminder notice to his residential address. The appellant received this notice but again did not open the letter.
23․On 9 June 2022, the appellant was sent a notice foreshadowing that, being a person who did not hold an ACT driver licence and whose car was not registered in the ACT, his right to drive in the ACT would be suspended from 6 July 2022 as a result of non-payment of the infringement penalty.
24․On 7 July 2022, the appellant was sent a notice to his home address confirming that his right to drive in the ACT had been suspended from that date.
25․On 30 March 2023, the appellant drove his vehicle on Garryowen Drive in Acton and was stopped by police. There was nothing about the manner of his driving that caused him to be stopped by police. He was informed that his driver’s licence had been suspended due to an unpaid speeding fine.
26․From the bar table, the appellant informed the Court that he was then arrested and taken to a police station where he was charged and asked whether, if he were to be released, he would continue to drive. The appellant responded that he would, as he had not had the chance to defend himself against the charge. As he had indicated an intention to further offend, he was detained overnight and appeared in the Magistrates Court to seek bail. Bail was granted to allow the appellant to resolve the matter with Access Canberra on condition that he would not be allowed to drive in the ACT.
27․The proceeding the subject of the primary judgment was heard before Magistrate Temby on:
(a)10 August 2023, on the question of whether the appellant was unaware that his right to drive had been suspended, and if so whether he could avail himself of the excuse of mistake of fact under s 36 of the Criminal Code 2002 (ACT) (Criminal Code); and
(b)29 November 2023, on whether the Licensing Act was inconsistent with s 92 of the Constitution.
28․The appellant appeared before Magistrate Lawton on 18 June 2024 in relation to another speeding offence (CAN 41605/2023) to which he pleaded guilty. During this hearing, the speeding offence the subject of the primary judgment (CAN 41611/2023) was dismissed.
Issue 1 – Whether factual error was established because the offence detected by the speed camera was withdrawn
29․The appellant’s complaint commences with the magistrate’s finding at [45], as follows (emphasis added):
Factual findings
45․ The Defendant committed a speeding offence in the ACT on 12 February 2022. He was detected to have driven at 47 kilometres per hour in a 40 kilometre per hour zone. An infringement notice was issued on 15 February 2022 and sent to the Defendant, at his home address, on 19 March 2022. Under the Regulation the notice is presumed to have been received by the Defendant on or about 31 March 2022.
30․The appellant argued that the speeding offence referred to at [45] of the primary judgment was never proven. At the hearing before Magistrate Lawton on 18 June 2024, the prosecutor offered no evidence and the charge was withdrawn. The magistrate therefore erred in stating that he had “committed” a speeding offence.
31․Dealing first with Issue 1a, the additional evidence before the Court on appeal demonstrated that the appellant is correct about that. The true position was that as at the date of the hearing before the magistrate, the infringement notice proceeding had not yet proceeded to hearing in the Magistrates Court. The appellant was alleged to have committed a speeding offence and had not disputed the notice that subsequently issued (discussed next), but he had not actually been found guilty of the offence.
32․The choice of language at [45] of the primary judgment may have been more precise, although insofar as the evidence that was before the Magistrates Court at first instance is concerned, it is understandable why the fact of the original speeding offence was described in the manner set out above. Nevertheless, I have assumed in the appellant’s favour that a factual error was made.
33․I will then deal with Issue 1b, and whether the magistrate erred in finding the appellant guilty of driving while his licence was suspended. I accept that, as events transpired, the underlying speeding offence was not proven. However, for reasons that follow, that fact has no bearing on the outcome of this case.
Legislative Framework under the Licensing Act
34․Counsel for the respondent indicated that the Court must have regard for the legislative purpose of the infringement notice regime set up under the General Act, as set out in s 22 of that Act:
22Purpose and effect of pt 3
(1)The purpose of this part is to create a system of infringement notices for certain offences against the road transport legislation and other legislation as an alternative to prosecution.
…
35․This was what Ms McCann termed an “opt in regime”, which does not displace the need for criminal prosecutions, but instead allows alternative means for driving offences to be dealt with without “clogging up the courts” with offences for which defendants are willing to accept liability by paying the monetary penalty up front in full. Under s 28(2) of the General Act, people issued with a notice are provided with several alternatives, including disputing their liability. The infringement and reminder notice issued to the appellant both contained a section indicating the following options (and the notice of suspension, in similar terms) (emphasis in original):
You have 28 days from the date of service of this notice to:
A.Pay the Infringement Notice penalty; …
B.Submit an Infringement Notice Declaration; You must complete a declaration if you were not the person who committed the offence or the infringement notice is served on a corporation. IMPORTANT – Do not pay the infringement notice or send payment with declaration. A new infringement notice will be served on the nominated driver of the vehicle.
C.Apply for withdrawal of the infringement notice;
D.Dispute liability;
E.Apply for an Infringement Notice Management Plan;
F.Apply for a waiver of the Infringement Notice Penalty; or
G.Apply for an extension of time to take any of the actions above.
All applications can be made online by visiting and selecting Manage Infringement
See page 2 of this notice for further information.
36․Page 2 of each notice contained a detailed explanation of the purpose of each option and further information about infringement notices, including the consequences of inaction by a recipient of such a notice (emphasis added):
1.The infringement notice may be withdrawn at any time.
2.If you pay the infringement notice penalty within 28 days (or any further time allowed), or the infringement penalty is discharged in any of the ways mentioned above then,
i. your liability for the offence is discharged; and
ii. you will not be prosecuted for the offence; and
iii. you will not be taken to have been convicted of the offence.
3. If you do not take any of the infringement notice responses available to you within 28 days (or any further time allowed), a reminder notice will be served on you, and you may be prosecuted in court for the offence. …
4. If you fail to pay the penalty, discharge the penalty in any of the ways mentioned above, or dispute liability, the Road Transport Authority must, by notice served on you at least 10 days before taking such action do one of the following:
i. If you are the holder of an ACT Driver Licence, suspend your licence.
ii. If you are not the holder of a driver licence but the vehicle involved in the offence is registered in the ACT and you are a responsible person for the vehicle, then the Authority must suspend that vehicle’s registration.
iii. In any other case the Authority must do one of the following; suspend your right to drive any vehicle; or suspend the right of everyone to drive the vehicle involved in the offence.
37․The significance of the emphasised words is that the notice explained to people who did not have an ACT Driver Licence, or the vehicle was not registered in the ACT, that their right to drive would be suspended if they failed to dispute liability or pay the fine within the time specified (and the penalty was not otherwise discharged).
38․Notwithstanding that the magistrate erred in fact in definitively asserting that the appellant “committed” the speeding offence, that finding of fact had no bearing on the eventual suspension of the appellant’s right to drive in the ACT.
39․To explain that finding, it is necessary to understand how s 44 of the General Act operates. It is as follows (emphasis added):
44Suspension for nonpayment of infringement notice penalties
(1)This section applies if—
(a)an infringement notice and a reminder notice have been served on a person by an authorised person under this part …; and
…
(b)the offence involved a registrable or rail vehicle; and
(c)the infringement notice has not been withdrawn or the infringement notice penalty for the offence has not been waived; and
(d)the person does not have an infringement notice management plan for the infringement notice penalty for the offence; and
(e)the penalty has not been paid to the administering authority within the time for payment under this part; and
(f)notice disputing liability has not been given to the administering authority in accordance with this part.
(2)The road transport authority must—
(a)send the person a written notice… that contains the information required by subsection (3); and
(b)if the infringement notice penalty is not paid before the suspension date in the suspension notice—take action under subsection (5), (6) or (7) … on the suspension date.
…
(7)In any other case [not involving an ACT licensed driver or ACT registered vehicle], the road transport authority must do 1 of the following:
(a)suspend the person’s right to drive the vehicle involved in the offence in the ACT;
(b)suspend the person’s right to drive any vehicle in the ACT;
(c)suspend the right of everyone to drive the vehicle involved in the offence in the ACT.
…
40․The language of s 44(7) (“must”) provides for mandatory operation of the suspension provision once the conditions set out in s 44(1) are fulfilled. Section 44(1)(f) requires notice disputing liability to be given “in accordance with this part”, which means, within the time specified for taking action under the infringement notice and reminder notice.
41․In this case, there was no assertion that Access Canberra had failed to comply with any of the requirements in the General Act, that the suspension was conditional upon there being a proven infringement, nor that the magistrate had failed to exercise a discretion available to him to dismiss the suspension or otherwise reinstate the validity of the licence in the ACT. There was an argument about the appellant returning the notices to Access Canberra which is addressed separately below. However, the appellant was duly notified and provided with multiple reminders of the outstanding infringement notice, but simply did not take any action.
42․The appellant relied upon the proposition that a fundamental right is the right to be presumed innocent until proven guilty. He drew attention to the Bill of Rights 1688 1 Will and Mary sess 2 c 2, s 12 of which declares “That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void”. In a similar vein, s 22(1) of the Human Rights Act 2004 (ACT) provides that “everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to law”.
43․Here, the legislative scheme outlined above does not infringe that right. The infringement notice is not the same as a criminal charge. If a person receives an infringement notice and accepts the facts contained within it, they may choose to pay the penalty of a fine and no conviction is recorded. Importantly though, the operation of s 44 accommodates a person who genuinely believes that they have not engaged in any wrongdoing. If that is the case, the person has the option to dispute the fine, in which case, they do not have to pay the fine and s 44 (creating the suspension for non-payment of the fine) does not apply, because the criterion of s 44(1)(f) is not met.
44․The suspension consequences are for a person who does nothing (for whatever reason) to engage with the opportunities provided to dispute the charge. The appellant’s circumstances are but one example of non-engagement. People are busy. Even if they open their mail and read the notice, they might lose it or forget about it. As a matter of public policy, however, a system to enforce compliance with road safety rules (or regulations) would be unworkable if drivers issued with infringement notices were permitted to ignore those notices, whether that be deliberately or inadvertently, without consequence. For the same reason, the court has no power to lift a suspension which arises out of the mandatory operative provision in question here.
45․The appellant referred during the hearing to having a right to drive. However, that right is provided by a licence to drive, and that licence comes with conditions. One of those is the responsibility to follow the road rules and as the statutory framework demonstrates those rules require drivers to address allegations made in infringement notices.
46․In summary then, the initial offence charged was subject to an administrative process that was commenced by the issue of the notice. That was a process with which the appellant did not engage. Whether the non-engagement was a deliberate refusal to open the letter or not is immaterial. The fact is, the failure had administrative consequences, being the suspension of the appellant’s right to drive in the ACT. Breach of that suspension was then a criminal offence.
47․Accepting that the charge for the speeding offence was ultimately dismissed, the reason it does not have any consequence in the circumstances of this case is because it was not the original speed camera detection that gave rise to the suspension of the appellant’s licence. It was the appellant’s lack of response to the notices sent about that matter.
48․The insight that might be gleaned from this case is that it is prudent to face the paperwork received in the mail from Access Canberra, rather than to take an approach of ignoring what may be contained in the envelope. Accordingly, this ground of appeal fails.
Issue 2 – Whether the defence of mistake of fact applied and ought to have succeeded
49․At the primary hearing, the appellant submitted that he should not bear criminal responsibility as he had made a mistake of fact under s 36 of Criminal Code.
50․Section 36 of the Criminal Code is set out as follows:
36Mistake of fact—strict liability
(1)A person is not criminally responsible for an offence that has a physical element for which there is no fault element if—
(a)when carrying out the conduct making up the physical element, the person considered whether or not facts existed, and was under a mistaken but reasonable belief about the facts; and
(b)had the facts existed, the conduct would not have been an offence.
(2)A person may be taken to have considered whether or not facts existed when carrying out conduct if—
(a)the person had considered, on a previous occasion, whether the facts existed in the circumstances surrounding that occasion; and
(b)the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as the circumstances surrounding the previous occasion.
Note Section 24 (Absolute liability) prevents this section applying to offences of absolute liability.
51․The appellant argued he had a mistaken but reasonable belief that “he had a right to drive in the ACT as a result of possessing a valid NSW driver licence”.
52․The magistrate’s finding (primary judgment at [80]) was that this was a question of law and that accordingly, the above defence in s 36 did not apply. In the alternative, the magistrate found (primary judgment at [81] and [103]) that the appellant’s belief, which was accepted as genuine, was not reasonably held. The reasoning process was lengthy, but it included:
(a)The test of reasonableness includes mixed subjective and objective elements (primary judgment at [105]-[106]);
(b)The infringement notice, reminder notice, threatened suspension notice and notice of confirmation of the suspension were all statutory notices served in accordance with the General Act and the Road Transport (General) Regulation 2000 (ACT) (primary judgment at [113]);
(c)It was immaterial that the appellant declined to read them (primary judgment at [115]); and
(d)At least from 22 June 2022, when the suspension notice was received (albeit not read), objectively, the appellant could no longer have reasonably held the view that he retained a right to drive in the ACT, because he was given explicit notice to the contrary (primary judgment at [119]).
53․For the reasons below, I find that the magistrate was not in error.
Was the appellant’s right to drive in the ACT a matter of fact or law?
54․The appellant did not contest the legal basis for the magistrate’s finding that s 36 of the Criminal Code was not engaged. In Poole v Edwards [2016] ACTSC 159 at [63]-[64], Refshauge J discussed the “long line of cases” that make it clear that when the suspension of licence (among other things) is made automatically by the operation of legislation, a mistake about that matter is a question of law, ignorance of which is no excuse. That was the principle applied by the magistrate here which led to the conclusion that s 36 did not apply.
55․However, given the appellant was self-represented, the respondent addressed the ground on the basis that even if there was error in that conclusion, there was no error demonstrated with regard to the operation of s 36. I have adopted the same approach so as not to deal with an issue upon which neither party made submissions. But it should be emphasised that what follows is alternative reasoning to the key reason at first instance for disposing of this defence, namely that it did not arise at all in the circumstances of this case.
Did the magistrate err in finding that the defendant’s mistaken belief was not reasonably held?
56․The appellant’s complaint at the hearing was that there was a contradiction between the magistrate’s finding that he held an honest belief that he did not know about the suspension and the subsequent finding that such a belief was unreasonable.
57․The fact in question here is whether the appellant’s right to drive in the Territory had been suspended. It is uncontroversial that had the fact existed (that is, had the appellant’s right to drive not been suspended), the conduct in question would not have been an offence: s 36(1)(b) of the Criminal Code.
58․In order for the mistake of fact defence to apply, s 36 requires that there must be both a genuine or honest belief about a fact which was mistaken, and such belief about the particular fact must be reasonably held. It has been held that such a defence, although codified, reflects the common law: CTM v The Queen [2008] HCA 25; 236 CLR 440 at [3]. The High Court went on to describe honest and reasonable belief (at [8]) as being:
… a concept that has a subjective element of a kind that ordinarily is peculiarly within the knowledge of the accused, and an objective element that must be capable of being measured against the evidence by a tribunal of fact.
59․In He Kaw Teh v The Queen (1985) 157 CLR 523 at 534, Gibbs CJ and Mason J made it clear that there was no onus on an accused to prove the existence of reasonable mistake of fact. If it is raised on the evidence, the onus (described by the magistrate in the primary judgement at [15] and [65] by reference to s 58 of the Criminal Code as satisfying an evidential burden) is on the prosecution to disprove mistake beyond reasonable doubt.
60․Here, on the alternative case, the appellant succeeded before the magistrate on the first of those matters, being his subjective mistaken belief, but not the second, being the objective reasonableness of the belief. For the reasons following, there was no error in the magistrate’s finding (as an alternative to the primary finding that the section did not apply). I have passed over the magistrate’s consideration whether the belief was honest or genuine as it is not the subject of the appeal.
The appellant’s choice not to open his mail
61․During the hearing of the appeal, the appellant explained that in the Magistrates Court, he gave two reasons for not opening his mail. Significantly, he did not dispute that he received the notices (primary judgment at [101]). He maintained on appeal that he returned the notices to the sender.
62․The first reason for refusing to open the mail addressed to him related to the appellant’s evidence that he misread the envelopes as being from “Access to Canberra”, suggesting some form of tourist information was being sent to him. That claim was rejected by the magistrate at [52] of the primary judgment:
While the Defendant said that he was uncertain as to the identity of the sender of the notices, I find that the Defendant did know that the notices had been sent by Access Canberra and at least suspected (if he did not positively know) that the correspondence was of an official nature. It would be unusual to receive repeated correspondence with tourist information (as he claimed he thought it was), particularly in the form that the letters were sent, addressed directly to the Defendant using what appears, from the Defendant’s evidence, to have been standard business envelopes. As noted above, I consider that the Defendant’s action, in returning the correspondence to sender, exhibited a knowledge that the correspondence was of an official nature and reflected his objection to being sent the correspondence.
63․The magistrate’s impression was that the appellant’s conduct was consistent with one who was avoiding the correspondence from Access Canberra. I agree. At the point where the fourth notice from Access Canberra was received and returned to sender, being the notice of confirmation of suspension, the appellant was really in the category of having no belief. At best, he was ignorant of the fact that his right to drive in the Territory had been suspended. At worst, he was deliberately avoiding being informed of that fact. As the respondent submitted, relying on State Rail Authority (NSW) v Hunter Water Board (1992) 28 NSWLR 721 at 725 citing Bergin v Stack (1953) 88 CLR 248 at 261-262, what is needed is an “affirmative belief in a certain fact or state of affairs, as distinct from a mere absence of knowledge”. In either case, that does not invoke the defence in s 36.
64․Otherwise, turning away the very correspondence that would have notified a person of a fact – a fact they then claim to not know – is not an objectively reasonable ground for holding the purported belief.
65․The appellant’s second reason for not opening the mail was apparently raised with the magistrate but was thought by the appellant not to have been addressed in the reasons. A close reading of the primary judgment reveals that the magistrate did briefly deal with the argument that follows at [117], where his Honour stated:
His further explanation, that he does not trust unsolicited correspondence and that he had issues with respect to the type of envelope used to send the notices and the use of capital letters in the suburb and street names printed on the notices, is inadequate. …
66․With some hesitation, as he did not wish to be dismissed as a foolish “conspiracy theorist”, the appellant requested that this Court on appeal give consideration to the second aspect of the appellant’s reason for not opening his mail.
67․The appellant’s argument was that the use of capital letters carried with it an implied loss of status, akin to being a slave. He submitted that he was not going to accede to receiving any correspondence that contained capital letters because of the slavery connotations that accompanied the use of the uppercase format.
68․It transpired that the basis of the appellant’s argument was a series of definitions in the 4th edition of Black’s Law Dictionary, which states as follows:
CAPITIS DIMINUTIO. In Roman law. A diminishing or abridgment of personality; a loss or curtailment of a man's status or aggregate of legal attributes and qualifications.
CAPITIS DIMINUTIO MAXIMA. The highest or most comprehensive loss of status. This occurred when a man's condition was changed from one of freedom to one of bondage, when he became a slave. It swept away with it all rights of citizenship and all family rights.
CAPITIS DIMINUTIO MEDIA. A lesser or medium loss of status. This occurred where a man lost his rights of citizenship, but without losing his liberty. It carried away also the family rights.
CAPITIS DIMINUTIO MINIMA. The lowest or least comprehensive degree of loss of status. This occurred where a man's family relations alone were changed. It happened upon the arrogation of a person who had been his own master, (sui juris,) or upon the emancipation of one who had been under the patria potestas. It left the rights of liberty and citizenship unaltered. See Inst. 1, 16, pr.; 1, 2, 3; Dig. 4, 5, 11; Mackeld.Rom.Law, § 144.
69․It is unnecessary to consider whether the argument is properly described as a conspiracy theory. It suffices to find that the argument was misconceived on a number of levels, whether in law, logic or fact. I will briefly explain some difficulties with the appellant’s argument. The first is that, as the magistrate noted, on the evidence of every item of correspondence before the Court – which included the penalty notice, the reminder notice, the warning notice, and the confirmation of the suspension itself – the only words in uppercase format were the suburb and state of the appellant’s address. It is difficult to see how the implied slavery notion could apply to a location typed as ‘NSW’ rather than ‘New South Wales’.
70․The second difficulty is that the appellant appears to have fundamentally misunderstood the legal definitions of terms that use the word “capitis” as somehow applying to capital letters. Each of the definitions in the extract from the legal dictionary also include the word “diminutio”. It is that word which describes a diminishing or curtailment of status. If anything, whatever meaning an individual might extrapolate from a formatting decision made by Access Canberra, the use of all capital letters is a choice of format creating importance, not a diminishing in status of the word typed. Similarly, the capitalisation of the first letter of a person’s name is a grammatical requirement applying to proper nouns.
71․The third difficulty, as I canvassed with the appellant during the hearing, is of course that the above definitions plainly have nothing to do with upper- or lower-case lettering, let alone the issue of whether any intention could be imputed to Access Canberra by the use of such lettering.
72․Critically on this appeal, the entire argument was fanciful, illogical, and had no connection in establishing any error on the part of the magistrate. I have dealt with it for completeness out of deference to the appellant’s view that his argument was not properly considered and his request that this Court consider the point on appeal.
73․Having reviewed the evidence before the magistrate and considered the legal principles applied by the court below, I am not persuaded that the s 36 defence, if it applied at all, was raised on the evidence such as to require the prosecution to negative it beyond reasonable doubt. But further, even if that view (itself an alternative finding) is incorrect, I would have been satisfied beyond reasonable doubt that the reasonableness element of the defence was negatived.
Issue 3 – Whether the offence was invalid because it was disproportionately harsh
74․The appellant’s perspective was that he was aggrieved because he has ended up with a criminal record simply because he did not open a letter. Although couched in terms of validity, the substance of the appellant’s complaint in this regard concerned conduct that should or should not constitute a criminal offence. It is not a proper matter for this Court to consider. This is properly a question for the legislature and therefore not a competent ground of appeal.
75․In any event, the offence itself of driving while the right to drive was suspended captures a range of conduct. A person’s licence or right to drive may be suspended for many statutory reasons. It is not limited to those who do not respond to infringement notices sent in the mail. I adopt the respondent’s submission, in that s 23 of the Criminal Code clearly provides for offences created which do not require any fault elements. That is, the starting point of the offence is that it excludes intention, such that any reason for the initial suspension in the first place is simply irrelevant.
76․Further, strict liability offences are directed to upholding public road safety in a way that is administratively manageable. As explained in relation to Issue 1, notwithstanding that the speeding charge giving rise to the circumstances in which the appellant’s licence was suspended was ultimately withdrawn, there was compliance with the procedure set out in the legislation for issuing the infringement notice and the subsequent notices that followed. Again, as the respondent submitted, it was not the speeding charge itself that gave rise to the suspension, but the failure to take any action in relation to the infringement notice such that the mandatory operating provisions in Part 3 of the General Act (in particular s 44) took effect, ultimately resulting in the suspension of the appellant’s right to drive.
77․This ground does not establish error in respect of the magistrate’s decision.
Issue 4 – Is s 31A of the Licensing Act (or s 44 of the General Act) inconsistent with s 69 of the Self-Government Act?
78․The appellant put his complaint in a variety of ways. He first argued that s 31A of the Licensing Act (set out at [4] above) was invalid because it was inconsistent with s 69 of the Self-Government Act. He then orally amended the ground to argue that s 44 of the General Act (set out at [37] above) was invalid for the same reason.
79․Section 92 of the Constitution provides (emphasis added):
92Trade within the Commonwealth to be free
On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation.
80․Section 69 of the Self-Government Act provides:
69Trade and commerce to be free
(1)Subject to subsection (2), trade, commerce and intercourse between the Territory and a State, and between the Territory and the Northern Territory, Norfolk Island, the Jervis Bay Territory, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands, shall be absolutely free.
(2)Subsection (1) does not bind the Commonwealth.
81․The Intervenor provided comprehensive written submissions, which were supplemented orally in relation to issues which the appellant raised that were different to those he originally argued. Broadly, I have accepted the Intervenor’s arguments, the key aspects of which are incorporated in the reasons that follow.
82․Because the terms of s 69 of the Self-Government Act are largely identical to those of s 92 of the Constitution, authorities dealing with the latter are relevant to the interpretation and application of the former: Wylkian Pty Ltd v ACT Government [2002] ACTSC 97 at [25], affirmed on appeal: Wylkian Pty Ltd v ACT Government [2003] ACTCA 11.
83․The short point is that s 92 of the Constitution (or the guarantee in s 69 of the Self-Government Act) is just not enlivened, let alone contravened.
84․It is not enlivened because the legislation in question relevantly dealt with the issuing of infringement notices and consequences for ignoring the notice (under the General Act) and driving while suspended (under the Licensing Act) within the Territory. None of those activities involve trade, commerce or intercourse between a Territory and a State. While intercourse does involve physical movement, and the right to drive in the Territory involves physical movement, s 69 is directed to a different freedom of physical movement, namely movement between the Territory and a State: Cunliffe v Commonwealth (1994) 182 CLR 272 at 307-308.
85․Even if that point is passed over, the section has been interpreted to require that before a finding of invalidity will be made, there must be some sort of discriminatory burden imposed, that cannot be justified by reference to a non-discriminatory purpose: Palmer v Western Australia [2021] HCA 5; 272 CLR 505 at [48]-[50], [96]-[98], [184]. It cannot be said that either s 31A of the Licensing Act or s 44 of the General Act imposes any discriminatory burden. In relation to the suspension provisions in the General Act, they apply to anyone who does not respond to an infringement notice, not just those who live outside the Territory. Similarly, all that s 31A of the Licensing Act does is to make it an offence for a person to drive on a Territory road while their right to do so has been suspended under another law of the Territory. Again, that offence applies to any driver who engages in conduct that is covered by the offence. There is no distinction between interstate drivers and those in the Territory. Neither law contravenes s 69. The magistrate was correct in making findings to that effect at [137] of the primary judgment. This ground therefore fails.
Issue 5 – Does the legislative framework impermissibly vest judicial power in the executive of the Territory?
86․This ground was new and not dealt with by the magistrate in the primary judgment. The argument was that the legislation created an investiture of the judicial power of the Commonwealth in the ACT Road Transport Authority (being the relevant part of the executive here). The Intervenor was in a position to deal with it orally. I therefore allowed the legal argument to be put on appeal.
87․This is not the case to delve into the interesting question of the separation of powers within the Territory, or the vesting of federal jurisdiction in territory courts, as to which there is a useful extra-judicial discussion by Mossop J in The Constitution of the Australian Capital Territory (Federation Press, 2021) at 222-223 and 51-59 respectively.
88․The argument fails largely for reasons explained in Issue 1 as to the operation of the legislative framework, from which it may be seen that no provision of the General Act vests judicial power in the Executive of the Territory.
89․In relation to the issuing of an infringement notice under the General Act, the fact that it may be contested in a court means that the judicial power to find the infringement proven is retained by the court, not the Road Transport Authority. As explained above, the legislative scheme proceeds on the basis of an “opt in” process of paying the fine to avoid court attendance. It is only at the stage where the infringement notice is actually prosecuted in a court that the judicial power of the courts is then exercised to determine whether the person is guilty of the conduct which is the subject of the infringement notice.
90․Similarly, in relation to the automatic suspension provided by s 44 of the General Act, that is an administrative consequence. The fact that the suspension is automatic, or mandatory, is indicative of the power being exercised being executory as it is the doing of something immediately authorised by the legislation. It is not the exercise of judicial power, concerning the binding determination of controversies. Such a consequence remains amenable to judicial review in any event. That leads to the conclusion that s 44 likewise did not vest judicial power in the Road Transport Authority.
91․Accordingly, this ground also fails.
Conclusion
92․This case demonstrates the importance of opening letters sent by Access Canberra, even if the contents of the letter are potentially unwelcome. A missed opportunity to dispute liability may lead to an outcome more severe than that stipulated in the penalty notice. For the above reasons, the Court orders as follows:
(1)The appeal is dismissed.
(2)Pursuant to s 218(1)(a) of the Magistrates Court Act 1930 (ACT) the order of the Magistrates Court made on 29 November 2023 is confirmed.
| I certify that the preceding ninety-two [92] numbered paragraphs are a true copy of the reasons for Judgment of her Honour Justice McWilliam. Associate: Date: |
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