Topic v Director of Public Prosecutions - [2024] ACTSC 398

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as unclaimed – right to drive in ACT automatically suspended for non-payment of fine – where speeding charge ultimately withdrawn – whether magistrate erred in finding appellant guilty – appeal dismissed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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Topic v Director of Public Prosecutions and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] ACTSC 398
Decision Date: 16 December 2024

CaseChat Overview and Summary

In the case of Topic v Director of Public Prosecutions, the appellant, Topic, challenged the Magistrates Court decision that found him guilty of driving while his licence was suspended. The dispute arose from an incident where Topic had received infringement notices and reminders from Access Canberra regarding a speeding charge. These were sent by mail but returned as unclaimed. As a result, his right to drive in the ACT was automatically suspended for non-payment of the fine. Ultimately, the speeding charge was withdrawn, but the driving offence had already been prosecuted. Topic argued that the magistrate erred in finding him guilty, contending that he was unaware of the infringement notices due to the mail being returned as unclaimed.

The legal issues before the court were whether the appellant was properly served with the infringement notices and whether the magistrate correctly found him guilty of the offence. The court had to consider the legal principles surrounding service of documents, the effect of non-payment of fines on driving rights, and the requirements for establishing a driving offence in the ACT. The central issue was whether the appellant had actual or constructive knowledge of the infringement notices, which would have triggered the suspension of his driving licence.

The court found that, despite the mail being returned as unclaimed, the appellant had a duty to check with Access Canberra and take reasonable steps to ascertain the status of his driving licence. Given the repeated attempts by Access Canberra to communicate with the appellant, the court held that the appellant had constructive knowledge of the infringement notices and the resulting suspension of his licence. Consequently, the court confirmed that the magistrate did not err in finding the appellant guilty, as the appellant failed to demonstrate a lack of knowledge about the suspension of his licence. The appeal was dismissed, and the order of the Magistrates Court was upheld.

Orders

Orders of the court

The appeal is dismissed and the order of the Magistrates Court made on 29 November 2023 is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.