Vandenbergh v Police - [2005] SASC 197

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VANDENBERGH v POLICE
Judgment of The Honourable Justice Gray
31 May 2005
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN BREACH OF SPECIFIC SPEED LIMITS
Appeals against conviction - appellant sought to have magistrate review enforcement orders arising from two counts of driving a motor vehicle at a speed of more than 15-29 kilometres per hour above the speed limit - appellant claimed had not committed offences because had made an honest and reasonable mistake with respect to his speed.
Consideration of review process under the Expiation of Offences Act 1996 (SA) - discussion of Proudman v Dayman defence - consideration of process for issue of expiation notices - extensions of time to appeal refused.
Australian Road Rules r 20; Expiation of Offences Act 1966 (SA) s 13, s 14; Magistrates Court Act 1991 (SA) s 42; Motor Vehicles Act 1959 (SA) s 98B; Motor Vehicles Regulations 1996 (SA) r 56, referred to.
Riessen v State of South Australia (2001) 79 SASR 82; Sutcliffe-Huigol v Police (2002) 219 LSJS 433; Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v The Queen (1985) 157 CLR 523; R v Tolson (1889) 23 QB 168; Sherras v De Rutzen [1895] 1 QB 918; August v Fingleton [1964] SASR 22; Franklin v Stacey (1981) 27 SASR 490, considered.

VANDENBERGH v POLICE
[2005] SASC 197
Magistrates Appeal
GRAY J

These are two appeals against conviction.
Robert John Vandenbergh was apprehended on two separate occasions for driving a motor vehicle at a speed of more than 15-29 kilometres per hour in excess of the signed speed pursuant to Australian Road Rule 20.[1] The offences were expiable. However, Mr Vandenbergh neither paid the fines nor elected to be prosecuted. Orders of enforcement were then generated. Mr Vandenbergh was taken to have been convicted of both offences pursuant to section 13(6)(a) of the Expiation of Offences Act 1996 (SA):
On an enforcement order being made the alleged offender will be taken to have been convicted by the Court on that day of the offence or offences to which the order relates.
[1] Rule 20 provides: A driver must not drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving.
The appeals raised a number of common issues. An order for consolidation has been made. As the appeals raise complicated issues, it is necessary to trace the history of the matters in some detail. Mr Vandenbergh’s ultimate concern related to the loss of his driver’s licence as a result of demerit points attracted by the two offences.
Both appeals were lodged out of time. Counsel for Mr Vandenbergh sought an extension of time in respect of both appeals on the ground that he had been unaware of his right to appeal. On taking legal advice, he was said to have become aware of his rights. If there was substance to the appeals, the Crown accepted that extensions should be granted. However, it was said that if there was no substance to the appellant’s contentions, the applications for extensions of time should be refused.
Circumstances of the Offending
During the hearing of the appeals, evidence was called from the appellant and from a police constable, Mark Andrew Jarman. For reasons that appear later, I have accepted the evidence of Constable Jarman. I have rejected the evidence of the appellant where it differed from Constable Jarman’s account.
On 16 July 2004 Constable Jarman apprehended Mr Vandenbergh on the Eyre Highway approximately 27 kilometres from Kyancutta, South Australia. The radar system in Constable Jarman’s patrol vehicle recorded Mr Vandenbergh’s vehicle travelling at 139 kilometres per hour in a 110 kilometres per hour zone. When advised of the radar reading, Mr Vandenbergh stated that he thought his speedometer was incorrect. He told Constable Jarman that he had a single demerit point left to lose, but was due to have several points credited to his licence in the next few days. Constable Jarman informed Mr Vandenbergh that he could have a speedometer test in a controlled environment. Mr Vandenbergh did not accept this offer. Constable Jarman issued Mr Vandenbergh with an expiation notice.
On 23 July 2004 Mr Vandenbergh was again apprehended on the Eyre Highway driving the same motor vehicle in excess of the signed speed. His speed was recorded by radar at 138 kilometres per hour. Mr Vandenbergh again stated that his ‘speedo was out’. Constable Jarman explained that Mr Vandenbergh could have his speedometer tested, either at Adelaide or in a police controlled environment. Mr Vandenbergh did not accept the offer at this time. He stated that he was travelling to Adelaide and that he would not return to Ceduna until 27 July 2004. An expiation notice was not issued to Mr Vandenbergh on 23 July 2004. Constable Jarman did not do so due to poor weather conditions and his perception that Mr Vandenbergh appeared agitated. Mr Vandenbergh alleged that ‘the paperwork’ was put off pending the speedometer test result. Arrangements were made for Mr Vandenbergh to attend the Ceduna police station on 27 July 2004 in order to collect the expiation notice and undertake a speedometer accuracy test.
Mr Vandenbergh subsequently attended the Ceduna police station on 27 July 2004. An accuracy test was undertaken. The test disclosed that, at that time, Mr Vandenbergh’s speedometer was out of calibration by 10 kilometres per hour when travelling at 60 kilometres per hour and 14 kilometres per hour when travelling at 100 kilometres. The expiation notice was then issued with respect to the 23 July 2004 offence.
Mr Vandenbergh did not recall whether a second expiation notice had been issued. He claimed that he did not receive a reminder notice regarding the payment of either expiation fee. Transport SA advised Mr Vandenbergh that his licence was to be suspended as a result of demerit points acquired for the offence. A notice to this effect was sent by post on 22 September 2004.
Application for review
On 1 November 2004 Mr Vandenbergh lodged applications to review the enforcement orders pursuant to the provisions of the Expiation of Offences Act. Section 14(1) provides:
Subject to this section, the person liable under an enforcement order may apply to the Court for a review of the order within 30 days of being given notice of the order.
The ground of each application was that the radar check undertaken by the police disclosed that Mr Vandenbergh’s speedometer was ‘out by over 15 kilometres per hour’.
The pro forma applications as completed by Mr Vandenbergh included the following:
Details of Application
1      Date I first became aware of this enforcement order:……………………………..
2      If this is more than 30 days prior to this application reason for delay:
……………………………………………………………………………………..
……………………………………………………………………………………..
Grounds for Application
3      Ö    the expiation notice should not have been given to me in the first instance.
Give reasons: Vehicle was radar checked with police in vehicle, vehicle was out by over 15km on speedo.[hand written]
4€     the procedural requirements of the Expiation of Offences Act or other Act   were not complied with.
Give details:……………………………………………………………………….        ………………………………………………………………………………
5I did not receive:
‚an expiation notice (in time to pay it before the due date); or
‚a reminder notice (in time to pay it before the due date); or
‚     a notice required by an Act other than the Expiation of Offences Act. Give details:
……………………………………………………………………………………
……………………………………………………………………………………
6the issuing authority did not receive:
‚     a notice sent to the authority by me electing to be prosecuted for the offence; or
‚     a statutory declaration or other document sent to the authority by me in accordance with a notice required by law to accompany the expiation notice or expiation reminder notice.
Give details: …………………………………………………………………..……………………………………………………………………………………..
7      ‚     I have expiated the offence, or offences, under the notice. Give details:
……………………………………………………………………………………..
……………………………………………………………………………………..
8‚     ~~the amount shown as due has not taken into account the payment of an instalment~~ [struck out in pen]
Give details: Did not know this was an option, or that was the procedure to follow with [sic] 1^st received notice. [handwritten].
9Add any other comments: Vehicle continued to increase the speedo reading as test was taken by police as per letter attached [handwritten].
The applications came on for hearing before a magistrate at Port Augusta on 3 November 2004. Mr Vandenbergh was unrepresented. There was no assertion in his applications that he had not received a reminder notice. The question of a reduction in demerit points did not arise. The magistrate dismissed both applications.
The Appeal
At the outset of the hearing of the appeal, submissions were made about there being a failure to comply with the provisions of the legislation with respect to the issue of the expiation notices and the service of the reminder notices. As earlier observed, I accept Constable Jarman’s evidence that the expiation notices were issued in person to Mr Vandenbergh.
Affidavit evidence was tendered from a number of witnesses as to the practices and procedures followed after the issue of an expiation notice. Those affidavits also depose to what occurred with the service of reminder notices and the making and service of enforcement orders. There was no challenge to the affidavits. The affidavits were received on the appeal. There was no application to cross-examine the deponents.
On appeal, counsel for Mr Vandenbergh conceded that the magistrate’s decision to refuse the applications was correct. It was accepted that section 14(7) only permitted review on specified grounds.[2] At one time it was argued that Mr Vandenbergh should have succeeded on review on the basis that he had not received the second expiation notice or any reminder notice. It was said that the enforcement notice was reviewable under section 14(3)(b) or (c) of the Expiation of Offences Act. However, as earlier observed, during the course of the appeal the affidavit evidence of service was not challenged. The expiation and enforcement procedure had been correctly followed. Counsel accepted that Mr Vandenbergh’s inaccurate speedometer did not provide a ground for review.
[2] Pursuant to section 14(3) of the Expiation of Offences Act:
Counsel submitted that the magistrate ought to have recognised that the ground Mr Vandenbergh was seeking to advance, the faulty speedometer, should have been raised by way of an appeal and not through review applications. Counsel contended that the magistrate should have advised Mr Vandenbergh, as an unrepresented litigant, that he had used the incorrect procedure. Counsel claimed that the magistrate should have advised Mr Vandenberg that he should seek to withdraw his applications. It was then contended that the magistrate should have allowed the withdrawal of the applications. It was said that this Court should allow the appeals, set aside the dismissals and permit Mr Vandenbergh to withdraw his applications. This would then allow Mr Vandenbergh to lodge appeals.
Counsel submitted that section 14(7) of the Expiation of Offences Act did not prevent Mr Vandenbergh from challenging the convictions on appeal. That section provides:
If an enforcement order has been reviewed under this section or an application for such a review has been made and not withdrawn, the person liable under the order may not appeal against the conviction of the offence or offences to which the order relates.
Counsel for the Crown submitted that section 13(6)(a) of the Expiation of Offences Act provides that upon an enforcement order being made the offender will be taken to have been convicted by the Court.[3] Pursuant to section 14(7) of the Expiation of Offences Act a person may not appeal against the conviction of an offence if the enforcement order has been reviewed or if there is an application for review that has not been withdrawn.
[3] Riessen v Stateof South Australia (2001) 79 LSJS 82.
Counsel submitted that this was the clear legislative intent underpinning section 14, as evidenced by the Second Reading Speech:[4]
The bill will amend section 14 to make it clear that a person liable under an enforcement order may, either, seek a review of the enforcement order or appeal the conviction. A person will not be able to institute both a review and an appeal against conviction.
[4] Parliamentary Debates, House of Assembly, Tuesday 9 July 2002, Hon MJ Atkinson at 641
Counsel for the Crown submitted that Mr Vandenbergh had sought a review of the enforcement orders, his applications had been dismissed and therefore he had no right of appeal against the convictions. It was further submitted that section 14(8) of the Expiation of Offences Act prohibited a person who has instituted and not withdrawn an appeal against conviction to which an enforcement order relates from seeking a review of the order:
If an appeal against the conviction of the offence or offences to which an enforcement order relates has been determined or such an appeal has been instituted and not withdrawn, the person liable under the order may not apply for a review of the order under this section.
Counsel for the Crown submitted that the Expiation of Offences Act did not contain an express provision for an appeal against a conviction arising pursuant to section 13(6). It was submitted that Parliament must have contemplated that any such appeal would instead be brought pursuant to section 42 of the Magistrates Court Act 1991 (SA), which provides:
A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
It was said any such appeal would necessarily be brought out of time having regard to the terms of section 13(6) of the Expiation of Offences Act. That section deems the date of conviction to be the date of the offence. It was accepted that an appellate court could grant an extension of time if it was in the interests of justice to do so. As earlier observed, counsel for the Crown opposed the applications for an extension of time on the grounds that the appeal was without merit and accordingly had no reasonable prospect of success.
Mr Vandenbergh’s submission should be rejected. In the circumstances, the magistrate was under no obligation to act in the manner suggested. The magistrate adjourned the proceedings specifically to allow Mr Vandenbergh to consider his position. The magistrate acted appropriately in the circumstances.
Evidence on Appeal
The evidence of Constable Jarman and Mr Vandenbergh was treated as evidence in both appeals. The summary outlined earlier in these reasons accorded with the evidence of Constable Jarman. There were differences between Constable Jarman’s evidence and that of Mr Vandenbergh, in particular as to precisely what was said on both occasions and about the delivery of the second expiation notice. Constable Jarman was a consistent and clear witness. His evidence gained support from contemporaneous documents. Mr Vandenbergh was vague and inconsistent in his evidence. The inconsistencies were most apparent when his evidence was contrasted to his earlier affidavit evidence. Mr Vandenbergh’s account differed materially from the account in his affidavit filed in support of these appeals. I accept and act on the evidence of Constable Jarman. Where Mr Vandenbergh’s evidence differs, I reject the testimony of Mr Vandenbergh.
As earlier observed, affidavits as to the service of reminder notices and enforcement orders were placed before the Court. Ultimately this evidence was not challenged. When cross-examined, Mr Vandenbergh claimed that his mail went to a commercial premises. He could not say positively that he had not received the reminder notices or the enforcement orders. I find that the notices and orders were served in accordance with the Expiation of Offences Act.
Counsel for Mr Vandenbergh further submitted that the convictions should be set aside due to an honest and reasonable mistake made by Mr Vandenbergh as to the speed at which his vehicle was travelling. It was submitted that Mr Vandenbergh had an arguable defence that had not been considered. It was further contended that Mr Vandenbergh’s honest and reasonable mistake of fact as to his vehicle’s speed provided proper cause to reduce to nil the demerit points that would otherwise be imposed.
Proudman v Dayman Defence
The defence of honest and reasonable mistake of fact goes back at least to 1889.[5] It has been considered by the High Court of Australia in Proudman v Dayman[6] and He Kaw Teh v The Queen.[7]
[5] See R v Tolson (1889) 23 QBD 168.
[6] (1941) 67 CLR 536.
[7] (1985) 157 CLR 523.
Dixon J in Proudman v Dayman referred to the defence of honest and reasonable mistake a ‘a general rule’. A general rule is not a universal rule. The general rule may be excluded by, to use the words of Dixon J, ‘the words, context, subject matter or general nature of the enactment’.
In He Kaw Teh v The Queen, Gibbs CJ referred to the relevant common law principle which governs criminal responsibility stated in Sherras v De Rutzen.[8] He observed:[9]
There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, and both must be considered.
[8] [1895] 1 QB 918 at 921.
[9] (1985) 157 CLR 523 at 528.
Counsel for Mr Vandenbergh accepted that mens rea was not an element of the offences for which Mr Vandenbergh was charged. Notwithstanding this, the appellant advanced the defence of honest and reasonable mistake of fact.
Counsel for the Crown submitted that, as the conviction related to a regulatory offence that imposes absolute liability, thereby removing mens rea as an element of the offence, the Proudman v Dayman defence of reasonable mistake of fact was not available. Counsel referred to the High Court’s decision in He Kaw Teh v The Queen where it was observed that the following matters were relevant considerations when determining whether statutory provisions infer absolute liability: the nature of any penalty imposed; the mischief the statute is aimed to remedy; the capacity of a person to take effective precautions to avoid committing the offence; and the capacity to enforce the statute.
Statutes creating offences for the purpose of regulating social conditions to protect public safety might more easily be regarded as imposing absolute liability. In regulating the conduct of persons who use public roads, the legislature is not concerned with the moral quality of the Act but with protecting the welfare and safety of the public by preventing risk of injury. The present offences were created as part of an attempt to regulate the conduct of persons on public roads and gave rise to absolute liability.[10]
[10] August v Fingleton [1964] SASR 22 at 25, Franklin v Stacey (1981) 27 SASR 490 at 493-494
Even if a Proudman v Dayman defence was available, this defence could not be made out on the admitted facts. Mr Vandenbergh’s conduct was not the subject of a reasonable mistake of fact. A reasonable driver, from the perception of the speed of other drivers, in the ordinary course, would be alerted to the fact that the speedometer was inaccurate, particularly if that inaccuracy was in the range of 10 to 14 kilometres at speeds of 60 to 100 kilometres an hour. A driver acting reasonably could hardly escape being aware that something was wrong with the vehicle’s speedometer. Mr Vandenbergh would have been on notice that his speedometer could be recording a materially different speed from that at which the vehicle was actually travelling. Mr Vandenbergh, having been issued with an expiation notice on 16 July 2004 and learning that his speedometer was inaccurate, failed to take any steps to remedy the situation. He continued to drive his vehicle at speeds in excess of the speed limit.
Expiation Notice Process and Demerit Points

The Motor Vehicles Act 1959 (SA) provides a procedure for the incurring of demerit points. Section 98B of the Act relevantly provides:
(1)Where a person is convicted of, or expiates, an offence of a kind prescribed by the regulations, the number of demerit points prescribed by the regulations in relation to that offence is, subject to this section, incurred by that person.
…
(4)If a court by which a person is convicted of an offence is satisfied by evidence given on oath forthwith on conviction that the offence is trifling, or that any other proper cause exists, it may order that a reduced number of demerit points, or no demerit points, are incurred by the person in respect of that offence.
Pursuant to regulation 56 of the Motor Vehicles Regulations 1996 the offences specified in schedule 7 of the Regulations are prescribed for the purposes of section 98B of the Motor Vehicles Act. The offences the subject of the present appeals are contrary to rule 20 of the Australian Road Rules. This Rule is included in division 2, schedule 7 of the Motor Vehicles Regulations and is thus a prescribed offence for the purpose of section 98B of the Motor Vehicles Act.
The demerit points were incurred as a consequence of the enforcement orders made pursuant to section 13(6) of the Expiation of Offences Act. As Mr Vandenbergh elected not to be prosecuted, he could not rely directly on section 98B(4) of the Motor Vehicles Act. Section 98B(4) includes the phrase ‘by which a person is convicted’, investing the Court with the capacity to reduce the demerit points if proper cause exists. As Mr Vandenbergh had not been convicted as a result of a prosecution in Court, and did not ‘give evidence forthwith on conviction’, he could not qualify for relief under section 98B(4). In any event, on the basis of the evidence before the Court, there was no proper cause to reduce the number of demerit points incurred by Mr Vandenbergh.
Conclusion
As earlier observed, counsel for Mr Vandenbergh accepted that the appeal against the review applications had to fail. No grounds that could justify a review were advanced. The magistrate adjourned the proceedings so that Mr Vandenbergh could consider his position. Still no arguable grounds were advanced.
Counsel submitted that this Court should allow the appeals to enable Mr Vandenbergh to withdraw his applications and then seek extensions of time. The submission faces a number of hurdles. This submission is rejected for the reasons earlier expressed. Even if the Court were to follow such a course, the appeals would fail. The only suggested defence advanced was the Proudman v Dayman defence. For the reasons earlier expressed, this was not available as a matter of law, and even if available, would fail on the facts.
The applications for extensions of time to appeal are refused. If any extensions were to be granted, the appeals would be dismissed.

(3) An application can only be made on the ground that—

(a) the expiation notice should not have been given to the applicant in the first instance; or

(b) the procedural requirements of this Act or any other Act were not complied with; or

(c) the applicant failed to receive a notice required by this Act or any other Act; or

(ca) the issuing authority failed to receive—

(i) a notice sent to the authority by the applicant electing to be prosecuted for the offence; or
(ii) a statutory declaration or other document sent to the authority by the applicant in accordance with a notice required by law to accompany the expiation notice or expiation reminder notice; or

(d) the applicant has expiated the offence, or offences, under the notice; or

(e) the amount shown as due under the order has not taken into account the payment of an instalment.