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…

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.

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Details

Case: [2005] SASC 197
Decision Date: 31 May 2005

CaseChat Overview and Summary

Vandenbergh appealed against the convictions and enforcement orders issued by the Magistrates Court of South Australia, arising from two counts of speeding. The appellant argued that he did not commit the offences as he had made an honest and reasonable mistake regarding his speed. The case involved the interpretation of the Expiation of Offences Act 1996 (SA) and the applicability of the Proudman v Dayman defence.

The court had to determine whether the convictions and enforcement orders should be reviewed and if the Proudman v Dayman defence was available. The court also needed to assess whether the enforcement notices and orders were served correctly according to the Act, and whether the appellant's convictions should be set aside due to an honest and reasonable mistake. The court had to consider whether the appellant's demerit points could be reduced due to this mistake.

The court rejected the appellant's claims and found that the magistrate acted appropriately in the circumstances. The court accepted the evidence of Constable Jarman, who was consistent and clear, and rejected the appellant's vague and inconsistent evidence. The court found that the enforcement notices and orders were served in accordance with the Act. The Proudman v Dayman defence was not available as a matter of law, and even if it were, it would fail on the facts. The court concluded that there were no grounds for a review of the convictions and enforcement orders. The appeals were dismissed, and the applications for extensions of time to appeal were refused.

The court's final orders were that the appeals against the convictions and enforcement orders were dismissed, and the applications for extensions of time to appeal were refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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