Peter John Naylor v Rodney Darren Carter [1992] ACTSC 54; (1992) 107 FLR 285 (29 May 1992)

SUPREME COURT OF THE ACT

PETER JOHN NAYLOR v. RODNEY DARREN CARTER
No. SCA 131 of 1991
Appeal against conviction for traffic offences
[1992] ACTSC 54; (1992) 107 FLR 285

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Appeal against conviction for traffic offences - whether costs recoverable by successful defendant - discretion to withhold costs in appropriate cases.

Traffic offences - driving whilst cancelled - obtaining licence whilst cancelled - proof of mens rea - statutory displacement of presumption.

Traffic offences - defence of honest and reasonable belief.

Criminal Law (4th ed. 1982) pp 377-379

Proudman v. Dayman [1941] HCA 28; (1941) 67 CLR 536

Latoudis v. Casey [1990] HCA 59; (1990) 170 CLR 534

HEARING

CANBERRA
29:5:1992

Counsel for the appellant: Mr S. Pilkinton

Solicitors for the appellant: Porter Pilkinton

Counsel for the respondent: Mr A. Doig

Solicitors for the respondent: Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:

1. The appeal be upheld.
2. The convictions and orders in the Magistrates Court on 27
November 1991 be set aside.
3. There be no order as to costs.

DECISION

This is ultimately a dispute over costs.

2. The matter came before the Court by way of appeal from conviction in the ACT Magistrates Court on 27 November 1991 for an offence of driving a motor vehicle on 28 June 1991 whilst the appellant's licence was cancelled, and for an offence of obtaining a driving licence on 19 June 1991 whilst the appellant's previous driving licence remained cancelled.

3. There is a somewhat complicated history.

4. On 4 September 1990 a Magistrate found the appellant guilty on a charge of speeding. The case proceeded in the absence of the appellant, but there is no reason to believe that he was not aware of the proceedings. The Magistrate made an order cancelling the appellant's driving licence. The cancellation was still effective as a matter of record at the time of the commission of the alleged offences with which this appeal is concerned and at the time of the conviction for those offences on 27 November 1991.

5. On 8 January 1992 the appellant successfully applied to the Magistrates Court under s.23 of the Magistrates Court Act 1930 to have set aside the cancellation of the licence ordered on 4 September 1990. In lieu of the cancellation the Magistrate hearing the application substituted a penalty of a fine of $200.

6. Counsel for the Director of Public Prosecutions representing the informant respondent stated at the commencement of the hearing of the appeal before me that the appeal was consented to, to the extent that there was no opposition to the upholding of the appeal and the setting aside of the convictions of 27 November 1991. The Director wrote to the solicitor for the appellant on 3 February 1992 stating his intention not to oppose the appeal and further to appear at the hearing and state that the appeal was in effect conceded in the light of the events just outlined. I think that the Director has acted properly in accordance with his assessment of the legal ramifications of what occurred. However, I am not to be taken to be of the considered opinion that the Director is correct in treating the cancellation of the driving licence on 4 September 1990 as rendered void ab initio by the order of 8 January 1992.

7. Mr Pilkinton, who appears for the appellant, submits that notwithstanding the Director's concession, the appellant should have an order for the costs of the appeal and the proceedings in the Magistrates Court on 27 November 1991. He submits that the appeal is not to be upheld because of the effect of the setting aside of the cancellation of the licence subsequent to the convictions but that the appeal should succeed on the merits. Mr Pilkinton points to remarks made by the Magistrate in his reasons for convicting the appellant which, according to the submission, indicate errors of law. He also argues that as the appellant did not know of the order cancelling his licence on 4 September 1990 until he applied on 19 June 1991 for a new licence, then the prosecution had not proved the necessary element of mens rea with regard to the two offences of driving whilst licence cancelled and of obtaining a licence whilst the previous licence remained cancelled.

8. I think that this submission is incorrect. It is a well established principle that the presumption that proof of mens rea is necessary for the commission of a criminal offence may be displaced by statute, and is frequently displaced for regulatory offences created by statute. See a brief discussion of the cases in Howard, Criminal Law (4th ed. 1982) pp 377-379. Several offences under the Motor Traffic Act fall into this category. Take for instance the familiar offence of driving in excess of the speed limit. Neither lawyers nor anybody else in the community would think that it is necessary for the prosecution to prove that the driver intended that the speed at which the vehicle was being driven should exceed the speed limit. Mens rea applies to the commission of the actus reas, but not to the quality of the actus reas. The only element of that offence to which mens rea applies is the element of driving. If in some peculiar circumstance a person drove a vehicle without intending to do so, the prosecution would fail because of the absence of guilty intent in relation to the act of driving. So it is in the present case. The prosecution has to prove that the accused intended to drive the vehicle which he drove on 28 June 1991 and has to prove that he intended to obtain the licence which he obtained on 19 June 1991. Clearly those elements of both charges have been made out. There is no need to prove mens rea in relation to the element of the cancellation of licence.

9. The alternative submission put by Mr Pilkinton is that there is a defence of the nature recognized by the High Court in Proudman v. Dayman [1941] HCA 28; (1941) 67 CLR 536 by which a defendant may escape criminal liability if it is shown that the defendant believed in a set of circumstances which if true would have provided a defence. Thus it is argued that because the appellant in the present case did not know that his licence was cancelled, he therefore had the requisite belief that the new licence which he obtained and which he held at the time he was driving was a valid licence entitling him to drive within the law.

10. The limit to this type of defence is that the belief in question must be honest and reasonable. Furthermore, it is for the defendant to prove on the balance of probabilities that such a belief was operative on his mind at the relevant time, that is to say, when he carried out the acts which, absent such a belief, constituted the offence.

11. It is not obvious from the Magistrate's reasons whether he accepted that the defendant held a belief that his licence had not been cancelled. Clearly he was not greatly impressed by the appellant as a witness. However, assuming that the appellant held that belief at the relevant time, I am not convinced on the balance of probabilities that it was a reasonable belief.

12. The appellant did not assert in his evidence, nor was it claimed on his behalf, that he was unaware of the charge of speeding that was determined against him on 4 September 1990. He was living at an address at Narrabundah at the time. The evidence is sufficient for the conclusion to be drawn that a notification was sent to that address of the result of the hearing on 4 September 1990. The appellant claimed in evidence that he had never received any such notification, and I will assume (possibly contrary to the view of the Magistrate) that his assertion is correct. However, the most likely reason for his not receiving the notification was that he moved from those premises soon after and went to live interstate. When interviewed by police on 28 June 1991, the following conversation took place:

"Q. Did you know that you are a cancelled driver?
A. No, only suspended for three months for speeding, it happened at
Woden.
Q. Did you get an ACT licence after that?
A. No, I moved to Queanbeyan.
Q. Did you move to Queanbeyan to get a licence?
A. Yeah, that's right.
Q. Then you moved to Queensland?
A. Yeah, I got another licence there.
Q. Is that the one that you transferred to over here, is it?
A. Yeah.
Q. Did you fill out all the forms to get your licence?
A. Yes, and I told them about being suspended and the speeding
fines. They said it was okay. It was only suspended never
cancelled."

13. This suggests that the appellant knew something about the result of the hearing on 4 September 1990 and that it affected his right to drive a motor vehicle.

14. I take judicial notice of the condition endorsed on ACT driving licences which requires notification of change of address within seven days.

15. Once the appellant moved from the premises at Narrabundah, he was under an obligation to inform the Registrar of Motor Vehicles of his change of address. Had he done so, there is a likelihood that the notification of cancellation would have been sent to his new address. At the very least, by changing his place of residence he made it more likely that he would not receive notification of the result of the charge of speeding which he knew to be outstanding and which he knew or ought to have known was likely to result in suspension or cancellation of his licence.

16. When the appellant applied for a new licence on 19 June 1991, in effect in exchange for another driving licence that he had obtained in the meantime in Queensland, he failed to disclose the full details of previous convictions. He disclosed only a conviction for speeding in 1982 for which his driving licence was suspended for three months. In fact, his driving licence had been suspended for a further period of twelve months in 1984. Had these matters been disclosed by him, there may have been a more comprehensive investigation of his history before a decision was made to grant him the new ACT licence.

17. I am of the firm view that the Magistrate was correct in convicting the appellant on both charges on 27 November 1991, although my own reasons for rejecting the Proudman v. Dayman defence differ from those expressed by the Magistrate. I have no doubt that the appellant brought the proceedings upon himself. The fact that he was successful in subsequently having the cancellation of 4 September 1990 set aside in no way affects my view in this regard. The decision of the High Court in Latoudis v. Casey [1990] HCA 59; (1990) 170 CLR 534 lays down the principle that in summary criminal proceedings a successful defendant should recover costs. However, the High Court also recognized the discretion to withhold costs in an appropriate case. For the reasons I have given, this is such a case.

18. The appeal will be upheld. The convictions and orders in the Magistrates Court on 27 November 1991 are set aside. I make no order as to the costs of those proceedings nor of this appeal.