Traffic offence - Honest and reasonable mistake as to "conditions" of licence - Whether mistake of fact or law

Road Traffic Act 1974, s 64A(3)(a)

Brooks v Roberts (1997) 25 MVR 83

Campbells v DPP (Cth) 100 A Crim R 209

Collector of Customs v Pozzolanic (1993) 43 FCR 280

Egerton v Taylor (1996) 90 A Crim R 186

Kelsall v Avins (1997) 25 MVR 57

Smith v Ellis, unreported; SCt of WA; Library No 970107; 18 March 1997

1 ROBERTS-SMITH J: This appeal is against the decision of her Worship Mrs Bennett-Borlase SM given in the Court of Petty Sessions at Perth on 9 August 2000. Her Worship dismissed a complaint holding that the respondent was excused from liability under s 24 of the Criminal Code of Western Australia on the basis that he had made an honest and reasonable mistake as to the "conditions" that applied to his licence. Her Worship awarded costs to the respondent in the sum of $800.

2 The circumstances of the complaint before her Worship were that on 21 May 1999 the respondent had been convicted of an offence against s 63 of the Road Traffic Act 1974 ("the Act"). On that occasion the respondent was disqualified from holding or obtaining a driver's licence for a period of 6 months. At the hearing of the complaint before her Worship, a certified copy of the complaint recording that conviction was tendered. The prosecution contended, and, as I understand it, it is not in dispute, that at the date of the offence charged before her Worship, (which was an offence contrary to s 64A subsection (1) of the Act), the respondent was a "recently disqualified driver" by virtue of the operation of s 64A(3)(a) of that Act and was accordingly prohibited from driving or attempting to drive a motor vehicle with a percentage of alcohol in his blood of 0.02 per cent or greater.

3 Section 64A of the Act is somewhat difficult to read. It creates an offence in the terms I have just mentioned, but in subsection (2) then goes on to create an exception to the offence provision in subsection (1). Subsection (2) provides that this section does not apply to a person (then there are a couple of categories described) unless the person amongst other things is a "recently disqualified driver" (subsection (2)(f)).

4 In other words, therefore, s (2)(f) has the effect of providing an exception to an exception, the end result of which is that a person who is a "recently disqualified driver" as defined in subsection (3) commits an offence contrary to subsection (1) if he or she drives with a blood alcohol concentration of or in excess of 0.02 per cent.

5 It is apposite and convenient at this point to refer to the remarks made by the learned Magistrate and her conclusions. They are set out at page 6 of the transcript of the hearing on 9 August commencing at page 17 of the appeal book. Her Worship relevantly said:

"Mr Young admits the driving, admits the date, the place and the reading. He takes no issue with the registration number. What he says to the court is that he did lose his licence in May 1999 for a drink-related offence for a period of 6 months. He applied to the Department of Transport for a licence to drive, so he has taken the effective steps at law to get a licence.

The licence was issued to him. On the back of that licence it has a medical certificate to be produced by 9th December of the year 2000. I accept that he had an honest and reasonable belief for the driving on this particular occasion. To say that s 22 of the Criminal Code applies, ignorance of the law being no excuse, there appears to be nothing written in the legislation of which Mr Young could have addressed himself to find out anything different. If the Department of Transport are issuing in this particular instance of a special type of licence, then one would have expected them to put all the additional conditions which are required of a defendant.

I do not find that s 22 of the Criminal Code applies in this situation but I do accept that Mr Young has made an honest and reasonable mistake and I find the charge not proven."

"If I was going to drive a potentially lethal weapon again I would make sure I had no alcohol in my blood at all. People who do drink and drive are a danger to the public. Do you understand that?"

6 She then continued, to confirm that she was dismissing the charge and awarding costs pursuant to the Official Prosecutions (Defendants Costs) Act.

7 Leave to appeal against that decision was granted by Miller J on 11 September 2000.

8 The grounds of appeal, shortly put, contend that her Worship erred in dismissing the charge in holding that the respondent was excused from liability under section 24 of the Criminal Code and in failing to hold that his mistake was a mistake of law to which s 22 of the Criminal Code applied.

9 The contention put to me by Mr Bowden on behalf of the respondent on this appeal essentially is that the mistake was one of fact and it was both reasonable and honestly held. Indeed, he points out whether or not it was reasonable and honestly held were not matters which were the subject of any contest in the court below.

10 Consequently, the only issue for me to determine is whether or not her Worship's rulings in respect of s 11 and s 24 of the Code were correct insofar as their application to these circumstances is concerned. By Mr Bowden it is put that s 5 of the Act defines a licence and that the respondent was issued properly with a licence so defined.

11 By virtue of s 44 of the Act the Director-General may issue a licence which is described as a "conditional licence" on conditions which are to be stipulated on the licence itself. There was in this case a condition stipulated on the back of the respondent's licence and that condition simply was (under the heading "Conditions"), "medical certificate before renewal on 9 December 2000." Accordingly, it is Mr Bowden's submission that if there was any other condition applicable in respect of the respondent's driver's licence then that condition or those conditions ought to have been stipulated or at least referred to on the back of the licence.

12 Ms Dias for the appellant contends in short that her Worship was simply wrong in concluding that the error, that is, the mistake made by Mr Young, was an error of fact and was wrong also in concluding that s 22 of the Criminal Code did not apply.

13 As I have already observed, the issues of the honesty or reasonableness of the belief held by the respondent do not arise in the circumstances of this appeal.

14 Numerous cases have been referred to particularly by counsel for the appellant. I do not propose to refer to all of them. I do, however, begin with a reference to McCaskie v Bagby, unreported; SCt of WA; Library No 1534; 18 April 1975. That was a decision of Wallace J on an appeal to review the decision of a Magistrate concerning a finding as to the automatic cancellation of his driver's licence.

15 In that case the respondent had been the holder of a probationary licence; he had been stopped by the police for a speeding offence and was eventually sent a summons upon which he endorsed a plea of guilty. He was convicted when the summons was returned. He did not appear in court. He did, however, subsequently receive a notice from the clerk of Petty Sessions advising that a fine and fees had been imposed but no mention was made of the fact that the respondent's licence had been cancelled automatically as a matter of law by virtue of the provisions of section 25B(1)(a)(4) of the Act.

16 The respondent was subsequently arrested for driving a motor vehicle whilst not being the holder of an appropriate driver's licence. His defence to that charge was that he was unaware that his probationary licence had been cancelled, that his belief was that he had only been fined and that he had had no notification that his licence had been cancelled. The Magistrate had held that the sending of the notice of the fine and fees had fostered in the respondent a belief that there had been no cancellation and accordingly held that a defence under s 24 of the Criminal Code was available to him.

17 On appeal, Wallace J appears to have dealt with the matter principally on the basis that the belief was not a reasonable or honest belief because on his understanding of the evidence the respondent should have known that the licence would have been automatically suspended. In short, as I understand his Honour's reasons, he found that the respondent could not claim the necessary belief because as a matter of fact he had never done anything to actually form it.

18 More pertinently to the present case, however, as a matter of law his Honour reached the conclusion that because the licence was cancelled by operation of law, the provisions of s 22 of the Criminal Code applied and, that being so, there was no defence to the charge.

19 In Ottobrino V Espinoza (1995) 14 WAR at p 373 the appellant had received a notice of intention to suspend licences as a consequence of s 18 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA). He failed to comply with the notice and in consequence a licence suspension order was made in respect of him. He was subsequently charged under s 49(1)(a) of the Act as a person who had driven a motor vehicle whilst not holding a valid driver's licence. He contended that at the time of the offence he was unaware that his licence had been suspended. Nonetheless, on legal advice he pleaded guilty. Despite that, however, he was granted leave to appeal on the grounds that the Magistrate had erred in law.

20 One observation made by the learned Commissioner who dealt with that case was that it was clear on the authorities that s 24 of the Criminal Code is of general application to all statute law unless excluded and that if it is not excluded then once a basis for mistake is laid the onus is on the prosecution to prove guilt beyond reasonable doubt. His Honour in that case referred to and followed Wroblewski v Starling [1987] WAR 233.

21 In relation to the application of s 24 his Honour concluded that in the circumstances there disclosed the appellant may have had a defence under s 24 if at the material time he had not received a notice confirming licence suspension.

22 The point of distinction, it seems to me, between that case and the present is that the learned Commissioner was dealing with a situation in which administrative action had to be taken to effect the suspension; it was not something which operated automatically, that is not simply as a matter of law. In those circumstances one can readily see, I think, the validity of an argument that the mistake is one of fact, the relevant fact being whether or not the administrative action has been taken.

23 In Wroblewski v Starling (supra) Rowland J had dealt with a similar case in respect of a charge under s 49(1) of the Act of driving a motor vehicle without a licence. The facts were that at the relevant time the appellant had not known that his licence had been suspended at a previous court hearing which he had not attended, although he conceded that it was his responsibility to ascertain the result of the hearing.

24 At the hearing at first instance the Court had found that the appellant had made a mistake of fact and that s 24 could be applicable in appropriate circumstances. However, the Court went on to find that the mistake was not reasonable on the basis of his careless attitude to the result of the previous hearing. On appeal the outcome appears to have turned on the basis that the onus of proof had effectively been reversed in the court below. Once the basis for mistake had been laid, the onus was on the prosecution to prove guilt beyond reasonable doubt and that in the circumstances the appellant's mistake in not realising he had had his licence suspended was not unreasonable.

25 As to the nature of the mistake, Rowland J held that the mistake was one of fact and not law, observing, however, that the position would have been different if the licence suspension had been an automatic effect of the appellant's original offence. That again I think is a significant point of departure from the present case.

26 As I have indicated, other cases were cited but it seems to me unnecessary to canvass them to any degree, nor at all. The short point for the present case is not so much whether the respondent had a mistaken belief in the existence of any state of things as required by s 24 but perhaps, rather, whether that defence is precluded by the operation of s 22 of the Criminal Code. The issue is whether or not the mistake was one of law or fact.

27 If the conditions or condition had been imposed by a court or by some other authority, then it seems clear on the authorities that the mistake would be one as to the fact of such action having been taken or not, as the case may be. However, it is clear that in the present case the restriction as to the level of blood alcohol concentration with which the respondent might drive was one imposed automatically by operation of law.

28 I think the fallacy was to call it a condition at all. It was not a condition for the purposes of s 44 of the Act, nor at all in my view any more than the obligations imposed by other provisions of the Act and Regulations ranging from what side of the road drivers must drive on to speed limits and the like are "conditions". They impose obligations, duties or requirements or create offences and they operate on individuals who have positive contrary beliefs about them as much as individuals who are merely unaware, that is to say who are ignorant, of them.

29 Mr Bowden submitted - this is reflected at para 8 of his outline of submissions - that what ought to have been done was to put on the conditional driver's licence endorsements such as "subject to compliance with the Road Traffic Act and Regulations." He contends that had a phrase to that effect been included under the heading "Conditions" that would have removed the opportunity for the respondent to have any honest and reasonable, albeit mistaken, belief as to the conditions to which his licence was subject.

30 With great respect to that argument, it seems to me entirely misconceived. The operation of the legislation must surely be unaffected by whether or not a requirement is placed upon the back of a licence that it is a condition of the licence that the legislation be complied with.

31 In conclusion then, I am quite satisfied that the mistake made by the respondent here was a mistaken belief as to a matter of law, that s 22 of the Criminal Code did apply, and that s 24 of the Criminal Code accordingly did not avail him, and that in finding otherwise the learned Magistrate erred in law. It follows that the appeal must be allowed.