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[2017] VSC 540
General information, not legal advice.
Supreme Court of Victoria
2017-09-12
JANE DIXON J
Original judgment source is linked above.
CRIMINAL LAW - Judicial review - Probationary driver fail to display P plate - County Court judge set aside conviction and sentence in appeal from Magistrates' Court - Whether error on the face of the record - Whether honest and reasonable mistake as to presence of P plate relevant to proof of offence - Declaration that Proudman v Dayman 'defence' not available - Remitted to County Court for decision according to law - Road Safety (Drivers) Regulations 2009 reg 55(1).
WORDS AND PHRASES - 'strict liability', 'absolute liability'.
1 On 29 September 2016, a judge of the County Court allowed an appeal by the first defendant, Robert Stanojlovic, against conviction and sentence for the statutory summary offence of probationary driver failing to display P plate while driving a vehicle, contrary to reg 55(1) of the Road Safety (Drivers) Regulations 2009 ('the RSDR') and ordered that the charge be dismissed.
2 The Director of Public Prosecutions ('the plaintiff'), on behalf of the informant, seeks judicial review of the County Court's order by originating motion commenced under O 56 of the Supreme Court (General Civil Procedure) Rules 2015. The County Court is named as the second defendant on the originating motion but took no active part in this proceeding. For convenience, the first defendant will be referred to as the defendant in these reasons.
3 Broadly described, reg 55(1) of the RSDR requires that appropriate P plates be displayed on a vehicle driven by a probationary licence holder on a public road. Failure to do so is an offence punishable by up to three penalty units.
4 At issue in this judicial review proceeding is whether an honest and reasonable, but mistaken, belief that a P plate is displayed is relevant to proof of the offence.
5 The charge arose out of an incident that occurred on 14 August 2015. The informant, Leading Senior Constable Steven Emil Kokas of the Greater Dandenong Highway Patrol, attended the scene of a multiple vehicle collision in Noble Park. He called for tow trucks to attend the scene. The defendant, who was employed as a tow truck driver, duly arrived a while later in his tow truck. It is not in question that the defendant was a holder of a probationary driver licence at the time and that his tow truck did not have a P plate displayed facing out from the front, although it did have one displayed facing out from the rear. The informant proceeded to issue an infringement notice to the defendant at the scene. The infringement notice carried with it a fine of $152 and three demerit points.
6 The defendant contested the infringement notice. On 31 May 2016, a magistrate in the Dandenong Magistrates' Court convicted him of the offence and imposed a fine of $152 and statutory costs of $73.30.
7 The defendant appealed to the County Court. At the de novo hearing of the appeal, counsel for the defendant argued that the offence established by reg 55(1) of the RSDR does not exclude the Proudman v Dayman[1] defence (so called after the eponymous case in which Sir Owen Dixon explained the principle), whereby the prosecution would need to disprove beyond reasonable doubt the defendant's state of mind that he or she had an honest and reasonable belief in a set of facts at the time which, if they existed, would have made him or her innocent. The plaintiff argued that the offence was one of absolute liability (in the sense that the term is used in He Kaw Teh v The Queen),[2] such that honest and reasonable mistake of fact was not a relevant matter and would provide no answer to the charge.
8 The judge took the view that the Proudman v Dayman defence was available for an offence under reg 55(1) of the RSDR and proceeded to determine on the evidence whether the defendant had an honestly and reasonably held belief that a P plate was affixed to the front of his tow truck. His Honour's brief reasons are set out in full below:[3]
The whole issue in this case at this point is [whether] the appellant had an honest and reasonable belief as to a state of affairs which could have afforded a defence in line with the provisions of Proudman v Dayman and Kidd v Reeves, well-known cases to which counsel for the appellant has referred. There were aspects of the appellant's evidence that were less than convincing. However, the essence of what he said was that he believed he had a P plate on the truck, that he checked it regularly, and he checked it sometime shortly before he attended at this scene and there was a P plate on the front of his truck, [and] that it must have fallen out.
The police officer does not record the second part of the alleged explanation. He does record that the appellant said there is one on the back, and in fairness to Mr Kokas, he was relying on the notes and said that if there had been more said he would have written it down as a matter of practice, but he did not have a specific recollection of the conversation.
The one piece of evidence I [think] that is determinative or is relevant in this is the evidence of the informant that on other occasions he had seen the appellant and on those other occasions he was wearing P plates regularly.
It seems unlikely that a man - it tends to demonstrate that the appellant was in the habit of putting on P plates and regularly, both front and back, and it doesn't make sense that he would do that regularly yet not do so on this occasion. It tends to support the proposition that something untoward has occurred. I accept that there is a reasonable possibility that the accused man, or that the appellant believed that he had P plates on the front at the time and accordingly I dismiss the information.
9 The plaintiff seeks the following relief on the originating motion:
4. Such further or other orders as to this Honourable Court appear fit.
11 Regulation 55(1) of the RSDR establishes the offence in question:
Probationary driver must display P plates
(1) A person who holds a probationary driver licence or a driver licence issued on a probationary basis in another jurisdiction must not drive a motor vehicle (other than a tractor) on a highway unless -
(a) an appropriate P plate is displayed facing out from the rear of the vehicle so that the letter "P" is clearly visible and the colour of the plate is distinguishable from the distance of 20 metres behind the vehicle; and
(b) in the case of a vehicle other than a motor cycle, an appropriate P plate is displayed facing out from the front of the vehicle so that the letter "P" is clearly visible and the colour of the plate is distinguishable from a distance of 20 metres ahead of the vehicle.
Penalty: 3 penalty units
Sub-regulation (2) creates a separate offence to display a P plate, or a plate resembling a P plate, on a vehicle if the driver of the vehicle is not a probationary driver.
Sub-regulation (3) exempts members of certain emergency services from sub-r (1) under certain conditions:
(3) Sub-regulation (1) does not apply to a person who is -
(a) police officer, who, in the course of duty, is driving a motor vehicle; or
(b) a member of the Country Fire Authority who is driving a motor vehicle in the course of firefighting operations; or
(c) driving an ambulance service or a Victoria State Emergency Service vehicle in the course of duty.
Sub-regulation (4) defines an 'appropriate P plate':
(4) In this regulation -
(a) in relation to a P1 probationary driver licence, means a plate measuring approximately 150 millimetres by 150 millimetres that has a white letter "P" clearly marked on a red background; and
(b) in relation to a P2 probationary driver licence, means a plate measuring approximately 150 millimetres by 150 millimetres that has a white letter "P" clearly marked on a green background; and
(c) in relation to a probationary licence issued under a corresponding law of another jurisdiction which requires the holder of that licence to display a "P" plate while driving a motor vehicle, means a "P" plate that complies with the relevant requirements of that law.
12 In this judicial review proceeding, it is necessary to identify at the outset the issue before the County Court judge, upon which this Court may express a conclusion.
(1) Those in which there is an original obligation on the prosecution to prove mens rea.
(2) Those in which mens rea will be presumed to be present unless and until material is advanced by the defence of the existence of honest and reasonable belief that the conduct in question is not criminal in which case the prosecution must undertake the burden of negativing such belief beyond reasonable doubt.
(3) Those in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence.[6]
The terms 'strict liability' and 'absolute liability' are shorthand descriptions of the second and third 'categories' above respectively. Similarly, reference to the Proudman v Dayman 'defence' or 'defence' of honest and reasonable mistake in these reasons is not to detract from the issue being the relevant state of mind, if any, of the defendant required to establish the offence.
14 The issue as presented on the originating motion is whether the offence created by reg 55(1) of the RSDR should be classified as one of absolute liability, or strict liability where the defence of honest and reasonable mistake is available.
15 It may be observed that to classify a statutory offence as one of absolute liability or strict liability, without more, risks assuming that the legislature intended the same state of mind (or lack thereof, as the case may be) to apply uniformly to one or more external elements of the offence. For some offences, that conclusion may well accord with the construction of the provision,[7] but, it is by no means inevitable.[8]
16 It is apparent from the judge's reasons that his Honour did not determine, in the terms stated on the originating motion, 'that the offence created by the Road Safety (Drivers) Regulations 2009 reg 55(1) is one of strict liability'. Rather, consistently with the way the case was run below, his Honour found that an honest and reasonable mistake defence is available to one external element of the offence.
17 It is convenient to list the external elements of the offence created by reg 55(1), viz:
(1) A person holding a probationary driver licence in Victoria or another jurisdiction; and
(2) driving a motor vehicle (other than a tractor) on a highway; and
(3) not displaying a P plate facing out from the front or rear of the vehicle (rear only in the case of a motorcycle); or
(4) not displaying an 'appropriate P plate' (i.e. white 'P' on red background for P1 probationary drivers and white 'P' on green background for P2 probationary drivers, within prescribed dimensions); or
(5) not displaying an 'appropriate P plate' so that the letter 'P' is clearly visible and the colour of the plate is distinguishable at a distance of 20 metres when viewed from the front or back (as the case may be).
Elements 3, 4 and 5 are alternative elements of the offence.
18 Before the County Court judge, the defendant did not contest that he was a holder of a probationary driver's licence or that he was driving a motor vehicle on a highway. Nor did he contest the fact that his vehicle did not have a P plate displayed facing out from the front of his vehicle. Whether the P plate was appropriate or visible from a distance were obviously not issues arising from the facts. The defendant's case before the learned judge was that he had an honest and reasonable belief that a P plate was affixed to the front of his vehicle, and it is clear that his Honour's reasons were directed only toward the defendant's state of mind relevant to that external element of the offence, which I have listed above as element 3.[9] His Honour was not asked, and did not have occasion, to decide on any other external elements.
19 Accordingly, the relevant issue for determination by this Court is whether an honest and reasonable, but mistaken, belief that a P plate is displayed facing out from the vehicle is relevant to proof of the offence created by reg 55(1) of the RSDR or whether absolute liability applies.
20 Turning to the legal principles to be applied in the present case.
21 In written submissions, the plaintiff provided examples of cases in which various provisions of road traffic legislation have been interpreted to impose absolute liability.[10] In response, the defendant cited cases where strict liability has been imposed,[11] and submitted that the Court was not assisted by any authority directly on point.
22 Orally, counsel for the plaintiff agreed that there is no direct authority on the construction of reg 55(1) or, indeed, on any comparable provision on the same subject matter. He submitted, however, that two cases dealing with provisions under the Road Safety Act 1986 ('the RSA') provide useful guidance - Pilkington v Elliot[12] and Tsolacis v McKinnon.[13] I will return to these cases later.
23 In the absence of binding authority, the resolution of the issue in this case requires the application of principles relevant to the construction of statutory offences and the nature of the state of mind required.
24 The parties are in agreement that He Kaw Teh is the leading authority for the principles to be applied to the construction of reg 55(1). In addition, counsel for the plaintiff referred to the method employed by Warren J in Wilson v Gahan[14] as an exemplary application of the He Kaw Teh criteria to a statutory offence. Her Honour was required to construe a provision which prohibited the carrying out of agricultural spraying that injuriously affects plants, stock or land outside the target area. Her Honour applied the relevant criteria to the offence provision under consideration and determined that the provision imposed absolute liability. Warren J's summary in Wilson v Gahan of the He Kaw Teh criteria was adopted by Cavanough J in Tsolacis v McKinnon[15] in his Honour's analysis of whether the offence of driving an unregistered vehicle was an offence of strict liability or absolute liability.
25 Although not raised in argument before me, the High Court in CTM v The Queen[16] considered the principles expressed in He Kaw Teh in the course of determining the relevant state of mind required to establish criminal responsibility for a serious statutory offence in New South Wales. The issue was whether an honest and reasonable mistake as to a complainant's age was relevant to proof of the offence of having sexual intercourse with a person aged between 14 and 16 years. A majority of the High Court held that it was.[17] Of course, a significant point of distinction regarding the subject matter in CTM and the present case is that CTM concerned an offence of a truly criminal nature, involving grave moral obloquy and a potential gaol sentence.
26 The principles derived from Proudman v Dayman and He Kaw Teh have been applied in other cases canvassed by the parties in written and oral argument. The key principles relevant to this case can be summarised as follows:
(a) The question of the relevant state of mind, if any, is essentially one of the construction of the statute creating the offence.[18]
(b) The statute is to be interpreted in light of the general principles of the common law which govern criminal responsibility.[19]
(c) It is a principle at common law that an honest and reasonable, but mistaken belief in a set of facts which if they existed would have made the defendant innocent, provides a ground of exculpation. The evidentiary onus of raising the ground is on the defendant. Once that occurs, the legal onus lies on the prosecution to prove beyond reasonable doubt the absence of an honest and reasonable belief.[20]
(e) The presumption may be displaced where the statute is regulatory in nature and is concerned with issues of social concern, such as environmental or industrial requirements or public safety.[23]
(f) In deciding whether the presumption has been displaced, it is necessary to consider: (1) the words of the statute creating the offence; (2) the subject matter and purpose of the statute; and (3) whether imposing absolute liability will promote the observance of the statute. These considerations do not necessarily lead to the same conclusion.[24]
(g) Ultimately, it is the language of the statute that is controlling. The presumption may be displaced by a sufficiently plain manifestation of legislative intention, either by express words or necessary implication.[25]
27 The plaintiff submitted that reg 55(1) should be interpreted as an offence imposing absolute liability. The enabling legislation of the RSDR is the RSA, and the primary purpose of the RSA is public safety.
28 Addressing the scope and purpose of the regulation, it was submitted that the offence created by reg 55(1) has two main purposes, both of which were said to be concerned with the promotion of public safety. The main purpose is to enable other road users to recognise probationary drivers. The display of P plates serves as a signal to others to adjust their driving to compensate for less experienced probationary drivers. The second purpose is that the display of P plates assists authorities in the enforcement of other restrictions unique to probationary drivers in pt 2 div 6 of the RSDR, as well as restrictions on the use of mobile phones while driving and driving with any blood alcohol content.
29 Orally, counsel added that the requirement to display P plates serves to deter risky driving behaviour by young and inexperienced drivers by reason of the fact that they are more likely to be subject to scrutiny.
30 The plaintiff submitted that the words of reg 55(1), as a whole, indicate an intention to displace the requirement to prove mens rea in favour of an intention to impose absolute liability. Regulation 55(1) is bereft of any words requiring proof of a mental element, such as 'knowingly' or 'intended'. The provision is also couched in mandatory terms by use of the word 'must'.
31 Attention was drawn to extrinsic material said to support the road safety purposes of the graduated licensing scheme within which reg 55(1) sits, including the parliamentary debate on the relevant Bill.[26] This was relied on as showing a policy objective of deterring high risk behaviour by probationary drivers. It was therefore submitted that the regulation in question was protective of road safety, targeting probationary drivers as part of an overall legislative scheme encompassed by the RSA and accompanying regulations.[27]
32 It was also submitted that the absence of any specific defence in reg 55(1) is not determinative of the legislature's intent as to the relevant mental element.
33 Applying the criteria in He Kaw Teh to the construction of reg 55(1), the plaintiff argued that the offence created by reg 55(1) is regulatory in nature, and is not criminal in any real sense.[28] The maximum penalty of three penalty units is low, and the offence does not carry a sentence of imprisonment. No stigma would be attached to a person convicted of the offence. It would be unlikely that a conviction would have a significant negative impact on the offender's prospects of employment.[29] The plaintiff also submitted that the argument in favour of strict liability as against absolute liability is much stronger where the offence carries a sentence of imprisonment.[30]
34 Ease of enforcement of the regulation would be facilitated by interpreting the offence as imposing absolute liability whereas the availability of the defence of honest and reasonable mistake would be a 'real impediment to the successful prosecution of offenders'.[31] Accused need merely assert that they had checked that P plates were affixed to their vehicle prior to commencing driving, and had believed them to be still attached whilst underway in order to satisfy the evidentiary onus. This was said to be evidence that the Crown could not easily disprove beyond reasonable doubt.
35 To construe reg 55(1) as imposing absolute liability would further the objectives of the legislation by making it easier to enforce,[32] thereby promoting compliance with the regulation. Probationary drivers would be encouraged to take measures to ensure that their P plates are properly attached to their vehicles if honest and reasonable mistake is irrelevant to proof of the offence. The regulation was said to be one with which probationary drivers could easily comply by taking steps to ensure that appropriate P plates were affixed as required.
36 Any instances of hardship or injustice occasioned by the imposition of absolute liability could be avoided by the sensible exercise of prosecutorial or judicial discretion. Counsel cited Pilkington v Elliot where Coldrey J referred to the exercise of prosecutorial discretion not to bring charges or the court's discretion to dismiss a case as trifling in appropriate cases.[33] Orally, counsel submitted that a concern about unjust outcomes was discussed as 'an afterthought' by Coldrey J and was not treated as part the indicia used to determine whether absolute liability was to be applied.[34] Counsel cautioned against 'putting the cart before the horse' in treating a concern about the risk of 'luckless victims' being ensnared by the provision as a reason for construing an offence as involving other than absolute liability.[35] However, I interpolate here that, in my opinion, his Honour did refer to the risk of hardship to blameless individuals caught by the provision and took that factor into account in his ultimate decision when interpreting the relevant provision. In so doing, his Honour applied the He Kaw Teh criterion which focused attention on whether subjecting the defendant to absolute liability would promote the observance of the statute by making people govern their conduct accordingly.[36]
37 The defendant addressed the scope and purpose of reg 55(1) by arguing that the case must be decided in accordance with the wording, purpose and contextual circumstances of reg 55(1) and that 'each statutory provision has to be considered on its own and interpreted according to such common sense and intuition as the judicial mind can bring to bear on it'[37]
38 It was further submitted that a proper interpretation of reg 55 (1) required that it be read within the context of the whole of reg 55. The fact that some classes of persons (emergency service workers as particularised under reg 55(3)) are exempt from the requirement to display P plates under reg 55(1) was said to point against a construction of absolute liability. This was because, otherwise, persons from these categories could be found to have committed an offence under reg 55(1) even though they may have had under an honest and reasonable but mistaken belief about matters under reg 55(3), such as whether they were on duty at the relevant time.
39 Whilst accepting that reg 55 is a regulation within the RSDR that aims to regulate probationary drivers and that the RSA has as its purpose the promotion of public safety, it was submitted that the compulsory display of P plates is not subordinate legislation that directly promotes public safety. Even the RSA does not relate only to road safety but covers many things, including procedural matters.
40 The defendant submitted that the main purpose of reg 55(1) is to allow for the policing of probationary requirements and that the display of P plates is designed to mark the driver as either a P1 or P2 probationary licence holder by the colour of the P plate. Whilst other road users would be on notice that the driver is a probationary driver, contrary to the plaintiff's submission, this does not mean that other road users have to alter their driving behaviour to compensate.
41 Orally, a distinction was drawn between the nature of the regulation under consideration in this case, and regulations involving speeding, exceeding the blood alcohol limit, and like offences that are more distinctly related to a road safety protective purpose.[38]
42 The defendant submitted that the mere fact that the offence is regulatory in nature does no more than recite the general proposition referred to by Dawson J in He Kaw Teh:
It is generally accepted that statutes which create offences for the purpose of regulating social or industrial conditions or to protect the revenue, particularly if the penalty is monetary and not too large, may more easily be regarded as imposing absolute liability. This approach may be displaced if to regard an offence as one of absolute liability could not promote the object of the legislation.[39]
43 Categorisation of the offence as regulatory is only part of the analysis to be applied. A number of cases in which a construction of strict liability has been preferred rather than a construction of absolute liability arise from regulatory offences involving low monetary penalties. The fact of the low maximum penalty and absence of imprisonment as a sanction was submitted to be no more indicative of absolute liability than it was of strict liability.
44 The defendant pointed out that the authorities that have permitted the Proudman v Dayman defence in road safety cases are still good law. Menhennitt J upheld the application of the Proudman v Dayman defence in Kidd v Reeves,[40] which concerned the offence of driving whilst suspended. The driver in that case put forward that he had not been notified of the fact of licence suspension. Whilst Coldrey J in Pilkington v Elliot distinguished Kidd v Reeves on the basis that driving whilst suspended or disqualified could involve a gaol sentence for a second offence, it was argued that no such consideration was referred to in the reasons of Menhennitt J.[41]
45 It was further argued that the failure to prescribe precisely how P plates must be affixed to a vehicle anticipates the possibility that the method of affixing may sometimes fail, and this tends against importing absolute liability to impose a duty to take measures beyond the plain words of the regulation.[42]
46 The defendant strongly pressed consideration of the risk of creating a class of 'luckless victims' by interpreting reg 55(1) as imposing absolute liability, given the possibility of a P plate falling off or coming asunder in the course of a journey, outside the knowledge or control of the probationary driver. Alternatively, the driver may notice a P plate come adrift in the course of driving but may be unable to safely restore it at that moment, thereby automatically breaching the provision. There is only so much a person can logically do within their sphere of control to ensure P plates remain in situ at all times and in all conditions.
47 Imposing absolute liability would be an excessive measure if the aim was to address the mischief at which the regulation was aimed in the sense enunciated by Lord Evershed in Lim Chin Aik v The Queen[43] because the 'luckless victims' would be subjected to liability for events truly beyond their control. Strict liability would be sufficient to ensure compliance without penalising the class of luckless victims.
48 It would be unsafe to rely on the good will of prosecutorial discretion or a liberal approach to sentencing as a panacea for hardship occasioned to the 'luckless victims' in such cases, because, as in the case before the court, the discretion may not be exercised favourably to such a person caught by the regulation. It should perhaps be noted as an aside, although not directly relevant to the argument before the court, that breach of reg 55(1) carries a mandatory three demerit points[44] in addition to the maximum fine of three penalty units,[45] and that probationary drivers may in certain defined circumstances face licence suspension on incurring five demerit points.[46] Counsel for the defendant pointed out that a finding of guilt without conviction would still trigger the imposition of demerit points.
49 The defendant argued that the circumstances of a person who may honestly and reasonably believe their P plate is displayed are to be contrasted with Pilkington v Elliot and Tsolacis v McKinnon which dealt with offences of owning or using an unregistered vehicle because it is relatively easy to make a conclusive inquiry about whether a vehicle is or is not registered.[47]
50 The plaintiff's arguments that absolute liability would assist enforcement, and the concern that convictions would be too difficult to obtain if the Proudman v Dayman defence was allowed was submitted to be an unmeritorious basis for importing absolute liability in respect of a penal regulation of the kind under consideration.
51 A subordinate instrument is to be construed in light of, and harmoniously with the purpose of the enabling legislation.[48] Construction of reg 55(1) therefore begins from an understanding of the purposes of the RSA generally and of the licensing framework for probationary drivers specifically.
52 Section 1 of the RSA sets out that the purposes of the Act are, relevantly:
(a) to provide for safe, efficient and equitable road use; and
(ab) to set out the general obligations of road users in relation to responsible road use; and
(b) to improve and simplify procedure for the registration of motor vehicles and licensing of drivers; and
(d) to ensure the equitable distribution within the community of the costs of road use.
53 Part 3 of the RSA deals with the licensing of drivers, including probationary drivers. Section 17 specifies the purposes of licensing generally:
The purposes of licensing are -
(a) to ensure that people who drive motor vehicles on highways are competent drivers; and
(b) to ensure that drivers are aware of safe driving practices and road law; and
(c) to ensure that people who are, or who become, unfit to drive are not permitted to drive on highways; and
(d) to enable the identification of drivers for the purposes of law enforcement and accident investigation.
54 Section 21 of the RSA deals specifically with probationary driver licences. Relevantly, s 21(3) enables regulations to be made to:
(a) provide for different classes of probationary driver licences depending on a person's age, experience or any other factor;
(b) provide for the period of probation in respect of each class of probationary driver licence;
(c) provide that a person who holds a probationary driver licence of one class must, after completing that period of probation, hold a probationary driver licence of another class before being granted a full driver licence;
(d) provide for the extension of a probationary period in the case of a person who commits a specified offence or who has his or her driver licence suspended;
(e) require a person who holds a probationary driver licence of one class to pass any appropriate tests or assessments that the Corporation requires, and to comply with any other procedures or requirements, before being granted a probationary driver licence of another class.
55 The current graduated licensing scheme was first implemented by the Road Legislation (Projects and Road Safety) Act 2006, which commenced on 10 October 2006. In the Second Reading Speech, the Minister said:
The bill amends the Road Safety Act 1986 to better protect young and novice drivers, as part of the government's commitment in the Arrive Alive! Road safety strategy. One-third of the road toll results from crashes involving young drivers-in human terms this means over 100 deaths and over 2000 serious injuries each year. The reforms introduced in this bill will provide the opportunity to increase safety for our young drivers by better matching licensing arrangements and initiatives with their key road safety issues...[49]
56 The RSDR commenced on 9 November 2009, repealing its predecessor the Road Safety (Drivers) Regulations 1999, and are one of several sets of regulations authorised by the RSA.
57 One of the stated objectives of the RSDR is to make provision under the RSA for 'driver licences and learner permits'.[50]
58 Regulations 48 to 54 provide for a two-staged, four-year probationary period system that:
(a) requires drivers under 21 years who have not previously held a driver licence to be granted a P1 probationary licence for a period of one year and, subsequently, a P2 probationary licence for a period of three years, except in certain circumstances that are not presently relevant;
(b) provides for the transition from a P1 to a P2 probationary drivers licence; and
(c) specifies circumstances under which a probationary licence should be extended or varied.
59 Regulation 55(1) is one of several provisions in pt 2 div 6 of the RSDR. Part 2 is headed 'Driver licences and learner permits'. Division 6, comprising regs 48 to 61, is headed 'Probationary drivers'.
60 The other regulations within div 6 create offences specific to probationary drivers. I have set out reg 55 at [11] above.
61 Regulation 57 creates an offence punishable by up to 10 penalty units for a probationary licence holder to drive a vehicle prohibited by reg 56, essentially high-powered vehicles, subject to certain exceptions and exemptions.
62 Regulation 58 creates offences specific to motor cycle riders.
63 Regulation 59 creates an offence punishable by up to 10 penalty units for a P1 probationary licence holder to tow a vehicle or trailer, subject to certain exceptions.
64 Regulation 60 creates an offence punishable by up to 10 penalty units for a person who has been issued with a further P1 probationary driver licence following a period of suspension to drive a vehicle carrying more than one other person, if such a condition has been imposed.
65 Regulation 61 creates an offence punishable by up to 10 penalty units for a P1 probationary licence holder to drive a vehicle carrying more than one peer passenger, defined as a person who is between 16 and 22 years of age but excluding a spouse, partner, sibling or step-sibling.
66 It is necessary to consider the scope and purpose of reg 55(1) within the context of reg 55 as a whole and within the structure of the RSA and the RSDR, in particular pt 2 div 6. It is plain that the graduated licensing scheme, within which reg 55(1) sits, is part of a wider legislative scheme which includes, as part of its aims, the imposition on probationary drivers of various restrictions and obligations. The extrinsic materials referred to by the plaintiff demonstrate that inasmuch as probationary licence holders are the target group for regulations such as reg 55(1), that is because they are viewed by Parliament as a high-risk category of drivers. Such risks relate to the probationary drivers themselves, their passengers and the public. The importance of closely regulating the driver behaviour of this target group is paramount over the interests of individual probationary drivers. This close scrutiny of probationary drivers assists enforcement of safe driving by probationary drivers and encourages their awareness of being under scrutiny in respect of their driving behaviour.
67 Regarding the plaintiff's argument that one of the objects of reg 55(1) is so that other road users may identify a vehicle driven by probationary driver and adjust their driving to compensate for the presence of the probationary driver, counsel did not cite any authority or provision in the road rules in support of that argument. I do not accept that reg 55(1) can be interpreted so broadly as to encompass this particular objective. However, there is little doubt that reg 55(1) facilitates identification of probationary drivers by authorities and other road users.
68 I conclude that the contextual framework and content of the RSA and RSDR is multifactorial but has public safety and road safety at its core. The safety of the public is served by achieving the objective that probationary drivers be subject to a highly regulated scheme in which police and other road users are able to identify a probationary driver through the display of P plates.
69 The defendant submitted that the particular offence provision in reg 55(1) only indirectly supports the public safety purposes of the RSA and RSDR. In my opinion, reg 55(1) has an important role to play as part of the wider scheme. Considered in that light, the offence under consideration is less readily distinguishable from offences involving excessive speed, drink driving and the like.
70 The defendant argued that reg 55(3), which exempts classes of emergency vehicle drivers from complying with reg 55(1), supported an interpretation of strict liability because it could not have been intended that reg 55(3) imposed absolute liability. This submission was predicated on the assumption that reg 55(3) imposes strict liability. No authority was cited by counsel in support of that proposition, and I make no finding in that regard. The reliance on reg 55(3) does not assist the defendant's argument.
If there are alternative states of mind - knowledge or absence of exculpatory belief - that may apply to circumstances which are external elements of a statutory offence, how is the applicable state of mind to be ascertained? Principally, by reference to the language of the statute and its subject matter. From those sources, the mischief at which the statute is aimed is derived, and the purpose of the statute is perceived. The purpose of the statute is the surest guide of the legislature's intention as to the mental state to be implied.[51]
72 In considering the language of reg 55(1), subject matter and purpose, it is useful to compare and contrast the nature of the regulation under consideration with other regulations or provisions governing driving offences and road safety which have been subject to judicial consideration.
73 A review of Victorian cases requires close analysis of the decision of the Full Court in Welsh v Donnelly,[52] where it was held that the Proudman v Dayman defence was not available for an offence under s 35 of the Motor Car Act 1958 of driving a motor car on a highway in breach of the conditions of a special permit prescribing the maximum permitted weight of the vehicle. The vehicle in question was a six-axle articulated vehicle carrying a 40-foot container. Although Welsh v Donnelly preceded He Kaw Teh, Warren J in Wilson v Gahan[53] considered that the principles applied by the Full Court were consonant with the later elucidation of relevant principles in He Kaw Teh, with emphasis placed on the common good, public safety, and compliance as matters to be taken into account in interpreting statutory offences.
74 The Full Court was strongly influenced in their interpretation of the relevant provision of the Motor Car Act 1958 by the road safety purposes of the legislation. Young CJ reviewed the offence provision within the context of Motor Car Act 1958 as a whole and said:
The nature of the matters with which the Motor Car Act is concerned is peculiarly public safety. The notorious dangers of travel on modern highways and the necessity for strict control of the handling of motor vehicles on those highways suggest that if ever the intention to be imputed to Parliament is to impose strict responsibility, it is likely to be in statutes dealing with the control and handling of motor vehicles. ... I have endeavoured to show that the purposes of the part of the Motor Car Act in which s 35(5) is found are public safety and protection of the use of roads. In matters of public safety it is not difficult to impute an intention to the legislature to impose strict responsibility.[54]
75 It should be noted that his Honour's reference to strict responsibility should read as a reference to what would now be described as absolute liability. His Honour further said:
The conclusion that I would reach from a consideration of the general provisions of the statute is reinforced by a consideration of the language of s35(5) although of course it stops short of expressly negativing the defence of mistake. The fact that the maximum penalty is not particularly heavy also assists in this conclusion. The provision for the additional penalty and the proviso expressly conferring upon the Court a discretion not to impose the additional penalty in certain circumstances strongly suggests that the legislature intended to exclude the defence of honest and reasonable mistake as a ground of exculpation from the offence.[55]
76 McInerney J considered the qualifying words of Sir Owen Dixon in Proudman v Dayman when describing the subject matter that might lead the legislature to adopt penal measures 'to cast on the individual the responsibility of so conducting his affairs that the general welfare will not be prejudiced.' This was said to include 'matters of police, of health, of safety or the like,' and summary offences created by modern statutes dealing with social and industrial regulation. It should of course be noted that Proudman v Dayman concerned the offence of permitting an unlicensed driver to drive a motor car on any road,[56] and Sir Owen Dixon's observations in that case did not preclude the defence of honest and reasonable mistake of fact being found to be available for the offence under consideration in that case.
77 McInerney J voiced some reservations in holding that Proudman v Dayman defence was not available for the offence under s 35 of the Motor Car Act 1958.[57] However, his Honour ultimately concluded that the defence was not available because of the general scheme of the Motor Car Act 1958 taken in conjunction with its legislative history, including amendments creating a proviso conferring upon a court the discretion not to impose an additional penalty where the court was satisfied that avoidance of the excess weight would have been 'difficult or impossible'.
78 Southwell J closely examined the structure of the Motor Car Act 1958 noting that Pt IV, in which s 35 was to be found, included provision for lights, horns, sidecars, pillion seats, protective helmets and seat belts, as well as prescribing matters such as maximum limits of size, width, height and weight of vehicles. Part IV was thus related principally to matters of safety and road wear.[58] His Honour also observed that s 35 included a proviso regarding the imposition of an additional penalty, which was another factor contributing to his Honour's ultimate decision.
79 His Honour referred to Franklin v Stacey[59] in which the Full Court of the Supreme Court of South Australia decided that the offence of driving an unregistered and uninsured vehicle in the Motor Vehicles Act (SA) when read as a whole, 'was designed to achieve the public welfare and to promote safety of the public' and that 'the legislature must be taken to have subordinated the interests of individuals to the interest of the public'. Southwell J agreed with Young CJ and McInerney J that the Proudman v Dayman defence had no application to the case before the court.
80 Following the Full Court's decision in Welsh v Donnelly, in Kearon v Grant,[60] Brooking J held that the offence of exceeding the speed limit was an offence of absolute liability. His Honour reached this conclusion on the basis of the public safety aspects of the RSA, also citing with approval the reasons of Young CJ and Southwell J in Welsh v Donnelly. His Honour said:
Speeding motor cars have become dreadful engines of destruction. The cost to the community in terms of death and injury and economic loss has been enormous. I would expect a provision of this kind to require drivers to keep within the applicable speed limit at their peril. If the defence of honest and reasonable belief were applicable, then mistakes could be of two kinds. There could be a mistake of fact, the fact bearing on whether one was in a speed zone, and there could be a mistake of fact as to the speed at which the vehicle was travelling. I think that the intention here is that motorists shall at their peril be aware of the applicable speed limit, and shall then at their peril so govern their speed as to keep within it.[61]
81 In Pilkington v Elliot,[62] Coldrey J considered whether the Proudman v Dayman defence applied to the offence of being the owner of an unregistered motor vehicle used on a highway under s 7(1)(b) of the RSA. His Honour regarded the purposes of vehicle registration as set out in the RSA and the regulations as being related to road and vehicle safety and public safety. In particular, s 5 of the RSA and reg 102 of the Road Safety (Vehicles) Regulations 1988 which included, inter alia, ensuring that vehicles used on a highway met reasonable safety and environmental standards and were safe for use on highways and in public places. His Honour noted that the act of registering a motor vehicle may require an inspection of the vehicle by the relevant authority and the production of a certificate of roadworthiness. His Honour also referred to the relative ease with which a person is able to comply with the provision and the fact that an owner will usually be in a position to observe the regulation. Linked with the low monetary penalty and lack of serious consequences of a conviction, his Honour decided that imposing absolute liability would encourage compliance with registration requirements. His Honour suggested that cases of hardship such as the owner of an unregistered vehicle being charged if their car was stolen and driven without permission would likely result in the exercise of prosecutorial discretion or in the 'unique circumstance' where this failed, judicial discretion.[63]
82 In Skase v Holmes,[64] Vincent J, citing with approval the abovementioned cases, decided that the defence of honest and reasonable mistake was not available for an offence of exceeding the prescribed blood alcohol content, even where expert evidence was led questioning the applicability of the particular blood alcohol reading in the case before the court as a result of a medical condition affecting the defendant at the time of testing.
83 Turning now to Tsolacis v McKinnon,[65] Cavanough J had to construe an offence under s 7(1)(a) of the RSA of using an unregistered motor vehicle on a highway. His Honour concluded that the magistrate in the case below had correctly determined that an honest and reasonable belief that the vehicle was registered was not a ground of exculpation and that the offence involved absolute liability.
84 The judgment ultimately turned upon his Honour's finding that a defect in a certificate relied on by the prosecution to prove that the vehicle was unregistered rendered it inadmissible as evidence, so that his Honour's conclusion as to honest and reasonable mistake was not ultimately dispositive of the proceeding. Nevertheless, his Honour considered the reasons for judgment of Coldrey J in Pilkington v Elliot in some detail, and the case is a recent judicial interpretation of an offence under the RSA. I have therefore paid close regard to his Honour's reasons.
85 Cavanough J noted that the offence under s 7(1)(a) of the RSA of using an unregistered motor vehicle on a highway was closely allied to the offence under s7(1)(b) of owning an unregistered motor vehicle used on a highway considered in Pilkington v Elliot. His Honour observed that Coldrey J in Pilkington v Elliot was influenced by the Full Court's decision in Welsh v Donnelly. His Honour reviewed the reasoning in Pilkington v Elliot and noted that that decision had stood unchallenged for over 20 years and that the overwhelming weight of authority in this Court compelled the view that Pilkington v Elliot was correctly decided. His Honour therefore followed the reasoning in Pilkington v Elliot in the process of interpreting s 7(1)(a).
86 In seeking to discern whether there was any relevant difference between the factors favouring absolute liability in s 7(1)(b) of owning an unregistered motor vehicle used on a highway with the offence under s 7(1)(a) of using an unregistered vehicle on a highway, his Honour applied the criteria from He Kaw Teh as summarised by Warren J in Wilson v Gahan to the provision in question, viz:
In He Kaw Teh the High Court referred to the fact that the courts have set down criteria to be applied in determining whether the presumption of mens rea has been displaced. The first criterion is consideration of the words of the statute creating the offence. The second criterion is consideration of the subject matter of the statute. The third criterion is whether subjecting the defendant to absolute liability will assist in the promotion of observance of the relevant statute. The fourth criterion is that where a statute creates an offence for the purpose of regulating social conditions and public safety and where the penalty attached to a statutory offence is monetary and moderately sized, the statute is more easily regarded as imposing absolute liability.[66]
87 First, his Honour considered the words of the statute and determined that, especially on the assumption that s 7(1)(b) imposed absolute liability, the language of s 7 as a whole was indicative of absolute liability, there being nothing to distinguish s 7(1)(a) from s 7(1)(b). The two offences were in the same subsection and carried the same penalty and nothing in the language suggested a different mental element applied as between the two offences.[67] The language used stood in contrast to the offences in s 7(2) which referred to a registered operator 'permitting' or 'allowing' a motor vehicle to be used in breach of a condition of registration.
88 His Honour then considered other provisions of the RSA, including amendments introduced in 2004, and noted that s 179 of the RSA established a 'reasonable steps' defence but only in relation to certain offences in pt 10 of the RSA_._ His Honour said:
This appears to subsume any honest and reasonable mistake defence. A person who could make out para (a)[68] of the statutory reasonable steps defence would also ordinarily be able to establish honest and reasonable mistake as a defence at common law. The fact that the statute expressly includes this defence for certain offences under the RSA but not for s 7(1) suggests to me that no such defence is to be available in the case of offences against s 7(1).[69]
89 I interpolate here that, accepting that the reasonable steps defence subsumes any honest and reasonable mistake 'defence' at common law,[70] it does not necessarily follow that the absence of a reasonable steps defence in other provisions of the RSA outside pt 10 warrants an inference that the legislature intended the common law defence to be excluded. After all, the offences under pt 10 of the RSA deal mainly with breaches of loading requirements.[71] Part 10 of the RSA expressly provides for the exclusion of mistake of fact defence at s 181:
Exclusion of mistake of fact defence
(1) This section applies if a provision of this Part states that a person does not have the benefit of the mistake of fact defence for an offence.
(2) It is not a defence to a charge for the offence for the person to prove that, at or before the time of the conduct constituting the offence, the person was under a mistaken but honest and reasonable belief about facts which, had they existed, would have meant that the conduct would not have constituted an offence.
90 The offences in pt 10 of the RSA (at ss 171, 172, 173 and 189) that provide for the reasonable steps defence also expressly exclude the mistake of fact defence. Two offences (at ss 174 and 175) exclude the mistake of fact defence but are silent on the reasonable steps defence.
91 Further, and significantly, s 151 of the RSA makes it clear that the exclusion of the mistake of fact defence is confined to pt 10:
The statement in this Part that a person does not have the benefit of the mistake of fact defence is solely intended for the purposes of this Part, and it is not intended to affect the question of whether that defence is, or is not, available to a person in relation to any offence outside this Part.
92 Despite the fact that the statutory mistake of fact defence set out in s 181(2) on its face places the legal onus of proving the mistake of fact defence on the defendant, in contradistinction to the common law presumption, it is tolerably clear that the intention of s 151 is to preserve the common law presumption of a defence of honest and reasonable mistake of fact elsewhere in the RSA and subordinate instruments unless the contrary intention expressly appears or is to be implied.
93 However, Cavanough J was guided by other factors apart from the absence of any statutory defence in his conclusion that the words creating the offence under s7(1)(a) imported absolute liability.
94 Cavanough J considered that the second broad criterion, being the subject matter of the statute, weakened the presumption that the common law defence of honest and reasonable mistake of fact applied to s 7(1)(a). His Honour noted that, since the RSA is concerned with road use and registration of vehicles and trailers, licensing and the like, issues of public safety will often arise. His Honour referred to the public safety aspects of the legislative scheme as discussed in Welsh v Donnelly, Pilkington v Elliot, Kearon v Grant and Skase v Holmes.
95 His Honour considered that the third criterion, whether the imposition of absolute liability would assist observance of the statute, tended against the presumption that honest and reasonable mistake should be available as a defence. His Honour observed that the fact that the legislature had chosen to penalise drivers who may not own the offending vehicle indicated an intention to cast a wide and effective net, and that absolute liability would compel such persons to actively change their practices to avoid the possibility that the external elements of the offence might occur. If the mistake of fact defence were available, prosecution of the offence might become very difficult.
96 Applying the fourth criterion - where the statute creates an offence for the purpose of regulating social conditions and public safety and where the penalty is monetary and moderately sized, it is more easily viewed as imposing absolute liability - his Honour paid regard to the regulatory nature of the RSA provisions concerning registration, and the important public safety purposes of registration of motor vehicles. He opined that the penalties under the relevant provisions were moderate and only monetary, with no stigma attached to a conviction. The requirements of the provision in question were relatively easy to comply with and these features all tended towards the imposition of absolute liability. Unjust outcomes could be addressed in the ways foreshadowed by Coldrey J in Pilkington v Elliott.
97 Having applied the above criteria to s 7(1)(a) of the RSA, his Honour was satisfied that the offence was one for which the defence of honest and reasonable mistake of fact was not available and that absolute liability attached.
98 As appears from the review of the cases in this jurisdiction dealing with summary driving or road traffic offences, there has been a marked tendency to construe the offences as excluding the Proudman v Dayman defence. Decisions have often been based, in part, on the subject matter of the offence being related to addressing road safety so that the mischief to which the provision is aimed has been central to the reasoning applied in those cases. Welsh v Donnelly has been particularly important to the development of the jurisprudence in Victoria concerning summary driving offences, leading to a narrowing of the availability of the Proudman v Dayman defence.
99 However, more serious driving offences, including those which carry a sentence of imprisonment, may lend themselves more readily to the application of a Proudman v Dayman defence. In Jiminez v The Queen,[72] the High Court upheld the availability of the Proudman v Dayman defence for the offence of culpable driving in circumstances where the driver fell asleep while driving but was said to have had no foreknowledge that he was at risk of this occurring. Furthermore, it appears that the availability of the Proudman v Dayman defence has been accepted in other states for driving offences in a wider range of circumstances than in Victoria, including drinking in excess of the prescribed blood alcohol limit.[73]
100 Having canvassed the foregoing cases and relevant principles of statutory construction, I turn to the application of the He Kaw Teh criteria.
101 The plain wording of reg 55(1) does not contain any particular words that incorporate a mental element, such as 'intentionally', 'knowingly' or 'without reasonable excuse'. This tends in favour of the plaintiff's argument that the offence is intended to be completed by the occurrence of the external elements. Nathan J in Allen v United Carpet Mills[74] described the words of s 39(1) of the Environment Protection Act 1970: 'A person shall not cause or permit any waters to be polluted...', as a form of commandment, saying it would be hard to frame language in more absolute and embracive terms. The language of reg 55(1) is somewhat less absolute. It is mandatory language of a kind commonly used in statutory drafting. The mandatory tenor of the language is similar to that employed in respect of the statutory requirements not to use or own an unregistered motor vehicle used on a highway that was considered in Pilkington v Elliot and Tsolacis v McKinnon.
102 Whilst reg 55 exempts certain classes of emergency service workers from the requirement to display P plates, it does not provide for any specific defence of reasonable steps or mistake of fact.
103 In construing an offence provision, the inclusion of a specific statutory defence may be regarded as an indication that the legislature intended to expressly provide for any circumstance of exculpation.[75] This may assist in construing a statute as excluding the common law presumption of mens rea.
104 Similarly, in Welsh v Donnelly, the Full Court held that the availability of a proviso was a relevant factor in their conclusion that the Proudman v Dayman defence was not available.
105 The plaintiff did not submit that, in this case, the absence of a specific statutory defence was a factor in favour of interpreting reg 55(1) as imposing absolute liability.[76] Rather, it was submitted that it was a neutral factor. I accept the plaintiff's submission. For the reasons given at [89] to [92], the fact that pt 10 of the RSA provides for a reasonable mistake defence for certain offences is of little significance in determining whether the common law presumption of honest and reasonable mistake has been displaced in reg 55(1) of the RSDR; the presumption of the availability of honest and reasonable mistake is not disturbed.
106 Turning, briefly, to the defendant's argument that reg 55(1) does not prescribe precisely how P plates must be affixed to a vehicle, hence allowing for the possibility that a probationary driver's chosen method of affixing a P plate may fail, and this tends against the imposition of absolute liability such that a probationary driver has to take measures to comply beyond the plain words of reg 55(1). In considering this argument, I compared the corresponding provision in New South Wales.[77] That provision mandates that P plates must be displayed on the exterior of the vehicle. By contrast, reg 55 of the RSDR provides the probationary driver with greater flexibility as to whether the P plate is displayed from the interior or exterior of the vehicle. However, the Victorian probationary driver must still comply with the other requirements in reg 55. I do not think that the absence of more detailed prescription within reg 55 allows the inference that the defence of honest and reasonable mistake of fact was under contemplation as a means to address unintended failure of the display of P plates.
Subject matter of the regulation and objectives of the statutory scheme
107 The defendant accepts that a road safety purpose lies at the heart the RSA and the accompanying regulations, including the RSDR, but seeks to distinguish between the purpose of the statutory framework as a whole and the subject matter to which the specific offence is directed. However, as discussed at [66] above, in my view, the mischief to which reg 55(1) is directed is risky driving behaviour by young and/or inexperienced drivers. Its purpose is regulatory and assists authorities in enforcing the restrictions placed on probationary drivers, viz pt 2 div 6, by providing police and other road users a means of easily identifying probationary drivers.
108 It is true, as submitted by the defendant, that the requirement to display P plates, the subject matter of reg 55(1), is not directly comparable to the offences considered in Welsh v Donnelly, Kearon v Grant, or Skase v Holmes. Those cases involved offences under the RSA rather than the regulations, which is of little moment, but the nature of the offence in each of those cases bears more directly upon public endangerment. In those cases, it was determined that the intention of the legislature was to impose penalties for breach regardless of the mens rea of the alleged offender. The reasoning in those cases was closely tied to the public safety objectives of the particular provisions, resulting in the subordination of the interests of individuals to the public interest.
109 Even in Pilkington v Elliot and Tsolacis v McKinnon, the public safety purposes of the legislative scheme and of the objects of vehicle registration were regarded as very important to the court's conclusions.
110 Turning to reg 55(1), although the display of P plates was argued by the defendant to be only ancillary to the road safety purposes of the RSA by assisting the monitoring and enforcement of restrictions applicable to probationary drivers, it is difficult to divorce the regulation from the overall statutory scheme. For reasons already expressed, I consider that the public safety purpose of the regulation, when interpreted as part of the graduated licensing scheme as a whole, is relevant to concluding that reg 55(1) is intended to impose absolute liability.
111 Accepting the soundness of the reasoning in Welsh v Donnelly, the distinguishing features of reg 55(1) are relatively slight. They appear to turn on the absence of a specific statutory proviso or defence and the fact that the mischief at which the regulation is aimed may be seen as less directly connected to a road safety purpose. But in light of my analysis that the RSA and RSDR promulgate a scheme for probationary licensing in which public safety is enhanced through the interplay of interconnected provisions, reg 55(1) nevertheless plays an important role in achieving that purpose.
112 The application of this criterion tends in favour of the imposition of absolute liability for breach of reg 55(1).
Whether putting the defendant under strict or absolute liability will promote the observance of the statute
113 Brennan J in He Kaw Teh referred to the proposition put by Lord Scarman in Gammon Ltd v Attorney-General (Hong Kong)[78] that:
(5) even where a statute is concerned with [an issue of social concern, including public safety], the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.[79]
and said:
The fifth proposition reflects the purpose of criminal law: to deter a person from engaging in prohibited conduct. The penalties of criminal law cannot provide a deterrent against prohibited conduct to a person who is unable to choose whether to engage in that conduct or not, or who does not know the nature of the conduct which he may choose to engage in or who cannot foresee the results which may follow from that conduct (where those results are at least part of the mischief at which that statute is aimed). It requires clear language before it can be said that a statute provides for a person to do or to abstain from doing something at his peril and to make him criminally liable if his conduct turns out to be prohibited because of circumstances that that person did not know or because of results that he could not foresee. However grave the mischief at which a statute is aimed may be, the presumption is that the statute does not impose criminal liability without mens rea unless the purpose of the statute is not merely to deter a person from engaging in prohibited conduct but to compel him to take preventive measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur. A statute is not so construed unless effective precautions can be taken to avoid the possibility of the occurrence of the external elements of the offence.[80]
114 His Honour then referred to Lord Evershed's statement of the principle in Lim Chin Aik v The Queen:
But it is not enough in their Lordships' opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim.[81]
115 The defendant raised the concern of a class of luckless victims if absolute liability were imposed, where the failure to display a P plate was outside the probationary driver's control or knowledge, so that there would be no purpose in prosecuting or penalising such drivers. The plaintiff submitted that probationary drivers would be encouraged to take positive measures to ensure compliance with reg 55(1). In my view, there is merit in the argument that probationary drivers are usually able to take direct steps to successfully manage the display of P plates. In Wilson v Gahan, Warren J said, when considering an argument put by the appellant in that case that reasonable steps had been taken to avoid drift of chemical spray outside the target area and that there was little more that could be done, 'It is not for this court to list exhaustively the steps open to the appellant. Rather, it is sufficient that the court be able to be satisfied other steps were available.'[82]
116 I consider that it cannot be said that there is nothing a probationary driver could do, by employing improved methods of display or inspection, to avoid a failure of display of P plates on their vehicle. The practical realities of the requirement posed by reg 55(1) lead me to conclude that the commission of the offence is largely avoidable by a conscientious probationary driver, and that pragmatism dictates that the interests of the individual be subjugated to the welfare of the public as a whole if the graduated licensing scheme is to operate effectively.
117 I accept the plaintiff's argument that compliance will be encouraged by the imposition of absolute liability. It is not difficult to envisage a means by which a probationary driver could adopt a reliable approach to the affixing of P plates to ensure compliance with reg 55(1). Checks could be made before each journey. The requirement to check vehicle compliance with road safety regulations before embarking on a journey is consistent with a legislative scheme casting a range of conditions on the driving of vehicles on public roads by probationary drivers. In truth, there would be likely to be relatively few cases where a mistake as to the display of P plates would give rise to both an honest and a reasonable mistake of fact if appropriate measures are taken by the probationary driver. The difficulty for those seeking to enforce the regulation, if honest and reasonable mistake of fact were permitted as a defence, is that the driver's state of mind is a matter which is often peculiarly within the drivers own knowledge, only capable of disproof beyond reasonable doubt by the production of evidence giving rise to a very strong contrary inference. In contrast to offences of a more serious character, [83] I consider that the legislature cannot have intended that infractions of the kind regulated by reg 55(1) should give rise to a burden of enforcement of such a nature. Therefore, I conclude under this criterion that compliance and enforcement of the regulation are likely to be enhanced if the offence is found to impose absolute liability.
118 In considering the potential for hardship in individual cases, I am mindful that the imputation of absolute responsibility for an offence is a matter of some importance even where, as in this case, the potential penalties are low, do not involve imprisonment and no moral stigma attaches to the offence.
119 Nevertheless, the Full Court in Welsh v Donnelly had in mind that the common law presumption of mens rea was weaker for a regulatory offence under the Motor Car Act 1958, in contrast to an offence of a truly criminal character, and that the legislature must be taken to have subordinated the interests of individuals to the wider public in light of the subject matter and objects of the legislation. I can detect no basis in principle to form a different view about the regulation I am asked to construe. It is quite apparent, as submitted by the plaintiff, that the offence under consideration is regulatory in nature, and not truly criminal, carrying a modest penalty, no risk of gaol, and no significant stigma. These factors point in favour of absolute liability when considered in combination with the other matters already discussed.
120 For the above reasons, in answer to the issue in this proceeding identified at [19], I conclude that an honest and reasonable, but mistaken, belief that a P plate is displayed facing out from the vehicle is not relevant to proof of the offence created by reg 55(1) of the RSDR. In other words, absolute liability applies to that element of the offence.
121 Following the oral hearing in this matter, the parties filed further submissions going to the question of the Court's discretion not to remit the matter to the County Court, should this Court find that the judge erred in his construction of reg 55(1) and in his decision to allow the appeal against conviction and sentence and set aside the orders of the Magistrates' Court.
122 Having considered those further submissions, I note that, in certain circumstances, courts have exercised their discretion to decline to remit the matter to a lower court despite error being found on the face of the record.[84] However, in my view, the circumstances do not warrant that approach in this case.
123 It only remains to be said that this case is one which, in my view, is deserving of clemency in light of the unfortunate history of the proceedings. I recognise, however, that, if the real concern for the defendant is the attraction of demerit points as a result of a finding of guilt, the options for a court to alleviate hardship to the defendant may be quite limited.
124 The orders that I propose are to the effect that:
(a) The decision and orders made by the second defendant, the County Court of Victoria, on 29 September 2016 in proceeding number AP-16-1392 to allow the first defendants' appeal against conviction and sentence and set aside the lower court's determination be quashed as an error of law on the face of the record.
(b) I declare that the correct interpretation of reg 55(1) is that an honest and reasonable, but mistaken, belief that a P plate is displayed facing out from the front of the vehicle is not relevant to proof of the offence created by reg 55(1) of the RSDR.
(c) The charge brought against the first defendant in proceeding number AP-16-1392 be remitted to the County Court of Victoria for hearing and determination according to law.
125 I will hear from the parties as to the precise form of the orders and as to the question of costs.
[2] [1985] HCA 43; (1985) 157 CLR 523 ('He Kaw Teh'). See, especially, 590.
[3] As to the material forming the record in a judicial review proceeding where the ground relied upon is error on the face of the record, see Azadzoi v County Court (2013) 40 VR 390, 393 [10] (Bell J), citing Easwaralingam v Director of Public Prosecutions [2010] VSCA 353; (2010) 208 A Crim R 122, 127 [22]. See also Agar v Dolheguy [2010] VSC 506 as to the scope of judicial review on the face of the record.
[7] See discussion in He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 571-2 (Brennan J).
[8] Hawthorne (Dept of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120.
[9] Defendant's counsel also raised an argument to do with the form of the charge before the County Court judge, but that issue is not relevant to this proceeding.
[10] August v Fingleton [1964] SASR 22 (driving a motor vehicle whilst so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle); R v Walker (1994) 35 NSWLR 384; Hausmann v Shute [2006] ACTSC 54; (2006) 200 FLR 208 (refusing or failing to submit to a breath analysis test); Tsolacis v McKinnon (2012) 38 VR 260 (use of unregistered vehicle); Pilkington v Elliot (Unreported, Supreme Court of Victoria, Coldrey J, 27 September 1991) (owning unregistered vehicle used on highway); Franklin v Stacey (1981) 27 SASR 490 (driving an unregistered and/or uninsured vehicle on a highway; Welsh v Donnelly [1983] VicRp 79; [1983] 2 VR 173 (driving a vehicle carrying a weight in excess of that which the vehicle is licensed); Vandenberg v Police (SA) [2005] SASC 197; (2005) 44 MVR 1 (exceeding the speed limit).
[11] Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536 (permitting an unlicensed driver to drive); Mayer v Marchant (1973) 5 SASR 567 (overloading a tanker); Lee v Huxton Haulage Pty Ltd (1994) 21 MVR 339 (driving an overweight vehicle); Arnold v Wood (1996) 89 A Crim R 264 (export of woodchips contrary to licence); Kidd v Reeves [1972] VicRp 64; [1972] VR 563; Richardson v Pullen (1998) 28 MVR 488 (driving without a licence); Davis v Bates (1986) 25 A Crim R 422 (driving whilst disqualified); DPP (NSW) v Bone [2005] NSWSC 1239; (2005) 64 NSWLR 735 (drink-driving); Elliot v Crawford (Unreported, Supreme Court of Tasmania, Underwood J, 30 November 1989) (drink-driving where the defendant's drink was spiked).
[12] (Unreported, Supreme Court of Victoria, Coldrey J, 27 September 1991).
[15] (2012) 38 VR 260, 286.
[16] [2008] HCA 25; (2008) 236 CLR 440 ('CTM').
[17] Gleeson CJ, Gummow, Crennan and Kiefel JJ (joint reasons), Kirby J and Hayne J; Heydon J dissenting on the point.
[18] CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440.
[19] He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 566; CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440.
[20] He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 546, 582, 5923.
[21] CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440, 446-7 [7].
[22] He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 530-3.
[24] He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523.
[25] Ibid 535, 576; CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440, 446 {5].
[26] Second Reading Speech, Roads Legislation (Projects and Road Safety) Bill 2006, see Victoria, Parliamentary Debates, Assembly, 24 August 2006, 3096 (Robert Cameron, Minister for Agriculture).
[27] Transcript of Proceedings, DPP v Stanojlovic (Supreme Court of Victoria, Jane Dixon J, 8 February 2017, 36-8 ('Transcript').
[28] Citing Selectrix Pty Ltd v Humphrys [2001] VSC 45; (2001) 159 FLR 348.
[29] Citing Pilkington v Elliot (Unreported, Supreme Court of Victoria, Coldrey J, 27 September 1991).
[31] The plaintiff relied on Wilson v Gahan to support the argument that ease of enforcement is an important factor: Transcript 9.
[33] Counsel referred to the court's ability to dismiss any charge as trifling in accordance with s 76 of the Sentencing Act 1991 or conviction avoided via the Criminal Justice Diversion Program pursuant to s 59 of the Criminal Procedure Act 2009.
[36] Pilkington v Elliot (Unreported, Supreme Court of Victoria, Coldrey J, 27 September 1991), citing Dawson J in He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523.
[37] Citing Cumming v Melbourne Towing Service Pty Ltd (1984) 2 MVR 157 (Marks J).
[39] He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 594-5.
[41] Referring to Menhennitt J's ruling that strict liability applied to case of driving whilst licence suspended under the Motor Car Act 1958.
[43] Lim Chin Aik v The Queen [1963] AC 160.
[44] Road Safety (Drivers) Regulations 2009 reg 73, sch 3 item 27.
[48] Dudas v Monash City Council [2012] VSC 578 [61] and authorities cited.
[50] Road Safety (Drivers) Regulations 2009 reg (1)(a).
[51] He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 576.
[52] [1983] VR 173. It should be noted that in Welsh v Donnelly, as in many cases pre-dating He Kaw Teh, the term strict liability was sometimes used in place of the term absolute liability or interchangeably.
[53] [1999] VSC 72 [23].
[54] Welsh v Donnelly [1983] VicRp 79; [1983] 2 VR 173, 177, citing Provincial Motor Cab Co Ltd v Dunning [1909] 2 KB 599; James & Son v Smee: Green v Burnett [1955] 1 QB 78.
[56] The defence was held to be available but not made out on the facts of the case.
[57] His Honour indicated some sympathy for the views of Bray CJ in Kain & Shelton v McDonald (1971) 1 SASR 39 who held that the defence of mistake of fact was available for an offence of being an owner or person in charge of a vehicle driven in excess of the weight requirements for that vehicle.
[58] Welsh v Donnelly [1983] VicRp 79; [1983] 2 VR 173, 197.
[62] (Unreported, Supreme Court of Victoria, Coldrey J, 27 September 1991).
[64] (Unreported, Supreme Court of Victoria, Vincent J, 11 October 1995).
[66] Tsolacis v McKinnon (2012) 38 VR 260, 286, citing Wilson v Gahan [1999] VSC 72 [9] (citations omitted).
[67] (2012) 38 VR 260, 286.
[68] Section 179(1)(a) of the RSA states: If a provision of this Part states that a person has the benefit of the reasonable steps defence for an offence, it is a defence to a charge for the offence if the person charged establishes that - (a) the person did not know, and could not reasonably be expected to have known, of the conduct that constituted the commission of the offence.
[69] Tsolacis v McKinnon (2012) 38 VR 260, 287.
[70] See Reg. v. Sault Ste. Marie (1978) 2 SCR 1299, 1325-6 (Dickson J), cited in He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523, 533-4 (Gibbs CJ).
[71] As pointed out by the plaintiff, see Transcript 27-9.
[72] [1992] HCA 14; (1992) 173 CLR 572. See also R v Scholl [2009] VSC 198.
[73] DPP (NSW) v Bone [2005] NSWSC 1239; (2005) 64 NSWLR 735; Giachin v Sandon [2013] ACTSC 77; (2013) 63 MVR 435; and see above n 11
[75] Mounsey v Lafayette [2002] VSC 342; (2002) 37 MVR 256 [50]; Wilson v Gahan [1999] VSC 72 [16].
[77] Road Transport (Driver Licensing) Regulations 2017 (NSW) r 21(1) (a) 'the holder must not drive any motor vehicle unless a sign, issued or authorised by the Authority and displaying the letter "P" in red on a white background is displayed: (i) in the case of a vehicle not towing a trailer - on the exterior of the vehicle in a conspicuous position at the front and rear of the vehicle, or a conspicuous position on the roof of the vehicle'.
[78] [1985] 1 AC 1, 14.
[79] He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 567.
[81] Ibid 567-8, citing Lim Chin Aik v The Queen [1963] AC 160, 174. 'Strict liability' as used by Lord Evershed in this quoted passage encompasses both 'strict liability' and 'absolute liability' as those terms are used in He Kaw Teh.
[82] Wilson v Gahan [1999] VSC 72 [21].
[83] Cf He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 583; and CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440, 491.
[84] Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 139 ALR 663, 6701; Smith v County Court & Primrose [2005] VSC 396.
DPP
Stanojlovic [2017] VSC 540
(1941) 67 CLR 536
(1985) 157 CLR 523
(2013) 40 VR 390
(1987) 11 NSWLR 541
(1992) 29 NSWLR 120
(1994) 35 NSWLR 384
(2006) 200 FLR 208
(2012) 38 VR 260
(1981) 27 SASR 490
(2005) 44 MVR 1
(1973) 5 SASR 567
(1994) 21 MVR 339
(1998) 28 MVR 488
(2005) 64 NSWLR 735
(2008) 236 CLR 440
(2001) 159 FLR 348
(1984) 2 MVR 157
(1971) 1 SASR 39
(1992) 173 CLR 572
(2013) 63 MVR 435
(2002) 37 MVR 256
(1996) 139 ALR 663