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[2014] WASC 112
General information, not legal advice.
Supreme Court of WA
2014-04-02
Mr P, Corboy J, Chaney J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : RODI -v- LUMLEY [2014] WASC 112
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Road traffic - Driving unlicensed vehicle - Defence that driver did not know vehicle unlicensed - Meaning of responsible person for vehicle - Availability of defence to sole directors of the company which previously held licence
1 CHANEY J: On 12 November 2013, the appellant, Mr Paul Rodi, was convicted in the Magistrates Court of an offence of driving a vehicle whilst the vehicle was unlicensed contrary to s 15(3) of the Road Traffic Act 1974 (WA) (RT Act). On 9 December 2013, Mr Rodi lodged an application with this court for leave to appeal against the conviction. On 8 January 2014, Mr Rodi filed an amended appeal notice which recouched the grounds for appeal, so that they were:
2 On 15 January 2014, Corboy J ordered that the application for leave to appeal was to be heard at the same time as the appeal.
3 At trial, the prosecutor called two police officers to give evidence, Constable Lumley and Senior Constable Ward. Constable Lumley gave evidence that on 14 February 2013 she was working with Senior Constable Ward when they pulled over a Toyota Hilux vehicle being driven by Mr Rodi. A search on their computer showed that the registration of the car had expired on 11 April 2012. She gave evidence that Mr Rodi said that:
He knew (the car) was unregistered and he had set the fine suspensions aside and they hadn't sent a renewal out to him.
She produced an extract from the Department of Transport licensing records which showed that the licence had expired on 11 April 2012.
4 Senior Constable Ward's evidence as to the conversation with Mr Rodi after the vehicle was pulled over differed slightly. His evidence was as follows:
I've spoken to him outside his vehicle and I immediately said 'Is this your car?' He said 'Yes. It's a company car'. I then said 'Is it your company?' He said 'Yes'. I then informed Mr Rodi that the vehicle was unlicensed and it expired back in April 2012. He said that it's sorted out and that it was in the system. He'd paid the fines and was waiting for it to be sent back out to him.
Did he refer to what 'it' meant?I knew he meant the registration.
Did you have any further other conversation that you can recall?Yes, I can. It kind of went round in circles. I explained to Mr Rodi that once the vehicle was no longer under a fine suspension the registration still has to be paid or the vehicle has to be subject to an examination but Mr Rodi continually stated something similar to, 'The fines have all been paid. They've been sorted out, therefore, I'm right to drive' (ts 11).
5 The certificate produced by Constable Lumley pursuant to s 98(2) of the RT Act certified that the vehicle which Mr Rodi was driving on the day in question was licensed to Montage Homes Pty Ltd and that the vehicle licence had expired on 11 April 2012.
(i) the vehicle had never been registered in his name, but had been registered in the name of Montage Homes Pty Ltd, a company of which he is the sole director;
(ii) his wife generally looked after the paperwork for Montage Homes Pty Ltd;
(iii) he did not know that the licence had expired in April 2012;
(iv) in December 2012 he had received advice that the licences of several vehicles, including the Toyota Hilux in question, had been suspended for the nonpayment of fines;
(v) upon receipt of that notice, he had made arrangements to have the suspensions lifted, and had received a letter dated 6 December 2012 from the Fines Enforcement Registry confirming that the suspension imposed for nonpayment of fines was lifted on 6 December 2012 at 11.41 am;
(vi) he believed the vehicle was licensed because otherwise there could have been nothing to suspend; and
(vii) he had never received a notice requiring him to surrender the number plates for the vehicle, which he said was the usual requirement if a licence had not been renewed within three months.
7 On that basis, Mr Rodi argued that he was entitled to the benefit of s 15(3)(b) of the RT Act.
8 The learned Magistrate did not accept the evidence of Constable Lumley that Mr Rodi had said, when pulled over by the police officers, that he knew the vehicle was not registered. He preferred the evidence of Constable Ward to the effect that Mr Rodi had said that he thought he could drive a vehicle because the suspension had been lifted.
9 His Honour referred to the letters from the Fines Enforcement Registry advising of the lifting of the suspension, but observed that that did not mean that there was an existing registration. Rather he said that 'all that means is that the car is capable of being licensed'. He referred to the certificate under s 98(2) of the RT Act certifying that the vehicle ceased to be registered on 11 April 2012 and noted the terms of s 98(2) which provide that the facts stated in such a certificate are evidence of those facts. He therefore found as a fact that the vehicle licence had expired on 11 April 2012 and had not been renewed by the time that the alleged offence took place on 14 February 2013.
10 The learned Magistrate then considered Mr Rodi's evidence. He made reference to s 15(3)(b) of the RT Act, noting that it provided a defence where a person had no knowledge that a valid vehicle licence had not been granted, but also noting that that defence was only available to a person other than a responsible person for the vehicle. He then turned to the definition of 'responsible person' found in s 5A, and concluded that Mr Rodi came within s 5A(d) on the basis that he is a person entitled to immediate possession of the vehicle. He thus concluded that the defence under s 15(3)(b) was not available to Mr Rodi because he came within the definition of responsible person.
11 The learned Magistrate then considered s 24 of the Criminal Code (WA), on the basis that, although the defence under s 15(3)(b) of the RT Act did not apply, Mr Rodi would have a defence if he held an honest and reasonable but mistaken belief that the vehicle was licensed when it was not. He concluded that Mr Rodi, being the sole director of Montage Homes Pty Ltd, had responsibility to ensure that the company's vehicles were licensed, and, even taking into account the letter from the Fines Enforcement Registry, it was not reasonable for him to believe that the licence which had expired some 10 months earlier was still in force. He continued:
As it happens, I do not understand how he can come to the conclusion that the vehicle was licensed. Clearly it was not. On any view, under section 15(3), I would not be satisfied that he did not know it was not licensed at that time. For those reasons, I am satisfied beyond reasonable doubt that the prosecution has proved its case and the accused will be convicted (ts 31).
12 These two grounds essentially involve the same question. That is whether the Magistrate was correct in concluding that Mr Rodi was the responsible person for the vehicle, and thus whether the defence under s 15(3)(b) was available.
(3) Where a vehicle for which there is not a valid vehicle licence granted under this Act is used on any road, a responsible person for the vehicle and any person so using the vehicle or causing or permitting such use commits an offence against this Act, but -
(b) it is a defence to a charge of an offence against this subsection against any person other than a responsible person for the vehicle if the accused proves that he had no knowledge that a valid vehicle licence had not been granted in respect of the vehicle; and
14 Thus it can be seen that s 15(3)(b) provides a defence to any person 'other than a responsible person for the vehicle'.
15 A person responsible for a vehicle is defined by s 5A of the RT Act. Section 5A(1) provides:
(1) For the purposes of this Act a person responsible for a vehicle is
(a) if the vehicle is licensed any licence holder who has not given a notice as described in paragraph (b); or
(b) if a licence holder has given notice under section 24(1), or a corresponding law of another State or Territory or the Commonwealth, of a change in ownership of the vehicle and subsection (2) does not apply the new owner as specified in the notice or, if more than one is specified, each of them; or
(c) if the vehicle is not licensed but was previously licensed and subsection (2) does not apply a person responsible under paragraph (a) or (b) before the vehicle last ceased to be licensed; or
(i) the person who is entitled to the immediate possession of the vehicle; or
(ii) if there are several persons entitled to its immediate possession, the person whose entitlement is paramount.
16 The learned Magistrate found that the vehicle was previously registered in the name of Montage Homes Pty Ltd. He concluded, however, that Mr Rodi was entitled to possession of the vehicle by reason of being the sole director of Montage Homes Pty Ltd, was driving the vehicle, and was entitled to drive the vehicle and to possession of it. He thus concluded that Mr Rodi is the person who is responsible for the vehicle, and that the defence in s 15 would not apply. The respondent contends that it was open to the Magistrate to reach the conclusion which he did on the evidence before him and that there was no error. I do not agree.
17 Section 5A(1) identifies four alternative bases for identifying the person responsible for a vehicle. Paragraph (d) only defines a person responsible where there is no person responsible coming within pars (a), (b) or (c). That construction flows from the use of the word 'or' at the end of each of subparagraphs (a), (b) and (c) and from the introductory words in par (d) being 'in any other case'.
18 In this case, Montage Homes Pty Ltd was the person responsible for the vehicle by virtue of s 5A(1)(c). That is, it was the person who was the licence holder immediately before the vehicle ceased to be licensed. The definition in par (c) having been met, there was no basis to apply the definitions found in par (d).
19 It follows that the defence available under s 15(3)(b) was available to Mr Rodi. Leave to appeal should be granted in relation to grounds 1 and 3.
20 This ground alleges that the learned Magistrate made an error in law in failing to identify that a body corporate is a legal entity in its own right. The appellant's written submissions repeated the ground, but did not elaborate upon it. Nor, in oral submissions did Mr Rodi develop the ground.
21 There is nothing in the transcript which suggests that the Magistrate did not appreciate the separate legal existence of a body corporate. The ground has no substance, and leave to appeal on this ground should be refused.
22 This ground is that the Magistrate erred in concluding that Mr Rodi had not established that he did not know that the vehicle was unlicensed on the day in question. Rather, Mr Rodi contends that the learned Magistrate should have found that he did not know that the vehicle was unlicensed.
23 The evidence upon which Mr Rodi relies for that submission is:
(i) the letter, exhibit 2, from the Fines Enforcement Registry to Montage Homes Pty Ltd advising that the suspension on the motor vehicle had been lifted on 6 December 2012;
(ii) Mr Rodi's oral evidence that he did not receive an infringement notice for failing to return the licence plates for the vehicle; and
(iii) his denial in evidence of knowledge that the vehicle licence had expired.
24 The finding challenged by Mr Rodi is set out above at [11] in the passage where his Honour concluded that he was not satisfied that Mr Rodi did not know that the vehicle was not licensed at the relevant time.
25 In my view, the Magistrate did not err in reaching the conclusion which he did.
26 The suspension which was lifted on 6 December 2012 related to three motor vehicles, one of which was the vehicle driven by Mr Rodi on 14 February 2013. The reason for the suspension was not revealed in evidence. Mr Rodi's evidence was that, in order to have the suspension lifted, he made an election to have the matters leading to the suspension dealt with by the court. That would suggest that the licence suspension order was made under s 19 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (FPINE Act). The effect of such an order in relation to an alleged offender which is a body corporate is that it disqualifies the alleged offender 'from holding or obtaining a vehicle licence in respect of those vehicles specified in the order'. Thus, the use of the words 'holding or obtaining' in s 19(4) of the FPINE Act makes it clear that a suspension can operate in relation to either licensed or unlicensed vehicles. Mr Rodi's proposition, put both to the Magistrate, and on appeal, that only a current licence can be suspended, misapprehends the effect of the FPINE Act.
27 The express terms of exhibits 2 and 3 make clear that the lifting of the suspension does not remove any other impediments to the lawful driving of the vehicle. Each of the letters of 6 December 2012 reads:
I wish to confirm that the suspension imposed on your motor vehicle licence number IBNT418 ICFS071 1TDZ which was due to the above fine, was lifted on 6 December 2012 at 11.41 am (or on exhibit 3 10:17 am).
However, the lifting of this suspension in no way affects any other order of suspension, disqualification or cancellation that may apply to the motor vehicle, including other fines you may have outstanding.
If you have any reason to believe that the motor vehicle may be subject to any other orders which would preclude you from lawfully driving, you should check with the Licensing Division of the Department of Transport on 13 11 56 prior to driving.
28 It can also be noted that s 27A of the RT Act which deals with the effect of licence suspension under the FPINE Act specifically provides, by s 27A(2), that the suspension of a licence under the FPINE Act does not operate to extend the period for which a vehicle licence may be valid or effective beyond the expiration of the period for which the licence was expressed to be granted or renewed.
29 Against that background, and in particular having regard to the terms of exhibits 2 and 3, it was open to the Magistrate to reject reliance upon those letters as evidence that Mr Rodi did not know the vehicle was unlicensed.
30 Mr Rodi argued that his oral evidence that he had not received a notice requiring delivery up of the licence plates was admissible, pursuant to s 79F of the Evidence Act 1906 (WA), presumably to prove that no notice to that effect was sent. Section 79F(1) provides:
(1) Where in any proceedings the happening of an event is in question, and a system has been followed to make and keep a record of the happening of all events of that description, oral or other evidence to establish that there is no record of the happening of the event is admissible to prove that the event did not happen.
31 The first thing that can be said about this submission is that proof that no notice was sent would not amount to proof that Mr Rodi did not know the vehicle was unlicensed. But in any event, s 79F has no application to Mr Rodi's evidence. In oral submissions he advised that the relevant record for the purposes of the submission are the Department of Transport records of vehicle licences. Obviously, Mr Rodi was in no position to give evidence as to what those records showed, or did not show, and at no time did he attempt to do so. The extent of his evidence was that he had not received the relevant notice. That says nothing about the state of the Department of Transport records. The learned Magistrate did not err in not relying on Mr Rodi's evidence on that point in considering the state of Mr Rodi's knowledge.
32 That leaves only Mr Rodi's own selfserving evidence that he did not know the vehicle was unregistered. The Magistrate rejected that evidence on the basis of Mr Rodi's admission that he was the sole director of the licensee company, Montage Homes Pty Ltd, that he was responsible for licensing the vehicle, that he was the main driver of the vehicle and that the licence had been expired for some 10 months prior to February 2013. He noted that Mr Rodi's partner, whom Mr Rodi had said attended to payment of accounts for Montage Homes Pty Ltd, had not been called.
33 The burden of proving the defence under s 15(3)(b) of the RT Act rests on the accused.[1]
34 In my view, it was open to the Magistrate to reach the conclusion that Mr Rodi had not established that he did not know that the vehicle was unlicensed.
35 Although I am of the view that the Magistrate erred in concluding that the defence under s 15(3)(b) of the RT Act did not apply, I do not consider that that error affected the outcome of the prosecution. That is because the Magistrate expressly concluded that Mr Rodi had not proved that he did not know the vehicle was unlicensed at the time. Had he applied the correct approach to the definition of the person responsible, and as to the availability of the defence under s 15(3)(b), it is clear that he would have concluded, on the facts which he found, that Mr Rodi had not established the defence.
36 I should note in passing that the Magistrate did consider whether Mr Rodi had made out a defence pursuant to s 24 of the Criminal Code. He concluded that that defence was not made out. Although it forms no part of the grounds of appeal in this matter, it can be noted that in Pallett v Paul[2] Hasluck J held that the defence of honest and reasonable but mistaken belief was not available in relation to a prosecution under s 15 of the RT Act because the defence has been excluded in respect of a responsible person by s 15(3) of the RT Act.
37 For those reasons, leave to appeal should be granted in relation to grounds 1, 3 and 4, but the appeal should be dismissed.
[1] Mulhall v Barker [2010] WASC 359 [22] - [23].
[2] Pallett v Paul [2007] WASC 290 [126].