Mens rea and strict liability
24 These two bases for the proper dismissal of the CANs really raise the same issue. It is whether the offences specified in the two CANs were matters of strict or absolute liability. The submission of the RTA was that the offences specified in the CANs were matters of absolute liability and consequently there was no room for any consideration of mens rea or a Proudman v Dayman "defence".
25 I have already set out the relevant contents of the two CANs. To understand the RTA's submission on this issue, however, it is necessary to set out s21 of the Road Transport (General) Act 1999 and cl 63 of the Road Transport (Safety and Traffic Management) (Driver Fatigue) Regulation 1999:
"21(1) If the driver of a motor vehicle is alleged to have committed an offence under the road transport legislation:
(a) the responsible person for the vehicle, or the person having the custody of the vehicle, must, when required to do so by an authorised officer, immediately give information (which must, if so required, be given in the form of a written statement signed by the responsible person) as to the name and home address of the driver, and
(b) any other person must, if required to do so by an authorised officer, give any information that it is in the person's power to give and that may lead to the identification of the driver.
Maximum penalty: 20 penalty units.
(2) It is a defence to a prosecution for an offence under subsection (1)(a) if the defendant proves to the satisfaction of the court that he or she did not know and could not with reasonable diligence have ascertained the driver's name and home address.
(3) A written statement purporting to be given under subsection (1)(a) and to contain particulars of the name and home address of the driver of a motor vehicle at the time of commission of an alleged offence under the road transport legislation that is produced in any court in proceedings against the person named in the statement as the driver for such an offence is evidence without proof of signature that the person was the driver of the vehicle at the time of the alleged offence if the person does not appear before the court."
"63(1) The Authority may, by written notice given to a person who is required under this Division to keep driving records, ask the person to produce stated driving records to the Authority for inspection within the time stated in the notice.
(2) The time stated in the notice must be at least 7 days after the notice is given to the person.
(3) The person must comply with the notice.
Maximum penalty (subclause (3)): 20 penalty units."
26 The appropriate test to be applied to such legislation was succinctly stated in Hawthorne (Department of Health) v Morcam Pty Limited (1992) 29 NSWLR 120 at 131B:
"The issue of statutory construction raised is whether the legislature intended the offence created by s10 to be one of absolute liability or one of strict liability. This Court recently considered the law relating to the construction of such provisions in Environment Protection Authority v N (1992) 26 NSWLR 352 at 354-55. It is unnecessary to repeat the citations of authority there for the following propositions:
(1) The common law presumption is that an essential element of every offence is that the defendant knew of the wrongfulness of his act.
(2) The presumption is, however, liable to be displaced.
(3) In determining whether the common law presumption has been displaced in the particular case, the Courts have taken various matters into consideration. They are (a) the words of the statute itself, (b) the subject matter with which the statute deals and (c) whether an absolute liability will assist in overcoming the mischief at which the statute is aimed. As Gibbs CJ remarked in He Kaw The's case (at 530), these indications do not all point in the same direction.
There is also clear authority for the further proposition that the defendant's knowledge of the wrongfulness of his act is an essential ingredient of every statutory offence unless the statute excludes it either expressly or by necessary implication. …"
27 I agree with the RTA that his Honour's reference to "giving Jara Transport the benefit of the doubt" suggests that his Honour approached the offences on the basis that they were ones of strict liability rather than absolute liability. In other words that he found a Proudman v Dayman "defence" in that Jara Transport had "reasonable grounds for believing in the existence of a state of facts which, if true, would take its act outside the operation of the enactment and that on those grounds it did so believe." (Proudman v Dayman (1963) 67 CLR 536 at 541).
28 The RTA submitted that if his Honour had approached the matter in that way, his Honour had erred because the statements from Ms Toor from the bar table even if taken as evidence went no further than to establish a belief that the information/documents had been provided and produced because they had been sent. No basis had been established for a positive belief, reasonably held, that the required production and provision had occurred and accordingly no Proudman v Dayman "defence" was raised. The material before his Honour did not permit a finding of honest and reasonable belief of facts if true would have established production and provision as required by the notice.
29 I agree with the RTA that there was not evidence of a kind sufficient to establish a Proudman v Dayman "defence" before his Honour. That may well have been because the matter was dealt with in an informal manner. Had Ms Toor given sworn evidence as to what steps she took in sending the information and document, evidence sufficient to raise a Proudman v Dayman "defence" may have been elicited. It is for that reason that I propose to remit the matter to the Local Court rather than deciding the issue myself. There is a suggestion by Ms Toor in her letter to the RTA that she did have some confirmatory discussion with someone from the RTA after her "sending" of the documents and information but the date of that discussion is not made clear.
30 It follows that I need to determine whether the offences raised by the two CANs are offences of strict liability or absolute liability in case such evidence is adduced in the Local Court upon the remitting of this matter.
31 As a first consideration it must be said that there is no indication in either s21 or cl 63 of an intention on the part of the legislature that the offences created involve absolute liability. Section 21 specifically refers in its terms to a number of qualifications and exceptions to compliance. The fact that the section and clause use the word "must" is not decisive.
32 The subject matter of the statute is the enforcement of road traffic legislation. That there should be the orderly control and regulation of road traffic is a matter going to public welfare. The requesting of such information and documents as specified in the notice, is part of the overall matrix of provisions which combine to produce orderly control and regulation of road traffic.
33 The specific purpose of s21 and cl 63 is to enable the RTA to obtain access promptly to information and documents. It does so by enforcing the obligation upon those in whose custody or under whose control the documents or information are to be found, to produce them. There is a public interest in the RTA obtaining access to such documents in that the accessing of such information plays a part in the orderly control of road traffic.
34 What is not clear is how absolute liability in the production of such information and documents will assist in achieving that purpose. It will certainly assist in obtaining convictions where there has been a failure to provide and produce documents, but that is not a compelling reason for finding absolute liability. An unjust conviction will, of course, do nothing to assist the RTA to obtain access to documents and information if the failure to produce or provide was caused by an honest and reasonable mistake.
35 An obvious example of such a situation is this. Documents and information might, in accordance with a notice, have been sent to the RTA. Within the 28 days specified, the person sending the documents and information might have contacted personnel from the RTA to ask whether the documents and information had been received. What would be the situation if the RTA representative, to whom the inquiry was made, erroneously advised that the documents and information had been received when that was not so. That it seems to me would create a classic Proudman v Dayman "defence" situation.
36 The analysis by Gleeson CJ in SRA of NSW v Hunter Water Board (1992) 28 NSWLR 721 at 725E is useful.
"The concluding words in that passage emphasise that what is involved is something more than inadvertence. In a number of different contexts courts have stressed the need to show an affirmative belief in a certain fact or state of affairs as distinct from a mere absence of knowledge …
In determining what state of mind will be treated as a mistaken belief for the purposes of a defence of strict liability created by statute, questions of statutory construction arise, and the purpose of the legislature in creating an offence needs to be considered…
It would be inconsistent with the legislative purpose underlying the Clean Waters Act to conclude that the mere lack of knowledge that pollution was occurring, or was likely to occur, based upon a general understanding or assumption that everything was in order, would be sufficient to amount to a mistaken belief. Rather, a belief in the existence of a set of facts which, if true, would take the conduct in question outside the operation of the statute would entail, in a case such as the present, a positive belief that the operation of the plant and equipment would not result in pollution. That belief would also need to be sufficiently specific to relate it to the elements of the particular offence."
37 The particular illustration to which I have referred satisfies that analysis. There would be a basis for the positive belief that the documents and information had been sent and received. If such a situation did occur the purposes of the legislation would not in any way be advanced or facilitated by a conviction on the basis of absolute liability.
38 In my opinion the offences raised in the two CANs were offences of strict liability to which a Proudman v Dayman "defence" was potentially available. They were not offences of absolute liability.