Stone v French [2013] ACTMC 4

Road Transport (General) Act 1999 (ACT) ss 33, 44, 56, 72

Road Transport (General) Amendment Act 2011 (ACT) ss 4, 5

Victims of Crimes (Financial Assistance) Act 1983 s 68

Beckwith v R [1976] HCA 55; (1976) 135 CLR 569

CTM v R [2008] HCA 25; (2008) 236 CLR 440

Davies v Jilbert [2009] ACTMC CC09/10917; CC09/9584 (21 July 2009)

Deputy Commissioner of Taxation v Gruber [1998] NSWSC 64; (1998) 43 NSWLR 271

Director of Public Prosecutions v Yigit [2008] NSWCA 226

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Police v Conway [2006] SASC 186; (2006) 95 SASR 83

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335

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

Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485

(a) The Defendant is disqualified from holding or obtaining a driver licence for a period of one year.

(b) The Defendant is fined $770.00.

(c) The Defendant is to pay court costs of $69.00.

(d) The Defendant is required to pay a levy of $50.00 under s 68(1) of the Victims of Crimes (Financial Assistance) Act 1983.

(e) The Defendant is required to pay to the Australian Capital Territory a Victims' Services Levy of $10.00 under s 24(2) of the Victims of Crimes Act 1994.

1. The Defendant is charged with contravening s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999. It is alleged that he, in the Australian Capital Territory on 13 October 2011, a first offender, drove while his licence was suspended by law. This offence carries a financial penalty of up to $5,500, up to six months' imprisonment, or both, and an automatic disqualification from driving for 12 months.

2. As at 13 October, 2011, s 32(1)(a) of the Road Transport (Driver Licensing) Act provided:

(1) A person who is disqualified by a court in Australia or under the law of any jurisdiction from holding or obtaining an Australian driver licence must not -

(a) drive a motor vehicle on a road or road related area during the period of disqualification except in accordance with a restricted licence issued to the person.

3. The prosecution relied on the following pieces of documentary evidence:

a) An evidentiary certificate pursuant to s 56 of the Road Transport (General) Act 1999 dated 7 August 2011 stating that on 5 July 2011, a parking infringement notice (number 1035852809) was served by placement under the windscreen wiper of vehicle registration number YBR26V, the registered owner being the Defendant of 6 Glenelg Street, Kaleen of the ACT, and that the infringement notice penalty was not disputed and was paid on 14 October 2011;

b) An evidentiary certificate pursuant to s 72 of the Road Transport (General) Act 1999 dated 26 February 2013 stating that a reminder notice for the infringement notice of 5 July 2011 was posted to 6 Glenelg Street, Kaleen, on 8 August 2011 and that a notice of suspension and a suspension confirmation notice were posted to the same address on 15 September 2011 and 6 October 2011 respectively, and that a change of address was received by the Road Transport Authority ("RTA") on 5 February 2013;

c) A reminder notice pursuant to s 33 of the Road Transport (General) Act 1999 bearing a date of issue of 8 August 2011 and a deemed date of service of 15 August 2011;

d) A notice of suspension pursuant to s 44(2) of the Road Transport (General) Act 1999 dated 15 September 2011; and

e) A suspension confirmation notice pursuant to s 44(9) of the Road Transport (General) Act 1999 dated 6 October 2011.

4. I note that s 44 of the Road Transport (General) Act 1999, pursuant to which the suspension took effect, was amended by ss 4-5 of the Road Transport (General) Amendment Act 2010 (Repealed), effective 1 July 2011, and continues in that form.

a) On 5 July 2011, a parking infringement notice was issued by the RTA in respect to a parking offence involving vehicle registration number YBR26V;

b) The Defendant was the registered owner of that vehicle;

c) On 5 July 2011, the Defendant was neither the driver of, nor a passenger in, the vehicle, it then being on loan to his ex-girlfriend;

d) On 15 August 2011, the RTA sent a reminder notice by post to the Defendant's registered address at 6 Glenelg Street, Kaleen in connection with the infringement notice of 5 July 2011;

e) On 15 September 2011, the RTA sent a notice of suspension by post to the Defendant's registered address at 6 Glenelg Street, Kaleen in connection with the infringement notice;

f) On 6 October 2011, the RTA sent a suspension confirmation notice by post to the Defendant's registered address at 6 Glenelg Street, Kaleen in connection with the infringement notice;

g) Around June 2011, the Defendant moved from 6 Glenelg Street, Kaleen to an address in Gungahlin, then in Franklin and later in Giralang;

h) The Defendant stopped checking the mail at 6 Glenelg Street, Kaleen when he moved from that address;

i) On 13 October 2011, the Defendant was the driver of a blue Commodore registration number YHK79J, registered to his daughter Georgia French, when it was stopped by police at Cooyong and Mort Streets in Braddon, ACT at approximately 4:10 p.m;

j) On that day, after being stopped, the Defendant telephoned the RTA to ascertain the status of his driver licence; and

k) On 5 February 2013, the Defendant notified the RTA that his address had changed from 6 Glenelg Street, Kaleen to 25 Capella Crescent, Giralang, ACT.

7. The Defendant gave evidence that his ex-girlfriend, the driver of the vehicle registration number YBR26V on 5 July 2011, did not attend court on the day of the hearing due to being ill with 'morning sickness'. The prosecution did not challenge this evidence and I was not invited to draw a Jones v Dunkel[1] inference.

8. There are two issues in dispute in this matter:

i. First, whether the Defendant can rely on the defence of honest and reasonable mistake of fact; that is, whether he honestly and reasonably believed that he was licensed to drive on the relevant day, and

ii. Second, whether the Defendant's licence was validly suspended on the relevant date.

Was there an honest and reasonable mistake of fact?

9. The common law defence of honest and reasonable mistake of fact is available, in appropriate circumstances, in relation to the offence of driving whilst suspended. The Defendant bears the onus of proving the existence of facts which give rise to the defence on the balance of probabilities. Once the defence is established, the prosecution bears the onus of disproving it beyond reasonable doubt.

10. The availability of the defence of honest and reasonable mistake of fact, in the context of an increasing emergence strict liability offences, was considered by the High Court in the seminal case of Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536, in which Dixon J stated at 540:

As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence...

The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe. The burden possibly may not finally rest upon him of satisfying the tribunal in case of doubt. But, in the present case, the applicant assigned reasons for her alleged belief which neither the magistrate nor the Full Court found convincing or sufficient. Indeed, it may be doubted if she thought at all upon the question whether the person she permitted to drive her car did or did not hold a subsisting an existing licence.

This principle continues to be applied. In CTM v R [2008] HCA 25; (2008) 236 CLR 440, their Honours Gleeson CJ, Gummow, Crennan and Kiefel JJ (Kirby J dissenting on different grounds) observed at 8:

Where it is a ground of exculpation, the law in Australia requires that the honest and reasonable, but mistaken, belief be in a state of affairs such that, if the belief were correct, the conduct of the accused would be innocent. In that context, the word "innocent" means not guilty of a criminal offence. In the case of an offence, or a series of offences, defined by statute, it means that, if the belief were true, the conduct of the accused would be "outside the operation of the enactment". As explained in He Kaw Teh, the evidentiary onus of raising the ground of exculpation is on the accused, but, once that occurs, the ultimate legal onus of displacing the ground lies on the prosecution. The concept of evidentiary onus itself needs to be understood in the light of the subject matter to which it applies; here, honest and reasonable belief, a concept that has a subjective element of a kind that ordinarily is peculiarly within the knowledge of the accused, and an objective element that must be capable of being measured against the evidence by a tribunal of fact.

11. The Defendant agreed in cross-examination that he had not turned his mind to whether or not his licence was suspended on 13 October 2011.

12. I was referred to Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485, a decision which the Defendant submits supports the general proposition that a person has no obligation to make specific enquiry as to the state of facts. I need go no further than observe that the factual situation in that case is so different to the facts here that I consider the principle applied there of little assistance in this case.

13. Unlike in Proudman, where the defendant allowed another person to drive their vehicle without regard to whether or not that person was licensed to drive, the Defendant in this case clearly knew that, ordinarily, he was licensed. There is no particular onus on a person to enquire as to whether they continue to be licensed. In the absence of notification to the contrary, a reasonable person will ordinarily assume that they continue to be licensed within the parameters of their license, such as date and vehicle type. Indeed, it would be unduly onerous to expect a person to make specific enquiry, or even contemplate the issue, each time they drove.

14. There is no evidence upon which to question the Defendant's submission that he honestly believed he was licensed to drive on 13 October 2011. However, I have no difficulty in finding that it was not a reasonable mistake to have made.

15. The Defendant relocated some four or so months before the date the offence occurred. He failed to advise the RTA of his change of address or make any effort to access mail being sent to his former address. Throughout this time, the Defendant had his car on loan to another person. A person having the privilege of a licence to drive is required by law to notify the RTA of any change in their address.[2] This ensures the RTA can communicate with them about matters pertinent to their licence and any vehicle registered to them. Having failed to comply with this requirement, a driver cannot reasonably rely on the effect of their own breach of law to render reasonable their mistaken belief that they continued to be licensed, unless there were very good reasons for the failure to comply. The Defendant provided no explanation for his failure to notify the RTA of his change of address. Even on the balance of probabilities, the Defendant has failed to establish the objective element of the defence of honest and reasonable mistake of fact.

16. The prosecution bears the onus of proving that the Defendant's licence was suspended on the relevant day. The prosecution relies upon the evidentiary certificate dated 7 August 2011 issued by the RTA pursuant to s 56 of the Road Transport (General) Act 1999.

17. Section 56(2) of the Road Transport (General) Act 1999 applies to infringement notice offences and states:

(2) A certificate that appears to be signed by or on behalf of the administering authority, and states any matter relevant to anything done or not done under this part in relation to the offence, is evidence of the matter.

Section 56(4) of the Road Transport (General) Act 1999 states:

(4) A court must accept a certificate given under this section as proof of the matters stated in it if there is no evidence to the contrary.

The relevant evidentiary certificate is signed on behalf of the RTA and the Defendant has not raised any evidence contrary to its contents.

18. The prosecution also relies on the evidentiary certificate issued by the RTA pursuant to s 72(10(a) of the Road Transport (General) Act 1999 dated 26 February 2013. Section 72(6) of the Road Transport (General) Act 1999 states:

(6) A court must accept a certificate or other document mentioned in this section as proof of the matters stated in it if there is no evidence to the contrary.

The evidentiary certificate states that at 13 October 2011 the Defendant's licence was suspended due to non-payment of parking infringement notice 1035852809. It also provides a history of the notices sent to the Defendant regarding the suspension pursuant to s 44 of the Road Transport (General) Act 1999; namely, the Notice of Suspension dated 15 September 2011 ("Notice of Suspension") and the Suspension Confirmation Notice dated 6 October 2011 ("Suspension Confirmation Notice"). The defence has presented no evidence contrary to the matters outlined in the certificate.

19. The question in issue is whether, as certified, the Notice of Suspension and the Suspension Confirmation Notice ("the Notices") lawfully effected the suspension of the Defendant's licence on the relevant date being 13 October 2011. The Defendant relies upon the Notices themselves as evidence contrary to this fact.

20. A preliminary question to be decided is whether a collateral attack on the administrative actions that were the basis of the suspension (that is, the issuing of the Notices) is available to the Defendant as a defence to the offence of driving whilst his licence was suspended. The prosecution did not specifically raise this matter, which may indicate tacit acceptance that such an attack is open. Whilst no general statement to the effect that a collateral attack is always open to administrative actions in criminal matters can be made, and regard must always be had to the particular legislation under consideration, in cases where a person is exposed to criminal conviction it is generally open to the Defendant to challenge an administrative action which underpins the possible conviction.[3] Proceeding on this basis, the substantive issue in question is whether the Notices sent to the Defendant were invalid, rendering the suspension unlawful.

21. Following a decision of then-Chief Magistrate of this Court, Burns CM, in Davies v Jilbert [2009] ACTMC CC09/10917; CC09/9584 (21 July 2009), s 44 of the Road Transport (General) Act 1999 was amended by ss 4 and 5 of the Road Transport (General) Amendment Act 2010 (Repealed), effective 1 July 2011. In Davies, his Honour found that non-compliance with s 44 (as it then stood) invalidated a purported licence suspension primarily on the basis that the notice of suspension in question provided a date of effect for the suspension which pre-dated the notice.

22. Section 44 of the Road Transport (General) Act 1999, as amended, provides detailed procedural requirements for the provision of notices and the imposition of suspensions resulting from an infringement notice offence under the Act. In relation to the amendments, the Explanatory Statement to the Road Transport (General) Amendment Bill 2010 states:

The purpose of the amendments is to clarify the requirements for giving notice to clients of the road transport authority about impending suspension action or fine enforcement action, and to provide that suspension or fine enforcement action takes effect by operation of law if payment of the outstanding amount is not received by the relevant date...The confirmation notice will ensure the person knows precisely what action was taken against them and when that action took effect.

The Explanatory Statement further states that the amendments do not purport to materially alter the content of the notices, nor the circumstances that lead to suspension. Rather, it states that their purpose

...is to provide greater certainty both for the road transport authority and clients about the date on which suspensions occur and to ensure that clients are clear about which rights are suspended and when the suspension took effect.

23. The Defendant does not raise any issues with respect to the initial infringement notice served on 5 July 2011 or the reminder notice of 8 August 2011.

24. The Defendant challenges the Notice of Suspension of 15 September 2011 issued pursuant to s 44(2) of the Road Transport (General) Act 1999. The Defendant submits that the suspension notice is defective because it does not contain all of the information required by s 44(3). Section 44(3)(b) provides that 'a suspension notice must state that if the person does not pay the infringement notice penalty by a stated date...the authority will take suspension action on the suspension date' (emphasis added).

25. The Notice of Suspension contained the following statement:

This suspension takes effect on 3/10/2011 and continues until the suspension is revoked in accordance with Part 3 of the Act. To avoid this suspension you should pay the infringement penalty before this date (emphasis added).

26. The Defendant submits that the use of the word 'before', rather than the word 'by', as required by s 44(3), renders the Notice of Suspension defective.

27. Section 151 of the Legislation Act 2001 provides direction in working out periods of time in an Act or statutory instrument and, in so far as it applies to an applicable provision, is a determinative provision (s 151(8)). Section 151(9) provides that 'an applicable provision means a provision inserted after 1 January 2006 into an Act...that is not an applicable law'. Having been amended in 2011, s 44 of the Road Transport (General) Act 1999 is an applicable provision and s 151 of the Legislation Act 2001 applies to it determinatively.

(4) A period of time described as ending at, by, on or with, or as continuing to or until, a stated day, act or event includes the stated day or the day of the stated act or event.

(5) A period of time described as ending before a stated day, act or event does not include the stated day or the day of the stated act or event.

29. Read in accordance with s 151(4) of the Legislation Act 2001, the use of the word 'by' in the Notice of Suspension means that the Defendant was informed that, to avoid suspension, payment was required on or before 2 October 2011. Section 44(3)(b) requires that a notice of suspension inform the addressee that they have up to and including the date of suspension, in this case, 3 October 2011, to make payment. The information contained in the Notice of Suspension is inconsistent with s 44(3)(b) in this regard, and contrary to the legislative aim of providing certainty to clients of the RTA about the date on which suspensions occur, as expressed in the Explanatory Statement to the Road Transport (General) Amendment Bill 2010.

30. The language of ss 44(2) and (3) of the Road Transport (General) Act 1999 is mandatory. Section 44(2) provides that the RTA 'must' sent written notice containing the information required by section 44(3) and s 44(3) provides that a notice of suspension 'must' contain certain information. Non-compliance with a mandatory requirement, however, is not necessarily fatal to the validity of a statutory procedure or notification. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335, their Honours McHugh, Gummow, Kirby and Hayne JJ observed at 91:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid...In determining the question of purpose, regard must be had to the language of the relevant provision and the scope and object of the whole statute.

31. The clear intent of the amendment to s 44 of the Road Transport (General) Act 1999 was to detail the procedure applicable to the suspension of a driver licence. The right to drive is an important right in our community. Breach of the responsibilities associated with holding a driver licence potentially carries disqualification of the licence, a financial penalty and imprisonment. Having regard to these matters, the procedure set out in s 44 is detailed and specific. It was clearly the intention of the legislature to ensure that notices of suspension comply with strict content requirements, particularly in relation to the notification of important dates.

32. In the New South Wales Court of Appeal decision, Deputy Commissioner of Taxation v Gruber [1998] NSWSC 64; (1998) 43 NSWLR 271, Stein JA (with whom Powell JA and Sheppard A-JA agreed) said at 278:

The question is whether the notice needs also to include the 'due date' of the payments. In my opinion, since the liability imposed by [the relevant section] is dependent on payments not being made by the 'due date', the 'due dates' are a 'detail' of the unpaid amount of the company's liability under the Act which must be included in the notice. It is a relevant detail required to be included in the notice. Accordingly, I agree with his [Acting Justice Peter Graham's] conclusion. Bearing in mind the potentially draconian effect of the provisions it is appropriate to construe 'detail' in a broad fashion. 'Detail' in the context of the relevant provisions of the Act seems to me to imply more than merely 'specify'.

33. A similar approach was taken in the context of criminal proceedings in Police v Conway [2006] SASC 186; (2006) 95 SASR 83. In that decision, the Full Bench of the Supreme Court of South Australia held that an immediate suspension notice issued by a police officer pursuant to a then-new statutory scheme was invalid due to its failure to refer to the legislative provision allegedly breached. Their Honours concluded at 64 that strict compliance with the statutory requirements was necessary, 'particularly in a situation involving a significant invasion of civil liberties and the imposition of punishment by an administrative act'.

34. Incorrectly stating the date by which payment is required in order to avoid suspension has the potential to impact on a person's rights. It is likely to cause confusion to the addressee and any breach resulting from this confusion has the potential to result in significant penal consequences. The requirement at s 44(3)(b) of the Road Transport (General) Act 1999 should therefore be construed strictly and, were this the only issue, I would find that the defect in the Notice of Suspension rendered it invalid.

35. The difficulty is that the language of s 44(3)(b) of the Road Transport (General) Act 1999 is inconsistent with the language of s 44(2)(b). Section 44(2)(b) requires the RTA to suspend the addressee's licence on the suspension date 'if the infringement notice penalty is not paid before the suspension date' (emphasis added). Section 44 is internally inconsistent and confusing. The Notice of Suspension complies with s 44(2)(b) but is inconsistent with s 44(3)(b). The question is, should s 44(2)(b) or s 44(3)(b) take precedence?

36. Applying s 44(3)(b) of the Road Transport (General) Act 1999 is problematic. If a person is allowed to pay an infringement notice penalty on the same day as suspension for non-payment potentially takes effect, a real practical difficulty emerges. At what time during the day is the cut-off point for payment? With internet banking transactions, payments can theoretically be made as late as 11:59 p.m. Defined in accordance with s 151 of the Legislation Act 2001, payment at this time would still be 'by' the relevant date, but for the commencement of a suspension to be timed to the minute in this way is far from ideal. Indeed, s 44 does not otherwise envisage such a possibility. Applying s 44(3)(b) literally would require the RTA to wait until midnight on the suspension date to determine whether payment had been made by that day and, if it had not, to retrospectively apply the suspension. This is a nonsense and cannot reflect legislative intent.

37. It would be favourable to the Defendant to find that strict compliance with s 44(30(b) is required. However, I am mindful of two competing principles of statutory interpretation in assessing this issue. The first, a common law principle reflected in s 139 of the Legislation Act 2001, is that the interpretation which would best achieve the purpose of the Act is to be preferred to any other interpretation. The second is that where there is more than one interpretation open, penal provisions ought generally to be interpreted favourably to the citizen. In Beckwith v R [1976] HCA 55; (1976) 135 CLR 569, Gibbs J stated at 576:

In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful, the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences.

38. Preferring the latter approach, I would find that the Notice of Suspension was invalid for non-compliance with s 44(3)(b). However, to do so would defeat the legislative scheme for, on that interpretation, it would be impossible to issue effective notices of suspension. Any notice which complied with s 44(3)(b) would be non-compliant with s 44(2)(b). Further, any notice which complied with s 44(3)(b) would not provide clarity to the client regarding the point at which the suspension would take effect in the event of non-payment. There being a clear and workable provision in s 44(2)(b), it should be applied.

39. I conclude that the Notice of Suspension issued to the Defendant complies with s 44(2) but not s 44(3) of the Road Transport (General) Act 1999. I conclude that strict compliance with the requirements of s 44 is necessary, having regard to express legislative intent and the potential consequences of non-compliance with the notice for the Defendant. However, s 44(30(b) should not be applied because it would produce a nonsensical and unworkable result. I therefore find that the Notice of Suspension is valid.

40. I strongly urge the legislature to consider amending s 44(3)(b) to remove any possible future confusion.

41. The Defendant also challenges the validity of the Suspension Confirmation Notice pursuant to s 44(9) of the Road Transport (General) Act 1999 issued on 6 October 2011. Section 44(9)(a) provides that if the RTA takes suspension action, it must send a suspension confirmation notice to the person stating the suspension date.

42. The Suspension Confirmation Notice issued on 6 October 2011 does not specify the suspension date. Instead, the addressee is referred to the earlier Notice of Suspension, which is said to have stated the date that the suspension action was to take effect. While no submission was made to this effect, I presume the suspension confirmation notice is in this form because it is easier for the RTA to produce notices in standard form. The Suspension Confirmation Notice also provides a telephone number which the addressee may call to make enquiries.

43. The Defendant submits, somewhat less enthusiastically than in relation to the challenge to the Notice of Suspension, that the failure of the Suspension Confirmation Notice to specify the suspension date invalidates the suspension.

44. The prosecution accepts that the Suspension Confirmation Notice is, on its face, defective. It submits, however, that requiring strict compliance with s 44(9)(a) would be productive of absurdity. On this approach, a valid suspension could be rendered invalid by a notice intended only to confirm that which the addressee knew would result from failure to pay the infringement notice penalty by the relevant date. The prosecution further submits that a suspension confirmation notice pursuant to s 44(9) has no legal effect.

45. I agree it would be nonsensical to allow a suspension that had been validly effected to be invalidated by a notice, the sole purpose of which was to confirm the suspension. A suspension confirmation notice should, as s 44(9)(a) requires, specify the date of suspension rather that refer the addressee to another document or require them to make a telephone enquiry to find out the relevant date. However, it could not have been the legislature's intention for an irregularity in this administrative process to have the effect of revoking a properly imposed suspension. I further note that the defect in the Suspension Confirmation Notice does not cause detriment to any person. The detriment flows from the suspension itself.

46. The prosecution submits that a suspension confirmation notice has no legal effect whatsoever. I agree it does not operate to directly affect a legal right. However, as well as serving to provide a reminder to the addressee, a suspension confirmation notice may be relevant to a determination of whether the defence of honest and reasonable mistake of fact can be made out.

47. Suspension confirmation notices should conform to the requirements of s 44(9) but, in this instance, the failure to specify the date of suspension in the Suspension Confirmation Notice does not invalidate the otherwise valid Notice of Suspension.

48. It is my view that the defect in the Confirmation Suspension Notice has no impact on an assessment of the Defendant's claim of honest and reasonable mistake of fact in these circumstances.

49. Having rejected the Defendant's claim that defects in the Notice of Suspension and the Suspension Confirmation Notice operate to render the suspension invalid, I find the offence proved.

a) The Defendant is disqualified from holding or obtaining a driver licence for a period of one year;

1. The Defendant is required to pay a levy of $50.00 under s 68(1) of the Victims of Crimes (Financial Assistance) Act 1983; and
2. The Defendant is required to pay to the Australian Capital Territory a Victims' Services Levy of $10.00 under s 24(2) of the Victims of Crimes Act 1994.

I certify that the preceding 50 numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Chief Magistrate Walker.

Solicitor for the Plaintiff: Director of Public Prosecutions ACT

Solicitor for the Defendant: Paul Edmonds, Paul Edmonds and Associates

[1] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[2] Road Transport (Driver Licensing) Regulation 2000 (ACT) reg 74(2).

[3] Director of Public Prosecutions v Yigit [2008] NSWCA 226.