The Roads and Traffic Authority of New South Wales v O'Reilly & Ors

Australian Road Rules LEGISLATION CITED : Crimes (Appeal and Review) Act 2001 Criminal Code Act 1995 (Cth) Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999

CASES CITED : Ostrowski v Palmer (2004) 218 CLR 493 Proudman v Dayman (1941) 67 CLR 536

Plaintiff - The Roads and Traffic Authority of New South Wales PARTIES : Defendant in 14267/08 - Raymond Christopher O'Reilly Defendant in 14268/08 - Maxell Zhohthn Yarkin Defendant in 14269/08 - Safwan Nizar Chalak

FILE NUMBER(S) : SC 14267/08; 14268/08; 14269/08

Plaintiff - Mr T Lynch of counsel COUNSEL : Defendant in 14267/08 - Mr O'Reilly in person Defendant in 14268/08 - Mr Yarkin in person No appearance for Mr Chalak

• 11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

14267/08 THE ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v RAYMOND CHRISTOPER O'REILLY

14268/08 THE ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v MAXELL ZHOHTHN YARKIN

14269/08 THE ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v SAFWAN NIZAR CHALAK

JUDGMENT 1 HER HONOUR: These appeals are brought under s 56(1)(d) of the Crimes (Appeal and Review) Act 2001, from decisions of the Local Court, dismissing a number of court attendance notices issued to each of the three defendants. Each noticed alleged a speeding offence. Mr Chalak did not appear at the hearing. By consent of the other parties, the three appeals were heard together. In each case the plaintiff seeks orders setting aside the decision below and directing the Local Court to resume hearing of the matters, according to law. 2 The appeals concern two questions. Firstly, whether Magistrate Keogh misdirected herself in concluding that a mistake as to the speed limit applicable to a length of road was a mistake of fact, rather than a mistake of law and that the Rule in Proudman v Dayman (1941) 67 CLR 536 was consequently available as a defence. Secondly, whether the finding that each defendant's mistake as to the applicable speed limit was reasonably open on the evidence. The defence in each case was a belief that the speed limit was 70 kilometres. It was the plaintiff's case that her Honour did not determine that issue, but instead determined whether there was a reasonable basis for ignorance of the applicable 60 kilometre speed limit. Ignorance of a speed limit of 60 kilometres could not be a basis for a belief that the speed limit was 70, which it was argued was the relevant question for any defence, had one been available. 3 There was no question that the plaintiff had established a prima facie case below, on the evidence led in each case. The speed limit was 60 kilometres per hour and each defendant admitted travelling beyond that speed at the relevant time. The defendant's evidence in each case was that he believed that the speed limit at the stretch of road in question was 70 kilometres per hour. 4 Each defendant gave evidence as to the circumstances in which he came to have that belief. In each case her Honour concluded that those circumstances were such that an honest and reasonable mistake as to the applicable speed limit had been established. 5 It was the plaintiff's argument below that the speed limit posted in a particular area was a matter of law, not fact. That argument was not accepted. Her Honour was not referred to any authority on the point, but concluded that an error as to an applicable speed limit was a mistake of fact. 6 Her Honour ultimately took the view that there was no doubt that the limit was 60 kilometres, but that the defendants had each made an honest mistake of fact and thereupon dismissed all three court attendance notices. 7 In Proudman, Dixon CJ observed at :

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.

8 This was the test which her Honour applied. In doing so her Honour misdirected herself, the defence being governed by the Criminal Code Act 1995 (Cth), although it was accepted by the plaintiff that this was but a statutory form of the Proudman defence. The question raised on this appeal was whether it was an approach available to her Honour, given the plaintiff's case that a mistake as to an applicable speed limit is not a mistake as to fact, but a mistake as to the law. 9 Her Honour found:

The fact ... that a speed limit applies generally is a question of law but as to where it applies must be a question of fact because you can only comply with it if there is a sign there telling you that in fact that speed limit as opposed to another speed ...

Consideration 10 There was no contest that Part 3 Rule 20 of the then applicable Australian Road Rules made it an offence to speed over the speed limit applying to the driver for the length of road where the driver was driving. The speed limit was fixed by signage. Rule 342 provided:

342 Traffic signs (except parking control signs) applying to a length of road

(1) A traffic sign (except a parking control sign) that applies to a length of road and to drivers applies to a driver driving on the length of road if the driver is driving in the same direction as a driver on the road who faces the sign before passing it. Note : Length of road, parking control sign and traffic sign are defined in the dictionary.

(2) A traffic sign that applies to a length of road and to pedestrians applies to a pedestrian travelling on the length of road if the pedestrian is travelling in the same direction as a pedestrian on the road who faces the sign before passing it.

(3) The traffic sign applies to the driver or pedestrian even though the driver or pedestrian does not pass the sign.

Example . If a driver turns from a side road or private land onto a length of road to which a traffic sign applies, the traffic sign applies to the driver even though the driver does not pass the sign.

11 Regulations 33 and 34 of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 made the offence one of strict liability, for the purposes of the Criminal Code. A defence of mistaken but reasonable belief of facts is available for such an offence (see s 6.1 and s 9.2 of the Criminal Code). Section 9.2 provided:

9.2 Mistake of fact (strict liability) (1) A person is not criminally responsible for an offence that has a physical element for which there is no fault element if: (a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and

(b) had those facts existed, the conduct would not have constituted an offence. (2) A person may be regarded as having considered whether or not facts existed if: (a) he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and

(b) he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion. Note: Section 6.2 prevents this section applying in situations of absolute liability.

12 As to a mistake of law, s 9.4 of the Criminal Code provided:

9.4 Mistake or ignorance of subordinate legislation (1) A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of the subordinate legislation that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.

(2) Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if: (a) the subordinate legislation is expressly to the contrary effect; or

(c) at the time of the conduct, the subordinate legislation: (i) has not been made available to the public (by means of the Register under the Legislative Instruments Act 2003 or otherwise); and

(ii) has not otherwise been made available to persons likely to be affected by it in such a way that the person would have become aware of its contents by exercising due diligence. (3) In this section: " available " includes available by sale. " subordinate legislation " means an instrument of a legislative character made directly or indirectly under an Act, or in force directly or indirectly under an Act. 13 While being addressed on whether the defendants' mistake as to the applicable speed limit was a mistake of fact or law, her Honour referred to the High Court's decision in Ostrowski v Palmer (2004) 218 CLR 493. It was not an authority with which the prosecutor was familiar, so it was not addressed and her Honour did not refer to it, in giving her decision. 14 In Ostrowski the High Court had to consider whether a mistake as to the law applicable to a particular activity being undertaken was an error of fact or an error of law. The High Court concluded that it was an error of law. The same question arose in these cases. It follows that there can be no question that the High Court's approach to the question which had to be decided was binding on her Honour. For reasons which I will explain, it was established that her Honour failed to follow the High Court's approach. 15 In Ostrowski, the mistake being considered was a mistake as to the law applicable to lobster fishing in Western Australia. The respondent mistakenly believed that he was legally entitled to fish for lobsters. His mistake had arisen from incorrect information provided to him by the relevant Government Department. While the respondent's resulting position excited some sympathy amongst members of the Bench, the way in which the error came to be made, did not assist him. It was observed by Gleeson CJ and Kirby J:

12 The only mistake that the respondent made was a mistake that resulted from his ignorance of the law. The acts of the respondent would have constituted a breach of reg 34 even if he had been given complete and accurate information by the Department. What the respondent's argument amounts to is that, in that event, he would not have done the acts. That is not the issue raised by s 24. It is beside the point. The magistrate, and the dissenting member of the Full Court, were right to hold that the case fell within s 22 of the Criminal Code, and not s 24.

13 This is not a case that gives rise to the difficulties that are sometimes involved in distinguishing between mistakes of law and mistakes of fact, or in applying the common law, or ss 22 and 24, to what are sometimes described as mixed questions of fact and law ( Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 at 751; Von Lieven v Stewart (1990) 21 NSWLR 52 at 66-67). Here the mistake that was made, however it is characterised, was not relevant to any element of the offence charged. Rather, it was a mistake that resulted in ignorance of the existence of the prohibition contained in reg 34, that is to say, ignorance of the law. 16 Likewise, here the mistakes which the defendants made in driving in excess of the legal limit of 60 kilometres, flowed from their mistaken belief that the applicable speed limit was 70 kilometres. They were mistakes which flowed from the defendants' ignorance of the law, not from mistakes as to any physical element of the offences with which they had been charged. That they would not have driven at excessive speed, had they known what the legal limit was, is beside the point, on their Honour's approach. 17 McHugh J took a similar view, observing that:

[46] Thus, it is no defence to a criminal charge that the defendant believed that his or her actions were not regulated by law or that his or her actions satisfied the provisions of a law. Such beliefs are mistakes of law, not mistakes of fact. In Von Lieven v Stewart (1990) 21 NSWLR 52, the Court of Appeal of New South Wales held that the belief by a promoter of a scheme operated by a company that the scheme "neither involved an offer to the public nor a prescribed interest" ( Von Lieven (1990) 21 NSWLR 52 at 55, per Clarke JA) and accordingly did not contravene the Companies (New South Wales) Code or the Securities Industry (New South Wales) Code was a mistake of law, not fact. It provided no defence to charges of breaching provisions of those Codes. Clarke JA said that, once the defendant knows all the facts which constitute the elements of the offence, a mistake as to their legal effect is not a defence to a criminal charge ( Von Lieven (1990) 21 NSWLR 52 at 55). Handley JA (with whom Mahoney JA agreed) said ( Von Lieven (1990) 21 NSWLR 52 at 66-67) : "[A] belief or assumption that the acts in question are lawful either because they are unregulated, or because the requirements of the law have been satisfied, cannot excuse in cases such as this ... The only excuse is the existence of an actual or positive belief, based on reasonable grounds, in the existence of some fact or facts which, if true, would make the act in question innocent."

[49] The statement of Handley JA in Von Lieven , set out above, exactly covers this case. Mr Palmer was the holder of a commercial fishing licence. He fished for rock lobsters in the area described in the Table to reg 34 of the Regulations. He intended to fish for rock lobsters in that area and he knew that he was in that part of the Indian Ocean described in the Table to that regulation. Mr Palmer made no mistake as to any of the factual elements of the charge. His mistake was that he believed that the law of Western Australia did not prohibit or regulate fishing for rock lobsters in that area. His mistaken belief was not a mistake as to a fact or "state of things", but a mistake as to the operation of the law. His case fell within s 22, not s 24, of the Criminal Code. It was ignorance of the law that caused him to make the mistake that he did. Under s 22 of the Criminal Code, ignorance of the law is not an excuse for an act or omission that "would otherwise constitute an offence, unless knowledge of the law by [the] offender is expressly declared to be an element of the offence".

[50] The mistake made by Mr Palmer may be contrasted with that made by another Western Australian rock lobster fisherman, Mr Stanton, who successfully relied on s 24 of the Criminal Code as a defence to a charge under the Act of selling undersized rock lobsters [ Pearce [1984] WAR 359.]. In Pearce v Stanto n [[1984] WAR 359.], the s 24 defence succeeded because Mr Stanton was found to have held an honest and reasonable belief that the lobsters were the correct size. Such a belief -- as to the actual size of the lobsters -- was a belief in the existence of a fact which constituted one of the elements of the strict liability offence. If, by contrast, Mr Stanton had held a mistaken belief as to the minimum size of rock lobster permitted by law, this would have been a mistake of law. The belief in those circumstances would have been based on a misunderstanding of the regulations governing the minimum lobster size.

19 In his submissions Mr Yarkin sought to rely on this latter example, but it cannot assist him. in this case it was each defendant's mistaken belief that the legal speed limit was 70 kilometres, which led him to drive in excess of 60 kilometres. That was not a mistake as to a fact, or a state of things, constituting any factual element of the offences, as would have been the case, had the defendants mistakenly believed, for example, that they were driving at 60 kilometres per hour, when they were in fact driving at 70, because of some malfunction in their vehicles. The defendants' only error was a mistake as to what speed limit the law imposed at that particular point of the road. On McHugh J's approach that is a mistake of law. 20 Callinan and Heydon JJ came to similar conclusions, finally observing:

90 The difficulty for the respondent is that there were here a series of mistakes, the one to which Olsson AUJ referred, the actual decision to rely on the information with which he had been provided, and the actual reliance, by fishing in the embargoed waters. The last is a different mistake from, for example, a mistake as to the location of his vessel or his lobster pots. The last, it can be seen, is discrete in time, place and physical activity from the other two, although but for them it is unlikely that it would have been made. The offence of which the respondent was convicted was not of failing to obtain, or hold and rely on complete and accurate materials, but of fishing where professional fishing was impermissible. The elements of the offence consisted of fishing in the embargoed waters, an activity which the respondent knew to be proscribed. Unfortunately, in the circumstances he could be no less guilty than a motorist who has done everything reasonably possible to ascertain the speed limits on a stretch of roadway along which he is to travel but having failed to do so, in one or more instances, exceeds those limits because he was unaware of them. 21 The example which their Honours used is exactly this case. The defendants each exceeded the speed limit which they said they were not aware of, for reasons which her Honour accepted amounted to honest and reasonable mistakes. There is no question that the defendants knew that driving above the legal limit was illegal, their only mistake was as to what the legal limit was. The plaintiff challenges whether the conclusion that there had been any honest and reasonable mistake as to the speed limit was open on the evidence. Accepting for the moment that it was, given that the elements of the offence are established when a driver drives at a speed in excess of the applicable limit, failing to observe the limit only because the defendants mistakenly believed that the limit was higher than it in fact was, amounts to an error of law, not one of fact, on their Honour's approach. 22 Given this conclusion, it follows that the appeals must be upheld and the matters returned to the Local Court for further hearing. It is unnecessary to consider the second limb of the appeal, which was that her Honour erred in approaching the question of honest and reasonable mistake. That defence was not one available to the defendants, given that theirs were mistakes of law, not mistakes of fact. The plaintiff accepted that the matters which the defendants wished to rely on, to explain how they came to a mistaken belief as to the applicable speed limit, will be relevant to the questions of whether any penalty should be imposed for the offences in question and if so, what penalty. Those matters do not, however, require this Court's consideration.

Orders 23 For the reasons given, I order that: 1. The appeals are upheld; the Local Court's orders are set aside and the Local Court resume the hearing of each matter.

2. The defendants pay the plaintiff's costs of these proceedings. **********

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