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Saturday, 23 May 2009

Mistakes of fact, mistakes of law (revisited)

If errors of law don't attract the honest and reasonable claim, what's going on with offences of driving when suspended or disqualified contrary to Road Safety Act s 30? If the status of a liquor licence is a matter of law, as the High Court found in Bergin v Stack, why should the status of a driver licence be treated differently?

The simple answer, of course, is Kidd v Reeves [1972] VR 563. In that case, Menhennit J held that if a driver honestly and reasonably believed they were licensed, that provided a defence to a charge of driving when their licence was suspended.

Reading Kidd v Reeves, it's pretty clear that Menhennitt J didn't specifically consider if belief about one's licence status is a matter of fact or law, and instead focussed on the honesty and reasonableness of the driver's belief. Nevertheless, the case is widely quoted as authority that an honest and reasonable mistake of fact claim is open for the offence of driving when disqualified.

In Western Australia the position is totally reversed. In Minear v Rudrum (2001) 33 MVR 119; [2001] WASCA 10, the Court of Appeal ruled that knowledge of an administrative cancellation of licence was purely a matter of law, not fact. In that case, the Court accepted that Dylan Minear was actually advised his licence was valid. The honest and reasonable limbs of his claim were (presumably) made out, but the appeal was dismissed because his mistake was legal, not factual.

So, is mistake of fact a defence to disqualified driving?

Well, it depends.

Part of the problem is the different ways a person might be disqualified or have their licence suspended.

But, if we remember Gleeson CJ and Kirby J's statement in Ostrowski v Palmer to consider the elements of the offence and identify if the accused must know of those elements, perhaps the defence is not available to charges contrary to Road Safety Act s 30.

The first thing to remember is that a licence is, in Victoria at least, legal authorisation to drive on public roads. Driver licence is defined in Road Safety Act s 3.

driver licence means a licence granted under Part 3

Section 19(3) provides:

(3) A licence authorises a person to drive on a highway any categories of motor vehicle indicated in the licence for the term, and subject to any conditions, specified in the licence.

Now, consider when a person pleads ignorance of suspension by a demerit-points notice.

Section 25(4A) provides:

(4A) A demerit point option notice or a notice under subsection (3B)(c) sent by post addressed to the holder of the licence or permit at his or her current address as shown in any record maintained under this Act must be taken to have been served on that person 14 days after the date of issue of the notice unless at any time after that period of 14 days the Corporation is satisfied that the notice has not been served on that person.

Section 93 provides:

If under this Act or the regulations a notice is required or permitted to be served on any person, the notice may, unless the contrary intention appears, be served in or out of Victoria-
(a) by delivering it personally to the person; or
(b) by leaving it at the usual or last known place of residence or business of the person with a person apparently over the age of sixteen years and apparently residing at that place or (in the case of a place of business) apparently in charge of or employed at that place; or
(c) by sending it by post addressed to the person at the usual or last known place of residence or business of that person; or
(d) if the person has given to the Corporation as his or her address an address that is not his or her place of residence or business, by sending it addressed to the person at that address.

That suggests that actual knowledge of the suspension is not an element of the offence.

Or consider the person who is unaware of a pending charge against them, and the charge is heard in their absence. If served by post, they have an absolute right to a re-hearing under Magistrates' Court Act 1989 s 95, and a discretionary right under s 93. (Similar provisions will are found in the Part 3.4 of the Criminal Procedure Act 2009.)

Those provisions provide a remedy for the person who genuinely didn't know about pending charges that resulted in licence suspension or cancellation.

But...what about Road Safety Act s 30A? That allows a court to impose a substitution period of suspension or disqualification if a person is acquitted of an offence because they didn't know they were disqualified.

Does that imply the defence is available? Or maybe the drafters simply had Kidd v Reeves in mind when they wrote the section?

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