DPP v Angell [2010] VSC 76: demerit-point notice served by mail

In DPP v Angell [2010] VSC 76 the Supreme Court held the Magistrate’s Court was wrong to dismiss a charge of driving while suspended contrary to Road Safety Act 1986 s 30.

The magistrate dismissed the charge because VicRoads posted a demerit-point option-notice to the wrong address.

The accused lived in Thomson Street, Sale. One of the s 84 certificates tendered in the case showed VicRoads addressed the notice to the accused to Thompson Street with a ‘p’, rather that Thomson Street without a ‘p’.

Ms Angell defended the charge by arguing only that the option-notice was not served as required by s 25(4A).

Section 25 deals with option-notices, and relevantly provides:

25. Demerits Register

(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. (Emphasis added)

(4B) The service of a demerit point option notice or a notice under subsection (3B)(c) is not a condition precedent to a suspension under this section taking effect but if at any time after the period of 14 days after the date of issue of the notice the Corporation is satisfied that the holder of the licence or permit has not been served with the notice, it must cancel the suspension with effect from the date on which it took effect, determine another effective date and specify that date in another notice served under subsection (3) or (3B)(c), as the case requires.

(4BA) Subsection (4B) does not apply if—

(a) a person is prosecuted under section 30 for driving while a suspension under this section is in force; and

(b) he or she is found not guilty on the grounds that he or she was not aware at the relevant time that his or her licence or permit had been suspended.

Note In the circumstances set out in this subsection, it is still open to a court under section 30A to order that the person serve an additional period of suspension of up to the period specified in section 30A(3).

The provision provides that a notice is deemed to be served if posted to an address on VicRoad’s records unless VicRoads (no less) is satisfied it wasn’t served.

The Supreme Court didn’t specifically rule on that point. What it did say at [37] — [38] was the magistrate was wrong to dismiss the charge solely because he considered the notice was not served in accordance with s 25(4A). The effect of that was to wrongly treat that provision as an essential element of the offence.

But…a likely result of wrong service or non-service was that the accused didn’t receive the notice, and didn’t know her licence was suspended.

[35] The fact that the demerit point option notice was sent to a ‘43 Thompson Street’ in Sale rather than to ‘43 Thomson Street’ in Sale may well support a finding that the respondent did not receive the notice, which will be relevant to whether or not she was aware at the time of driving that her licence had been suspended. There was evidence in the informant’s statement that the respondent told the police officers that she did not know her licence was suspended. Consideration of this evidence may have led the learned Magistrate to conclude that the respondent was not aware that her licence was suspended. However, the Magistrate quite deliberately confined his inquiry to whether service of the demerit point notice had been effected under s 25(4A). He was not willing to consider other evidence that was before him that might have been relevant to the respondent’s awareness of her licence suspension or to draw any inferences from it.

The prosecution appeal was allowed and the charge remitted to the same magistrate for determination according to law.

The end result may be something of a Pyrrhic victory, but at least this appeal seems to answer the question posed by Dr Manhattan about deemed service by mail negating honest-and-reasonable mistake of fact defences.

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