DISTRICT COURT OF QUEENSLAND

1. [1]
   On 23 June 2008 the respondent was acquitted of two charges of driving without a licence, he being a person who was disqualified because of the allocation of demerit points.^[1] 

2. [2]
   A notice of application for extension of time for filing notice of appeal to a District Court judge and a notice of appeal were filed in the District Court in Rockhampton on 22 September 2008. The notice of appeal was two months out of time.^[2] It is necessary, therefore, for application to be made to extend the time for filing the notice of appeal.^[3]

3. [3]
   In determining whether to grant an application for an extension of time within which to appeal the court will examine whether any good reason has been shown to account for the delay and whether it is in the interests of justice to grant the extension sought.^[4]

4. [4]
   In this case the period of delay of two months should, in my view, be regarded as a relatively short one. Furthermore, it is not suggested that the delay has caused any prejudice to the respondent who has not been impeded for holding or obtaining a drivers licence since the dismissal of the charges against him. There is a satisfactory explanation for the delay set out in an affidavit of Regina Joy Smith, a clerk employed in the Office of the Director of Public Prosecutions at Rockhampton filed on 22 September 2008. Ms Smith states as follows:

“…

(f)during numerous inquiries as to when the transcript would be available, the Registrar indicated that there had been problems with the recording and this was the cause of the delay;

(g)an electronic copy of the transcript was received in the office today (22 September, 2008).”

5. [5]
   Whether it is in the interests of justice to grant the extension is a question best assessed after undertaking a review of the decision of the learned acting Magistrate to dismiss the charges. In his reasons for decision the learned acting Magistrate stated:

“In this particular case what Mr McDougall is saying that he had a stated belief. A belief which arises from his receipt of exhibit 2 in these proceedings.^[5] And that belief was that his suspension would be up on the 13^th of September.

He didn’t have a belief, or he didn’t have a mistake of law in relation to any other notices because he never received them…the belief which Mr McDougall had at the time he was found driving was the belief brought about by the document exhibit 2 in these proceedings.

And I think that belief is an honest and reasonable belief. One which easily arises on that material before me…it may be the case where lawfully he was not the holder of a drivers licence because it had been taken from him through the demerit point system. But in his own mind he believed that he was able to drive because of what’s contained in exhibit 2.

I find that that belief is reasonable in the circumstances. I find that the defence which has been raised by the defendant in this case have not been negatived by the prosecution, and I therefore dismiss both charges which have been brought against Mr McDougall.”^[6]

6. [6]
   In my view, a mistaken belief by the respondent that he was lawfully entitled to drive a motor vehicle is a mistake of law rather than a mistake of fact in which case section 24 of the Criminal Code does not operate to excuse the driving. In any event there remain for consideration the statutory provisions relating to the service documents contained in section 39 and 39A of the Acts Interpretation Act 1954. Exhibit 2 in the proceedings in the lower court together with subsequent Courtesy Notices requiring notification of choice were issued pursuant to section 25(2) of the Transport Operations (Road Use Management-Driver Licensing) Regulation 1999 which provides as follows:

“The chief executive must give the person a written notice (a notice to choose) requiring the person, within a specified time of at least 21 days, to choose between-

1. (a)
   having the person’s licence suspended for the requisite suspension period; or

2. (b)
   agreeing to be of good behaviour while driving for a year.”

7. [7]
   Section 39 of the Acts Interpretation Act 1954 provides:

“(1)If an Act requires or permits a document to be served on a person, the   document may be served-

1. (a)
   on an individual-

1. (i)
   by delivering it to the person personally; or

2. (ii)
   by leaving it at, or by sending it by post, telex, facsimile or similar facility to, the address of the place of residence or business of the person last known to the person serving the document; or

2. (b)
   on a body corporate-by leaving it at, or sending it by post, telex, facsimile or similar facility to, the head office, a registered office or a principal office of the body corporate.

(2)Subsection (1) applies whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.

(3)Nothing in subsection (1)-

1. (a)
   affects the operation of another law that authorises the service of a document otherwise than as provided in subsection; or

2. (b)
   affects the power of a court or tribunal to authorise service of a document otherwise than as provided in the subsection.”

8. [8]
   Section 39A of the Acts Interpretation Act 1954 provides:

“(1)If an Act requires or permits a document to be served by post service-

1. (a)
   may be effected by properly addressing, prepaying and posting the document as a letter; and

2. (b)
   is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.

(2)If an Act requires or permits a document to be served by a particular postal   method, the requirement or permission is taken to be satisfied if the document is posted by that method or, if that method is not available, by the equivalent, or nearest equivalent, method provided for the time being by Australia Post.

(3)Subsections (1) and (2) apply whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.

(4)Without limiting subsection (2), the requirement or permission mentioned in the subsection is taken to be satisfied, and is taken always to have been satisfied, for the service of a document if the document is, or was, posted by certified mail provided by Australia Post.”

9. [9]
   It is important in cases such as this to keep clearly in mind the distinction between proof of delivery and proof of non receipt when considering the statutory provisions set out above. In particular it should be noted that where section 39A of the Acts Interpretation Act refers to proof of “the contrary”, what must be contradicted is the proof of delivery which involves the acts of addressing, prepaying and posting the letter. As Nase DCJ noted in Coughlin v Curran^[7] the distinction between proof of delivery and proof of non receipt is essential to a correct understanding of the section.^[8]

10. [10]
    It is not apparent from the reasons of the learned acting Magistrate that the provisions contained within sections 39 and 39A of the Acts Interpretation Act 1954 were considered by the court. Nor can it be said that the distinction between proof of delivery and proof of non receipt of any courtesy notice subsequent to that in exhibit 2 was acknowledged.  In my opinion it is not sufficient for a person in the position of that of the respondent in this case to seek to call in aid the provisions of section 24 of the Criminal Code (honest and reasonable mistake of fact) by simply claiming non receipt of a notice. Evidence of non receipt is not necessarily adequate proof of non delivery within the meaning of that term in section 39A(1)(b) of the Acts Interpretation Act 1954.

11. [11]
    As a result of the errors in law disclosed in the reasons for judgement of the learned acting Magistrate it is, in my view, in the interests of justice to grant the extension sought. For the reasons expressed above I order that the appeal be allowed. The orders made by the acting Magistrate dismissing the charges are to be set aside and the matter is to be remitted to the Magistrates court to be dealt with according to law.