Police v Robertson-Cuninghame[2017] QMC 22

MAGISTRATES COURTS OF QUEENSLAND

1. [1]
   Ms Robertson-Cuninghame is charged that on 21 November 2016 she was driving a motor vehicle on Campbell Street, Toowoomba whilst her driver’s licence was demerit point suspended.

2. [2]
   There is no contest as to date, time and place of the incident, nor is there a contest that Ms Robertson-Cuninghame was the driver at the time. Ms Graham, who appeared for Ms Robertson-Cuninghame raised the defence of mistake of fact, pursuant to Section 24 of the Criminal Code.  She has referred me to the decision of the Court of Appeal in Cook v Commissioner of Police [2012] QCA 118, where Her Honour Justice Holmes (with whom the other justices concurred) stated that –

“…even in an automatic cancellation case, there may be scope for mistake of fact about… whether a choice to be of good behaviour rather than have the licence suspended had successfully been notified to the Chief Executive.”^[1]

3. [3]
   Where a defence of mistake of fact has been raised, the prosecution must exclude the defence beyond reasonable doubt. A mistake under Section 24 must be both honest and reasonable.^[2]  The leading case is that of Ostrowski v Palmer (2004) 218 CLR 493.  There Justice McHugh stated –

“…without more, a mistaken belief that an activity is lawful or authorised will be a mistaken belief as to a matter of law, rather than a matter of fact.  …it is irrelevant whether the mistake of law is induced by incorrect information obtained from an official government body or from any other third party or is induced by any other form of mistaken factual understandings.”^[3]

1. [1]
   The court heard evidence from a Senior Advisor in Service Management from Queensland Transport and the two police officers who intercepted Ms Robertson-Cuninghame on 21 November 2016. The defendant also gave evidence.

2. [2]
   It is uncontested that Queensland Transport sent the following correspondence to Ms Robertson-Cuninghame by post –

• Notice to Choose dated 16 September 2016
• Courtesy Notice (being a reminder) dated 4 October 2016
• Notice of Failure of Choice dated 19 October 2016

3. [3]
   The effect of the Notice to Choose was that if there was no response from Ms Robertson-Cuninghame within 28 days, her licence would be suspended. Ms Duncan, who appeared for Queensland Transport, gave evidence that if any of the Notices were returned unclaimed, then Queensland Transport would stay the suspension until the subject person next attended a Queensland Transport office.

4. [4]
   None of the Notices sent to Ms Robertson-Cuninghame were returned unclaimed. Indeed, Ms Robertson-Cuninghame gave evidence that she had received the notification from Queensland Transport about the accumulation of demerit points and had made a choice online on 4 October 2016 to accept a one point, 12 month good behaviour driving period.

5. [5]
   Ms Duncan (for Queensland Transport), gave evidence that she was unaware of an online facility for persons to choose the 12 month good behaviour option, stating that as far as she was aware, there were only two ways of making such an election, either by email or in person at a transport office.

6. [6]
   Ms Robertson-Cuninghame gave evidence that she drives 75,000 km per year in her occupation as a wedding photographer. At the time she made the election, she said she was staying in shearer’s quarters on a property called Bonus Downs, some 50 km west of Mitchell and that she accessed the internet from the quarters via her mobile phone. She did not receive any confirmation, by email or post that her election had been received or recorded. Notably, there was no evidence led about the availability or reliability of internet access for Bonus Downs.

7. [7]
   Constables Kitto and Johnson were the police officers who intercepted Ms Robertson-Cuninghame on 21 November 2016. The intercept was recorded on body worn camera footage which was played to the court and forms Exhibit 4 in the proceedings. In that footage, Ms Robertson-Cuninghame stated to the officers that she had one point on her licence and had correspondence from Queensland Transport to that effect. I accept Constable Johnson’s evidence that she advised Ms Robertson-Cuninghame if correspondence from Queensland Transport to that effect was provided to police, then Ms Robertson-Cuninghame would not be charged with the offence.

8. [8]
   Ms Robertson-Cuninghame has never produced any correspondence from Queensland Transport to confirm her assertion that she had been granted a twelve month good behaviour option with one demerit point, despite her statement to police. She accepted in cross-examination that she did not have any such correspondence and that what she told police during the intercept was incorrect.

9. [9]
   It would appear in this case, that Ms Robertson-Cuninghame was aware that if she did not make an election to take the one year good behaviour period, then her licence would be suspended for a period of 3 months.

10. [10]
    Ms Robertson-Cuninghame states she was travelling around Queensland at that time, having driven from Rockhampton either on 3 October or 4 October – she being unsure of the exact date of departure. She admitted in cross examination that she had not made any enquiries at Queensland Transport office in Rockhampton about the election. Ms Robertson-Cuninghame left Mitchell at around 6 am on 5 October and drove to St George before continuing her travels. At no time after leaving Mitchell and before the issue of the Notice of Failure of Choice on 19 October 2016 did she attend at any Queensland Transport office to confirm that her online election had been received.

11. [11]
    It is acknowledged by the prosecution and I accept that when Ms Robertson-Cuninghame was intercepted by police on 21 November 2016, she was genuinely surprised to learn her licence was suspended. I am therefore satisfied that she held an honest belief that she held a valid driver’s licence. The question here appears to be whether that belief was also reasonable.

12. [12]
    Ms Robertson-Cuninghame did not make the election at a Queensland Transport office prior to driving to Mitchell, nor did she confirm the online election purportedly made on 4 October, when she was at Mitchell. She had a period of approximately 10 days after she left Mitchell in which to confirm the election prior to 14 October when the time for making the election expired.

13. [13]
    In the absence of any substantive corroborative evidence with regard to an online election, I am unable to conclude whether this facility was available. If it were not available, then Ms Robertson-Cuninghame cannot substantiate the defence of mistake of fact. If, however, such facility were available, I make the following determination on the evidence before the court.

14. [14]
    Given the fact, that Ms Robertson-Cuninghame had not received any acknowledgment of the online election and that she did not attempt to confirm her election, I am satisfied she could not hold a reasonable belief that her online election had been successful.

15. [15]
    I therefore find that Ms Robertson-Cuninghame’s belief that she held a valid licence was not reasonable and that this defence has been negatived by the prosecution. I find Ms Robertson-Cuninghame guilty of the offence.