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Kokas v Stanojlovic [2021] VSCA 119 (11 May 2021)

Last Updated: 11 May 2021

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0076

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CRIMINAL LAW – Motor vehicle offences – Failure of probationary driver to display P Plate on front of vehicle – Charge – Whether charge contained necessary particulars ‑– Whether ‘driving a motor vehicle other than a motor cycle’ is essential element of offence – Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 applied, Shillinglaw v Roberts [1891] VicLawRp 30; (1891) 17 VLR 136, De La Rue v Matthews [1945] VicLawRp 28; [1945] VLR 275 distinguished – Road Safety (Drivers) Regulations 2009 reg 55, Criminal Procedure Act 2009 sch 1 cl 4 – Appeal dismissed.

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KYROU JA
EMERTON JA
KENNEDY JA:

1 The applicant, a member of Victoria Police represented by the Solicitor for Public Prosecutions, seeks leave to appeal against a decision of an associate judge dismissing a charge against the first respondent, a probationary driver, for not displaying a P plate from the front of the vehicle he was driving.^[1]
2 The sole question raised by this application is whether the phrase ‘other than a motor cycle’ in reg 55(1)(b) of the Road Safety (Drivers) Regulations 2009 (‘the Regulations’) is an element of the offence created by that provision, or whether it is an ‘exception’.
3 For the reasons that follow, we agree with the associate judge’s conclusion that the fact that the motor vehicle driven by the first respondent was not a motor cycle was an element which needed to be included in the charge laid against him under reg 55(1)(b). The result is that, although leave will be granted, the appeal will be dismissed.

Statutory provisions

4 Regulation 55 relevantly provided as follows:

55 Probationary driver must display P plates
(1) A person who holds a probationary driver licence ... must not drive a motor vehicle (other than a tractor) on a highway unless –
(a) an appropriate P plate is displayed facing out from the rear of the vehicle so that the letter ‘P’ is clearly visible and the colour of the plate is distinguishable from a distance of 20 metres behind the vehicle; and
(b) in the case of a vehicle other than a motor cycle, an appropriate P plate is displayed facing out from the front of the vehicle so that the letter ‘P’ is clearly visible and the colour of the plate is distinguishable from a distance of 20 metres ahead of the vehicle.
Penalty: 3 penalty units
...
(3) Subregulation (1) does not apply to a person who is—
(a) a member of the police force who, in the course of duty, is driving a motor vehicle; or
(b) a member of the Country Fire Authority who is driving a motor vehicle in the course of fire fighting operations; or
(c) driving an ambulance service or a Victoria State Emergency Service vehicle in the course of duty.

5 Regulation 55(4) sets out the definition of an ‘appropriate P plate’, which generally means a plate measuring approximately 150 millimetres by 150 millimetres with different coloured backgrounds, depending on whether someone holds a ‘P1’ or ‘P2’ probationary driver licence.
6 Section 6(3)(c) of the Criminal Procedure Act 2009 (‘the CPA’) provides that a charge sheet must comply with sch 1 to that Act. Relevantly, cl 1 of sch 1 requires a charge to state the offence that the accused is alleged to have committed, and contain particulars that are necessary to give reasonable information as to the nature of the charge. Clause 4 provides that any exception, exemption, proviso, excuse or qualification need not be specified or negatived in a charge.

Facts and procedural history

7 On 14 August 2015, there was a multiple vehicle collision in Noble Park. A police officer attended and called for tow trucks to attend the scene.
8 The first respondent, who was employed as a tow truck driver, attended some time later. The first respondent was, at that time, the holder of a probationary driver’s licence and, when he attended, he did not have a P plate displayed facing out from the front of the tow truck that he was driving. The first respondent did have a P plate displayed on the rear of his tow truck.
9 The informant, Steven Kokas (the applicant in this proceeding), laid a charge against the first respondent which (as amended on 5 April 2016) read as follows:

The accused at Noble Park on 14/08/2015, being a probationary driver, did drive a motor vehicle not being a tractor on a highway namely Corrigan Road without having a ‘P’ plate conspicuously displayed out from the front of such vehicle.

10 The charge sheet also specified reg 55(1)(b) of the Regulations in respect of the entry ‘Under what law?’
11 On 31 May 2016, following a contested hearing in the Magistrates’ Court at Dandenong, the first respondent was convicted of the offence and ordered to pay a fine of $152.00, as well as statutory costs of $73.30.
12 The first respondent appealed and, on 29 September 2016, a County Court judge allowed the appeal, set aside the orders of the Magistrates’ Court, and dismissed the charge. In so doing, his Honour accepted the first respondent’s contention that he had an honest and reasonable belief that a P plate was facing out from the front of his vehicle. His Honour did not, at that time, determine an additional submission that the charge was defective because it failed to stipulate that the motor vehicle being driven by the first respondent was a vehicle ‘other than a motor cycle’.
13 On 12 September 2017, a judge of the Supreme Court allowed an appeal by the applicant.^[2] Her Honour quashed the orders made by the County Court on 29 September 2016, declared that an honest and reasonable mistake of fact was not relevant to proof of an offence against reg 55(1) of the Regulations, and remitted the proceeding to the County Court for rehearing.
14 On 12 June 2018, this Court refused the first respondent’s application for leave to appeal the judge’s decision.^[3]
15 On 25 September 2018, the proceeding returned to the County Court and counsel for the first respondent again submitted that the charge was a nullity. However, the judge rejected this submission and held that the charge did not need to state that the first respondent had been driving a motor vehicle ‘other than a motor cycle’ as it was not an element of the offence, but an exception to it. His Honour convicted and discharged the first respondent.
16 An originating motion for judicial review was filed in the Supreme Court and, on 23 June 2020, the associate judge held that a charge under reg 55(1)(b) of the Regulations must state that the motor vehicle driven was a motor vehicle ‘other than a motor cycle’, as this was an essential element of the offence.
17 On 25 June 2020, her Honour made orders which quashed the orders made in the County Court on 25 September 2018, allowed the first respondent’s appeal, and dismissed the charge.

Application for leave

18 The application for leave to appeal described the proposed ground(s) of appeal as follows:

The learned judge erred in holding (a) that an essential element of the offence that the respondent faced (namely, the offence described in reg 55(1)(b) of the [Regulations]) was that that [sic] the motor vehicle that the respondent was driving was not a motor cycle, (b) that it was necessary that the charge alleged against the respondent specify that the motor vehicle he drove was a motor vehicle other than a motor cycle, (c) that because the charge did not so specify this matter it was invalid, (d) that the decision of the judge to uphold the decision of the Magistrates’ Court to convict the respondent should be quashed, and (e) that the charge should be dismissed.

19 However, as identified already, the sole issue was whether the phrase ‘other than a motor cycle’ was an element of the relevant offence, or, alternatively, whether it was an ‘exception’ to that offence. If it was an exception, it did not need to be particularised in the charge by reason of cl 4 of sch 1 to the CPA.

Reasons of the associate judge

20 After setting out the background, relevant legislation, and submissions, the associate judge observed that the determination of the issue in the proceeding involved the orthodox application of the principles of statutory construction.^[4]
21 Her Honour considered that a linguistic analysis of the relevant provision was appropriate in circumstances where other more ‘modern approaches’ did not assist.^[5]
22 The critical part of the Reasons then read:

44. It is clear from the language of reg 55(1) that an essential element of the offence is that the motor vehicle in question must be a motor vehicle other than a tractor, and, the charge did in fact specify that the applicant’s motor vehicle was not a tractor. The question remains as to whether the use of the term ‘other than a motor cycle’ in reg 55(1)(b) amounts to an exception within the meaning of clause 4 of Schedule 1, or is used to define the vehicle to which the additional requirement in reg 55(1)(b) (being the fixing of a P plate to the front of the motor vehicle) applies. In other words, is it an essential element of the offence of not displaying a P plate on the front of the motor vehicle that the motor vehicle not be a motor cycle?
45. In my view, the matter is finely balanced, given the ordinary grammatical meaning of the words ‘other than a motor cycle’, which would, one might think, characterise that part of the regulation as an exception. However, when reg 55(1) is viewed as a whole, it seems to me that reg 55(1) creates two separate offences. First, in reg 55(1)(a) it is an offence for any motor vehicle other than a tractor (including motor cycles) to fail to display a P plate at the rear of the vehicle. Further, under reg 55(1)(b), it is an offence for a motor vehicle other than a motor cycle to fail to display a P plate at the front of the vehicle (reg 55(1)(b)).
46. In my view, while the use of the term ‘other than a motor cycle’ is, on its face, exclusionary, when viewed within the context of reg 55 as a whole, that phrase defines the type of vehicle to which the offence of failing to display a P plate at the front of the motor vehicle attaches, that is, a motor vehicle other than a tractor, and other than a motor cycle. As such, an essential element of the offence created by reg 55(1)(b) is that the motor vehicle is not a motor cycle. Put another way, if a motor cycle rider was charged with failing to display a P plate at the front of the vehicle, the fact that the person charged was riding a motor cycle would not amount to an exception, exemption, proviso, excuse or qualification: rather, no such offence exists.^[6]

23 Her Honour concluded that a charge brought under reg 55(1)(b) must specify that the motor vehicle concerned was a motor vehicle other than a tractor and a motor vehicle other than a motor cycle.^[7]
24 Her Honour added that the inclusion of the phrase ‘other than a motor cycle’ in reg 55(1)(b), rather than in reg 55(3), was relevant to the  statutory interpretation  issue.^[8] She also cited the majority in the High Court decision of Chugg v Pacific Dunlop Ltd^[9] (discussed below), and found that the phrase ‘other than a motor cycle’ accompanied the offence created by reg 55(1)(b), and was also not a matter which was particularly within the knowledge of the first respondent.^[10]
25 The associate judge thereby held that the charge was invalid, and that the decision of the County Court (to uphold the decision of the Magistrates’ Court to convict the first respondent) should be quashed.

Submissions

26 The applicant placed reliance on the principles outlined by Dixon CJ in Dowling v Bowie,^[11] which were repeated in Vines v Djordjevitch^[12] and, more recently, in Chugg. In particular, he relied on a passage from Dowling where Dixon CJ distinguished a case where ‘the definition of the grounds of liability contains within itself the statement of the exception or qualification’, from a case where an exception ‘assumes the existence of the facts upon which the general rule is based and depends on additional facts of a special kind’.^[13]
27 The applicant also placed reliance on the allegedly similar cases of Shillinglaw v Roberts^[14] and De La Rue v Matthews,^[15] as well as certain dicta remarks made by Fullagar J in Barritt v Baker.^[16]
28 In oral submissions Senior Counsel for the applicant accepted that regs 55(1)(a) and 55(1)(b) might be described as giving rise to two offences. However, he contended that, regardless of whether there were two offences, or one offence committed in two different ways, reg 55(1) should be read as requiring that all ‘motor vehicles’ (which included motor cycles)^[17] driven on highways bear P plates visible from both the vehicle’s rear and front.
29 The reference in reg 55(1)(b) to ‘other than a motor cycle’ was said to constitute a ‘qualification or exception’ to this ‘general principle of liability’, which ‘assumes the existence of the facts upon which the general rule is based’ (the driving of a motor vehicle) but ‘depends on additional facts of a special kind’ (that the ‘motor vehicle’ is of a specific kind, namely, a ‘motor cycle’).
30 Support for this construction was said to be found in the policy or purpose of the provision, namely, one of general or presumed compliance (unless a party can raise a relevant exception) so as to further the important goal of public safety when it comes to probationary drivers.
31 In written submissions the applicant conceded that the parenthesized words ‘(other than tractors)’ have ‘perhaps more of a definitional flavour by virtue of their positioning in the regulation itself and the relatively uncommon subject matter to which they refer when related to highways’. However, in oral submissions, Senior Counsel’s position was that it was unnecessary for the words ‘other than a tractor’ to be expressed in the charge. Rather, the elements of the offence were said to be: (1) there was a person who holds a probationary driver licence; (2) who drives a motor vehicle; (3) in the absence of the appropriate P Plate displayed on the front or back.
32 The applicant criticised the reasoning of the associate judge. In particular, he criticised the suggestion that if a motor cycle rider was charged with failing to display a P plate at the front of the vehicle, the fact that the person charged was riding a motor cycle would not amount to an exception since ‘no such offence existed’. He submitted that the gravamen of this reasoning accepted that only a certain class of people was made subject to the reg 55(1)(b) offence ie persons other than motor cycle riders. This was said to be similar to an argument which was rejected in De La Rue. It was further submitted that to reason in this manner was to beg the question since, although no offence would be committed if a motor cycle rider was charged under reg 55(1)(b), the real issue was whether the requirements for the charge had been satisfied, rather than guilt or innocence.
33 The first respondent largely adopted the analysis of the associate judge. The first respondent also submitted that the decisions of Shillinglaw and De La Rue were simply examples, and that none of the cases cited by the applicant referred to a provision which created two separate offences, as in this case.

Authorities

34 In the decision of the High Court in Chugg, the Court was concerned with a prosecution under s 21(1) of the Occupational Health and Safety Act 1985 which provided that an employer was to provide and maintain a working environment that is safe and without risk to health ‘so far as is practicable’.^[18]
35 The Court determined that the onus of proof on the question of ‘practicability’ lay on the informant.
36 The High Court considered both Dowling and Vines. More particularly, the majority (Dawson, Toohey and Gaudron JJ) found that a distinction is made between a requirement which ‘forms part of the statement of a general rule’, and a statement of exception which serves to take a person ‘outside the operation of a general rule’.^[19]
37 The majority further stated:

The distinction does not depend on the rules of formal logic. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention ‘to impose upon the accused the ultimate burden of bringing himself within it’. The intention may be discerned from express words or by implication.^[20]

38 The majority considered that, despite the language of provisions similar to cl 4 of sch 1 to the CPA, if a matter ‘accompanies the description of an offence’ it will ordinarily be construed as an element of the offence,^[21] and also stated:

One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. Such is ordinarily the case where ... there is a prohibition on the doing of an act ‘save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities’. ... If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.^[22]

39 The issue was to be decided upon considerations of substance rather than form,^[23] and with regard to the object/policy of the legislation.^[24] Ultimately, practical matters were both relevant and decisive in Chugg, given that placement of the onus on the defendant would have entailed the additional burden of anticipating arguments as to the ‘practicability’ of every possible means of mitigating an accident.^[25]
40 The decision in Chugg identifies the relevant principles in this case. Given that a process of statutory construction is called for, previous decisions are of limited utility. However, we will briefly examine the two cases of Shillinglaw and De La Rue, as well as Barritt, given the emphasis placed on those cases by the applicant.
41 In Shillinglaw the defendant was charged with selling poison contrary to the provisions of the Poisons Act 1890. The relevant provision stated that ‘every person other than a legally qualified medical practitioner, or a registered pharmaceutical chemist, who shall sell any poison’ was liable to a penalty unless he held a relevant certificate which showed that he was a fit and proper person.
42 The Court found that, consistent with the policy of the legislature (as appeared from the preamble), the statute created a general prohibition against the retailing of poisons, but with exception made in respect of certain persons. The onus therefore lay on the accused person to show that he belonged to the class of persons authorised to sell poison by the legislation.
43 The legislation in De La Rue prohibited a person ‘other than a manufacturer or distributor’ from acquiring a tyre, except in limited circumstances. O’Bryan J noted the submission that only a certain class of persons was made subject to the prohibition. However, he considered that the ‘essence of the offence’ was the acquisition of tyres unless certain circumstances were present.^[26] The onus was thereby on the defendant to establish that he came within the exception (being a manufacturer or distributor).
44 These two cases highlight a distinction between the essence of the liability or obligation in each case (being to ‘sell poison’ or ‘acquire tyres’) as opposed to the person on whom that liability is imposed (eg ‘a person other than a medical practitioner’ or ‘a person other than a manufacturer’). They are also readily characterised as cases concerned with a general prohibition, save by persons of a ‘specified class’, consistent with the passage in Chugg, cited above.^[27]
45 The statute considered by the Court in Barritt prohibited ‘betting in a street’, where ‘street’ was defined as ‘not including race-courses’. The Court held that the place was an essential element in the specification of the offence. In such circumstances, the burden of proving that the enclosure was not a race-course rested on the informant.
46 However, the applicant placed particular reliance on certain dicta remarks made by Fullagar J as follows:

[The Legislature] might, for example, provide that any person who made a bet in a city, town or borough should be guilty of an offence. Or it might provide that any person who made a bet in any municipality other than a shire should be guilty of an offence. The substance might be precisely the same, but it might well be held that s 214 applied to the latter case but not to the former. This would be because the essential elements in the specification of the offence are differently stated in each case.^[28]

47 The fact that the way in which the essential elements are stated ‘might well’ change the necessary categorisation of the matter is unexceptional. The comments should not be understood as a general statement that any provision which contains the words ‘other than’ necessarily involves an exception. Rather, as the subsequent decisions of the High Court make clear, the question is to be determined as a matter of ‘substance’ based on the particular legislation under consideration.

Analysis

48 The principles relevant to statutory construction require consideration by the Court of the ordinary and grammatical meaning of the words used, taking into account both context and legislative purpose.^[29]
49 In this case the subject matter of reg 55(1) is the obligation to display P plates while driving, ie the ‘essence’ of the offence is concerned with an obligation to display P plates. However, the circumstances which give rise to the offence are not defined in the opening words themselves (which do not even mention ‘P plates’). Rather, while reg 55(1)(a) defines when an obligation arises to display a P plate from the rear of the vehicle, reg 55(1)(b) defines when such an obligation arises in relation to the front of the vehicle. In the latter case, the obligation to display a P plate only arises in the case of a motor vehicle (other than a tractor) which is not a motor cycle.
50 The structure of the provision therefore suggests that there are two separate offences. More importantly, the phrase ‘other than a motor cycle’ is definitional of when an obligation will arise to display a P plate facing out from the front.
51 We do not accept the applicant’s submission that the definition of the vehicle should be read as being equivalent to a statement of the person on whom the obligation is imposed (ie persons ‘other than motor cycle riders’). Rather, on a natural reading, reg 55 draws a distinction between the obligation and the person on whom that obligation is imposed. The obligation or ‘general rule’ is that P plates must be displayed from the front of certain specified vehicles. However, this should be compared with the ‘person’ on whom the obligation is imposed, namely, a ‘person who holds a probationary driver licence’, subject to the exceptions applying to persons identified in reg 55(3).
52 Given this construction, the cases of Shillinglaw and De La Rue do not assist the applicant, as, for reasons given already, they dealt with an alleged failure to identify/prove matters relating to the person on whom the obligation was imposed, rather than matters definitional of the obligation itself.
53 The applicant’s concession that the ‘vehicle’ is an essential element of the offence is also consistent with our construction. Given that it is necessary to include reference to the vehicle, it will be necessary to define that vehicle in circumstances where the obligation will only arise in respect of certain defined vehicles.
54 A number of other principles in Chugg further fortify our construction as follows.
55 First, the reference to a vehicle other than a motor cycle ‘accompanies the description of the offence’ such that it ought to be construed as an element of that offence.
56 Secondly, the applicant’s construction involves a formalistic approach by placing unnecessary emphasis on the phrase ‘other than’, instead of focusing on the substance of the matter. Thus, the phrase ‘other than’ in this context is not used to identify an exception to an obligation. Rather, it serves to conveniently define the class of vehicles made subject to the relevant obligation (ie all motor vehicles other than a motor cycle). The substance would be the same if the legislature had chosen to list all motor vehicles other than motor cycles. The use of ‘other than’ therefore simply provides a more convenient way of defining the obligation.
57 Thirdly, the description of the vehicle is not a matter which is ‘peculiarly within the knowledge of the defendant’ such that the defendant should carry the onus. Rather, the type of vehicle can be readily identified by an informant.
58 Finally, it may be accepted that the ability to identify young inexperienced drivers is an important part of the road safety regime erected by the Road Safety Act 1986 and the Regulations.^[30] However, as is evident from the precise specifications applicable to an ‘appropriate P plate’ (which is distinguishable (by colour) at a distance of 20 metres), the Regulations are highly prescriptive of the circumstances in which any identification is to occur. It is consistent with this prescriptive regime that an obligation to display P plates from the front should only arise in respect of certain defined vehicles.
59 For all the above reasons, the phrase ‘other than a motor cycle’ is an element of the offence created by reg 55(1)(b). It therefore needed to be stated in the charge laid against the first respondent. Given this did not occur, the associate judge was correct in quashing the order made in the County Court and dismissing the charge.
Conclusion
60 There will be leave to appeal, but the appeal will be dismissed.
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^[1] Stanojlovic v Kokas [2020] VSC 305 (‘Reasons’).

^[2] DPP v Stanojlovic (2017) 53 VR 90; [2017] VSC 540.

^[3] Stanojlovic v DPP [2018] VSCA 152.

^[4] Reasons [42].

^[5] Ibid [43]. Her Honour considered that there was no ambiguity in the language used, no ‘absurdity’, nor any significant role for analysis of the purpose of the Regulations, or any extrinsic materials.

^[6] Emphasis in original.

^[7] Reasons [52].

^[8] Ibid [53].

^[9] (1990) 170 CLR 249; [1990] HCA 41 (‘Chugg’).

^[10] Reasons [55].

^[11] (1952) 86 CLR 136; [1952] HCA 63 (‘Dowling’).

^[12] (1955) 91 CLR 512; [1955] HCA 19 (‘Vines’).

^[13] Dowling [1952] HCA 63; (1952) 86 CLR 136, 139–40; [1952] HCA 63.

^[14] [1891] VicLawRp 30; (1891) 17 VLR 136 (‘Shillinglaw’).

^[15] [1945] VicLawRp 28; [1945] VLR 275 (‘De La Rue’).

^[16] [1948] VicLawRp 53; [1948] VLR 491 (‘Barritt’).

^[17] Road Safety Act 1986 s 3(1) (definition of ‘motor vehicle’).

^[18] Section 21(2) further provided that, without in any way limiting the generality of sub-s (1), an employer contravened that sub-section if the employer failed to provide and maintain plant and systems of work that are so far as is practicable safe and without risks to health.

^[19] Chugg [1990] HCA 41; (1990) 170 CLR 249, 257; [1990] HCA 41. See also Dowling [1952] HCA 63; (1952) 86 CLR 136, 139–40; [1952] HCA 63; Vines [1955] HCA 19; (1955) 91 CLR 512, 519; [1955] HCA 19.

^[20] Chugg [1990] HCA 41; (1990) 170 CLR 249, 257 (citations omitted); [1990] HCA 41.

^[21] Ibid 258.

^[22] Ibid 258–9 (citations omitted).

^[23] Ibid 258, citing Dowling [1952] HCA 63; (1952) 86 CLR 136, 140; [1952] HCA 63.

^[24] Chugg [1990] HCA 41; (1990) 170 CLR 249, 261–2; [1990] HCA 41.

^[25] Ibid 262–3.

^[26] De La Rue [1945] VicLawRp 28; [1945] VLR 275, 278–9.

^[27] See [38] above.

^[28] Barritt [1948] VicLawRp 53; [1948] VLR 491, 495.

^[29] Victoria v Thompson [2019] VSCA 237; (2019) 58 VR 583, 589 [27]–[28]; [2019] VSCA 237, citing R v A2 [2019] HCA 35, [33]–[34].

^[30] See Stanojlovic v DPP [2018] VSCA 152, [50].