Local Court of New South Wales CITATION: Police –v- Alain VINCENT [2005] NSWLC 20 JURISDICTION: Criminal PARTIES: Police Alain VINCENT FILE NUMBER: PLACE OF HEARING: Parramatta Local Court DATE OF DECISION: 06/29/2005 MAGISTRATE: Magistrate G Lerve CATCHWORDS: holder of overseas driver's license – nature of visa – international visitor – whether holder of overseas driver's license is "unlicensed" Road Transport (Driver Licensing) Act 1998 LEGISLATION CITED: Migration Act 1958 (Cth) Migration Amendment Regulations 2003 CASES CITED: Ostowski –v- Palmer (2004) 78 ALJR 957 REPRESENTATION: Sgt. Assaad, Police Prosecutor Mr. M. Vaughan ORDERS: The accused is not guilty, and a verdict of acquittal entered. Reasons for Decision By way of Court Attendance Notice issued on 21 January 2005 the accused is charged that he on 29 September 2004 at Silverwater in the State of New South Wales did drive motor vehicle RLO-213 on Holker Street whilst being an unlicensed driver, contrary to section 25(2) of the Road Transport (Driver Licensing) Act 1998. This was one of several defended matters before me on 8 June 2005. There was no prior indication that the significant issues that did arise would in fact be arising in the course of the matter. I do not have the benefit of a transcript of the proceedings and accordingly, am relying on the exhibits tendered, and my notes of the evidence. The prosecution case consisted of the evidence of Constable Steven Bird of the Cabramatta Police Station, whose evidence in chief consisted principally of a statement that was read on to the record. The officer was performing duties unrelated to the enforcement of the traffic rules and regulations at the Silverwater Correctional facility on 29 September 2004. The accused drove his vehicle into that facility. The officer stopped the accused and asked him to produce his driver's license for inspection. The accused produced to the officer a United Kingdom License VINCE510240A98GL23. That same Licence was produced by the accused at Court before me, and was sighted by the prosecutor and me. There is no dispute that the License so produced is a valid UK Driver's Licence. Paragraph 5 of the officer's statement records the conversation that then occurred. For the sake of convenience I will repeat what is contained in the officer's statement. It should be noted that the accused does not agree with the precise terms of the conversation as set out in the statement. The conversation as set out is as follows: Officer: How long have you been in New South Wales for? Accused: I've been in NSW 4 years working Visa Officer: Why haven't you applied for a New South Wales driver's license? Accused: I haven't had time, I've been working. The dispute between the prosecution and the accused about the contents of the conversation related to what was said in relation to the 4 years and the working visa. Although I have no specific note of the matter, my recollection is that there was also some slight dispute as to the precise nature of the last line of the conversation as set out above. The accused is apparently of Mauritian origin, and it was obvious that English was not his first language. He was accented. Meaning no disrespect to the accused his English was far from perfect. In those circumstances, it is certainly conceivable that there may have been some confusion, misunderstanding or misconception about precisely what was said about the visa and the words "four years". It emerged that the accused is in Australia by virtue of a visa issued by the Commonwealth Authorities pursuant to Regulation 457 of the Migration Amendment Regulations 2003. Mr. Vaughan has, by invitation in open Court on 8 June 2005 since very helpfully provided with me a copy of the relevant regulations. A "457 Visa" is apparently also known as a Business (Long Stay) Visa. Such Visas can be issued for a maximum period of four years. Such Visas permit those persons who have particular or peculiar expertise in a particular area to live in Australia, and to work within Australia within that field of expertise. It is my understanding that in order to obtain such a Visa, a sponsor is required. It is not disputed that Telstra was the sponsor for this accused. I do not have the advantage of the accused's evidence in chief being in written form as I do with the police officer. However, the accused is a technical expert of some description who is retained by Telecom, or at least works for that instrumentality on a contractual basis. He is on his second "457 Visa". He initially came to Australia on such a Visa in 2002. The visa is issued for a maximum period of four years. He returned to the United Kingdom before that initial "457 Visa" expired, but has since returned to Australia. Another 457 Visa was issued in November 2003, which expires in October 2007. As I understood the evidence of the accused, he maintained that he told the officer that he had a Visa which was valid for a period of 4 years rather than that he has resided in New South Wales for 4 years. It cannot really be disputed that the accused has not resided in New South Wales for four years, considering that he first came here on the first 457 Visa in 2002. In these circumstances, and given what I have earlier said about the English skills of the accused, I am not satisfied even on the balance of probabilities that the accused did in fact make the admission as alleged by Constable Bird. This does not involve any finding of credit against the officer. The accused further gave evidence that although he had an address in Sydney, he nevertheless travelled to other capital cities within Australia. This was to work in his particular field of expertise with Telstra. He was required to be in other States for weeks or months at a time. As I perceived the submissions of Mr. Vaughan for the accused, his primary submission was that the accused was exempt from the requirements (that is, the requirements to hold a New South Wales Driver's Licence) by virtue of the operation of the Road Transport (Driver Licensing) Regulations 1999 section 55 (1). That provides: (1) A visiting driver who holds: (a) a current Australian driver licence (including a New Zealand driver licence or learner license) issued in another jurisdiction, or (b) a current foreign driver licence and international driving permit, or (c) a current foreign driver licence that is written in English or is accompanied by an English Translation, that authorises him or her to drive a motor vehicle of a particular kind may drive a motor vehicle of that kind in this State, and is exempt from the requirements of the Act and this Regulation (other than this clause). The UK Licence held (and produced to the Court on 8 June 2005) by the accused is written in English. The prosecution, as I understand the submission, maintains that the accused is caught by the operation of Subclause (2) of section 55 of the Regulation, which sets out the exemptions to Subclause (1) of section 55 of the Regulation. Subsection (2) provides: (2) A person ceases to be exempt under subclause (1) if any of the following things happens: (a) if the holder of an Australian driver licence or learner licence or New Zealand driver licence or learner licence has resided in this State for a continuous period of more than 3 months, unless he or she also holds a valid Driver Identification Document issued by the Commonwealth Department of Defence, (b) if an international visitor has held a permanent visa under the Migration Act 1958 of the Commonwealth for more than 3 months … … In particular, I understand the prosecution to rely on subclause (2)(b), namely, that the accused has held a permanent visa for a period of more than 3 months. It is important to note that the subclause uses the adjective "permanent" immediately before the word visa. "International Visitor" is defined in the Dictionary of the Road Transport (Driver Licensing) Regulation 1999 – Schedule 99 as: "international visitor" means a person who: (a) is ordinarily resident in a foreign country, and (b) is not a permanent resident of Australia. Considering the facts of the matter presently under consideration it could not be seriously disputed that the accused would come within the definition of "international visitor". I turn now to the Migration Act 1958 (Cth). Section 42 of that Act makes it essential for a non-citizen of Australia to have a visa to travel to Australia. Subsection (2A) of that Act sets out various exemptions, none of which appear to apply in the matter presently under consideration. It is not disputed that the accused had a valid visa. In fact, a copy of the front page (photograph and particulars) of the accused's Passport, and a copy of the visa were admitted into evidence as exhibits without objection. As I understand the evidence, there is no dispute that the accused is in Australia by virtue of the Business (Long Stay) or 457 Visa. Section 30 of the Migration Act sets out kinds of visas available. It provides: "Kinds of visas (1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely. (2) A visa to remain in Australia (whether also a visa to travel and enter Australia) may be a visa, to be known as a temporary visa, to remain: (a) during a specified period; or (b) until a specified event happens; or (c) while the holder has a specified status. The visa endorsement on the accused's Passport reads: "Granted 21 Oct 03. Visa permits you to remain in Australia until 28 days after notification of the primary decision or decision by a review authority or remittal or withdrawal of your application in respect of application receipt no. PA9582186055802". The very wording of that endorsement indicates that the visa held by the accused is a temporary visa within the meaning of that word "temporary" as it appears in section 30 of the Migration Act. At the conclusion of the hearing on 8 June 2005 I invited both parties to make available any further submissions or material in writing. In particular, Mr. Vaughan undertook to provide the relevant provisions of the Commonwealth Migration Act. The prosecutor indicated that he may provide further material, but as at the date of preparation of the draft of these reasons I have not received anything. Part of the material provided by Mr. Vaughan is a copy of the letter dated 1 October 2002 from the Australian High Commission in The Strand, London. That letter is headed "Subclass 457 Visa application approval – primary". That letter was not an exhibit before me, and its contents are not decisive in the matter. That letter begins: "Dear Applicant, I refer to your application for a temporary business entry (Class UC) visa under subclass 457…" Mr. Vaughan has also provided the Migration Amendment Regulations 2003 (No. 5) No. 154. On any fair reading of those Regulations, the visa by virtue of which the accused entered and remains in Australia is a temporary visa within the meaning of that word in section 30 of the Migration Act 1958 (Cth). In my opinion, in all the circumstances, and considering the relevant legislation, regulations and the endorsement on the Passport held by the accused, the Visa which entitled the accused to enter and entitles the accused to remain within Australia is a Temporary Visa. Accordingly, it is not a permanent visa. It necessarily follows that the exemption of the operation of subclause (1) of Regulation 55 of the Road Transport (Driver Licensing) Regulation 1999 created by (2)(b) of Section 55 of the Road Transport (Driver Licensing) Regulation 1999 relied upon by the prosecution does not apply. Accordingly, the accused is entitled to an acquittal on that basis. Subclause (2)(a) of section 55 of the Road Transport (Driver Licensing) Regulation provides that the exemption will cease in respect of holders of Australian Driver's Licences or New Zealand Drivers if they are resident in New South Wales for a continuous period of more than 3 months. Curiously, the Subclause (2)(b) relating to international visitors makes no similar provision so far as residence in the State is concerned, but rather, provides for the holding of a permanent visa for more than 3 months. In the circumstances, of my primary finding in this matter, it is not necessary for me to come to any conclusion about the status of the accused's residence within the State of New South Wales. However, for the sake of completeness, and should it be relevant, I will do so. Given the evidence of the accused that he is required to work in various parts of the country for extended periods of time, and given the temporary nature of his visa, I am not satisfied beyond reasonable doubt that the accused has been resident in New South Wales at any time for a continuous period of 3 months. If it were something that the accused would need to prove, I would, in all the circumstances, be satisfied that the accused has established on the balance of probabilities that he was not resident in New South Wales for a continuous period of 3 months. Defence of Honest and Reasonable Belief In the matter presently under consideration, there could be no doubt that at all times the accused has attempted to do what is known colloquially as "the right thing". It was not disputed that shortly after arriving in Australia he checked the RTA at Marrickville. He was apparently told that he did not require a New South Wales licence. He was given a pamphlet, which became exhibit 3 before me. That pamphlet in part states: "If you do not hold a permanent resident visa under the Commonwealth Migration Act 1958 or you are from New Zealand and you have not resided in NSW continuously for more than 3 months, you are a 'visiting driver'. Visiting drivers include: · Tourists · Business people on limited duration visits · Visitors on working holiday visas · People studying or working temporarily in NSW · International Defence Force personnel and their families on exchange in NSW". The accused acted on this information, and was of the opinion that he did not need a NSW Driver's Licence. After being issued with the Infringement Notice by Constable Bird, and before the matter came before the Court, the accused visited the Web Site of the RTA. A print out of the material obtained was admitted, without objection, as an exhibit before me. That print out, in part, reads: "Visitors If you do not intend to stay in NSW and do not hold a permanent visa, you will be regarded as a visiting driver. If you hold a current overseas driver licence you are not required to get a NSW licence even if your stay is longer than three months. If the license is not written in English, an International Driving Permit, or an English translation must also be carried with the licence when driving." At the hearing before me on 8 June 2005 an issue arose as to whether because the accused was relying on information supplied by personnel from the very Government Instrumentality that issues driver licenses, whether, even if the exemption (Subclause (2)(b) Road Transport (Driver Licensing) Regulation 199 section 55) did apply as the prosecution submitted, the accused was entitled to an acquittal. I am deeply indebted to Sgt. Assaad the Prosecutor in this regard for reminding me of the decision of the High Court of Australia in Ostrowski –v- Palmer (2004) 78 ALJR 957. At p. 968 (paragraphs [53] and [54]) McHugh J. said: "It is irrelevant that Mr. Palmer's mistake was induced by the conduct of an employee of Fisheries WA. That conduct cannot convert a mistake as to the applicable law into a mistake of fact. If a defendant knows all the relevant facts that constitute the offence and acts on erroneous advice as to the legal effect of those facts, the defendant, like the adviser, has been mistaken as to the law, not the facts. Four cases which address this issue are Olsen –v- Grain Sorghum Marketing Board; Ex Parte Olsen, Loch –v- Hunter; Ex parte Loch, Cambridgeshire and Isle of Ely County Council –v- Rust and Power –v- Huffa . In the first two cases each defendant claimed that he or she was acting on the erroneous advise of a third party – either a legal adviser or a government official – that the acts in question were legal and that this mistake amounted to a mistake of fact. In the last two cases each defendant claimed that he or she had been given lawful authority to act as charged and that this mistake likewise amounted to a mistake of fact. In each case the defendant's argument failed, the court finding that each defendant was acting under a mistake of law. Accordingly, the bare fact that the adviser or official may have been mistaken as to the state of the law does not convert the defendant's mistake into one of fact. Both the adviser or the official and the defendant operate under a mistake of law". The situation with which the High Court was faced in that decision is precisely the same as the matter presently under consideration had the contents of the pamphlet and the web site been incorrect. Clearly, on the authority of Ostrowski –v- Palmer the defence of Honest and Reasonable Belief could not have applied in that situation (that is, if he had in fact been given incorrect advice) to secure an acquittal of the accused. Given my earlier findings on the issue of temporary as opposed to permanent visa, it has probably been unnecessary for me to consider this aspect. However, this issue took up some time in the hearing before me, and I have attempted to resolve the issue for the sake of completeness. Abuse of Process This is an issue that also arose at the hearing before me. It seems inherently unjust to prosecute a person, who person having done all things that might be expected of a lay (non legally trained) member of the public to make the relevant inquiries with the very Government Instrumentality that issues motor vehicle driver licences, and that person is given incorrect advice by that Authority. Given my primary findings, namely, that the accused was the holder of a temporary visa, the information he was given by the staff at the RTA at Marrickville, and the pamphlet, was in fact correct. In the circumstances, it is unnecessary to expand upon this issue. Outcome if my findings are incorrect I indicated to the parties on 8 June 2004 that even if the offence was proved, I would be minded to unconditionally dismiss the matter pursuant to s. 10 of the Crimes (Sentencing Procedure) Act 1999. The accused is apparently not otherwise known. There was nothing about the driving of the accused that led to the attention of the police being focussed upon him. The prosecutor did not object to this course. Even if my primary findings were incorrect I would unconditionally dismiss this matter pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999. Formal Findings 1. That the accused held a Temporary Visa within the meaning of that expression in section 30 of the Migration Act 1958 (Cth); 2. Accordingly, the exemption within subclause (1) of section 55 of the Road Transport (Driver Licensing) Regulation 1999 applies; 3. The exemption to subclause (1) contained within subclause (2) relied upon by the Prosecution does not apply; Accordingly, The accused is not guilty, and a verdict of acquittal entered. The accused is discharged. Gordon Lerve Magistrate Parramatta Local Court 29 June 2005. 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