Not really an emergency law issue but it relates to a tow truck, so I’ll extend my brief to report on the outcome of Kokas v Stanojlovic [2021] VSCA 119.

 A tow truck driver (Stanojlovic) arrived at an accident. On the rear of the truck was a P plate, but there was no P plate on the front of the truck. Stanojlovic was charged that:

… on 14/08/2015, being a probationary driver, did drive a motor vehicle not being a tractor on a highway … without having a ‘P’ plate conspicuously displayed out from the front of such vehicle.

(It’s not said, but one might infer that the usual practice is that the driver was issued with an infringement notice that they elected to challenge in court, so a ‘charge’ was issued, not that he was arrested for not displaying a P plate).

The relevant law (the Road Safety (Drivers) Regulations 2009 (Vic) r 55) says:

(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.

The issue was that the charge, as issued, did not say that the vehicle driven by the accused was ‘other than a motorcycle’.

Stanojlovic was convicted in the Magistrate’s court and fined $152 and costs of $73.30. No doubt an allocation of demerit points also applied (but I haven’t checked that).  What happened next?

1.         Stanojlovic appealed to the County Court and was acquitted on the basis that the Crown had not proved, beyond reasonable doubt, that he did not have an honest and reasonable belief that there was a P plate on the front of the truck.

2.         The Crown appealed to the Victorian Supreme Court on the basis that the defence of honest and reasonable mistake of fact was not a defence to this particular offence (that is, in legal jargon, it was an absolute offence). The Court agreed and sent the matter back to the County Court.

3.         Back in the County Court counsel raised the argument (at [15]):

… 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.

4.         Stanojlovic again appealed to the Supreme Court where an Associate Judge upheld the appeal, finding ‘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.’

5.         The Police (in the name of Kokas, the officer who initially issued the charge, but of course not really that officer personally, rather Victoria Police represented by the Director of Public Prosecutions) appealed to the Supreme Court of Victoria, Court of Appeal. Three judges, Kyrou, Emerton and Kennedy JJA, dismissed the appeal and agreed with the Associate Judge. The failure to allege that the vehicle was ‘…a motor vehicle other than a motorcycle …’ was fatal to the prosecution.

To achieve this result, the case went before a Magistrate, two County Court judges, two judges sitting alone as the Supreme Court of Victoria and three judges sitting as the Court of Appeal – a total of 8 judicial officers – and took 6 years! The Magistrate, one of the County Court judges and one of the Supreme Court judges (3 judicial officers) considered the question of whether an honest and reasonable belief that there was a P plate on the front of the truck was a defence – it was not. That left one County Court judge and 4 Supreme Court judges to consider whether the charge needed to say ‘other than a motorcycle’ – the County Court judge said it did not, all the supreme court judges agreed that it did. No doubt Victoria police will now be changing the wording on their charge documents.

Legal lessons

Court’s do not have a ‘too hard’ or ‘too trivial’ basket. Protecting legal rights is important and if you have the drive and the money or the support, you can take the smallest matter to the highest court. The cost of these proceedings far exceeds the value of any fine, but we live by the rule of law and the law that relates to the details required to be provided on a criminal allegation apply from the most minor to the most serious offence. The reality is that most people would have neither the patience nor the resources to mount such a challenge and most would also think it’s pretty unnecessary to allege that a tow truck is ‘not a motorcycle’ but we now know that this required by law.

Does that mean everyone who paid a fine for not displaying a P Plate is entitled to a refund? No, if you receive an infringement and pay it that is the end of the matter. Equally if a matter did go to court but time limits for appeals have been passed their fines will stand. There has to be finality and courts only rule on matters that people chose to dispute. It’s a win for this driver and for other driver’s currently before the courts (unless the police get leave to amend their charge documents) but I would not expect a mass of refunds to P Plate drivers charged with not displaying a front P plate.