Bell v Police

Case [2012] SASC 188


SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

BELL v POLICE

[2012] SASC 188

Judgment of The Honourable Chief Justice Kourakis

17 October 2012

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - PROCEDURE ON SENTENCING - TYPES OF ORDER ON SENTENCE

TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE AND PENALTY

Appeal against a forfeiture order imposed by a Magistrate – appellant convicted and sentenced by a Magistrate for the offence of driving with a prescribed concentration of alcohol (PCA) – the appellant’s vehicle was seized and impounded – the prosecution filed an application in the Magistrates Court for the forfeiture of the appellant’s vehicle – an order of forfeiture was made by the Magistrate pursuant to s 12(1)(a)(iii) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (the Act) – the prosecution relied on two previous PCA offences, committed in 2002 and 2005, as the prescribed offences committed within the qualifying period stipulated by the Act – the issues on appeal were: (1) whether the previous PCA offences did not come within the scope of the Forfeiture Act because the Forfeiture Act was not yet enacted and therefore the offences were not prescribed at the time the offences were committed; and (2) whether the Forfeiture Act is invalid because it requires the Courts to exercise powers which are incompatible with, and repugnant to, judicial power under the Constitution.

Held: (1) appeal ground rejected – s 10 of the Act gives the statute retrospective effect – the provisions of the Act allow an application to be made if the offences are committed within the qualifying period and are prescribed at the time of the application; (2) on an application by the prosecution, the Act requires Courts to impose a substantial additional criminal penalty (forfeiture) after final sentencing orders have been made – the Act is inconsistent with the judicial integrity implication – appeal allowed – order of forfeiture set aside.

Road Traffic Act 1961 (SA) s 47B(1)(a); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 3, s 4, s 5, s 9, s 10, s 11, s 12, s 13, s 20, s 24, s 54, Pt 2, Pt 3; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA) reg 4(b); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) (Miscellaneous) Amendment Act 2009 (SA); Summary Offences Act 1953 (SA) Pt 14A; Statutes Amendment (Misuse of Motor Vehicles) Act 2004 (SA); Australian Courts Act 1828 (UK) s 5; Serious and Organised Crime (Control) Act 2008 (SA); Commonwealth of Australia Constitution Act 1900 (UK) s 75(v), Ch III, referred to.
Maroondah City Council v Fletcher [2009] VSCA 250; Maxwell v Murphy (1957) 96 CLR 261; Fisher v Hebburn Ltd (1960) 105 CLR 188; Barton v The Queen (1980) 147 CLR 75; Kable v Director of Public Prosecutions (NSW)

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AGLC
Bell v Police [2012] SASC 188
Case
[2012] SASC 188
Decision Date

CaseChat Overview and Summary

Bell v Police involved an appeal against a forfeiture order imposed by a magistrate. The appellant, Bell, had been convicted and sentenced for driving with a prescribed concentration of alcohol. As a result, his vehicle was seized and impounded. The prosecution filed an application in the Magistrates Court for the forfeiture of Bell's vehicle. An order of forfeiture was made by the magistrate pursuant to section 12(1)(a)(iii) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA). The prosecution relied on two previous PCA offences, committed in 2002 and 2005, as the prescribed offences committed within the qualifying period stipulated by the Act.

The issues on appeal were whether the previous PCA offences did not come within the scope of the Forfeiture Act because the Forfeiture Act was not yet enacted and therefore the offences were not prescribed at the time the offences were committed. Additionally, the appeal questioned whether the Forfeiture Act is invalid because it requires the Courts to exercise powers which are incompatible with, and repugnant to, judicial power under the Constitution. The appeal court rejected the first issue, holding that section 10 of the Act gives the statute retrospective effect. The appeal court found that the provisions of the Act allow an application to be made if the offences are committed within the qualifying period and are prescribed at the time of the application.

The appeal court allowed the second issue, finding that the Act is inconsistent with the judicial integrity implication. The Act requires Courts to impose a substantial additional criminal penalty (forfeiture) after final sentencing orders have been made. The appeal court found that this is repugnant to judicial power under the Constitution. The appeal was allowed, and the order of forfeiture was set aside.

The final orders were that the appeal was allowed, the order of forfeiture was set aside, and the Forfeiture Act was deemed invalid. This decision highlights the importance of ensuring that any legislative provisions do not interfere with judicial power, and that retrospective effect is only given where it is clearly intended by the legislature.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the above reasons I hold that s 12(1)(a)(iii) of the Forfeiture Act is invalid.Conclusion I allow the appeal. I set aside the order of forfeiture.AppendixSchematic Operation of Forfeiture ActLegendSOA = Pt 14A Summary Offences ActForfeiture Act = Criminal Law (Clamping Impounding Forfeiture of Vehicles) Act 2007

Ratio Decidendi

Legal Principle Established

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