Bell v Police

[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)