Berti v Police - [2014] SASC 160

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
BERTI v POLICE
[2014] SASC 160
Reasons for Decision of The Honourable Justice Nicholson (ex tempore)
28 October 2014
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS - OTHER MATTERS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRELIMINARY PROCEDURE
The appellant, a taxi driver, has appealed against conviction and penalty for the offence of exceeding the speed limit by 10 kms or more per hour but less than 20 kms per hour. By interlocutory application he sought an order that his appeal be heard urgently.
After pleading guilty to the charge, the appellant was fined $340 and incurred a loss of five demerit points. As a consequence, the appellant accrued a total number of demerit points sufficient to require his driver’s licence to be suspended for three months. The fine was the appropriate penalty for the offence but the appellant should have only lost three demerit points. The loss of the five demerit points occurred administratively as a result of the Magistrates Court records incorrectly recording that the appellant had been convicted for the more serious charge of exceeding the speed limit by 20 kms or more per hour but less than 30 kms per hour.
Held: The appellant’s interlocutory application to expedite the appeal is dismissed. The Magistrates Court records are to be corrected to reflect the appropriate offence. The Magistrates Court is to provide to the Registrar of Motor Vehicles a copy of the corrected record. Upon correction of the record there is no longer any basis for an urgent hearing of the appeal.
Motor Vehicles Act 1959 s98BC; Motor Vehicles Regulations 2010 (SA); Australian Road Rules r20, r21, referred to.
Green v Police [1999] SASC 412; R v Williams [2006] SASC 237, considered.

BERTI v POLICE
[2014] SASC 160
Magistrates Appeal: Interlocutory Application
NICHOLSON J.

I have before me an interlocutory application by the appellant, Mr Berti, seeking an order that his appeal against conviction and sentence in the Magistrates Court be heard urgently.
Mr Berti was charged, upon a Complaint and Summons filed in the Magistrates Court on 20 June 2014, with a summary offence of exceeding the speed limit by 10 kms or more per hour but less than 20 kms per hour. It is alleged in the Complaint that on 20 December 2013, at Ingle Farm, Mr Berti drove at a speed of about 70 kms per hour in a 60 kms per hour zone contrary to rules 20 and 21(1) of the Australian Road Rules (the “lesser offence”).
The penalty for this offence, at the time it was said to have been committed, was a fine of $340 and the loss of three demerit points, Motor Vehicles Regulations 2010 (SA) Schedule 4.
There is also an offence under the Australian Road Rules of exceeding the speed limit by 20 kms per hour or more but less than 30 kms per hour (the “greater offence”) the penalty for which, as at December 2013, was a fine of $690 and the loss of five demerit points, Motor Vehicles Regulations 2010 (SA) Schedule 4.
The matter came before the Holden Hill Magistrates Court on 18 August 2014 at which time it was adjourned part heard to 26 September 2014. On that day, Mr Berti pleaded guilty and, acting on his own behalf, made submissions in mitigation and, in particular, with a view to having the applicable number of demerit points reduced. In her written Remarks on Penalty delivered on that day, the Magistrate noted that Mr Berti had pleaded “guilty to speeding” and that he had been “travelling at 70 km/h in a 60 zone.” Her Honour, for the reasons given in her Remarks on Penalty, refused the application to have the demerit points reduced. Her Honour concluded her remarks with the following:
You are convicted for the offence, you are fined the sum of $340, you are to pay court fees, prosecution fees and victims of crime levy. You are free to go.
Thus far it would seem clear that Mr Berti pleaded guilty to and was convicted of the lesser offence, as charged on the complaint and summons, namely, as the Magistrate noted, travelling at 70 kms per hour in a 60 kms per hour zone. The penalty imposed, a fine of $340, is entirely consistent with this.
However, the formal court record for each of the appearance dates, 18 August 2014 and 26 September 2014 recorded the position otherwise. In each case, the formal court record, which appears to have been initialled by the Magistrate, referred to the charge as “20/12/13 exceeds speed limit by 20 km/hr or more but less than 30 km/hr.” In the body of the record for the 26 September 2014 appearance, the plea of guilty had been recorded against the offence described as “exceeds speed limit by 20 km/hr or more but less than 30 km/hr” and the notation “convicted” also appears.
However, the recorded sentence shows a fine of $340 (consistent with the lesser offence but not the greater offence), court fees, victims of crime levy and so on. It is also noted, on the court record for 26 September 2014, that the application for a demerit points reduction was refused.
The problem that has arisen for Mr Berti is that a conviction for the greater offence carries with it demerit points of five rather than demerit points of three. As it happens, prior to committing the speeding offence Mr Berti had already accrued seven demerit points. The accrual of a total of 12 demerit points within a prescribed period will result, pursuant to s98BC of the Motor Vehicles Act 1959, in disqualification from holding or obtaining a driver’s licence for a period of three months.
According to Mr Berti’s affidavit, sworn 15 October 2014 and filed in this Court on 16 October 2014, he received a letter from the Registrar of Motor Vehicles on the letterhead of the Government of South Australia, Department of Planning, Transport and Infrastructure, on 4 October 2014, advising him that his licence was to be suspended for three months from 29 October 2014 on account of his having accrued 12 demerit points. That letter identified, as a component of the 12 demerit points relied upon, five demerit points said to have been accrued for a breach of Australian Road Rule 20 on 20 December 2013, that is, the date of the offending the subject of these proceedings.
Mr Berti has lodged an appeal to this Court against the conviction entered by the Magistrate and the sentence passed by the Magistrate. His notice of appeal was filed on 9 October 2014. On 16 October 2014, Mr Berti filed an interlocutory application seeking an order that his notice of appeal be heard urgently. Mr Berti has explained in his affidavit that the suspension of his taxi licence which was consequential on the accrual of 12 demerit points had and will cause him significant hardship. He is a taxi driver and his livelihood is dependent upon earnings from driving a taxi. In addition to being the sole bread winner in his household, he is also responsible for the care and maintenance of his 78 year old mother. Mr Berti has deposed to the fact that his inability to derive income, as a result of the loss of his taxi licence, will cause significant financial loss and damage to himself and to his mother.
The appeal is to be heard in the December list of Magistrates Appeals. However, Mr Berti has asked that the matter be heard earlier than that. Mr Berti has raised a number of grounds of appeal. However, to the extent that he would seek to have the conviction set aside he faces the immediate difficulty that he pleaded guilty in the court below. Having a conviction set aside on appeal, notwithstanding a plea of guilty, can be achieved but it does raise particular challenges for an appellant, see for example, Green v Police [1999] SASC 412. In addition, some of Mr Berti’s grounds of appeal appear to have been drawn on the assumption that he was convicted of and sentenced for the greater offence.
The immediate problem for Mr Berti, however, is that the court record mischaracterised the offence to which he pleaded and for which he was sentenced. At no point did the Magistrate in her remarks refer to the number of demerit points that would ordinarily apply to the offence and nowhere in the official court record for the two appearances in the Magistrates Court is the number of demerit points identified. However, it would seem that the court record incorrectly recorded what took place and incorrectly recorded Mr Berti as having pleaded guilty to and as being convicted of the greater offence. In these circumstances, it is not surprising that the Department administratively imposed on Mr Berti five demerit points. However, if the Department were only to impose the three demerit points applicable to the lesser offence, Mr Berti would not accumulate 12 demerit points and would not be subjected to a licence suspension.
It is important that the official court records of the criminal courts in this State be accurate. This is the record upon which relevant authorities, including in this case the Department of Planning, Transport and Infrastructure and the Registrar of Motor Vehicles, rely as being the formal record of the court. This Court has jurisdiction to order that a court record be corrected, see for example, R v Williams [2006] SASC 237. In this case the court record should be corrected to accurately reflect the offence to which Mr Berti pleaded guilty and for which he was convicted and sentenced. If the record were to be corrected in this respect, the demerit points imposed by the Registrar of Motor Vehicles for the offending should be reduced from the five originally imposed to three.
In this event, a question for Mr Berti would be whether he still wished to appeal against his conviction for the lesser offence. This would be a matter entirely for him. However, there no longer would be any basis to assert urgency in the hearing of that appeal.
I raised these matters with counsel appearing for the respondent, the Police. When the matter came before me last Friday 24 October 2014. I adjourned the matter to enable counsel to obtain instructions. At this morning’s hearing, counsel advised that she had taken up the matter with the Registrar of the Magistrates Court. The Registrar investigated the matter further and reached a conclusion that the record was indeed incorrect in the manner I have described. I understand that the record has now been corrected and, this morning, I was provided with a print out of the new corrected Certificate of Record.
Nevertheless, I make the following orders.
(i)Insofar as may still be necessary, the formal court records for the Magistrates Court in the matter of Police v Berti (MCHHL-14-2932) are to be corrected forthwith so that the charge to which Mr Berti pleaded guilty and was sentenced is to be recorded as:
20/12/13 exceed speed limit by 10 km/hr or more but less than 20 km/hr.
(ii)As soon as practicable, the Magistrates Court is to provide to the Registrar of Motor Vehicles a copy of the corrected record and is to notify the Registrar of Motor Vehicles of the nature of the correction.
(iii)Mr Berti’s interlocutory application for an order that his appeal against sentence and conviction be heard urgently is dismissed.