Berti v Police (No 2) - [2014] SASC 188

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BERTI v POLICE (No 2)
[2014] SASC 188
Reasons for Decision of The Honourable Justice Nicholson
15 December 2014
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS - GENERALLY
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE
This is an appeal against conviction for the offence of exceeding the speed limit by 10 kms or more per hour but less than 20 kms per hour contrary to rules 20 and 21(1) of the Australian Road Rules.
Held: Appeal dismissed.
Motor Vehicles Regulations 2010 (SA) Schedule 4; Australian Road Rules r20, r21, referred to.
Berti v Police [2014] SASC 160; House v The King (1936) 55 CLR 499; Rainbird v Samuels (1972) 4 SASR 187; R v Caruso (1988) 49 SASR 465; Green v Police [1999] SASC 412; Meissner v The Queen (1995) 184 CLR 132, considered.

BERTI v POLICE (No 2)
[2014] SASC 188
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

This is an appeal against conviction for a speeding offence. The appellant, a taxi driver, was charged by way of Complaint and Summons filed in the Magistrates Court on 20 June 2014 with the summary offence of exceeding the speed limit by 10 kms or more per hour but less than 20 kms per hour contrary to rules 20 and 21(1) of the Australian Road Rules. The appellant was alleged to have driven at a speed of 70 kms per hour in a 60 kms per hour zone on 20 December 2013 at Ingle Farm.
On 18 August 2014, when the appellant appeared unrepresented in the Magistrates Court, the matter was adjourned to enable the appellant time to obtain further evidence. The matter was next heard on 26 September 2014, at which time the appellant entered a plea of guilty and made an application for a demerit points reduction. The application was refused and the appellant was convicted, fined $340 and ordered to pay the relevant court fees, victims of crime levy and prosecution cost.
The penalty for the offence committed by the appellant, at the time, was a fine of $340 and the loss of three demerit points, as per Schedule 4 of the Motor Vehicles Regulations 2010 (SA). There is a more serious offence of exceeding the speed limit by 20 kms per hour or more but less than 30 kms per hour, for which the relevant penalty, at the time, was a fine $690 and the loss of five demerit points. The formal Magistrates Court endorsement recorded the appellant’s conviction as being for the latter, more serious, offence. As a result of this administrative error, and even though the appellant was fined only $340, consistent with a penalty for the offence actually committed, he suffered a loss of five demerit points, otherwise applicable to the more serious offence. That further administrative error took on a greater level of significance for the appellant, because it took his total number of demerit points to 12, which resulted in a suspension of his driver’s licence for a three month period. The appellant received a letter from the Registrar of Motor Vehicles, dated 4 October 2014, to this effect.
By his notice of appeal filed in this Court on 9 October 2014, the appellant sought to appeal against both his conviction and sentence. On 16 October 2014, the appellant filed an interlocutory application seeking an order that his appeal be heard urgently. In an affidavit, sworn 15 October 2014, the appellant deposed to the fact that as a taxi driver the loss of his licence had caused and would continue to cause him significant financial hardship.
In Berti v Police[1] I ruled on the appellant’s application for an expedited hearing of his appeal. I ordered that the Magistrates Court record be corrected so as to record the appellant’s conviction as being for the correct offence of exceeding the speed limit by 10 kms per hour or more but less than 20 kms per hour. I further ordered that the Magistrates Court was to notify the Registrar of Motor Vehicles of the nature of this correction with a view to the demerit points deduction of five being reduced to three. As a consequence, the licence suspension should have been reversed. As a further consequence, the appellant’s grounds for an urgent hearing of his appeal fell away. The application for an expedited hearing was dismissed.
[1] [2014] SASC 160.
Grounds of appeal
Notwithstanding his guilty plea to the lesser offence, the appellant now seeks to appeal against his conviction and, it would appear, also the sentence. The Notice of Appeal lists five grounds to the following effect.[2]
(i)The Magistrate erred by misinterpreting telephonic record evidence provided by the appellant at the hearing on 26 September 2014.
(ii)The Magistrate did not afford the appellant sufficient time or consideration in presenting his defence.
(iii)The Magistrate erred by imposing a manifestly excessive penalty in that the penalty imposed was that applicable to the more serious offence.[3]
(iv)The photographic evidence tendered by SAPOL in support of the speeding charge is inconclusive and ambiguous.
(v)GPS Tracking and Speed Log data apparently available to the appellant exonerates him from the offence of speeding.
Grounds one, two and three can be briefly disposed of.
[2]    Some of the grounds contain argument which has not been included in this summary.
[3]    This ground has been dealt with as a result of Berti v Police [2014] SASC 160 and the appellant acknowledged this and abandoned the ground in his outline of argument.
Ground one
The evidence showed incoming and outgoing calls and messages from the appellant’s mobile phone at around the time of the offending. The appellant submitted that he received 49 messages or calls from a distressed female at about this time. The appellant contends that the Magistrate erroneously found that incoming calls were outgoing calls, and therefore did not place appropriate weight on the evidence which should have exonerated him on the basis that his speeding was justified in the circumstances.
It is a curious argument because the appellant appears to concede that he was speeding. In any event, the evidence and argument was not pressed by the appellant in defence of the speeding charge. He had already pleaded guilty by this stage. The matter was raised in order to have the Magistrate exercise the discretion available to her to reduce the demerit points otherwise applicable. Furthermore, whilst her Honour expressed doubts about the appellant’s explanation, including as to the proper interpretation of the telephone account record, she ultimately held that she would decide the issue of whether or not there should be a reduction of the demerit points on the basis that the explanation given by the applicant was correct. Her Honour was not persuaded that the circumstances, as put forward by the appellant, justified the reduction sought. I am not satisfied, on my review of the materials before the Magistrate relevant to this issue, that the Magistrate’s discretion miscarried on any of the bases provided for in House v The King.[4]
[4] (1936) 55 CLR 499 at 504-505.
This ground of appeal against sentence is dismissed.
Ground two
It is unclear whether this ground goes to conviction or sentence. However, I have reviewed the record below and the materials put before the Magistrate. I am not persuaded that the appellant was not afforded the appropriate time or opportunity to present his defence.
Ground three
This ground has been abandoned by the appellant now that the demerit points mix up has been corrected.
Grounds four and five - Issues on appeal
A plea of guilty is an admission by an accused of all of the elements of the offence. An appeal against conviction following a plea of guilty will be entertained only in limited circumstances.
In Rainbird v Samuels,[5] Walters J observed:
[5] (1972) 4 SASR 187 at 188-189.
If the entry of a plea of guilty has been brought about by the mistake or misapprehension of the nature of the charge, or has been induced by an improper threat or promise on the part of a police officer or other person in authority, and if it appears that but for that mistake, misapprehension or inducement, the plea would not have been made, and if it also appears that a miscarriage of justice has resulted, then an appellate court has the power, indeed a mandatory obligation, to quash the conviction and the penalty imposed.
In R v Caruso[6] von Doussa J made the following remarks:
A court will entertain an appeal against such a conviction if it appears (a) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (b) that upon the admitted facts he could not in law have been convicted of the offence charged.
Green v Police[7] also concerned a road traffic offence. Bleby J considered in some detail the circumstances in which an appeal might succeed notwithstanding a plea of guilty at first instance. His Honour observed:
Nevertheless, he admitted, by his plea, all the essential elements of the charge against him, including their qualitative nature; namely, that it was a speed in all circumstances which was dangerous to the public. He was not compelled to make that admission or induced to do so by intimidation or fraud or any other improper inducement. There is no suggestion that he did not understand the nature of the charge, only the mandatory minimum penalty. And that was only because his instructions to his solicitor were inadequate. He intended of his own free will, in my opinion, to admit his guilt. For reasons to which I return, it cannot be said that he could not possibly have been guilty of the charge on count 2.
If there is to be a successful appeal against a conviction after a plea of guilty, it is one or more of those factors to which I have just referred which must be established, and that it was such that it amounted to a miscarriage of justice:Rainbird v Samuels (1972) 4 SASR 187 per Walters J at188 - 189; R v Caruso (1988) 49 SASR 465 per von Doussa J at 489…
(emphasis added)
[6] (1988) 49 SASR 465 at 489.
[7] [1999] SASC 412 at [28].
Bleby J went on to consider a further basis on which the appellant in that case might have relied in order to demonstrate that a miscarriage of justice had occurred, that is, that he had been deprived of a prospect of acquittal. It is unclear whether his Honour considered this to be a stand alone basis or an essential element or aspect of the need, in any event, to be satisfied of a miscarriage of justice. However, in order to demonstrate a miscarriage of justice on this ground, his Honour found that the appellant “would have to show that on any assessment of the facts he could not have been found guilty of [the offence].”[8]
[8] At [32].
For present purpose it will be sufficient, in order to be successful on his appeal, for the appellant to demonstrate that his plea of guilty has led to a miscarriage of justice; specifically, that he was unfairly compelled or induced to plead guilty or he misunderstood the nature of the charge against him, or that upon any assessment of the facts he could not in law have been found guilty of the offence.
The appellant has provided both written and oral submissions which address the reason as to why he entered a plea of guilty at first instance. Those reasons can be summarised as follows:
(i)The appellant was induced to plead guilty on the reasonable and good faith belief that the photographic evidence provided by SAPOL was accurate and reliable, evidence which he now challenges on appeal.[9]
(ii)The appellant’s guilty plea was solely for reasons of expediency and not due to his belief that he was guilty.
(iii)To uphold the appellant’s guilty verdict would be to effect a miscarriage of justice, given that his conviction is based upon flawed evidence.
[9] The photographic evidence provided by the police is Exhibit SBJ 4 to the appellant’s affidavit, sworn 15 October 2014.
There is little merit to the appellant’s claim that he was induced to enter a plea of guilty. The appellant claims, in effect, that he was induced to plead guilty as a result of his belief that the photographic evidence put against him by SAPOL was accurate. It was always open to the appellant to challenge the accuracy of that evidence at first instance by entering a plea of not guilty and pursuing the matter to trial. There was no conduct by or on behalf of the police, wrongful or otherwise and apart from presenting its case, that might qualify as inducement. The real burden of the appellant’s complaint here is that he has now obtained evidence that, in his view, challenges the reliability of the police case.
The police photographic evidence was enclosed with correspondence from SAPOL following a request by the appellant. There are two photographs of the appellant’s vehicle travelling alongside another vehicle. One photograph has been enlarged to identify the appellant’s number plate. The photographs indicate that they were taken at a one second interval from 12:28.11am to 12:28.12am by a road safety camera. The evidence purports to show the appellant’s vehicle travelling at 70 km per hour.
The appellant has calculated the distance his vehicle would have travelled during the one second period at the alleged speed of 70 kms per hour. The appellant has then visually compared the relative positions of the two vehicles in each photograph. On this basis, the appellant submits that the relative positions of the two vehicles demonstrate that he could not have been speeding. The appellant contends that if he had been travelling at 70 kms per hour, his vehicle whould have been noticeably more advanced along the road as compared with the car he was travelling alongside.
There are a number of variables not allowed for in the appellant’s analysis that render any conclusion as to the speed of his vehicle based solely on that analysis as unreliable. First of all, the speed of the adjacent vehicle is unknown. Whilst some assessment of their relative speeds (one was travelling faster than the other) might be possible any conclusion as to actual speed is not. Second, the appellant has attempted to make and compare measurements on a photograph that was taken from some undisclosed distance and at undisclosed angles (in both the vertical and horizontal planes). The visual measurement approach taken by the appellant in these circumstances is unreliable and ultimately speculative.
The appellant contended that his plea of guilty was for reasons of expediency rather than due to a consciousness of guilt. The fact that a person has pleaded guilty for reasons of expediency is not, on its own, sufficient to cause a court to entertain an appeal. The often cited observations of Dawson J in Meissner v The Queen are of assistance in this respect.[10]
It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another or by an improper inducement or by fraud. (Footnotes omitted)
[10] (1995) 184 CLR 132 at 157.
The appellant also sought to rely on GPS (Global Positioning System) tracking and speed log data purportedly kept by his employer which the appellant asserted showed his average speed at or about the time of the offence to have been 62 kms per hour. No such evidence, in an admissible form, was available at the appeal. It is difficult to assess the probative value of any such evidence should it in fact exist. However, at the least, the appellant would need to establish that the data related to his car at the time relied on by the police – 12.28.11 am, how the data was produced, on what basis it should be considered as accurate, why it should be accepted as more reliable than the police camera device and so on. Ordinarily this would need to be dealt with by expert evidence.
The evidence concerning the plaintiff’s measurements and mathematical calculations and the evidence concerning such GPS data as may be available, if placed in an admissible form, were both available to or could with reasonable diligence have been available to the appellant when the matter was heard in the Magistrates Court. The evidence is not fresh as that term is explained in the authorities, and, ordinarily, should not be admitted on an appeal for that reason. This is not a case where the new evidence is such that there is a real possibility of a miscarriage of justice. The applicant’s explanation for not producing this evidence before the Magistrate was that he worked long hours at night and was not a morning person. I do not accept that explanation. The appellant pleaded guilty to the lesser speeding offence as charged and made further admissions by way of explanation for why he was speeding during the sentencing hearing. It was only after the administrative error that caused the appellant to lose five demerit points rather than three came to light that the appellant decided to appeal, not just as to sentence but also as to conviction.
Conclusion
The appellant has failed to establish a sufficient basis upon which this Court should allow his appeal. The circumstances of the plea of guilty, the nature of the new evidence sought to be relied on and the nature of the appellant’s arguments on appeal are such that the possibility of a miscarriage of justice has not been made out. The appeal is dismissed.