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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Berti v Police (No 2)

Details

AGLC: Berti v Police (No 2) [2014] SASC 188
Case: [2014] SASC 188
Decision Date: 15 December 2014

CaseChat Overview and Summary

The plaintiff, Berti, appealed against a decision of the Magistrates Court of South Australia to the Supreme Court of South Australia. The underlying matter involved a traffic offence for exceeding the prescribed speed limits. Berti had pleaded guilty to a lesser speeding offence and provided explanations for his actions during the sentencing hearing. The appeal arose after an administrative error was discovered, which resulted in Berti losing five demerit points instead of three. Berti sought to appeal not only the sentence but also the conviction.

The primary legal issue before the court was whether the appellant had established a sufficient basis for the court to allow his appeal. This involved determining if the new evidence presented by Berti, which included measurements, mathematical calculations, and GPS data, could be admitted on appeal. The court needed to assess whether this evidence was fresh and, if not, whether there was a real possibility of a miscarriage of justice that would warrant its consideration. The court also had to evaluate Berti's explanation for not producing this evidence during the original hearing and the implications of his guilty plea and admissions during sentencing.

The court found that the evidence Berti sought to rely on was not fresh, as it was either available or could have been obtained with reasonable diligence at the time of the original hearing. The court rejected Berti's explanation for not producing this evidence, which was based on his work schedule and personal habits. The court emphasised that Berti had pleaded guilty and provided explanations for his speeding, and the appeal was only initiated after the administrative error came to light. The court concluded that Berti had not demonstrated a real possibility of a miscarriage of justice that would justify admitting the new evidence and allowing the appeal. Consequently, the appeal was dismissed.

The court did not make any further orders beyond dismissing the appeal. The decision underscored the importance of timeliness in presenting evidence and the limited circumstances under which new evidence can be admitted on appeal in traffic offence cases.

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

NICHOLSON J

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.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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