Best v Police - [2015] SASC 190

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BEST v POLICE
[2015] SASC 190
Judgment of The Honourable Justice Bampton
3 December 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - CONVICTION ON EX PARTE HEARING
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS - GENERALLY
TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED
Appeal against decision of a Magistrate - appellant convicted in his absence of driving at 113 km per hour on a road where the speed limit was 100 km per hour – appellant contends the trial should have been moved to accommodate his schedule and to a Court of competent jurisdiction, that the device used to detect his speed did not comply with the National Measurement Act 1960 (Cth), that under common law he has not hurt or caused any loss or injury, and that he was entitled to a trial by jury – whether the Magistrate erred in proceeding to hear the trial ex-parte – whether Magistrates Court has jurisdiction to hear the matter – whether the certificates tendered were valid and whether they needed to comply with the National Measurement Act – where appellant failed to attend trial.
Held:
1.       Magistrates Court had jurisdiction – offence was a summary offence.
2.       No error of the Magistrate was demonstrated.
3.       Appeal dismissed.
Australian Road Rules r 20, r 21; Summary Procedure Act 1921 (SA) s 5, s 49, s 57, s 62BA; Road Traffic Act 1961 (SA) s 53A, s 79B, s 175A, s 175(3)(ba), s 175(3)(b); National Measurement Act 1960 (Cth) s 10; Road Traffic (Miscellaneous) Regulations 2014 (SA) reg 30, reg 27; Australian Constitution s 80, s 109, referred to.
Police v Young (2012) 114 SASR 567, applied.
Flavel v Van Reesema [2005] SASC 418; Moran v Police [2010] SASC 269; Millington v Police [2015] SASC 52; Anastasiou v Police [2013] SASC 112; Kuipers-Lloyd v Police [2013] SASC 137, considered.

BEST v POLICE
[2015] SASC 190
Magistrates Appeal: Criminal
BAMPTON J.

Mr Best appeals against a conviction for speeding recorded in the Clare Magistrates Court on 8 September 2015.
At the hearing on 25 November 2015, I dismissed the appeal as no error had been demonstrated and there was no merit to the appeal. These are my reasons.
Background
On 26 August 2014 Mr Best was stopped by a motorcycle traffic officer performing mobile radar duties on Traeger Road at Pinery and issued with an expiation notice for an alleged breach of the Australian Road Rules.
The officer had, by means of a mobile radar, detected Mr Best traveling at 113 km per hour on a length of Traeger Road governed by a speed limit of 100 km per hour.
Mr Best elected to be prosecuted for the alleged breach. Accordingly by Complaint and Summons dated 5 November 2014 (the Complaint), issued pursuant to s 49 and s 57 of the Summary…

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 Best v Police

Details

AGLC: Best v Police [2015] SASC 190
Case: [2015] SASC 190
Decision Date: 3 December 2015

CaseChat Overview and Summary

The appeal in the matter of Best v Police was dismissed by the Court of Appeal in South Australia. The appellant, Mr Best, had been convicted in his absence of driving at 113 km per hour on a road where the speed limit was 100 km per hour. Mr Best had been issued with an expiation notice for allegedly breaching the Australian Road Rules by a motorcycle traffic officer using mobile radar on Traeger Road at Pinery. Mr Best elected to be prosecuted for the alleged breach and was subsequently charged under the Summary Procedure Act 1921 (SA). Mr Best did not attend the hearing at Clare on 2 February 2015 and the matter was adjourned until 2 March 2015 at 2.00 pm for a pre-trial conference. Mr Best appealed the conviction on the grounds that the trial should have been moved to accommodate his schedule and to a Court of competent jurisdiction, that the device used to detect his speed did not comply with the National Measurement Act 1960 (Cth), that under common law he had not hurt or caused any loss or injury, and that he was entitled to a trial by jury.

The court had to decide whether the Magistrate erred in proceeding to hear the trial ex-parte, whether Magistrates Court had jurisdiction to hear the matter, whether the certificates tendered were valid and whether they needed to comply with the National Measurement Act, and whether the appellant was entitled to a trial by jury. The court found that the Magistrates Court had jurisdiction to hear the matter as the offence was a summary offence. The court also found that no error of the Magistrate was demonstrated. The appeal was dismissed as there was no merit to the appeal.

The court held that the Magistrate did not err in proceeding to hear the trial ex-parte as the appellant had failed to attend the hearing and had been notified of the consequences of failing to attend. The court also held that the certificates tendered were valid and did not need to comply with the National Measurement Act. The court found that the appellant was not entitled to a trial by jury as the offence was a summary offence and therefore could be heard by a Magistrate. The appeal was dismissed and the conviction of the appellant was upheld.

Orders

Orders of the court

1. Magistrates Court had jurisdiction – offence was a summary offence.

2. No error of the Magistrate was demonstrated.

3. Appeal dismissed.

Background

Background to the litigation

At the hearing on 25 November 2015, I dismissed the appeal as no error had been demonstrated and there was no merit to the appeal. These are my reasons. Background On 26 August 2014 Mr Best was stopped by a motorcycle traffic officer performing mobile radar duties on Traeger Road at Pinery and issued with an expiation notice for an alleged breach of the Australian Road Rules. The officer had, by means of a mobile radar, detected Mr Best traveling at 113 km per hour on a length of Traeger Road governed by a speed limit of 100 km per hour. Mr Best elected to be prosecuted for the alleged breach. Accordingly by Complaint and Summons dated 5 November 2014 (the Complaint), issued pursuant to s 49 and s 57 of the Summary Procedure Act 1921 (SA), Mr Best was charged:On the 26th day of August, 2014 at PINERY in the said State drove a vehicle namely a MOTOR VEHICLES SA REG NO WPD-427 on a length of road namely TRAEGER ROAD, to which a speed limit sign applied to you pursuant to rule 21(1) of the Australian Road Rules, over the speed limit of 100 kilometres per hour as indicated on the speed limit sign which was on the said road. Rule 20 of the Australian Road Rules. It is further alleged you were driving at a speed of about 113 kilometres per hour. This is a summary offence. Mr Best was, by reference to the proof of service endorsed on the Complaint, served personally on 7 January 2015. Under the heading “Important Notice to Defendant” the Complaint warned that:If you fail to appear on the hearing date set out below or on any day to which this matter is adjourned the Court may:-● proceed in your absence or● issue a warrant for your arrest. The Complaint also notified that the matter would be heard on 2 February 2015 at 11.30 am at the Clare Magistrates Court. In order to understand the history to this matter it is necessary to have regard to Mr Best’s correspondence with the Court and the seven hearings held in the matter. Mr Best’s correspondence with the Court As the Clare Court is a Circuit Court its business is conducted by a visiting Magistrate on Mondays. Until July this year the Tanunda Magistrates Court Registry was the relevant registry for the Clare Court. Following the restructuring of the Magistrates Court and the closure of the Tanunda Court Registry, the Adelaide Magistrates Court Registry became responsible for the Clare Circuit Court. By email dated 7 January 2015 Mr Best wrote to the Registrar of the Tanunda Court saying he “would like to adjourn the matter to a Wednesday or Thursday as I work away and I am not available on other days I plead not guilty”. On 12 January 2015 Mr Best was advised by the Tanunda Court Registry that:Your email has been printed and placed on the file for 2nd Feb 2015. Unfortunately Clare sittings are only on Monday’s and there are no sittings on a Wednesday or Thursday of that week. You should be advised of the outcome of Court. Mr Best did not attend the hearing at Clare on 2 February 2015. By letter dated 3 February 2015 the Registrar of the Magistrates Court notified Mr Best that his matter had been adjourned until 2 March 2015 at 2.00 pm for a pre-trial conference. The letter also stated “please note that this matter must be listed on a Monday if you do not appear the matter may be dealt with in your absence. Defendant to write to prosecution and attempt to negotiate the matter”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BAMPTON J

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Ratio Decidendi

Legal Principle Established

Established by: BAMPTON J

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