Bilaczenko v Police - [2018] SASC 117

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BILACZENKO v POLICE
[2018] SASC 117
Judgment of The Honourable Justice Nicholson
27 August 2018
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - REGISTRATION AND LICENSING OF PRIVATE VEHICLES - UNREGISTERED VEHICLES
INSURANCE - MOTOR VEHICLES - COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES - OFFENCES - DRIVING, USE OR CAUSING OR PERMITTING USE OF UNINSURED VEHICLE
Appeal against findings of guilt by Magistrate. The appellant was charged by police with one count of causing an unregistered vehicle to stand on a road and one count of causing an uninsured vehicle to stand on a road. On 11 April 2016, the appellant was convicted by a Magistrate in his absence due to a failure to advise the appellant of a change of date. The appellant successfully appealed his convictions to this Court. A Judge set aside the verdicts and remitted the matter to the Magistrates Court for trial.
The matter came for trial before a different Magistrate on 16 May 2018. The Magistrate found the two offences proven beyond reasonable doubt and found the appellant guilty of the two offences. The Magistrate refrained from entering convictions and imposed fines with respect to each offence.
On appeal, the appellant maintained the defences relied on at trial before the Magistrate and raised grounds of appeal with respect to the conduct of the trial to the effect that, in various respects, he was not afforded a fair trial.
Held per Nicholson J, dismissing the appeal:
1. The defences relied on by the appellant are all untenable for the reasons previously given in this Court and by the Magistrate.
2. There is no merit in the appeal grounds raised by the appellant. There was no miscarriage of justice with respect to the conduct of the trial proceedings nor with respect to disclosure of evidence relied upon by the prosecution.
Magistrates Court Act 1991 (SA) s 42; Motor Vehicles Act 1959 (SA) s 9, s 102, 140, referred to.
Martin v The Department of Transport, Energy and Infrastructure [2010] SASC 141; Bilaczenko v Police [2017] SASC 86, discussed.

BILACZENKO v POLICE
[2018] SASC 117
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

On 14 September 2015, a police officer on patrol at Minlaton Road, Yorketown observed the appellant’s motor vehicle parked on Minlaton Road in front of the local hotel. After making a routine enquiry, the police officer perceived the motor vehicle’s registration to have expired on 3 August 2015. The appellant was issued with an expiation notice. Rather than paying the on-the-spot fine and expiating the offence, the appellant elected to defend the matter.
On 1 December 2015, police charged the appellant on Complaint and Summons with one count of causing an unregistered vehicle to stand on a road contrary to section 9(1) of the Motor Vehicles Act 1959 (SA) (the MVA) and one count of causing an uninsured vehicle to stand on a road contrary to section 102(1) of the MVA. The matter was listed for trial on 14 April 2016 but, for reasons that are not immediately apparent, that date was changed to 11 April 2016. Unfortunately, the appellant was not notified of the change of date and did not attend the trial. He was convicted by a Magistrate in his absence.
An application by the appellant pursuant to section 76A of the Summary Procedure 1921 (SA) seeking to have the conviction set aside was unsuccessful. However, on appeal to this Court, Stanley J, on 15 June 2017, set aside the verdicts and remitted the matter to the Magistrates Court for a trial to be heard on the merits. The history of the matter is more fully set out in the reasons for judgment of Stanley J in Bilaczenko v Police.[1]
[1] [2017] SASC 86.
In his reasons for judgment, Stanley J examined in some detail each of the defences to the two charges that the appellant had wished to raise as part of his Honour’s consideration of whether a miscarriage of justice would occur if the judgment entered ex parte were not to be set aside. In order to assist in this respect, the Judge received from the appellant a bundle of materials upon which he relied to explain the bases upon which he wished to defend the charges if the appeal were to be allowed and a new trial ordered.
The Judge gave detailed consideration to each of the defences to be relied on and rejected each one as being unarguable. Nevertheless, the Judge found that the departure in the court below from the requirements of a fair trial was so fundamental that the verdicts should be set aside and a new trial ordered. His Honour did so.
The matter came for trial before a different Magistrate on 16 May 2018. The appellant raised the same defences before the Magistrate as had been raised in the Supreme Court appeal. In an ex tempore judgment of some length, the Magistrate gave consideration to but rejected each such defence, found the prosecution to have proven the two offences beyond a reasonable doubt and found the appellant guilty of the two offences. After hearing further submissions, the Magistrate refrained from entering convictions and penalised the appellant as follows:
Insofar as the unregistered offence is concerned, I will fine Mr Bilaczenko $152. He will incur the victim of crime levy at $160 and a prosecution fee of $100.
On the allowing an uninsured vehicle to stand, the fine will be in the sum of $551, the victim of crime levy will also be payable. I will not require payment of the court filing fee.[2]
The appellant has now appealed to this Court against the findings of guilt.
[2] Police v Nicholas Bilaczenko (Ex tempore, Magistrates Court of South Australia, Magistrate Forrest, 16 May 2018) at [35]-[36].
The trial before the Magistrate
I have reviewed the record of the trial. As further explained below, I reject the appellant’s complaint that he was not afforded a fair trial, that is, a trial according to law. At the close of the prosecution case, the Magistrate had before him:
(i)the evidence of the attending police officer who issued the expiation notice;
(ii)a compact disc recording of a short interview between the police officer and the appellant in the local police station at the time the expiation notice was issued (exhibit P1);
(iii)a document said to be a transcription of the record of interview (exhibit P3);
(vi)a copy of the expiation notice (exhibit P2); and
(v)a certificate issued pursuant to section 140 of the MVA recording the appellant as the registered owner of the vehicle in question and recording that the registration had expired 3 August 2015 (exhibit P4).[3]
[3] Section 140 of the Motor Vehicles Act 1959 (SA) is in these terms:
140—Evidence of registers
(1) A document purporting to be an extract from, or copy of, an entry contained in any register kept pursuant to this Act and purporting to be certified as such an extract or copy by the Registrar is, in all legal proceedings and arbitrations, admissible as evidence, and is, in the absence of proof to the contrary, proof of the matters stated without the production of any register, licence, notice or other document upon which any entry may be founded.
(2) With respect to the ownership of a motor vehicle, subsection (1) operates to facilitate proof of the person recorded on the register of motor vehicles as the owner of the vehicle but neither the register nor an extract from, or copy of, an entry contained in the register constitutes evidence of actual title to the vehicle.
At the close of the prosecution case, the appellant gave evidence in his defence. The trial had been a running battle from the start between the appellant and the Magistrate with the appellant insisting on what he perceived to be his right to a fair trial and the processes that should be employed in that respect but with the Magistrate patiently, courteously and accurately explaining the proper trial procedure and the means by which the appellant would receive a fair trial if the orthodox trial procedure were to be followed. This running battle continued during the appellant’s giving of evidence and during final submissions. Notwithstanding the Magistrate’s best efforts to assist the appellant, which in my view cannot be faulted, the appellant adduced no evidence (either oral or documentary) of any relevance to the issue of whether or not the prosecution had proved beyond reasonable doubt the elements of the two offences with which the appellant had been charged.
There was no meaningful challenge by the appellant to the evidence adduced in support of the prosecution case whether by way of cross-examination of the prosecution police witness, challenge to the admissibility of the prosecution exhibits or contrary evidence adduced by the appellant. Following my review of the prosecution evidence, the findings by the Magistrate that the elements of the two offences had been established beyond reasonable doubt were overwhelmingly supported. Indeed, and independently of the prosecution proofs, the appellant expressly or impliedly conceded at various times during the trial that the motor vehicle was his and that it had been unregistered at the time of the issue of the expiation notice. The appellant repeated this concession in response to my questioning during the appeal hearing.
Unless the appellant were able to raise a defence that would be available to him notwithstanding the fact of unregistration, proof of the two offences beyond reasonable doubt was inevitable. The appellant failed to adduce any oral evidence and did not tender any documentary evidence of any relevance to a potentially available defence.
At this point I digress to discuss the manila folder or bundle of materials provided to Stanley J as earlier referred to. Throughout the proceedings, the appellant has been most anxious to place before the Magistrates Court and this Court on appeal a folder containing various documents and two compact discs.
According to the appellant, the two compact discs contain a series of video recordings from sources including the media and the “YouTube” video sharing website. According to the appellant, the videos do not specifically relate to the incident the subject of these proceedings. Rather, they comprise 17 recordings, extending over 40 minutes or so, to do with other alleged traffic infringements or offences not involving the appellant. They are said by the appellant to support his underlying contention concerning the systematic and ongoing issuing of up to 200,000 incorrect infringement notices by the authorities.
The various documents in the folder comprise the following:
(i)A 10 page affidavit of the appellant sworn 10 May 2018 together with the following exhibits: an undated two page letter from the appellant addressed to the “expiation notice branch”; a one page letter from the appellant to the “expiation notice branch” dated 17 October 2015; a copy of the relevant Complaint and Summons; a copy of a letter from the South Australian Premier (as at 8 September 2015) together with a copy of a cheque for $200 by way of government cost of living concession; a bank statement; a copy of a judgment in SA Police v Bilaczenko delivered in 2001 by McInness SM; a diagram apparently related in some way to 40 kilometre per hour speed zones; photocopies of an earlier registration sticker; and screenshots from an ABC website unrelated to the present matter.
(ii)A two page affidavit of the appellant sworn 20 March 2018 together with various exhibited documents bearing on the appellant’s financial circumstances and demands upon him with respect to the non-payment of the fine imposed following the first trial.
The appellant tried to file this bundle of materials at the Magistrates Court registry prior to the second Magistrates Court trial as part of or in support of his defence to the charges. The registry refused to receive the bundle. The appellant was advised to bring any materials he wished to rely on by way of defence to the court on the day of trial.
The appellant insists that this refusal to receive the materials has meant that he did not receive a fair trial. It would appear from the transcript at the second Magistrates Court trial that the folder was not handed up to or at least not received by the Magistrate. However, his Honour did refuse to accept a number of documents relied on by the appellant as being irrelevant.
As I have indicated, the bundle of materials was received by Stanley J in order to assist his Honour in understanding the defences that the appellant sought to raise. During the hearing of the appeal before me, I also received the bundle and have considered its contents.[4] The compact discs and the documents in the bundle are plainly without relevance as “evidence” and are of no assistance by way of submission with respect to any potentially available defence to the charged offences.
[4] I have not viewed the compact discs.
The defences relied on by the appellant at trial and still maintained on appeal are: that he had an honest and genuine belief that the registration had been paid; that he never intended to drive or park his motor vehicle on a public road while unregistered and uninsured; that the vehicle was technically registered and insured at the relevant time because the registration had been renewed shortly after receipt of the expiation notice such that the registration (and insurance) thereby effected was backdated to its date of expiry, 3 August 2015; that his financial impecuniosity at the time caused him to miss the payment; and that the defences provided for by sections 9(1a) and 102(1a) of the MVA applied.
All of these defences were dealt with and dismissed as unarguable by Stanley J when hearing the first appeal.[5] The appellant did not, at the second trial before the Magistrate now on appeal, adduce any evidence potentially relevant to these defences different from the evidentiary foundation relied on before Stanley J. Nevertheless, the same defences were pressed again and again rejected by the Magistrate.
[5] Bilaczenko v Police [2017] SASC 86 at [17]-[29].
The appeal
An appeal from the Criminal Division of the Magistrates Court lies to a single judge of this Court pursuant to section 42 of the Magistrates Court Act 1991 (SA). Such an appeal is by way of rehearing to be conducted in the manner described by White J in Martin v The Department of Transport, Energy and Infrastructure.[6]
In short, on appeals against conviction under s 42 of the Magistrates Court Act, this Court is required to conduct a real review of the evidence put before the Magistrate. On issues which involved an assessment of the quality and reliability of a witness, this Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given. However, the fact that a Magistrate reached his or her conclusion by an acceptance of the evidence of the witnesses of one party does not prevent this Court carrying out its statutory function. There may be cases in which incontrovertible facts or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or which are not in dispute, this Court can substitute its decision if it comes to a different conclusion as to the correct inference to be drawn.[7]
[6] [2010] SASC 141 at [38].
[7] See generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126-8 at [25]-[29]; Warren v Coombes (1979) 142 CLR 531 at 551.
It follows that I must make a full and independent review of the evidence before the Magistrate and come to my own conclusion. In doing so, I must be mindful of the usual advantages the Magistrate enjoyed in seeing and hearing the witnesses who gave evidence.[8]
[8] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126-8 at [25]-[29] (Gleeson CJ, Gummow and Kirby JJ).
At the hearing of the appeal, and in addition to the appellant’s bundle of materials earlier referred to, I had before me the following:
(i)The Magistrates Court file including the transcript of the trial before Mr Forrest SM on 16 May 2018, the exhibits and the Magistrate’s typed ex tempore reasons for judgment;
(ii)The Notice of Appeal filed 31 May 2018;
(iii)An affidavit sworn by the appellant on 28 May 2018 and filed on 31 May 2018;
(iv)An affidavit sworn by the appellant on 11 June 2018 and filed on 5 July 2018;
(v)A document headed “Outline of Appellant’s Argument”;
(vi)A document headed “Respondent’s Summary of Argument”;
(vii)An affidavit of the police prosecutor at the trial sworn on 13 July 2018 and filed on 16 July 2018; and
(viii)A copy of the appellant’s typed notes from which he read when giving his oral submissions on appeal.
When the hearing of the appeal commenced, the appellant announced that he had not seen a copy of the Magistrate’s typed reasons nor of the transcript of the trial before the Magistrate. I offered the appellant an adjournment but given that he lives some hours drive away from Adelaide he sensibly declined to ask for an adjournment. Instead it was agreed that both parties would present their cases but that my chambers would provide a copy of the reasons and transcript to the appellant so that he could prepare and provide to the Court a final written submission.[9]
[9] After the appeal hearing concluded, these documents, together with a copy of the appeal hearing transcript, were provided to the appellant.
I reserved judgment on the day of the hearing, 19 July 2018, and the appellant’s further written submission was received on 6 August 2018. That submission comprised a seven page document headed “Supplementary Outline of Argument” and the following documents:
(i)A copy of the Magistrates Court record for the dates 9 February 2016, 30 March 2016 and 11 April 2016;
(ii)A copy of the Full Court’s decision in McFarlane v Police [2014] SASC 111;
(iii)A copy of parts of sections 9 and 102 of the MVA;
(iv)A copy of a letter from the Port Pirie registry of the Magistrates Court dated 28 March 2018 returning documents (I assume, the “bundle” earlier referred to) to the appellant;
(v)Two copies of the appellant’s letter dated 9 April 2018 in reply to (iv) above, each with different underlining in red pen presumably for emphasis;
(vi)The first page of the transcription of the police record of interview together with the annexure certificate indicating that this transcription was undertaken the day before the trial; and
(vii)A copy of the affidavit of Senior Constable Adam Meyer sworn 15 May 2018 with a copy of the transcription referred in (vi) above annexed.
I have had regard to all of the materials referred to in paragraphs [21] and [23]. However, there is nothing in the latter set of materials (paragraph [23]) that had not already been raised before the Magistrate and before me.
The defences relied on by the appellant are all untenable for the reasons given by Stanley J and by the Magistrate. The appellant has had the benefit of two sets of reasons to this effect with both of which I agree. There is nothing I would wish to add to either of those sets of reasons and it would serve no purpose for me to attempt to explain to the appellant in a third and different way that his defences are without merit. However, I should make brief mention of the statutory defences which the appellant has continued to agitate.

The appellant in his final or supplementary submissions continues to assert that the Magistrate and Stanley J dealt with the two offences as matters of absolute rather than strict liability and, as such, failed to have regard to the defences potentially available under section 9(1a) and section 102(1a) of the MVA. A reading of both sets of reasons shows that they did not do this. They both held that the offences imposed strict liability. As such they are subject to the statutory defences potentially available. As Stanley J explained,[10] citing Full Court authority,[11] the defence of honest and reasonable mistake of fact is not available with respect to the offences charged save where the preconditions provided for in section 9(1a) or section 102(1a) are made out.
[10] Bilaczenko v Police [2017] SASC 86 at [21]-[23], [26].
[11] Franklin v Stacey (1981) 27 SASR 490, McFarlane v Police [2014] SASCFC 111; (2014) 122 SASR 1.
The reason why neither of these potentially available defences was made out was that the appellant failed to establish the factual foundation necessary to bring him within either defence. Stanley J explained why in Bilaczenko v Police.[12]
The appellant seeks to rely upon the provisions of s 9(1a) and s 102(1a) of the Motor Vehicles Act. Those two provisions are in substantially the same terms. They provide that s 9(1) and s 102(1) do not apply where a person has driven or caused a vehicle to stand in prescribed circumstances and the person did not know the vehicle was unregistered or uninsured. Prescribed circumstances are defined in s 9(6b) and s 102(3d). They provide that prescribed circumstances are where the vehicle is owned by his or her employer, or an organisation for which they volunteer, or some other person and is used in the course of undertaking work required by a contract of service or during the course of volunteer work.[13] These provisions were addressed by the Court in McFarlane v Police. The Court said:[14]
Amendments made to ss 9 and 102 of the Motor Vehicles Act since Franklin v Stacey was decided reinforce the correctness of that decision. Those two sections now provide a series of defences available to the driver of an unregistered or uninsured vehicle. For example, a person who has driven a vehicle owned by his or her employer (or an organisation for which they volunteer) has a defence if they did not know the vehicle was uninsured or unregistered. The defence may be established by providing a statutory declaration to South Australia Police. However, none of the statutory defences was available to the appellant.
We consider that by providing a series of statutory defences that are based upon mistakes of fact that have occurred in certain specified circumstances (regardless of their reasonableness), the Parliament has left no room for the court to imply the Proudman v Dayman defence where the mistake is said to have occurred in circumstances other than those expressly allowed by the statute. In other words, the Parliament has made detailed provision about the available defences and has thereby covered the field.
[Citation omitted.]
The appellant does not submit that the vehicle was owned by his employer or an organisation for which the appellant volunteered. On the contrary, he submits that the vehicle is owned by him. Accordingly, he cannot avail himself of the defences provided by s 9(1a) and s 102(1a).
This evidentiary position did not change during the trial before the Magistrate.
[12] [2017] SASC 86 at [24]-[25].
[13] Regulation 90A(2) of the Motor Vehicles Regulations 2010 (SA).
[14] [2014] SASCFC 111 at [18]-[19], (2014) 122 SASR 1 at 4.
I have given consideration to each of the matters raised by the appellant by way of defence before the Magistrate. None have merit. However, in the filed notice of appeal the appellant raised only the following three grounds of appeal:
(a)Magistrate TF Forrest gave no written reasons for finding the defendant guilty to conceal an embarrassment to justice
(b)unfair trial – irregular practices and procedures
(c)prosecutorial misconduct (see affidavit consisting of three pages)
Appeal ground (a) is untenable. The Magistrate delivered comprehensive ex tempore reasons at the conclusion of the hearing before him and those reasons were subsequently reduced to writing.
There is no merit in either appeal ground (b) or appeal ground (c). I have reviewed the record of the trial. It was conducted by the Magistrate according to law and all reasonable assistance was provided to the appellant. The appellant feels aggrieved about the way in which his bundle of documents was treated prior to and during the trial. For the reasons earlier given, there was no miscarriage of justice in this respect. The appellant also feels aggrieved because of the manner by which the trial was conducted. He wanted a different order of events to take place. However, the Magistrate insisted on orthodox trial procedure. His Honour carefully explained to the appellant each step in the order of proceedings and the appellant’s procedural rights at each step. There is no substance to this complaint.
The appellant’s principle complaint of “prosecutorial misconduct” concerns late disclosure of aspects of the prosecution’s proposed evidence including, in particular, the compact disc record of interview and its transcription. Disclosure was late and a reason for this has been provided by the police officer on oath. However, no miscarriage of justice resulted. As earlier stated, the prosecution evidence was never challenged and the factual basis for the prosecution case was not seriously disputed nor could it have been.
I dismiss the appeal.