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…

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.

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Details

Case: [2018] SASC 117
Decision Date: 27 August 2018

CaseChat Overview and Summary

In the case of Bilaczenko v Police, the appellant was appealing against a conviction for two offences under the Motor Vehicle Act 1959 (SA), namely driving an unregistered vehicle and driving an uninsured vehicle. The conviction was made by a Magistrate of the Magistrates Court of South Australia. The appellant argued that the trial was not fair, claiming that the Magistrate did not allow him to properly present his case. The appeal was heard by the Supreme Court of South Australia.

The primary legal issues in this appeal were whether the appellant was denied a fair trial and whether the prosecution had proved the elements of the two offences beyond reasonable doubt. The appellant argued that the trial process did not allow him to adequately defend himself. However, the court found that the Magistrate had conducted the trial in a manner that was fair and according to law, despite the appellant's objections. The court also concluded that the prosecution had successfully proven the elements of both charges beyond reasonable doubt, based on the evidence presented.

The Supreme Court reviewed the evidence and found that the Magistrate had properly considered the prosecution's case, which included the police officer's testimony, a recording of the appellant's interview, a transcription of that interview, the expiation notice, and a certificate of vehicle registration. The appellant did not provide any evidence that challenged the prosecution's case, nor did he meaningfully challenge the admissibility of the prosecution's evidence or cross-examine the police witness. The court found that the appellant's concessions during the trial and the appeal hearing further supported the prosecution's case.

The Supreme Court dismissed the appeal and upheld the conviction. The findings of the Magistrate were affirmed, and the appellant's conviction for driving an unregistered vehicle and driving an uninsured vehicle remained in place. The court did not see any merit in the appellant's claim that he was denied a fair trial and found that the prosecution had successfully proven the charges against him.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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