Black v Police

[2009] SASC 115

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

BLACK v POLICE

[2009] SASC 115

Judgment of The Honourable Justice Vanstone

5 May 2009

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - EXERCISE OF DISCRETION

TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE

Appellant pleaded guilty in the Magistrates Court to a speeding offence - offence attracted three demerit points - appellant sought a reduction in the number of the demerit points incurred pursuant to s 98B(4) Motor Vehicles Act 1959 - court can order a reduced number of demerit points be incurred if the offence is trifling, or if any other proper cause exists - appellant deposed that speeding was only for a brief period of time in order to pass two semi-trailer vehicles.

Held:  Proper cause must relate to the circumstances of the offence itself - here speed was significantly over the prescribed limit - no need to speed to overtake vehicles given that there were two lanes for traffic travelling in each direction - no proper cause for remitting demerit points.

Shillabeer v Linnane (1979) 22 SASR 382; Hepworth v Rowbottom (1979) 22 SASR 394; Gilbert v Owen (1991) 14 MVF 235; Police v Federuzzi (2008) 50 MVR 87; R v McInerney (1986) 132 LSJS 234, applied.

BLACK v POLICE
[2009] SASC 115

Magistrates Appeal

1. VANSTONE J:     On 12 February 2009 the appellant pleaded guilty before a magistrate to an offence of speeding, contrary to Rule 20 of the Australian Road Rules. On 26 August 2008, he was detected travelling at 134 kilometres per hour on the South-Eastern Freeway in an area governed by a speed limit of 110 kilometres per hour. The appellant had been issued with an expiation notice, but elected to be prosecuted.

2. The appellant was not represented by a solicitor.  The evidence of what occurred at the hearing is provided by an affidavit of the police prosecutor, the contents of which are not in dispute.  The police prosecutor told the court that the appellant had been detected by means of a laser speed detection device and that he was then stopped by a police officer.  His reason for speeding was given to that officer as being that he was “running late”.  The appellant made submissions to the magistrate to the effect that at the time of detection he was located in the right-hand lane and was overtaking two trucks in the left-hand lane of the highway.

3. The magistrate convicted the appellant. The appellant was fined the sum of $50 and ordered to pay court fees, prosecution fees and the victims’ levy. Those orders are not the subject of this appeal. Rather, the appeal, pursuant to s 42 Magistrates Court Act 1991, is against the refusal of the magistrate, under s 98B(4) Motor Vehicles Act 1959, to order that a reduced number of demerit points would be incurred in respect of the offence.

4. Under the Motor Vehicle Regulations 1996, Schedule 7, Part 1, three demerit points are incurred for an offence of speeding involving exceeding the applicable speed limit by between 15 and 30 kilometres per hour.

5. It will become relevant to note that at the time of this offence the appellant had already accrued twelve demerit points and rendered himself liable for disqualification for a period of three months.  Then, pursuant to s 98BE, he had elected to accept a condition upon his driver’s licence such that he be of good behaviour for a period of twelve months, rather than suffering the disqualification.  The period of the “Good Behaviour Agreement” commenced on 2 July 2008.  Incurring two or more demerit points during the period of that agreement would render the appellant liable to a disqualification of his licence for twice the period of the earlier disqualification:  s 98BE(2a).

6. In support of his appeal for a reduced number of demerit points the appellant asserts first, that he was not given opportunity to give evidence in support of his application and second, that the failure to make an ameliorating order was contrary to the resolution of the matter earlier agreed between himself and the police prosecutor, to the effect that the matter would be finalised without opposition to a reduction in demerit points.  In argument before me and in an affidavit placed before me, he also complained that the late disclosure of materials by the police prosecutor had affected his preparation for the hearing.  That submission appeared to relate to receipt of a copy of the expiation notice, only on the day of his plea of guilty.

7. It appears that, consistent with the agreement, the police prosecutor made no submission as to whether the magistrate should reduce the number of demerit points.  The prosecutor’s affidavit records that among the submissions made by the appellant were that, the incurring of demerit points would result in loss of his driver’s licence and that this would have an impact on his employment as a sales representative.  The prosecutor asserts that the appellant was given opportunity to make submissions going to this issue and that there was no dispute about the matters raised by him.  The magistrate found that there were not sufficient grounds to order that a reduced number of points be incurred.

8. Section 98B(4) Motor Vehicles Act is in the following terms:

   98B   …

   (4)If a court by which a person is convicted of an offence is satisfied by evidence given on oath forthwith on conviction that the offence is trifling, or that any other proper cause exists, it may order that a reduced number of demerit points, or no demerit points, are incurred by the person in respect of that offence.

   It can be seen that the court may make such an order in the exercise of its discretion where the offence is trifling, or where there is, otherwise, “proper cause”.  Before such an order can be made the court must be satisfied of the applicable criterion on the basis of evidence given on oath.

9. It is implicit in the appellant’s argument that the magistrate was obliged to hear his evidence in support of the application.  In my view that is not correct.  Where factual material put forward in submissions is not of such a character as to raise proper cause, then there is no point in going into evidence.  This was such a case.  The only matters put to the magistrate went to the hardship, in terms of his employment, which would be caused to the appellant if he lost his licence.

10. There is clear authority in this court that “proper cause” must relate to the circumstances of the offence itself:  Shillabeer v Linnane (1979) 22 SASR 382; Hepworth v Rowbottom (1979) 22 SASR 394; Gilbert v Owen (1991) 14 MVR 235; Police v Federuzzi (2008) 50 MVR 87. Hardship to the offender does not go to the question of “proper cause”. Plainly, the potential for disqualification from holding or obtaining a driver’s licence could not, of itself, amount to a “proper cause” for ordering a reduced number of demerit points.

11. The second matter raised by the appellant was the failure of the magistrate to adhere, in the disposition of the matter, to the agreement apparently made between the appellant and the police prosecutor.  Plainly, any agreement made between the parties could not bind the magistrate.  Upon the hearing of this appeal, Mr Black, who again appeared in person, seemed to appreciate that fact.

12. In terms of what was said to be late disclosure of the expiation notice, the appellant explained that he was unable to obtain any advice as to the contents of that document and might have better put his case for leniency had he received the document earlier.  He pointed to an error made by the person who filled out the expiation notice to the effect that he was breath-tested, whereas he was not.  He also pointed to the notation on the form that the accuracy of the speed detection equipment had not been checked for some ten and a half months.  I consider that there is nothing in either point.  At no stage did the appellant deny that he was guilty of the offence and there was no suggestion at any point that he was affected by liquor.  The hearing at which the appellant pleaded guilty was in fact a pre-trial conference.  While he might have taken a spur of the moment decision to plead guilty at that hearing, there is every reason to think that the matter would have been resolved by a plea, in any event.

13. Nonetheless, in his affidavit, the appellant deposed to some additional considerations going to the question of proper cause.  He said that the offence involved “a momentary acceleration for a very brief and very transient period of time, for the purpose of passing two semi-trailer vehicles.”  Counsel for the respondent did not chose to contest that assertion.  I propose to reconsider the magistrate’s decision not to order a reduced number of demerit points, taking into account this fresh material.

14. Returning to the terms of s 98B(4), I do not consider it could be suggested, and nor was it suggested, that the offence, as described, is trifling; as to which see Siviour-Ashman v Police (2003) 85 SASR 23, 27, 35. That can be put to one side. However, as I said, the assertion that the offending was fleeting and occurred only for the purpose of passing two trucks could go to the question of “proper cause”. Against such a proposition are the facts that the South-Eastern Freeway comprises a two lane carriageway in each direction and there is therefore no need to speed to overtake another vehicle. Moreover, a speed of 134 kilometres per hour is significantly in excess of the applicable limit for that section of the freeway. To those matters could be added that the freeway was in a damp condition, rain having recently fallen.

15. However, there is another matter which seems to me to dispose of the appellant’s argument. In order to avoid losing his driver’s licence on account of this offence, the appellant requires that the number of demerit points incurred be reduced from three to zero. That is because about three months after the offence with which I am dealing, the appellant committed another offence against Rule 20 Australian Road Rules, resulting in the loss of one demerit point. The appellant told me that offence was committed in Balhannah and involved his travelling at 57 kilometres per hour in a 50 kilometre per hour zone. Accordingly, if any demerit point is incurred in relation to the current offence, that will, under the terms of the appellant’s good behaviour agreement, result in him losing his licence for six months. While a court might have been minded to remit one point in relation to the current offence, on no account would I entertain the idea of remitting all three points. Moreover, the knowledge of this later offence disinclines me to categorise the circumstances described as giving rise to proper cause. I see no reason in principle why I should not have regard to the later conduct for this purpose, by parity of reasoning with R v McInerney (1986) 132 LSJS 234.

16. The appeal must therefore be dismissed.

17. Ms Hughes, for the respondent, indicated that in view of the fact that the appellant was not represented, no order for costs would be sought.  Therefore, no such order will be made.  I have been given a copy of a Notice of Disqualification, issued by the Registrar of Motor Vehicles, which indicates that the appellant’s driver’s licence will be suspended as from 20 May 2009.  There is therefore no reason to make any order in that regard.

18. The order of the court is that the appeal is dismissed.