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

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.
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.
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.
Under the Motor Vehicle Regulations 1996, Schedule 7,…

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 Black v Police

Details

AGLC: Black v Police [2009] SASC 115
Case: [2009] SASC 115
Decision Date: 5 May 2009

CaseChat Overview and Summary

The Magistrates Court of Victoria presided over the case of Black v Police, where the appellant contested the penalty for a speeding offence. The appellant had pleaded guilty to exceeding the speed limit and was subject to receiving three demerit points. The appellant applied for a reduction in the number of demerit points under section 98B(4) of the Motor Vehicles Act 1959, arguing that the offence was trivial or that there were extenuating circumstances justifying a reduction. The appellant's defence was that the speeding was only momentary, done to pass two semi-trailer vehicles.

The primary legal issue the court needed to address was whether the appellant's actions constituted a trivial offence or if there was any proper cause that warranted a reduction of the demerit points. The court considered the statutory provision which allows for a reduction if the offence is trifling or if any other proper cause exists. The appellant's argument was centred on the brevity of the speeding and the need to pass other vehicles, but the court had to determine if these factors constituted proper cause under the statute.

The court ruled that proper cause must be directly related to the circumstances of the offence itself. It found that the appellant's speed was significantly over the prescribed limit, and there was no justification for the speeding given that there were two lanes available for traffic in each direction. Consequently, the court concluded that there was no proper cause for remitting the demerit points. The appellant's application for a reduction was dismissed, affirming the original penalty of three demerit points.

The court's decision emphasised the importance of adhering to speed limits and the need for proper cause to be directly linked to the circumstances of the offence. The Magistrates Court upheld the original penalty, highlighting that the appellant's actions did not meet the criteria for a reduction under section 98B(4) of the Motor Vehicles Act 1959.

Orders