Brooks v Police

[2013] SASC 193

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

BROOKS v POLICE

[2013] SASC 193

Judgment of The Honourable Justice Anderson

13 December 2013

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS - GENERALLY

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY

Appeal against the decision of magistrate who declined to find offence committed by the appellant was trifling. The appellant, who represented himself, pleaded guilty to the offence of driving at a speed of 77 kilometres in a 60 kilometre speed zone. The appellant made an application that the offence be declared trifling so as to reduce his demerit points. The magistrate declined to make the order.

The appellant, represented by counsel in this appeal, submitted the magistrate did not give sufficient assistance to the appellant and in addition her reasons were erroneous. The appellant submitted fresh evidence on the appeal of the circumstances of the offending by filing affidavits.

Held: Appeal dismissed. The Magistrate did not err in her decision. The offence was not trifling. The magistrate appropriately convicted the appellant.

Motor Vehicles Act 1959 (SA), referred to.
Siviour-Ashman v Police (2003) 85 SASR 23, discussed.

BROOKS v POLICE
[2013] SASC 193

Magistrates Appeal:  Criminal

ANDERSON J.

Introduction

1. The appellant pleaded guilty in the Magistrates Court to an offence contrary to rule 20 of the Australian Road Rules. His plea related to his driving at a speed of 77 kilometres per hour in a 60 kilometres per hour zone on the Southern Expressway on 1 April 2013. As a result he incurred three demerit points as provided for by the Motor Vehicles Act 1959 (SA). The appellant made an application to the magistrate to have the offence declared trifling so that his demerit points could be reduced. The magistrate declined this application. The appellant represented himself before the magistrate. In this Court he appeared by counsel.

2. The appellant gave evidence before the magistrate. Her Honour asked him some questions and he was then cross-examined by the police prosecutor.

3. The appellant now appeals against the decision of the magistrate in refusing to find that the offence was trifling.

4. The notice of appeal in this matter was lodged some eight days late. The respondent conceded that it was not embarrassed by the lateness of the appeal and accordingly I granted an extension of time to the day upon which the appeal was lodged.

   The appellant’s case before the magistrate

5. The appellant gave brief evidence and explained that his speeding was due to confusion, namely, that there had been lots of different speed signs erected on the Southern Expressway during construction work. Moreover he said that he had a GPS to show him speed limits at relevant places and that there was a 10 kilometre difference showing between his GPS and his speedometer. From his affidavit I think he meant 20 kilometres per hour.

6. When he was cross-examined by the police prosecutor he agreed that he had been shown the reading of 77 kilometres per hour from the laser gun of the police officer. He did not dispute the accuracy. He said that the traffic at the time was medium. I note that the offence occurred on Easter Monday. The road surface was dry and it was not raining at the time. The visibility was good. He said that his GPS was saying that the speed limit was 80 but the speed signs showed 60. He said he saw two speed signs saying 60 kilometres per hour. There was a first sign which he said he missed but he definitely saw the next two and he finished his evidence by telling the magistrate that he really had no excuses.

   The magistrate’s reasons

7. I will set out the whole of the magistrate’s reasons as it only occupies three paragraphs.

   [1]We are required to hear evidence from people who make application for the reduction of demerit points but there is not very much room to move here. Whilst a lot of people would have sympathy with you it’s happening all the time unfortunately and because it is just a fairly standard type of offence which has been committed, I cannot find that it is trifling under the law. We have fairly strict parameters we have to work with and I cannot really find that there was a proper cause either, which is the other thing required to reduce the demerit points. The application is refused.

   [2]Sometimes people get the benefit of the application if there was just some fleeting moment that something went wrong and they were caught but this does not really fit that category. You are just unfortunately typical of a lot of people who have not paid sufficient attention.

   [3]You will be convicted and fined $200. You are to pay the fixed fees which come with going to court.

   Arguments on appeal

8. Mr Bowen appeared for the appellant on this appeal. He argued that because the appellant was unrepresented before the magistrate, the magistrate should have gone further in assisting him in relation to what to put before the court on the application he made to have the offence declared trifling.

9. He pointed to the magistrate’s reasons and the part where Her Honour said that “… because it is just a fairly standard type of offence which has been committed, I cannot find that it is trifling under the law”.

10. This may not strictly be a correct statement of the law as “a standard type of offence” could nevertheless be found to be trifling. However, in the long run I do not think it makes any difference. As Ms Moffa for the respondent submitted, the fact is the magistrate asked questions of the appellant, heard him cross-examined and found in all the circumstances that this was not a trifling offence.

11. Mr Bowen submitted that the magistrate should have asked more questions about the speed signs and when the appellant saw the signs. I disagree with this submission. The magistrate is not required to run the case for the appellant in person. The magistrate is required to ensure that there is a fair hearing and I have seen nothing to indicate that the appellant was not given a fair hearing. As Ms Moffa submitted, the appellant knew that he had to put to the magistrate what he suggested made the offence trifling. Having pleaded guilty he could be assumed to know that was his task. He put forward the matters I have set out earlier.

    Fresh evidence on appeal

12. Mr Bowen asked me to take into account two affidavits filed by the appellant. This is a re-hearing and I have decided to take account of the affidavits to assist me in determining the outcome of the appeal. The reason I have done this is that, with the benefit of Mr Bowen’s submissions and the further information provided by the appellant, I am in a position to know what the matters were that would have been put to the magistrate had he been represented.

13. The first affidavit merely confirms that the appellant proceeded before the magistrate on the basis of his guilty plea and his application to have the offending declared trifling. The second affidavit adds information about the situation of the roadway at the time of the offending. The appellant points to construction works which he said had been going on for six months prior to the date of the offence. He confirms that the offending took place on Easter Monday, that no construction work was being undertaken on that day, that the traffic was medium, and the weather was fine. He said there were three lanes of traffic all flowing in the one direction and he was travelling downhill in the right hand lane. He said that during construction work various indicator signs on the expressway as to speed limits were often changed and placed in different locations. He said he had seen the speed signs of 60 kilometres per hour at various places along the road. He confirms what he told the magistrate, namely, that at the place where he was stopped he was uncertain of the speed limit and was relying on his GPS to tell him the speed limit at that point. From his evidence I gather that this was showing 80 kilometres per hour.

14. Ms Moffa asked me to take into account the fact that this was not a breach for a fleeting moment but took place over a large stretch of roadway with three clearly marked speed signs.

    Whether offending is trifling

15. For an offence to be trifling the offending must be of slight importance, insignificant or of little moment: see Siviour-Ashman v Police (2003) 85 SASR 23 at [29] per Doyle CJ. An offence which is a normal or typical example of its kind cannot be trifling: see Siviour-Ashman at [25] per Doyle CJ. In not quite the same words the magistrate said this although she described the offending as a “fairly standard type of offence”.

    Suggestions as to why the offence was atypical

16. The appellant in his written outline said that the magistrate did not give sufficient weight to the atypical conditions that existed on the section of roadway at the time in that‑

    (a) the section of roadway was for vehicles travelling in one direction only;

    (b)no embarrassment was caused to other drivers;

    (c)no roadworks were being undertaken that day;

    (d)the 60 kilometres per hour zone exists on that section of roadway as a safety measure due to road construction works adjacent to the roadway; and

    (e)the section of roadway was designated at 80 kilometres per hour prior to the beginning of the duplication work.

    Conclusion

17. Having considered the further information provided to me by the appellant’s affidavit and having regard to the grounds upon which the appellant argues that the offending should have been declared trifling, I am of the view that the magistrate was quite correct on the information which she had before her. It was not a trifling offence. Having regard to the further information provided to me I am of the view that there is nothing which indicates the offence to be trifling.

18. Accordingly I dismiss the appeal.