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

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.
The appellant gave evidence before the magistrate. Her Honour asked him some questions and he was then cross-examined by the police prosecutor.
The appellant now appeals against the decision of the magistrate in refusing to find that the offence was trifling.
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
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.
When he was cross-examined by the police prosecutor he agreed that he had been…

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 Brooks v Police

Details

AGLC: Brooks v Police [2013] SASC 193
Case: [2013] SASC 193
Decision Date

CaseChat Overview and Summary

In the case of Brooks v Police, the appellant sought to appeal against a decision made by a magistrate in the Magistrates' Court of South Australia. The appellant had pleaded guilty to an offence of exceeding the speed limit and had applied for the offence to be declared trifling. The appeal was based on the contention that the magistrate did not adequately consider the circumstances of the offence, which the appellant argued were atypical and therefore should have been considered trifling.

The key legal issues before the court were whether the magistrate had failed to properly consider the appellant's arguments about the atypical nature of the circumstances under which the speeding offence occurred and whether the magistrate had correctly determined that the offence was not trifling. The court needed to assess whether the magistrate's decision was based on sufficient evidence and whether the appellant had provided compelling reasons for the offence to be considered trifling.

The court concluded that the magistrate had not erred in her decision-making process. The magistrate had provided adequate reasons for her decision and had considered the appellant's arguments. The appellant had not provided sufficient evidence to demonstrate that the offence was trifling. The court found that the magistrate's conclusion that the offence was not trifling was correct, even when considering the additional information provided in the appellant's affidavits. The appeal was therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. 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. 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 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

Decision

Reasons for decision

ANDERSON J (dissent)

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 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. Accordingly I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by:

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