Chadha v Police

[2012] SASC 181

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

CHADHA v POLICE

[2012] SASC 181

Judgment of The Honourable Justice Gray (ex tempore)

4 October 2012

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS - OTHER MATTERS

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - APPEALS

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - CONVICTIONS OF TRAFFIC OFFENCES RELATING TO OTHER MATTERS - OTHER PARTICULAR MATTERS

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - GENERALLY

Appeal against sentence and, in particular, the recording of a conviction - defendant charged with driving at a speed exceeding 100 kilometres per hour contrary to section 81A(14) of the Motor Vehicles Act 1959 (SA) - defendant pleaded guilty before a Magistrate and was discharged without penalty - the defendant's licence was disqualified by the Registrar of Motor Vehicles for a period of 12 months - the Magistrate provided no sentencing remarks and a transcript of the proceeding was not available - the respondent conceded that the Magistrate’s failure to provide reasons was an error warranting this Court’s intervention.

Held: Appeal allowed - conviction and other orders of the Magistrate set aside - matter remitted for rehearing for resolution of the factual dispute and resentencing.

Motor Vehicles Act 1959 (SA) s 81A; Criminal Law (Sentencing) Act 1988 (SA) s 9, referred to.
Cooling v Steel (1971) 2 SASR 249; Jones v Police [2009] SASC 137; Pollard v Police [2010] SASC 23; Corak v Police [2006] SASC 172; Papps v Police (2000) 77 SASR 210, considered.

CHADHA v POLICE
[2012] SASC 181

Magistrates Appeal

GRAY J.

1. This is an appeal against sentence and, in particular, the recording of a conviction.

2. The defendant and appellant, Rishi Chadha, was charged on complaint that on 3 January 2012 near Keith in the State of South Australia, being the holder of a provisional licence, he drove a motor vehicle on the Dukes Highway at a speed exceeding 100 kilometres per hour contrary to section 81A(14) of the Motor Vehicles Act 1959 (SA). It was alleged that the speed of his vehicle at the time was about 114 kilometres per hour. On 21 May 2012, the defendant appeared before a Magistrate and, following his plea of guilty, was discharged without penalty. Court fees and prosecution costs were waived. A victims of crime levy of $160.00 was imposed. The Registrar of Motor Vehicles is said to have advised the defendant that his licence had been disqualified for a period of 12 months.

3. The Magistrate provided no sentencing remarks and a transcript of the proceeding is not available.  The prosecutor has deposed that he has no recollection of the facts that he presented to the Court or the submissions made on behalf of the complainant.  He also has no recollection of any submissions made by the defendant.

4. The defendant has deposed that he made the following submissions to the Magistrate:

   -The defendant was returning from a trip to Mount Gambier in his Subaru sedan and was travelling west on the Dukes Highway.  His partner was a passenger in the vehicle.  He was positioned behind a truck travelling in the same direction for about two kilometres. 

   -On this section of the Dukes Highway the speed limit was 110 kilometres per hour.  The defendant estimated the speed of the truck to be about 90 kilometres per hour. 

   -The defendant made a decision, when safe to do so, to overtake the truck.  When there was a clear path, he accelerated and overtook the truck.  He was then pulled over by the police officer who was positioned on the left hand side of the carriageway. 

   -Initially the police officer indicated that he was going to give the defendant a warning, however, once the defendant informed the officer that he was the holder of a provisional licence, the officer stated that he was going to issue a fine.

   -The defendant only exceeded the speed limit for a distance of less than 500 metres. 

   -The defendant informed the Magistrate that he only elected to be prosecuted as he had been advised that this was the only course of action to avoid having his licence disqualified. 

5. The defendant further deposed that he had been given advice by Service SA and a solicitor that if he pleaded guilty and was given no penalty, the Registrar of Motor Vehicles would not disqualify his drivers licence. 

6. Constable Howell deposed that he was on highway patrol duty on 3 January 2012 and was the officer who pulled over the defendant.  He had recorded the defendant travelling at a speed of 114 kilometres per hour in breach of his provisional licence.  That licence required the appellant not to travel at a speed of more than 100 kilometres per hour.  Constable Howell issued the defendant with an expiation notice.  The expiation notice included particulars of the offence as follows:

   I/S     Do you know the conditions of your provisional licence in relation to speed.

   h/S     I can do 110.

   I/S     No you are limited to 100. I recorded your speed on the laser at 114. Is there any reason for that.

   h/S     I had the cruise set to 110.

   I/S     You will receive a fine for this offence.

   h/S     Can’t you give me a caution.

   I/S     I am not allowed to caution for this offence.

   At above … police static laser … recorded speed of accused at 114. No other vehicles. Very light traffic at that time. Stopped. One female passenger. 000 alcotest. 2 p-plates displayed. Accused continuously asked for a caution and was upset with Police because he was not cautioned. Stated he would lose his licence if he wasn’t cautioned and he would lose his job. … issued & explained.

   At the time, the defendant informed Constable Howell that he was born on 9 January 1991 and that his occupation was sales manager with Walk In Marketing. 

7. The defendant was an unrepresented litigant.  He was not advised about the powers of the Court to proceed without recording conviction.  As a result,  it is claimed that relevant submissions were not made. 

8. The Magistrate was under an obligation to deal with the defendant in a way that would prevent any unfairness arising because of his lack of representation.  As was observed by Wells J in Cooling v Steel:[1]

   When [an unrepresented] defendant answers to his name and the charge is read, before a plea is entered, the court should make sure that the defendant understands the nature of the charge. It is, of course, unnecessary, indeed undesirable, that the bench should deliver a lecture on the law; the charge should be explained briefly and simply, with emphasis upon those ingredients in relation to which misunderstanding may arise. ...

   Next, the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, and that he is entitled to legal advice and representation; in particular, that he may ask for a reasonable adjournment to seek that advice or representation.  ...

   If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed — especially where the court has the power to impose disqualification from holding or obtaining a driver's licence, to make an order to pay compensation, to direct a forfeiture of property, or to record a term of imprisonment. ...

   In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.

   [1]    Cooling v Steel (1971) 2 SASR 249, 250-1.

9. Section 9 of the Criminal Law (Sentencing) Act 1988 (SA) requires the Court to inform the defendant of the reasons for penalty. That section provides:

   (1)    A court must, upon sentencing a defendant who is present in court—

   (a)     state its reasons for imposing the sentence; and

   (b)     cause an explanation of the legal effect and obligations of the sentence and, where appropriate, of the consequences of non-compliance with it, to be given in simple language to the defendant.

   (2)    The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.

   The failure to give reasons does not, of itself, invalidate the sentence.  However, the failure to give reasons may amount to an error justifying the setting aside of that sentence.[2]

   [2]    Jones v Police [2009] SASC 137, [30], [37]; Pollard v Police [2010] SASC 23, [27].

10. Counsel for the respondent, the police, conceded that the Magistrate’s failure to provide reasons is an error warranting this Court’s intervention.  It was further submitted that the matter should be remitted for resentencing as there is a factual dispute that must be resolved before sentencing can occur.  It was the submission of the police that, regardless of the outcome of the resolution of the factual dispute, a conviction should be recorded.

11. As noted above, no sentencing remarks were provided.  It is not possible to determine whether or not the Magistrate considered and discounted the power to proceed without recording a conviction, and, if so, the reasons for that determination. 

12. The failure of the Magistrate to give reasons frustrates the discharge of this Court’s function as a court of review.[3]  This is particularly so because a factual dispute has been identified in this matter that requires resolution before sentence can be imposed.[4] 

    [3]    Jones v Police [2009] SASC 137, [39]; Pollard v Police [2010] SASC 23, [30]; Corak v Police [2006] SASC 172, [10].

    [4]    See Papps v Police (2000) 77 SASR 210; Jones v Police [2009] SASC 137, [31].

13. The account of Constable Howell has been set out earlier in these reasons.  The expiation notice issued at the time contains an apparently verbatim account of a conversation between the Constable and the defendant.  This account is in direct and material conflict with the account deposed to by the defendant.  The factual dispute raises matters of serious concern.  On the defendant’s account, Constable Howell has recorded a conversation in the expiation notice, parts of which did not occur.  On the police case, the defendant has made up a false story of the circumstances surrounding his speeding offence.

14. In the above circumstances, the conviction recorded by the Magistrate should be set aside and the further orders made by the Magistrate should be set aside.  The proceeding should be remitted to the Magistrates Court for a disputed facts hearing to resolve the conflicting evidence relating to the circumstances of the offending conduct.  However, the defendant’s plea of guilty to the offence should remain.  No basis has been advanced to permit the withdrawal of the plea. 

    Conclusion

15. The appeal is allowed.  The conviction and other orders of the Magistrate are set aside and the matter is remitted for rehearing, resolution of the factual dispute and for resentencing.