Chan v Police

Case [2014] SASC 35

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

CHAN v POLICE

[2014] SASC 35

Judgment of The Honourable Justice Blue

13 March 2014

MAGISTRATES - ORDERS AND CONVICTIONS - DISMISSAL, CONDITIONAL DISCHARGE OR CONVICTION WITHOUT PENALTY FOR TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - RELEVANT CONSIDERATIONS

MAGISTRATES - HEARING - EVIDENCE - ORAL EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - MISCELLANEOUS ROAD RULES - USE OF MOBILE PHONES

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - REMISSION FOR REHEARING

Appeal against sentence imposed by a Magistrate. 

The defendant pleaded guilty to using a mobile phone while driving.  She applied for a reduction in demerit points on the ground that the offence was trifling or other proper cause existed.  The Magistrate dismissed her application without hearing evidence.

The defendant appeals against the refusal of the Magistrate to reduce the number of demerit points on the ground that his failure to hear evidence comprised a serious departure from an essential requirement of the law or prejudiced her prospects of a reduction being made.

Held (allowing the appeal):

1.       The failure of the Magistrate to hear evidence comprised a serious departure from an essential requirement of the law (at [27]-[29]).

2.       The failure of the Magistrate to hear evidence was in any event capable of affecting his decision such that it cannot be said that there has been no miscarriage of justice as a result of that failure (at [36]-[37]).

3.       Appealed allowed.  Order refusing a demerit point reduction set aside.  Matter remitted to the Magistrates Court to hear and determine the application on the basis of evidence on oath (at [38]).

Criminal Law Consolidaton Act 1935 (SA) s 353(1); Criminal Law (Sentencing) Act 1988 (SA) ss 15, 16(b)(iii); Motor Vehicle Act 1959 (SA) s 98B(4); Road Traffic Act 1961 (SA) ss 45(1), 47B(3)(b), 80; Australia Road Rules r 300, referred to.
Black v Police [2013] SASC 115; Dean v Police [2008] SASC 55; Gazepis v Police (1997) 70 SASR 121; Gilbert v Owen (1991) 14 MVR 235; R v Kerr (No 2) [1951] VLR 239; Roberts v Police [2013] SASC 190; Savage v Police [2011] SASC 13; Wilde v The Queen (1988) 164 CLR 365, discussed.
Newton v Laracombe (1989) 38 A Crim R 254; Police v Hughes, Police v Hodge (1996) 89 A Crim R 290; Siviour-Ashman v Police [2003] SASC 29; (2003) 85 SASR 23, considered.

CHAN v POLICE
[2014] SASC 35

Magistrates Appeal:

Blue J:

  1. This is an appeal against sentence imposed by a Magistrate.

  2. The defendant, Soo Lee Chan, pleaded guilty in the Magistrates Court to using a mobile phone while driving.[1]  She applied for a reduction in the number of demerit points incurred on the ground that the offence was trifling or other proper causes existed to…

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Chan v Police [2014] SASC 35
Case
[2014] SASC 35
Decision Date

CaseChat Overview and Summary

Chan has appealed against the refusal of the Magistrate to reduce the number of demerit points imposed on her. She was convicted of using a mobile phone while driving and applied for a reduction in the number of demerit points under section 98B(4) of the Motor Vehicles Act 1959 (SA). The Magistrate declined to hear any evidence and dismissed the application. The appeal is against this decision, and Chan argues that the Magistrate erred in not hearing her evidence and his dismissal of her application should be set aside and the matter should be remitted to the Magistrates Court to hear and determine her application on the basis of her evidence.

The legal issue before the court was whether the Magistrate erred in not hearing evidence from Chan on the question of whether other proper cause existed to reduce the number of demerit points. The court found that the Magistrate did err in this regard, as he did not have regard to the second limb under section 98B(4) of assessing whether other proper cause existed to reduce the number of demerit points. The court concluded that the Magistrate could only make a conclusion on that question after hearing evidence from Chan concerning the circumstances of the offence.

The court allowed the appeal and set aside the order of the Magistrate refusing the application. The matter was remitted to the Magistrates Court to hear and determine the application on the basis of evidence given on oath. The court found that the Magistrate had erred in not hearing evidence from Chan and that his dismissal of her application should be set aside. The court found that the Magistrate had not considered all the relevant factors in making his decision and that the matter should be reheard by the Magistrates Court.

No further orders were made by the court. The appeal was allowed and the matter was remitted to the Magistrates Court to hear and determine the application on the basis of evidence given on oath. The court did not make any other orders or findings in relation to the appeal.

Orders

Orders of the court

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Background

Background to the litigation

The defendant appeals against the refusal of the Magistrate to reduce the number of demerit points. She contends that the Magistrate erred in not hearing her evidence, his dismissal of her application should be set aside and the matter should be remitted to the Magistrates Court to hear and determine her application on the basis of her evidence.Background On 3 February 2013 at about 6.55 pm, the defendant was driving a Toyota van west on Kensington Road, Rose Park in the vicinity of Prescott Terrace. She was observed by police officers to be holding a mobile phone in front of her while driving. When pulled over, she told the police officers that she was “just looking at the time”. She was subsequently charged with using a mobile phone while driving.[3] [3] Australian Road Rules r 300 under the Road Traffic Act 1961 (SA) s 80. On 14 October 2013, the complaint came before a Special Justice at the Magistrates Court. The defendant pleaded guilty and commenced giving evidence on oath in support of an application for a reduction in the number of demerit points. At that point, the police prosecutor indicated that the application was opposed and the Special Justice referred the matter for hearing before a Magistrate on the same day. At the commencement of the hearing before the Magistrate, the defendant’s solicitor confirmed that she pleaded guilty to the offence and applied for a reduction in the number of demerit points incurred pursuant to section 98B(4) of the Motor Vehicles Act 1959 (SA) (“the Act”). The defendant’s solicitor identified that the factual basis of the application was that the defendant picked up her phone to check the time, only held it for a short period of time and there were no other vehicles in the vicinity. The prosecutor indicated that the application was opposed and the assertion that there were no other vehicles in the vicinity was disputed. The defendant’s solicitor sought to call the defendant to give evidence. The Magistrate declined to hear any evidence, saying that it was not necessary and did not change the fact that there was nothing atypical about the circumstances of the offending. The Magistrate declined to make an order reducing the number of demerit points. He gave the following reasons:I have regard to all the matters that have been put. I give you credit for your plea of guilty. Your counsel has requested I deal with this matter without conviction.[4] There is nothing atypical about this matter and in the circumstances the application is refused.[4] It is common ground on appeal that there was no application that a conviction not be recorded and the Magistrate was mistaken in so describing the application under Motor Vehicle Act 1959 (SA) s 98B(4).An error is conceded Section 98B(4) of the Act provides: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 causes 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In his reasons for judgment, the Magistrate made no reference to the question whether there was “other proper cause” to reduce the number of demerit points within the meaning of section 98B. It is common ground on appeal that the Magistrate was mistaken in referring to a request by the defendant’s counsel that no conviction be recorded and that the application actually made was for a reduction in the number of demerit points. This mistake confirms that the Magistrate erred in not having regard to the second limb under section 98B(4) of assessing whether other proper cause existed to reduce the number of demerit points. He could only make a conclusion on that question after hearing evidence from the defendant concerning the circumstances of the offence.Conclusion I allow the appeal. I set aside the order of the Magistrate refusing the application. I remit the matter to the Magistrates Court to hear and determine the application on the basis of evidence given on oath.

Ratio Decidendi

Legal Principle Established

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