Chan v Police - [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:

This is an appeal against sentence imposed by a Magistrate.
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 reduce the demerit points.[2]
[1] Australia Road Rules r 300 under the Road Traffic Act 1961 (SA) s 80.
[2] Motor Vehicle Act 1959 (SA) s 98B(4).
The Magistrate did not invite the defendant to give evidence and he dismissed her application based on the identification by her solicitor of the grounds for the application.
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.
It is common ground on appeal that the Magistrate erred by not acceding to the defendant being called to give evidence. As was said by Kelly J in Dean v Police:[5]
It is well established that a magistrates court can only determine whether an offence is trifling or that any other proper cause exists by hearing evidence given on oath. It is not open to either counsel or the court to waive the requirement that evidence be given on oath Zanker v Hyndman (1990) 11 MVR 224 at 226 and Anderson v Gerhardy (1991) 13 MVR 573 at 574.
[5] [2008] SASC 55 at [14].
While the Police concede that the Magistrate’s error resulted in a significant procedural irregularity, they contend that the error does not affect the Magistrate’s decision.
The issue on appeal is whether the error does vitiate the Magistrate’s decision.
Vitiation of sentence
Miscarriage of justice
The ordinary test whether an error vitiates a verdict or sentence is whether, notwithstanding the error, the appeal court is satisfied that there has been no miscarriage of justice. The test on a Magistrate’s appeal is analogous to the test on an appeal to the Full Court under section 353(1) of the Criminal Law Consolidation Act 1935 (SA).[6]
[6] Gazepis v Police (1997) 70 SASR 121 at 129 per Doyle CJ (Lander and Bleby JJ agreeing).
In the case of appeals to the Full Court, an appeal will be allowed without regard to the effect of the error upon the verdict or sentence when there has been a departure from the essential requirements of the law that goes to the root of the proceedings. In Wilde v The Queen,[7] Brennan, Dawson and Toohey JJ said:
However, it was submitted that the question whether a reasonable jury would inevitably have convicted does not arise where the error in the conduct of the trial is fundamental. In such a case, it was submitted, it does not matter what the strength of the prosecution case or the weakness of the defence case was. Reliance was placed upon what was said by Gibbs J. in Quartermaine v. The Queen.
"Ordinarily, when there has been a misdirection of law, the proviso … will be applied if the Crown establishes that if there had been no misdirection the jury would (or must) have come to the same conclusion. However, Wickham J., who delivered the judgment of the Court of Criminal Appeal in the present case, recognized that even if this were established 'there might still be a substantial miscarriage of justice if the trial was so irregular that no proper trial had taken place, in that "there had been a serious departure from the essential requirements of the law"'. The Court of Criminal Appeal was right in taking that view of the law ..."
This view is undoubtedly correct, for the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being "plunged into outworn technicality" … it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted.[8]
(Citations omitted)
[7] [1988] HCA 6; (1988) 164 CLR 365.
[8] Ibid at 372-373.
In R v Kerr (No 2),[9] the Full Court of the Supreme Court of Victoria applied this test to a case in which members of the public were excluded from part of a trial. The Full Court held that, if the public had been excluded throughout the trial, or even during a substantial part of it, it would have amounted to a serious department from the essential requirements of the law and vitiated the trial regardless of the fact that it had no effect upon the jury’s verdict. However, in that case, the public had been present throughout the trial until the point at which the jury left to consider their verdict. At the delivery of the verdict, some members of the public were present and others were excluded. The Full Court held that this did not vitiate the verdict and ultimately applied the ordinary no miscarriage of justice test for the proviso.[10]
[9] [1951] VLR 239.
[10] Ibid at 243.
In Gazepis v Police,[11] Doyle CJ (Lander and Bleby JJ agreeing) applied the same approach to a Magistrates appeal, citing Wilde and Kerr (No 2).[12]
[11] (1997) 70 SASR 121.
[12] Ibid at 129-130.
The criteria under section 98B(4)
Before the discretion to reduce demerit points under section 98B(4) of the Act is enlivened, a court must be satisfied by evidence given on oath that:
1. the offence is trifling, or
2. other proper cause exists to reduce the number of demerit points.
Trifling
There are other contexts in which the law gives to the court a discretion not to record a conviction or ameliorate the penalty which would otherwise be imposed upon being satisfied that the offence of which the person is guilty is “trifling”. They include sections 15 and 16(b)(ii) of the Criminal Law (Sentencing) Act 1988 (SA) and section 47B(3)(b) of the Road Traffic Act 1961 (SA). On the one hand, the word “trifling” is used in the same fundamental sense in each case.[13] On the other hand, each provision has a different purpose and different context so that the assessment whether an offence is “trifling” may vary according to the particular purpose and context.[14]
[13] Siviour-Ashman v Police [2003] SASC 29; (2003) 85 SASR 23 at [19]-[20] per Doyle CJ (Besanko J agreeing).
[14] Police v Hughes; Police v Hodge (1996) 89 A Crim R 290 at 291 per Debelle J.
The word “trifling” in a provision to ameliorate penalty has its ordinary English meaning:
being of slight importance, insignificant or of little moment.[15]
It is a corollary of this meaning that:
...an offence which is a normal or typical example of its type will not be trifling. The reason is that Parliament could not have intended that the normal or typical offence would be treated in an exceptional manner. Nor could Parliament have intended that something which it has treated as an offence should routinely be regarded as of trifling significance. The intention behind a provision like s47B(3)(b) must be to deal with unusual or exceptional circumstances, the circumstances of which call for the usual minimum to be put to one side...[16]
(Citations omitted)
[15] Siviour-Ashman v Police (2003) 85 SASR 23 at [24] per Doyle CJ (Besanko J agreeing).
[16] Ibid at [25] per Doyle CJ (Besanko J agreeing).
Even if an offence is not a normal or typical example of its type, it does not follow that it is to be characterised as trifling. This still requires an assessment of all of the circumstances of the offence.
Several factors have been identified as being relevant in ultimately determining whether an offence is “trifling”. Those factors include the extent of the offending conduct, the degree of departure from the standard of conduct required, whether the offending was deliberate or inadvertent and whether there were exceptional or emergency circumstances giving rise to the conduct.[17] These factors should not be treated as rigid or limited rules or used to create an extended definition of “trifling” in substitution for its ordinary English meaning.
Other Proper Cause
[17] Police v Hughes, Police v Hodge (1996) 89 A Crim R 290 at 291 per Debelle J.
In Gilbert v Owen,[18] Olsson J identified the following features that may be taken into consideration when determining whether “other proper cause” exists to reduce demerit points under s 98B(4):
First the proper cause envisaged by s. [98B(4)] must relate to the circumstances of the offence rather than the offender.
Secondly, they must be such as to distinguish it from the more serious, or even typical, breaches of the section so as to render it, in at least practical terms, a lesser offence.
Thirdly, there are no closed classes cases, but aspects relevant for consideration may include the fleeting nature of the offence in very light traffic conditions, the non-embarrassment of others and an occurrence of the offence on a dual highway without intersections. Moreover, the need to exercise a rapid judgment in a particular situation may also be important.[19]
[18] (1991) 14 MVR 235.
[19] Ibid at at 236-7.
Whilst “proper cause” refers to something which is not quite trifling,[20] there are no closed cases. It is ultimately a matter of judgment, in light of the circumstances of the case, as to whether a reduction of demerit points is warranted on the basis of “other proper cause”.
[20] Newton v Larcombe (1989) 38 A Crim R 254 at 256 per White J.
Serious departure from essential requirements of the law
The defendant contends that the failure by the Magistrate to hear evidence comprised a serious departure from essential requirements of the law. Consequently, the decision not to reduce demerit points should be set aside regardless of the effect which the departure had upon the Magistrate’s decision. The Police concede that there was a departure from the essential requirements of the law but contend that in all of the circumstances it was not a serious departure so as to render the hearing null and void.
In Roberts v Police,[21] Roberts gave evidence-in-chief, was cross-examined by the police prosecutor and was questioned by the Magistrate in support of an application under section 98B(4) of the Act. The Magistrate concluded on the basis of his evidence that the defence was not trifling and refused the application. It transpired that Roberts had not been sworn before giving evidence, but all parties had acted as if he had given sworn evidence. Stanley J held that the absence of Roberts having been sworn did not vitiate the Magistrate’s decision. Stanley J referred to the decision of the Full Court in Gazepis v Police and concluded that the departure did not vitiate the Magistrate’s decision.[22]It is evident that the departure from the requirements of the law in that case could not be characterised as serious so as to vitiate the Magistrate’s decision regardless of the effect which it had upon her decision.
[21] [2013] SASC 190.
[22] Ibid at [13]-[14].
In Black v Police,[23] Black pleaded guilty to driving at 134 kilometres per hour in a 110 kilometres per hour zone. He applied for a reduction in demerit points on the sole ground of hardship which would be caused to his employment if his demerit points were not reduced and consequentially he lost his licence. He was self represented and effectively gave evidence from the bar table. He appealed on the ground, inter alia, that the Magistrate erred by not hearing his evidence on oath. Vanstone J dismissed the appeal on this ground. Her Honour referred to authority that “proper cause” in section 98B(4) must relate to the circumstances of the offence itself and hardship suffered by a defendant is irrelevant.[24] The departure from an essential requirement of law in that case could not therefore be characterised as serious because Black’s sworn evidence relating to hardship would in any event have been irrelevant and inadmissible on an application under section 98B(4).
[23] [2009] SASC 115.
[24] Ibid at [10].
Section 98B(4) requires the satisfaction of the Magistrate to be based upon evidence. There is an obvious rationale for the legislature to impose this requirement. There is a crucial difference between evidence given by a witness and submissions made by counsel on behalf of a party. Evidence is factual and represents the defendant’s story of what happened. It establishes the circumstances of the offending and provides detail, colour and context to what occurred. It invites testing by way of cross-examination to elucidate the true facts. By contrast, submissions are argumentative and persuasive in nature, do not establish the facts and are not known first hand to counsel making them.
In the present case, the Magistrate did not hear evidence from the defendant in any form whatsoever, whether sworn or unsworn and whether in the witness box or from the bar table. The defendant’s solicitor gave a brief opening of the basis on which the Magistrate would be invited to find that the offence was trifling or that other proper cause existed to reduce the number of demerit points but no detail was provided and the Magistrate simply did not hear the defendant’s evidence. It was apparent that there was a factual dispute concerning the question whether there was other traffic in the vicinity which was directly relevant to the question which the Magistrate had to decide under section 98B(4). Unlike the case in Black v Police, the evidence which the defendant proposed to give was directly relevant to the circumstances of the offence as opposed to her personal circumstances.
There was a serious departure from an essential requirement of the law which vitiated the decision of the Magistrate.
The general proviso
I am not satisfied in any event that there has been no miscarriage of justice in the sense that the failure by the Magistrate to hear evidence was incapable of affecting his decision.
The question whether the offence should be regarded as “trifling” depends upon matters of circumstance and degree. The Magistrate was not in a position to determine that question without hearing evidence from the defendant concerning the precise circumstances of the offence. The Magistrate did not hear evidence from the defendant as to what she did with the mobile phone, how she picked it up, whether she pressed any buttons or icons, how long it took, the speed at which she was travelling, the existence or non-existence of other traffic in the vicinity or circumstances surrounding the offence.

The Magistrate concluded that there was nothing atypical about the matter. The Magistrate was not in a position to reach that conclusion without hearing the defendant’s evidence to ascertain the circumstances of the matter and then determine whether they were atypical.
Rule 300 of the Australian Road Rules relevantly provides:
(1)     The driver of a vehicle (except an emergency vehicle or police vehicle) must not      use a mobile phone while the vehicle is moving, or is stationary but not parked,     unless the driver is exempt from this rule under another law of this jurisdiction.
…
(2)     Subrule (1) does not apply to a driver using a mobile phone if the phone is being      used to make or receive a phone call and, while being so used:
(a)     is secured in a mounting affixed to the vehicle; or
(b)     is remotely operated by means of a device (whether connected to the phone         by means of a wire or otherwise):
(i)    affixed to the vehicle; or
(ii)    worn by the driver in the manner intended by the manufacturer,
and the phone is not being held by the driver.
…
(5)     In this rule:
…
"use", in relation to a mobile phone, includes the following:
(a)     holding the phone to, or near, the ear (whether or not engaged in a phone              call);
(b)     creating, sending or looking at a text or video message on the phone;
(c)     turning the phone on or off;
(d)     operating any other function of the phone.
Paradigm uses of a mobile phone prohibited by rule 300 include making a phone call, listening to a message and sending or receiving a text. The definition of use also includes operating a function on the phone. While the defendant accepted by her plea of guilty, and accepts on appeal, that holding a phone to look at the time constitutes “use” and offends against rule 300, merely looking at the time display does not necessarily represent the normal or typical example of the offence. The Australian Road Rules do not prohibit a driver looking at a watch or hand held clock. While such actions might involve driving without due care or attention under section 45(1) of the Road Traffic Act 1961 (SA), the question whether such an offence is committed will depend upon the precise circumstances.
In Savage v Police,[25] Savage gave detailed evidence on oath as to the circumstances of the offending in which he picked up his mobile phone to look at the time. The defendant’s counsel conceded before the Magistrate and on appeal that the offence was not trifling but argued that other proper cause existed to reduce the number of demerit points. The Magistrate declined to make a reduction. Nyland J dismissed Savage’s appeal on the basis that it had not been demonstrated that the Magistrate erred in reaching his conclusion. In the course of her reasons for judgment, Nyland J expressed the opinion that the offence could be not regarded as an atypical example of the offence.[26] That conclusion was made in the context in which it was conceded that the offence was not trifling and also by reference to the detailed evidence given by Savage.
[25] [2011] SASC 13.
[26] Ibid at [16].
It cannot be said that use of a mobile phone to ascertain the time is necessarily a normal or typical example of a contravention of rule 300: it depends upon the particular circumstances of the offending. It cannot be said on the basis of the limited submissions by the defendant’s solicitor to the Magistrate that the offence was not “trifling” within the meaning of section 98B(4).
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.