CHOONG v Police

[2010] SASC 312

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

CHOONG v POLICE

[2010] SASC 312

Judgment of The Honourable Justice Vanstone (ex tempore)

2 November 2010

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

Appeal against conviction for failing to stop at stop sign - following plea of guilty appellant gave evidence in support of contention that offence was trifling - in doing so made assertions inconsistent with guilt.

Held:  appeal allowed.

Australian Road Rules r 67(2), referred to.

CHOONG v POLICE
[2010] SASC 312

Magistrates Appeal (ex tempore)

1. VANSTONE J:     The appellant purports to appeal against his conviction for failing to stop at a stop sign, contrary to rule 67(2) of the Australian Road Rules.  I say that he “purports” to appeal because he pleaded guilty to that charge before a magistrate.

2. Originally, the appellant indicated a plea of not guilty to the charge.  The matter was then set down for a pre-trial conference.  At that hearing, the prosecution produced a DVD of the event giving rise to the charge.  The magistrate viewed the footage.  The appellant then changed his plea to guilty.  He then sought to persuade the magistrate by his evidence that the offence was trifling.  In the course of that evidence, he asserted that he had stopped twice when approaching the stop sign.  He said he had first stopped behind a vehicle which had stopped in obedience to the stop sign.  Then, he said, he stopped again at the stop line after that vehicle had departed.  In the face of this evidence, the magistrate watched the DVD again and then the appellant and the police prosecutor watched it.  The appellant then said to the magistrate:  “If what I did was an offence, then I plead guilty”.

3. As I read the full transcript, the appellant was effectively acknowledging that he had only stopped once, behind the car in front of him. His statement to the magistrate could be interpreted as asserting that, when he did stop, it was “as near as practicable to” the stop line, as required by rule 67(2) of the Australian Road Rules. The magistrate attempted to clarify whether the appellant stood by his plea of guilty and he confirmed that he accepted his guilt of the offence. In the event, his application that the offence be considered to be trifling was dismissed.

4. That there is now an appeal against conviction, in these circumstances, is most unsatisfactory.  In saying so I lay no blame at the feet of the magistrate.  However, counsel for the respondent has indicated a view that it would be in the interests of justice to set aside the conviction and remit the matter to the Magistrates Court for re-hearing and, in all the circumstances, I am persuaded that that is what should occur.

5. Since the responsibility for this course of events lies clearly at the feet of the appellant I do not propose to allow any costs of the appeal.

6. The orders I make are:

   1.     appeal allowed;

   2.     the conviction and associated orders are set aside;

   3.the matter is remitted to the Magistrates Court for rehearing.