Cirillo v Police - [2010] SASC 293

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
CIRILLO v POLICE
[2010] SASC 293
Judgment of The Honourable Chief Justice Doyle (ex tempore)
13 October 2010
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES - GENERALLY
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - APPEALS
Appeal from decision of a Magistrate not to reduce demerit points - appellant pleaded guilty to speeding - sought an order reducing the number of demerit points to avoid losing his licence - hardship - could lose his employment - offence not trifling - no proper cause for an order reducing demerit points - appeal dismissed.
Motor Vehicles Act 1959 (SA) s 98B, s 98B(4), s 98BD, s 98BE(2), s 98BE(2a); Criminal Law (Sentencing) Act 1988 (SA) s 16, s 17; Australian Road Rules r 20, referred to.

CIRILLO v POLICE
[2010] SASC 293
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): Mr Cirillo was charged in the Magistrates Court with an offence against r 20 of the Australian Road Rules. The allegation was that he drove at a speed of 127 km/h when the applicable speed limit was 110 km/h. He pleaded guilty to the charge. The Magistrate imposed a fine of $300. The victim of crime levy and costs amounted to a further $405, making $705 in all.
The conviction attracted three demerit points under s 98B of the Motor Vehicles Act 1959 (SA) (the Act). Mr Cirillo applied to the Magistrate under s 98B(4) for an order reducing the number of demerit points to one. The Magistrate heard brief evidence from Mr Cirillo, and in short reasons declined to make the order.
The Magistrate said that the offence was not trifling. I agree with that. Nor was the Magistrate satisfied that some other proper cause to make the order existed. Mr Cirillo had put to the Magistrate that he could lose his job if he lost his licence. It is not clear whether the Magistrate realised that the loss of licence was imminent or whether he thought it was merely a possibility.
However, as I will indicate for the purposes of the appeal today, I am prepared to proceed on the basis that the loss of licence was imminent, and to assess the matter as it would have been assessed if Mr Cirillo had told the Magistrate that.
The Magistrate refused to make the order. Mr Cirillo appeals against that decision. The further facts to which I just referred were not before the Magistrate. Those further facts have emerged before me.
The police prosecutor was apparently not aware of these facts, and Mr Cirillo did not raise these facts before the Magistrate because he assumed the Magistrate knew them.
In 2009, Mr Cirillo received a notice of disqualification under s 98BD of the Act informing him that he was disqualified from holding or obtaining a driver’s licence for three months from 8 April 2009. This was because he had…

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 Cirillo v Police

Details

AGLC: Cirillo v Police [2010] SASC 293
Case: [2010] SASC 293
Decision Date: 13 October 2010

CaseChat Overview and Summary

The case of Cirillo v Police involved an appeal against a decision of a Magistrate not to reduce the number of demerit points allocated to the appellant for a speeding offence. The appellant, Mr Cirillo, had pleaded guilty to speeding and sought an order from the Magistrate to reduce the demerit points in order to avoid losing his driver’s licence. The basis for his application was that he would otherwise be unable to maintain his employment, which was dependent on him being able to drive. The matter was heard in the South Australian Court of Appeal.

The central legal issue before the Court was whether the Magistrate had erred in declining to reduce the number of demerit points. The Court needed to determine whether the appellant had demonstrated a proper cause for such an order. The appellant argued that the hardship to his employment was a sufficient ground, while the respondent maintained that the offence was not trifling and no proper cause had been shown. The Court was tasked with assessing the balance between the appellant's personal circumstances and the public interest in enforcing traffic laws.

The Court of Appeal found that the Magistrate's decision was not an error. The Court held that the appellant had not shown proper cause for an order reducing the demerit points. The offence of speeding, though not severe, still warranted the full allocation of demerit points. The Court acknowledged the appellant's personal hardship but held that it did not outweigh the public interest in enforcing the law. The appeal was dismissed, and the decision of the Magistrate upheld.

No specific orders were made by the Court beyond dismissing the appeal, leaving the original decision of the Magistrate in place.

Orders