Clarke v Police

[2017] SASC 19

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

CLARKE v POLICE

[2017] SASC 19

Judgment of The Honourable Justice Vanstone (ex tempore)

15 February 2017

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

Appeal against conviction for speeding – appellant asserting Magistrate proceeded to finding of guilt without hearing defence case.

Appeal allowed. Matter remitted to Magistrates Court for retrial.

CLARKE v POLICE
[2017] SASC 19

Magistrates Appeal:  Criminal

1. VANSTONE J (ex tempore):          The appellant, Jason Paul Clarke, was charged with speeding.  It was alleged that on 25 August 2015, at Aldinga, he drove at 99 kilometres per hour on a road having a speed limit of 80 kilometres per hour.  He was detected by means of a speed detection device operated by Senior Constable Stephen Clarke. 

2. His trial commenced in the Magistrates Court at Christies Beach on 19 October 2016.  On that day the police prosecutor called evidence and tendered a number of exhibits.  Then he closed his case.

3. It is not clear from the court record or from the affidavits before me whether a submission of no case to answer was formally made by Mr Daryl Clarke, who appeared for the appellant.  However he had foreshadowed an argument based on a decision of Police v Butcher [2016] SASC 130 going to whether the accuracy of the speed detection device had been proved or whether there was proof to the contrary.

4. In any event, the magistrate asked both sides to provide written submissions and it is clear from the police prosecutor’s notation that he understood that the submissions were to address the issue of a case to answer.

5. Written submissions were provided to the court in due course, although Mr Daryl Clarke, only received a copy on the day the matter resumed.  On that occasion, the magistrate delivered written reasons for finding the appellant guilty.  The magistrate did not refer to a no case to answer submission.  However her Honour referred to the defence submission relating to the possibility that the speed detection device was not proved to be accurate.  The magistrate distinguished Butcher’s case, in my view correctly.  She then went on to find the appellant guilty.

6. The respondent concedes that it is clear from the terms of the written submissions that neither defence counsel nor the police prosecutor considered that the submissions amounted to final addresses.  There is no notation upon the court record relating to a no case submission, a defence case or to final addresses.  In all the circumstances, it appears likely that the magistrate overlooked the possibility that, having failed in his argument, defence counsel had instructions to call evidence.  In an affidavit, defence counsel has stated that if his no case submission failed, then he had instructions to call one or more witnesses. 

7. Rather than inquiring any further into the matter, I propose to allow the appeal and send the charge back so that it can be heard by another magistrate.

8. The orders I make are:

   1.Allow the appeal,

   2.Set aside the conviction,

   3.Remit the matter to the Magistrates Court for a new trial.