DEAN v Police - [2008] SASC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DEAN v POLICE
[2008] SASC 55
Judgment of The Honourable Justice Kelly
29 February 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE
Appeal against sentence - appellant pleaded guilty to having failed to wear a seatbelt contrary to r 264(1) of the Australian Road Rules - the appellant lost three demerit points under the Motor Vehicles Regulations 1996 - whether an application was made before the magistrate that the offence was trifling or that any other proper cause existed under s 98B(4) of the Motor Vehicles Act 1959 to order a reduction in the number of demerit points recorded - magistrate did not hear evidence on oath from appellant in relation to the application. Held: appeal allowed - the matter miscarried - application was made by the appellant - not open to magistrate to dispense with hearing evidence on oath - matter remitted to the Magistrates Court for determination of application under s 98B(4) Motor Vehicles Act 1959.
Criminal Law (Sentencing) Act 1988 ss 15 and 16; Motor Vehicles Act 1959 s 98B(4); Australian Road Rules, under the Road Traffic Act 1961 r 264(1); Motor Vehicles Regulations 1996 Division 2, Schedule 7, referred to.
Zanker v Hyndman (1990) 11 MVR 224; Anderson v Gerhardy (1991) 13 MVR 573, applied.

DEAN v POLICE
[2008] SASC 55
Kelly J:
Introduction

This is an appeal against an order made by a magistrate in the Murray Bridge Magistrates Court on 10 December 2007.
The appellant was charged with having failed to wear a seatbelt while driving a truck contrary to Rule 264(1) of the Australian Road Rules under the Road Traffic Act 1961. Upon his plea of guilty in the Murray Bridge Magistrates Court on 10 December 2007 he was convicted and ordered to pay a fine of $200 together with court fees, levy and prosecution costs. As a result of the conviction the appellant lost three demerit points under the provisions of Schedule 7 of Division 2 of the Motor Vehicles Regulations 1996.
The magistrate rejected a submission to the effect that the offence was trifling. It is the circumstances surrounding the magistrate’s finding that gives rise to this appeal.
Issues on Appeal
The appellant’s main complaint is that at the hearing on 10 December 2007 the magistrate failed or refused to hear evidence on oath from the appellant under the provisions of Section 98B(4) of the Motor Vehicles Act 1959 in support of the appellant’s application for a reduction in the number of demerit points recorded. The appellant also complained that the magistrate erred in not considering whether any other proper cause existed to enable a reduction in the number of demerit points recorded and in making a finding of fact that the appellant had forgotten to fasten his seatbelt when there was no evidence from the appellant on oath to support that finding.
It is apparent from his reasons that the magistrate made a finding that the offence was not trifling without hearing any evidence given on oath by the appellant. However, there is a factual dispute between the parties as to what occurred at the hearing prior to sentencing.
The appellant submits that through his counsel he communicated to the court his wish to make an application that the matter be considered trifling. However in the light of the magistrate’s response that there was insufficient time to deal with such an application, the appellant maintains that he was not able to give any evidence on oath in support of that application.
The respondent on the other hand submitted that the appellant failed to prosecute any application under the provisions of s 98B(4) to have the demerit points reduced and to give evidence forthwith upon his conviction in support of that application. The respondent submits that the magistrate did not reject the application for evidence to be called in support of the application to have the demerit points reduced as it is plain, according to the respondent’s submission, from the sentencing remarks, the endorsements on the court file and the affidavit of the police prosecutor that no such application was ever made.
At the hearing of this appeal I received two affidavits, one from the police prosecutor Sarah Chester sworn on 13 February 2008 and from the appellant’s solicitor Clifford Sayer sworn on 31 January 2008 deposing as to the events which occurred at the Murray Bridge Magistrates Court on the hearing of the matter on 10 December 2007.
Mr Sayer indicated that at the appearance before the magistrate he stated that he wished to make an application that the matter be considered trifling. His Honour then stated that there would probably be insufficient time for such an application and he would determine if he thought the matter was trifling or not. His Honour then proceeded to question counsel for the appellant on what basis it was submitted the matter was trifling. After submissions from the solicitor the magistrate indicated he did not consider the matter was trifling.
The appellant now complains that he was unable to give evidence on oath and had no opportunity to explain fully why he was not wearing a seatbelt.
Notwithstanding that the record is not clear as to the nature of the application which the appellant wished to pursue, counsel for the respondent submitted that it is clear that the application sought to be made by the appellant was under s 15 or s16 under the Criminal Law (Sentencing) Act 1988. Furthermore according to counsel for the respondent the application was not made forthwith upon conviction as required under s 98B(4).
Section 98B(4) of the Motor Vehicles Act 1959 provides:
(4)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 cause 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.
The appellant maintained at the hearing of this appeal that the magistrate’s determination to decide the application without hearing evidence given on oath by the appellant, despite the appellant attending at court and having been available to give such evidence forthwith on conviction, amounts to an error.
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.
The difficulty which arises on this appeal is that it is not clear from the affidavit material or from the court record whether the magistrate proceeded to determine an application as the respondent suggests under s 16 of the Criminal Law (Sentencing) Act 1988 or whether he was determining an application under s 98B(4) of the Motor Vehicles Act 1959. The affidavit of the prosecutor is silent as to the chronology of events which occurred on the morning of the 10 December 2007.
The solicitor for the appellant positively asserts that an application was made for the court to hear an application that the offence was trifling and the magistrate responded by remarking that he did not think there would be sufficient time for such an application and he would determine if he thought the matter was trifling or not.
From the response of the magistrate that there would be insufficient time it would appear that he was contemplating an application which would involve the taking of evidence on oath. It is difficult to determine what other application he may have had in mind given that he then proceeded forthwith to determine what his view was about the submission that the offence was trifling.
In the light of the magistrate’s remarks and the affidavit material filed I cannot agree with the submission from counsel for the respondent that the position is clear. It is far from clear and it seems to me that the only appropriate course for this court to take is to resolve the ambiguity about what occurred in favour of the appellant. At the very least it seems to me there may well have been a misunderstanding on the part of the magistrate as to what application he was being invited to hear. I accept the submission from counsel for the appellant the only application that he sought to make at the hearing was an application under s 98B(4). In all of the circumstances I have concluded that the fact that the solicitor for the appellant in the Murray Bridge Magistrates Court did not persist with his application that the appellant give evidence on oath is perfectly understandable in the light of the magistrate’s intimation that he would not have time to hear such an application.
For these reasons I have determined that the matter did miscarry. The magistrate did not have all of the surrounding circumstances before him and in the absence of that material the magistrate was unable to determine whether the offence was trifling or whether there was any other proper cause to reduce the number of demerit points incurred in respect of the offence.
At the hearing of this appeal an affidavit from the appellant was tendered in support of the appellant’s application that this court proceed to determine the application. Although on one view of the matter it would be a more expeditious way to deal with the application, I do not consider in the circumstances of this case it is appropriate that this court deal with the appellant’s application. There are a number of factual matters which need to be clarified on any re-hearing of this application including the precise distance the appellant is alleged to have travelled while failing to wear a seatbelt. For these reasons I consider it appropriate that the matter be returned for hearing before another magistrate. Out of an abundance of caution and to ensure that there can be no further misunderstandings or ambiguity about the time when the appellant’s application is to be made, I make the following orders:
1. the conviction is set aside
2. the complaint is remitted to the Murray Bridge Magistrates Court for determination by a different magistrate
3. upon the entering of his plea in the Magistrates Court, the appellant is at liberty to make such application as he may then be advised under the provision of s 98B(4) of the Motor Vehicles Act 1959.