Draoui v Police - [2010] SASC 94

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DRAOUI v POLICE
[2010] SASC 94
Judgment of The Honourable Justice Nyland
8 April 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - WHAT CONSTITUTES TRIFLING OFFENCE
Appellant pleaded guilty in Magistrates Court to a charge of using a mobile phone whilst driving - appellant applied to Magistrate to have the offence found trifling - Magistrate recorded a conviction, imposed a fine and refused the application to find offence trifling - appeal against refusal of trifling application - no error demonstrated in the approach taken by the Magistrate - no basis to interfere with Magistrate's discretion - appeal dismissed.

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
Appellant pleaded guilty in Magistrates Court to a charge of using a mobile phone whilst driving - Magistrate recorded a conviction - appeal against decision to record conviction - in the ordinary course a conviction is to be recorded - discretion to not record a conviction should be used sparingly in respect of social and regulatory offences - no error demonstrated in the approach taken by the Magistrate - no basis to interfere with Magistrate's discretion - appeal dismissed.
Australian Road Rules Rule 300; Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 Regulation 50(1); Motor Vehicles Act 1959 s 98B(4); Criminal Law (Sentencing Act) 1988 ss 15, 16, referred to.
House v The King (1936) 55 CLR 499, applied.
Thorley v Police [1977] SASSC 6779; Siviour-Ashman v Police (2003) 85 SASR 23; Police v Federuzzi [2008] SASC 104; Sims v Police (2000) 30 MVR 534; Piva v Brinkworth (1992) 59 SASR 92; Vitlov v Lewis [2004] SASC 83; Forgione v Police [2008] SASC 54; Brown v Police [2009] SASC 45, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
""trifling""

DRAOUI v POLICE
[2010] SASC 94

NYLAND J: The appellant was charged on complaint that on 11 February 2009 at Glynde being the driver of a vehicle moving on a road, namely Hilltop Avenue, he used a hand-held mobile phone contrary to the provisions of Rule 300 Australian Road Rules. The maximum penalty prescribed for this offence is a fine not exceeding $2,500.[1]
[1] Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999 Regulation 50(1).
The appellant appeared before a Stipendiary Magistrate in the Magistrates Court at Adelaide on 21 October 2009 and pleaded guilty to the charge. The Magistrate recorded a conviction and imposed a fine of $229. In addition, the appellant was required to pay Court costs, prosecution costs and the Victims of Crime Levy. The appellant has appealed against the decision of…

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 Draoui v Police

Details

AGLC: Draoui v Police [2010] SASC 94
Case: [2010] SASC 94
Decision Date: 8 April 2010

CaseChat Overview and Summary

The appellant in this case was convicted in the Magistrates Court of South Australia for using a mobile phone while driving. Following his guilty plea, the appellant applied to the Magistrate to have the offence found trifling, which would have resulted in the offence not being formally recorded. The Magistrate declined the application and proceeded to record the conviction, imposing a fine in the process. Unsatisfied with the decision, the appellant appealed to the Supreme Court of South Australia on two grounds: the refusal of the application to find the offence trifling, and the decision to record the conviction.

The Supreme Court examined whether the Magistrate had erred in his approach to the application to find the offence trifling and the decision to record the conviction. The Court noted that the determination of whether an offence is trifling or not is a matter of discretion for the Magistrate and should only be lightly interfered with by the appellate court. Furthermore, the Court highlighted that the discretion to not record a conviction should be sparingly used, particularly in cases involving social and regulatory offences. The Court found that the Magistrate had exercised his discretion appropriately and had not made any error in his approach.

Consequently, the Supreme Court dismissed the appeal on both grounds. The Court found no basis to interfere with the Magistrate's discretion in either the refusal of the trifling application or the decision to record the conviction. The appeal was therefore dismissed, leaving the conviction and fine in place as determined by the Magistrates Court.

Orders