DRAPER v Police - [2009] SASC 264

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DRAPER v POLICE
[2009] SASC 264
Judgment of The Honourable Justice Nyland
3 September 2009
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES
Appellant charged with driving unregistered and uninsured motor vehicle ie a trailer - order for disqualification of licence - Magistrate in error in relying on s 102(1) Motor Vehicles Act 1959 to impose order for disqualification - whether power provided by s 168 Road Traffic Act 1961 - inappropriate in this case to rely on s 168 to impose order for disqualification - appeal allowed and disqualification set aside.
Motor Vehicles Act 1959 ss 9, 102(1); Criminal Law Sentencing Act 1996 s 18A; Road Traffic Act 1961 s 168(1)(b), referred to.
Maher v French (1974) 7 SASR 504; Dean v Williams [1968] SASR 339; Reeves v Police (1997) 70 SASR 451; Farrellyl v Howells (1976) 12 SASR 520; Dixon v Steel (1972) 3 SASR 116; Bailey v Nelson (1976) 13 SASR 388; Turner v Deed (1966) SASR 374; McDonald v Maher (1976) 13 SASR 438, considered.

DRAPER v POLICE
[2009] SASC 264
DRAPER
Magistrates Appeal

NYLAND J: This is an appeal against a sentence imposed by a Stipendiary Magistrate sitting in the Magistrates Court at Adelaide on 30 June 2008. The appellant, who was unrepresented, pleaded guilty to a charge that on 21 April 2008 on Magill Road, he drove a vehicle, namely a trailer, whilst the registration was not then in force in contravention of s 9 Motor Vehicles Act (1959) (“MVA”). He also pleaded guilty to the charge that on the same date he drove a motor vehicle, namely a trailer, whilst the policy of insurance was not then in force, in contravention of s 102 MVA.
The learned Magistrate recorded convictions with respect to both offences and pursuant to s 18A of the Criminal Law Sentencing Act (1996) imposed a fine of $200 for the offending. On the charge of driving an uninsured vehicle, however, the Magistrate further ordered that the appellant be disqualified from holding or obtaining a driver’s licence for a period of two days, commencing at 12.01 am on 5 July 2008. In making that order, the learned Magistrate relied on s 102(1) MVA.
The appellant subsequently made an application to the Magistrate for her to revoke the order made for disqualification of the licence. The appellant submitted that she had erred in disqualifying his licence when the offence related to a trailer as opposed to a motor vehicle. The application was refused. The learned Magistrate indicated to the appellant that she had a discretion pursuant to s 168 Road Traffic Act (1961) (“RTA”) to make an order for disqualification with respect to any offence that involved the use of a motor vehicle. She said however that had she been familiar with the fact that this was a trailer, she might not have made the order for…

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.

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Details

AGLC: DRAPER v Police [2009] SASC 264
Case: [2009] SASC 264
Decision Date: 3 September 2009

CaseChat Overview and Summary

The case of Draper v Police involved the appellant who was charged with driving an unregistered and uninsured motor vehicle, specifically a trailer. The appellant was subsequently subject to an order for the disqualification of his driving licence. The Magistrate's decision to impose the disqualification order was based on section 102(1) of the Motor Vehicles Act 1959. However, the appellant challenged the legality of this decision, arguing that the correct statutory provision to rely on was section 168 of the Road Traffic Act 1961. The appeal questioned whether the Magistrate erred in law by imposing the disqualification order under the wrong section of the Act.

The court was tasked with determining the appropriate legal framework for imposing a disqualification order in the circumstances of this case. The central issue was whether the Magistrate had the power to impose a disqualification order under section 168 of the Road Traffic Act 1961, and if the reliance on section 102(1) of the Motor Vehicles Act 1959 was erroneous. The court needed to clarify the statutory provisions that govern the disqualification of a driver's licence in such scenarios and assess whether the Magistrate's reliance on section 102(1) was appropriate or if it should have been based on section 168 of the Road Traffic Act 1961.

In reaching its decision, the court carefully examined the relevant statutory provisions. It found that the Magistrate had indeed erred in relying on section 102(1) of the Motor Vehicles Act 1959, as this section did not provide the appropriate legal basis for imposing a disqualification order in this context. Instead, the court held that the power to impose such an order was provided by section 168 of the Road Traffic Act 1961. Given that the Magistrate had not considered the correct statutory provision, the court deemed it inappropriate to rely on section 168 in this instance. Consequently, the appeal was allowed, and the disqualification order was set aside. The court's ruling underscored the importance of correctly identifying and applying the relevant statutory provisions in legal proceedings involving driver's licence disqualifications.

Orders