Dycer v Police - [2010] SASC 241

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DYCER v POLICE
[2010] SASC 241
Judgment of The Honourable Justice Anderson
10 August 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
Appeal against penalty - whether magistrate erred in exercise of the discretion not to record demerit points for the offence - recording of demerit points resulted in suspension of appellant's driver'slicence - whether magistrate failed to consider the circumstances of the offending when exercising the discretion not to record demerit points.
Held: No error in the magistrate's exercise of the discretion or reasoning.
Appeal dismissed.
Australian Road Rules under the Road Traffic Act 1961 (SA) r 67, referred to.
Gilbert v Owen (1991) 14 MVR 235; McCade v Chandler (1984) 37 SASR 477; Shillabeer v Linnane (1979) 22 SASR 382, applied.

DYCER v POLICE
[2010] SASC 241
Magistrates Appeal: Criminal

ANDERSON J. This is an appeal from a decision of a magistrate who convicted the appellant for failing to stop at a stop sign, contrary to r 67 of the Australian Road Rules under the Road Traffic Act 1961 (SA), fined the appellant $292 and dismissed the application by the appellant not to record demerit points.
The appeal originally was based on several grounds but on the hearing of the appeal Mr Apps, who appeared for the appellant, indicated that there was no argument that the magistrate erred in recording a conviction and he conceded that the offence could not be described as trifling. The offence took place in Mount Gambier.
The appeal proceeded on the basis that the magistrate should have exercised his discretion under s 98B(4) of the Motor Vehicles Act 1959 (SA) and remitted at least two of the three demerit points involved in order that the appellant not have his licence suspended.
Background
In his remarks on penalty, the magistrate described the appellant’s action in failing to stop at the stop sign in paragraphs [1] and [2] as follows:
[1]You have pleaded guilty to failing to stop at a stop sign at an intersection. It is a well known intersection, well known to you and to others in this community. A particularly difficult one at the top of Bay Road where it intersects with Lake Terrace. It is on a slope, the roadways that form the intersection approach from different angular directions and each have limited vision. The defendant was looking to his right up and up hill to see vehicles emerging from his right. The road from the right approaches the intersection in a curve and it is also downhill so it has limited vision to the right given that vehicles can travel down that road at 50 km/h approaching the intersection there. These were the circumstances that presented a hazard in terms of the need for a stop sign.
[2]In any event, the stop sign was erected there and plain to see. Mr Dycer was well…

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 Dycer v Police

Details

AGLC: Dycer v Police [2010] SASC 241
Case: [2010] SASC 241
Decision Date: 10 August 2010

CaseChat Overview and Summary

In the case of Dycer v Police, the appellant sought an appeal against the decision of a magistrate who declined to remit some of the demerit points assessed against the appellant following a conviction for failing to stop at a stop sign. The appeal was heard by the Supreme Court of South Australia. The central legal issue before the court was whether the magistrate had properly exercised his discretion under s 98B(4) of the Motor Vehicles Act 1959 (SA) in declining to remit the demerit points. Specifically, the court needed to determine whether the magistrate had erred in not considering the personal circumstances of the appellant and the consequences for him of a loss of licence, rather than focusing solely on the circumstances of the offence.

The court examined the magistrate's reasoning and found that he had correctly identified that the offence was not trifling, a point which the appellant conceded on appeal. The court noted that the magistrate had considered the appellant's evidence on oath regarding the second limb of s 98B(4), which pertains to "any other proper cause" for remitting demerit points. However, the court held that the magistrate had not erred in his decision not to remit the demerit points, as the circumstances of the offending and the personal hardship of the appellant did not constitute a proper cause under the statute. The court found that the magistrate had appropriately exercised his discretion and there was no basis for the Supreme Court to interfere with that decision.

Consequently, the appeal was dismissed. The court held that the magistrate's assessment of the circumstances of the offence and the lack of a proper cause for remitting the demerit points was sound. The court did not find any error or misuse of discretion on the part of the magistrate and thus upheld the original decision.

Orders

Orders of the court

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Background

Background to the litigation

The appeal proceeded on the basis that the magistrate should have exercised his discretion under s 98B(4) of the Motor Vehicles Act 1959 (SA) and remitted at least two of the three demerit points involved in order that the appellant not have his licence suspended.Background In his remarks on penalty, the magistrate described the appellant’s action in failing to stop at the stop sign in paragraphs [1] and [2] as follows:[1]You have pleaded guilty to failing to stop at a stop sign at an intersection. It is a well known intersection, well known to you and to others in this community. A particularly difficult one at the top of Bay Road where it intersects with Lake Terrace. It is on a slope, the roadways that form the intersection approach from different angular directions and each have limited vision. The defendant was looking to his right up and up hill to see vehicles emerging from his right. The road from the right approaches the intersection in a curve and it is also downhill so it has limited vision to the right given that vehicles can travel down that road at 50 km/h approaching the intersection there. These were the circumstances that presented a hazard in terms of the need for a stop sign.[2]In any event, the stop sign was erected there and plain to see. Mr Dycer was well aware that the stop sign was there and had driven through it, apparently, very many times in the past. He admits boldly that on this occasion that he looked to his right and saw that there were no vehicles approaching downhill from around the curve, to the extent that he could see, and so “rolled” through the intersection knowingly disobeying the stop sign. After imposing the penalty the magistrate turned to deal with the application of Mr Dycer pursuant to s 98B(4). That section 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. Mr Dycer gave evidence on oath in support of the application, as he was required to do by the section. In his reasons the magistrate pointed out that when cross-examined Mr Dycer admitted that he knew that the stop sign was there and that he committed the offence notwithstanding. Section 98B(4) has two limbs, namely, that demerit points incurred can be remitted if the offence is found to be trifling or if any other proper cause exists. I will not deal with the question of whether it was a trifling offence because it has now been conceded on the appeal that it cannot be so described. The magistrate was correct in finding that it was not trifling. The concession was appropriate. The complaint of the appellant is that, in his reasons for declining to reduce the demerit points, the magistrate dealt with the second limb of s 98B(4), being “any other proper cause”, solely on the basis of the personal circumstances of the appellant and the consequences for him of a loss of licence, but not the circumstances of the offence.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J

The circumstances of licence disqualification were emphasised by Mr Apps and clearly involved some hardship for the appellant. He is a businessman who in the course of his business travels by car regularly between Adelaide and Mount Gambier and as a result of the licence disqualification he will have to incur the cost of air fares for his travel.Conclusion It cannot be shown, in my view, that the magistrate has made any error or has misused his discretion in any way in coming to his conclusion. I am not prepared to interfere with the exercise of the magistrate’s discretion and I am not prepared to act independently of that and reduce the demerit points as requested by the appellant. It is my view that the circumstances of the offending and the hardship for the defendant do not amount to a proper cause for remitting the demerit points. For these reasons I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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