Frankcom v Police No. Scciv-03-1717

FRANKCOM v POLICE
[2004] SASC 12
Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against the sentence imposed upon him in the Magistrates Court sitting at Christies Beach following his conviction on a charge of driving at a speed and in a manner dangerous to the public, contrary to s 46 of the Road Traffic Act 1961.
The sentence appealed from is a fine of $400 coupled with a disqualification of the appellant’s licence for a period of 18 months.
On the first return date of the summons in the Magistrates Court, which was 1 September 2003, the appellant did not appear. The matter was adjourned to 1 October 2003, following the making of an order by the magistrate giving leave to the prosecution to proceed ex parte should the appellant not be present on the adjourned date.
On that date, that is, 1 October 2003, once again the appellant did not appear. He was convicted in his absence on the charge of driving at a speed and in a manner dangerous, two other related driving counts having been withdrawn.
A notice, described as a Form 15 notice, was then issued by the registry of the court advising the appellant that he had been convicted in his absence and that the question of penalty would be dealt with on 5 November 2003. He duly appeared on that date, unrepresented.
After the magistrate had explained that he had been convicted in his absence, the appellant indicated that in any event he admitted the charge.
According to the affidavit of the police prosecutor, which has been filed in this Court, the facts which were presented to the court indicated that at about 1.10 am early in the morning of the day in question police officers were travelling in an unmarked police vehicle along Aldenhoven Road, Lonsdale, when they saw a blue coloured Mazda sedan travelling in the opposite direction.
The police executed a U-turn and proceeded to give chase. (No explanation was given as to why they did so.)
The Mazda which, as it turns out, was driven by the appellant, increased its speed significantly, apparently in an attempt to evade the police. The police continued to pursue it through several streets in the Lonsdale area, eventually following it into Dyson Road at Lonsdale. They then broke off the pursuit when they saw that the lights of the Mazda had been turned off, and that it was continuing to travel south at a high rate of speed.
During the course of the chase the closest the police officers were able to get to the appellant’s vehicle was approximately 200 metres.
The police made inquiries as to the identity of the registered owner of the vehicle, as a result of which, a little later in the morning, they attended at the appellant’s home. The Mazda was parked in the driveway.
According to the police prosecutor, the appellant then stated to the police while being interviewed:
“... that he tried to evade police because he did not want to get stopped and defected. He knew police were following him so he panicked and drove at speeds of 130 - 140 km/h hour in 60 km/h speed zones. The defendant also stated to police that he turned off his headlights so that police couldn’t see where he was going.”
The magistrate was informed that the appellant, who tells me that he is 27 years of age, had no relevant prior convictions.
The appellant appeared in person to prosecute the appeal. Before the hearing of the appeal he filed an affidavit which was prepared with the assistance of a solicitor.
In the affidavit he explains why he did not attend in court on the first two occasions upon which the matter was called on.
He says that on the first occasion he was able to notify the court that he would not be able to attend. As I have explained, the hearing was then stood over.
He says that on the second occasion he had every intention of attending, but his employer obliged him to finish a job on the other side of town before releasing him to attend, which turned out to be too late for him to get there in time. He found out that he was too late when he rang the court a little later from a public phone box.
Importantly, in his affidavit he sets out his account of the circumstances in which he was driving on the occasion in question.
The appellant says that he was returning home after visiting friends at Glenelg and was driving along O’Sullivan Beach Road at Lonsdale at, but not beyond, the speed limit, which he said on that section of road is 70 kilometres an hour. He then noticed what turned out to be a police car but which he did not recognise as such, doing a sharp U-turn and accelerating up fast behind his vehicle. He says that he panicked, that he did not know that it was the police, and that the vehicle had no police markings, no flashing light or siren.
He started to increase his speed. He says that all sorts of thoughts went through his head. It occurred to him that the following vehicle might be some sort of authority “like security”, and then thought that maybe it was the police, but he had no way of knowing.
He says that he thought that if it was the police, they might defect his vehicle, and he could not afford for that to happen. He says that he was not thinking rationally at the time. He states that he has no recollection of turning off the lights of his vehicle, but that this might have happened when he used the indicator, the lights being on the same lever. He infers that they may have been turned off accidentally.
He says later in his affidavit that Dyson Road has a speed limit of 80 kilometres per hour, which does not square with that which the police officers say he told them, to which I refer above, when he refers to a 60 kilometres per hour speed zone. Earlier in his affidavit he refers to a 70 kilometres per hour speed zone on O’Sullivan Beach Road. Perhaps there are different speed limits on the roads.
At all events, the appellant admits in his affidavit that he told the police officers that he would have driven at speeds of 130 to 140 kilometres per hour, but that he did not embarrass any other vehicles. He states in his affidavit that “If the Police .... had activated their siren and or their lights I would have pulled over. But I just did not know for sure who was following me”.
The appellant states that when the police came to his house, they told him that they were looking for a person who had committed a robbery, and that they had followed him thinking that he might have been the perpetrator. The appellant says that he let them search his house and sheds, to prove he had no stolen goods and that he had nothing to do with the robbery.
He further deposes to the fact that he was employed as a chef for five years before starting his own business as a car detailer about two months before the date on which he swore his affidavit, which was 8 January 2004. He picks up vehicles for detailing and then returns them, usually to car yards. He says that he would not be able to survive in business without being able to drive his car or the cars which he collects.
He obtained a suspension of the order of disqualification, pending the hearing of the appeal.
It will be seen from what I have explained so far that there are significant differences between the account of the matter given on the one hand by the police prosecutor and on the other hand by the appellant, more particularly as to the immediate circumstances of the offending.
There is a glaring inconsistency between what he says now as to his awareness at the time that he was being followed by the police and what he is alleged to have confessed to the police on the same topic.
During the hearing of the appeal I drew the appellant’s attention to the discrepancies in the affidavits and inquired of him how it came to be that he apparently said what was alleged to the police officers when he was interviewed at his home. He did not deny that he said those things to the police officers, but said that he was overborne, and that he felt pressured to agree with the account which has been recorded by the police.
When asked whether or not he had given his own account of the matter to the magistrate when he attended in court on 5 November 2003, he said that he was overwhelmed by the situation and tended to agree with everything that was put to him.
I have no little hesitation in accepting the appellant’s account of the matter.
I bear in mind that this is his first offence, and I assume that he has had very little experience in dealing either with the police or with courts. On the other hand, he is 27 years of age and I would have thought that he was capable of explaining to the Magistrates Court his account of the matter, even if he felt intimidated by the police officers.
I have also explained to the appellant that it was inevitable that his licence would be suspended for a period. Furthermore, that it was unlikely that he would be able to persuade a court to reduce the six months minimum which is applicable in circumstances other than those in which the defendant is able to satisfy the court that the offence is trifling.
I have drawn the appellant’s attention to the fact that I would not, on that issue alone, that is the question of giving to him an opportunity to make out a case that the offence is trifling, be prepared to send the matter back to the Magistrates Court.
However, it seems to me that through a combination of circumstances it may well be that he has not had an opportunity to put his case as fully as it might have been put.
While I recognise that his own conduct or inexperience may have deprived him of his ability to do so, the fact remains that there may have been some unfairness to the appellant as a result of a combination of the circumstances as I have explained them.
I bear in mind also that the licence disqualification of 18 months is a substantial penalty.
If the matter was free of the contradictions and inconsistencies in the accounts which have been given, and if the matter was to be dealt with simply on the basis of the facts as related in the affidavit of the prosecutor, I might nonetheless have been prepared to interfere on the footing that the period of disqualification is arguably excessive.
In all the circumstances, I think that in order to ensure that the appellant has a fair hearing and that justice is done with respect to the disposal of the charge against him, I quash the sentence under appeal but the conviction will remain.
I refer the appellant to the Magistrates Court for a further hearing as to penalty, so that he may be re-sentenced.
Mr Emery of counsel for the respondent quite properly has not raised an argument against the course which I have taken.
The order will be as I have indicated.

[2004] SASC 12

13 January 2004