Gardner v Police - [2023] SASC 95

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
GARDNER v POLICE
[2023] SASC 95
Judgment of the Honourable Justice Stein
28 June 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - HEARING - ADJOURNMENT AND REMAND
MAGISTRATES - HEARING - PROCEDURAL FAIRNESS AND NATURAL JUSTICE
The appellant was charged with drive unregistered motor vehicle on a road contrary to s 91(5) of the Motor Vehicles Act 1959 (SA); drive uninsured motor vehicle on a road contrary to s 102(1) of the Act; and drive motor vehicle with incorrect number on the number plate contrary to s 47D(1)(a) of the Act. At trial, the Magistrate found all charges proved and, in sentencing did not record a conviction and imposed a nominal fine of $20.
The appellant appealed on the grounds that the Magistrate erred in refusing to allow an adjournment of the trial, failed to accord natural justice and procedural fairness, denied "requisite practice and procedure", denied obligations under the Evidence Act 1929 (SA) and the Joint Criminal Rules 2022 (SA) that the sentence was indicative of triviality and the prosecution was "founded on the negligence of executive government".
Held:
1. The appellant failed to make out any ground of appeal.
2. Appeal dismissed.
Motor Vehicles Act 1959 (SA) ss 91(5), 102(1), 47D(1)(a); Evidence Act 1929 (SA); Joint Criminal Rules 2022 (SA), referred to.
Patel v Police [2022] SASC 83; Maider v Dancis (1985) 39 SASR 136; Blinco v Speer [1999] SASC 211; Alexandroaia v R (1995) 81 A Crim R 286; Crowther v Police [2008] SASC 302; House v The King (1936) 55 CLR 499, considered.

GARDNER v POLICE
[2023] SASC 95
Magistrates Appeal: Criminal
STEIN J.
Background

On 20 January 2022, Mr Gardner was stopped by police on Main Road in Willunga while driving a Holden station wagon with Queensland number plates. The police officer conducted checks and determined that the number plates attached to the Holden station wagon were allocated to a different vehicle. The registration of the Holden station wagon had expired in October 2020. When asked questions, Mr Gardner admitted the motor vehicle was not registered in South Australia and said it was registered with a website called Common Law Earth. Mr Gardner told the police officer he was unable to register the motor vehicle because of unpaid fines; if he had his South Australian number plates on the vehicle, police would pull him over all the time, and admitted he changed the number plates to disguise the vehicle. He said he did so to work and support his family.
Mr Gardner was charged with drive an unregistered vehicle on a road contrary to s 91(5) of the Motor Vehicles Act 1959 (SA) (“Motor Vehicles Act”), drive uninsured motor vehicle on a road contrary to s 102(1) of the Motor Vehicles Act and drive a motor vehicle with incorrect number on a number plate contrary to s 47D(1)(a) of the Motor Vehicles Act.
The trial
Mr Gardner represented himself at the trial. At the commencement of the trial, Mr Gardner applied for an adjournment of the trial on the basis he was contesting allegations of speeding from 2020 and, if the speeding charges had not been brought against him, he would not have had his licence suspended and he would have been able to register his motor vehicle. The prosecutor opposed the adjournment. The Magistrate refused the application for an adjournment on the basis the outcomes of the speeding matters were not relevant to the issues at trial. The Magistrate observed that if the allegations of speeding were withdrawn that did not provide a defence to the matters charged.
During evidence, Mr Gardner admitted the car was unregistered, the number plates attached to the vehicle were not the number plates assigned to the vehicle and he used the different plates to avoid being pulled over and having his car impounded. Mr Gardner said he believed there was insurance in place, but he was unsure whether it was covered by the statute. Mr Gardner did not dispute he was the driver of the motor vehicle or that it was driven on a road. Rather, Mr Gardner submitted that if he had not been wrongly issued with speeding fines, he would have been able to register the motor vehicle and the events would not have occurred which resulted in the charges.
Magistrate’s reasons
The Magistrate found the charged offending proved. She accepted as proved beyond reasonable doubt that Main Road, Willunga is a road within the meaning of the Motor Vehicles Act; on 20 January 2020 Mr Gardner drove an unregistered vehicle on a road, he knew the vehicle was unregistered; there was not in place, at the time of driving, a policy of insurance complying with the Motor Vehicles Act and the number plates attached to the vehicle were not those allocated to the vehicle. The Magistrate noted again that even if the speeding allegations the subject of Mr Gardner’s complaint were withdrawn, that would not provide a defence to the charges.
The Magistrate did not record convictions for the three offences and imposed a nominal fine of $20 for the three offences.
Grounds of appeal
The appeal grounds advanced by the appellant are as follows:
1.The learned Magistrate refused to have this Trial adjourned to allow the outcome of a decision of the Fines to be determined – which if successful would have a material impact on any charges laid in this matter, and render a Trial in this matter defunct.
2.That the learned Magistrate has denied natural Justice
3.The learned Magistrate has denied Procedural Fairness
4.The learned Magistrate has denied the Requisite Practise and Procedure
5.The learned Magistrate has denied obligations under the Evidence Act.
6.The learned Magistrate has denied requirements contained in the Joint Criminal Rules 2022
7.That the Sentence imposed by the learned Magistrate is indicative of the triviality of the matter, notwithstanding the various charges brought before the Court. It demonstrates that it is trivial and vexatious.
8.The entire prosecution is founded on the negligence of Executive of Government
Appellant’s submissions
The solicitor for the appellant filed written submissions. In the submissions the appellant accepted the facts were relatively uncontentious and that “Police stopped the Appellent [sic], due to Police detection – which showed that the Appellant’s was driving, had expired Registration”. The appellant’s submissions stated that:
… the Appellant was put on trial, at a time when the factors giving rise to his “offences” were still unresolved and that he, Appellant, was still attempting to have those matters brought to trial – when HH the learned trial Magistrate, insisted that the trial go ahead, and conducted the Trial. The Appellant was seeking to have the proposed Trial “Stayed” until after the other matters, which gave rise to the “offending” – had first been resolved.
The submissions stated that the appellant had received two expiation notices for speeding which he contested with the Expiation Branch and stated that the Expiation Branch:
(5)… never responded to the Appellant’s protests of innocence, and never answered him.
(6)Appellant, having not heard back from Expiation Branch, took it that matters were closed.
(7)Appellant is and was unable to agitate the matters himself, as an Appellant cannot Prosecute himself.
The submissions stated that when the appellant tried to renew his registration, Service SA refused to allow him to transact any business and that no further interaction occurred between the appellant and Service SA for almost two years. The appellant’s submissions stated that when the appellant was stopped by police in a vehicle displaying Queensland number plates, he had done so to avoid being stopped with expired South Australian number plates.
The appellant’s submissions continued:
Even after the earlier incident in 2021, when Appellant attempted to obtain reasons why he was prevented from “doing business” with Services SA (to again try to re-register his vehicle – he was still banished from doing business with Services SA) and by now having been told that his driver’s licence had also been suspended (also due to these outstanding Fines), he was still unable to find any remedy to have any of those matters resolved.
The submissions complained that prosecution and Service SA were unable to provide the appellant with any records of him being served with any disqualification notices.
The appellant’s submissions contended that the allegations of speeding, described as “administrative convictions”, ought to be dealt with first by the Court and only then, if the appellant was convicted of those charges, would demerit points and other consequences follow. The appellant submitted that any “administrative conviction” was premature following the “denial of natural justice to be able to be tried with respect to two Speeding matters”. The submissions stated that the appellant had continually denied speeding and had been denied any trial for those allegations. The appellant asserted he was denied natural justice, procedural fairness and proper practices and procedures with respect to how the original speeding notices were dealt with and if those matters had properly been activated the appellant would never have been:
… ambushed into any activities of driving unregistered or driving suspended/disqualified, as he would have had his driver’s licence intact – which still had years to run its validity, and had always been valid AND he would not have been disallowed to do business with Services SA and would have been able to Register his vehicle.
The appellant stated the subject of the appeal was the refusal of the Magistrate to allow the appellant to have the earlier contentious matters determined before the trial. In the alternative, the appellant submitted that even if he was now convicted of the speeding charges, the status quo in 2022 would never have been that he was disqualified or banned from being allowed to re-register his motor vehicle so he was “forced into a double-jeopardy position at all stages, simply because he was never allowed (by Expiation Branch) to have his two 2020 speeding fines, litigated”.
During oral submissions, the appellant’s solicitor conceded that the offences were strict liability offences and that his client could not make out a legislative defence. He stated that his client had deliberately attached false number plates to avoid detection but submitted he did so because:
… he realised that if he wanted to driving and he wanted to continue taking his children to school and picking them up from school and continue to attend work, he would need to do something in order to be able to not be, in his view, put into a position where the police are now saying that he has an unregistered vehicle but he feels that it's no fault of his own because the reason that he has an unregistered vehicle is because the Expiation Notice Branch or the motor registry doesn't allow him to pay for his registration, as he attempted to do in October 2020.
Therefore, he saw the need to take a plate that he has from another vehicle in Queensland and attach it to his car, his Holden station wagon, in order to be able to drive down the South Australian roads unnoticed.
The appellant submitted that the procedural unfairness from Service SA in refusing to accept his registration and refusal by the court to issue a summons put him into a corner where the “appellant saw no way out … to pay for his registration in order to be able to be legal on the road”.
The appellant’s solicitor submitted that the Magistrate’s error was the failure to give weight to the fact there was no court summons issued for the appellant to be able to prove himself innocent of the speeding offences in order to unlock the ability to register his vehicle.
The appellant’s solicitor stated:[1]
We understand that this is a strict liability offence and we understand that there are very limited defences in regards to knowledge and whether the vehicle is yours or not or whether you're driving for an employer or not, however, these strict liability offence is an offence that my client would not have committed had he been able to agitate those speeding offences in order to be able to have those points off his record. They’re currently floating as he's dealing with it in the courts trying to prove his innocence, allowing him to pay for his registry, allowing for his car to be registered and allowing him to continue to be a lawfully-abiding citizen.
The inability to pay for his registration all stems from that very small window of time in 2020 where my client tried to get into the courts, tried to get the courts to issue him a summons, tried to defend himself in the courts, but none of that was occurring and my client was unaware why this was not occurring and when he went to pay for the registration again in October 2020, he was unable to and they refused to accept his money for his registration due to this, but this other matter about the speeding offences was something he had no idea how to fix.
[1] In the transcript the word “defences” was incorrectly recorded as “offences” in the first sentence, this has been corrected in this judgment.
The appellant’s solicitor continued to say:
We do understand that you have to pay for your registration and if you haven’t, there is no mens rea, it’s a strict liability offence, but there's a lot more to that because my client did try to pay for his registration. My client did try to fix this problem as best he could and he did send letters to the Expiation Notice Branch and he did contact the court, but his inability to find a way forward put him into a situation that he couldn't find a way out of.
…
So it is very difficult your Honour, on this particular matter, to argue that the magistrate erred in some way, other than to discuss the fact that the magistrate didn’t recognise that my client was put into a position in that courtroom, in Christies Beach, in December 2022, when he was held guilty of this offence, by not recognising that there are other factors to consider and to take into consideration.
The appellant’s solicitor complained also of a lack of procedural fairness by Service SA and that:
We do feel that the magistrate rushed her decision. She issued her decision and gave a $20 fine, which we felt was a very small fine and we wrote in our submissions that it was a trivial sentence.
The appellant’s solicitor referred to Patel v Police[2] (“Patel”) and to Cox J’s observation in Maider v Dancis[3] (“Maider”) that convictions are not to be set aside on grounds that are unmeritorious or otherwise inadequate and the rights and interests of the respondent are to be considered, not only those of the appellant. In Maider, Cox J said there will be times when it will be appropriate to consider the substantial merits of a proposed defence and times when it will not, but ultimately it is a matter of doing what the justice of the case requires.[4] The appellant’s solicitor also referred to Blinco v Speer[5] and submitted that the:
… matter is not necessarily ground and laid only in the statute of not registering his vehicle, we feel that his troubles arise from a much higher plain [sic] and his troubles arise from the fact that he can't escape the statutes because he's not allowed to and there's no way forward until he deals with these pending offences.
[2] [2022] SASC 83.
[3] (1985) 39 SASR 136 at 142.
[4] Maider v Dancis (1985) 39 SASR 136 at 142.
[5] [1999] SASC 211.
Respondent’s submissions
The respondent submitted that whether to allow the adjournment was a matter within the discretion of the Magistrate, an appellate court will rarely interfere with a trial Judge’s exercise of discretion upon an adjournment application and there is a strong presumption in favour of the decision.[6] The respondent submitted that it has been held that an appropriate test for an adjournment is whether there was a reasonable possibility that material of substantial assistance would be obtained if the trial was delayed.[7] The test is not whether there is a reasonable possibility the material obtained would provide a successful defence, however, the strength of the theory being propounded by the accused is relevant.[8]
[6]     Alexandroaia v R (1995) 81 A Crim R 286 at 290; Crowther v Police [2008] SASC 302 at [33].
[7]     Crowther v Police [2008] SASC 302 at [33].
[8]     Alexandroaia v R (1995) 81 A Crim R 286 at 290.
The respondent submitted that the offences created by s 9(1) and s 102(1) of the Motor Vehicles Act impose strict liability and the only defences are those provided by the legislation. The appellant did not dispute the facts, he knew the vehicle was unregistered, was not sure there was insurance and none of the statutory defences were available. The respondent submitted that even if the speeding expiation notices were withdrawn, that would not retrospectively deem the vehicle as having been registered and insured. In the case of s 47D(1)(a) of the Motor Vehicles Act, the appellant admitted different number plates were placed on the vehicle. The respondent submitted it is not a defence to assert that if the speeding notices had not been wrongly issued, the appellant would not have attached a different number plate to the vehicle. Further, even if the speeding notices were withdrawn, it would not change the fact different number plates were attached to the vehicle. The respondent submitted the learned Magistrate correctly identified that the outcome of the challenge to the speeding notices was not relevant and that if the prior allegations were withdrawn, it would not provide a defence to the charges.
The respondent submitted that the appeal grounds asserting a denial of natural justice, procedural fairness and requisite practice and procedure related to the manner in which the speeding expiation notices were addressed, those matters were not the subject of the trial and accordingly did not fall within the appellate jurisdiction of this Court. The respondent made similar submissions in relation to the assertion that the appellant was denied any opportunity to file applications for relief. The respondent submitted it is not a proper ground of appeal against conviction that the sentence imposed suggested the matter was trivial. The respondent submitted the appeal ground asserting the prosecution was founded on the negligence of executive government lacked particularity and failed to articulate the basis on which it was asserted the Magistrate erred in a relevant way.
Analysis
In order to succeed on an appeal based on a refusal to grant an adjournment it must be established that the Magistrate erred in the proper exercise of the discretion in accordance with the principles in House v The King.[9]
[9] (1936) 55 CLR 499.
The appellant did not demonstrate any error in the exercise by the Magistrate of the discretion to refuse the application to adjourn. Contrary to the submissions put by the appellant, the refusal to allow the adjournment did not stem from a failure to recognise and take into account relevant matters. The appellant’s complaints concerning the failure of Service SA to allow him to register his vehicle and his assertions about his inability to have his speeding offences prosecuted do not assist the appellant. It is apparent from the reasons that the Magistrate understood the basis of the adjournment application and refused it on the basis that the concerns put in relation to the speeding fines did not, and could not, amount to a defence to the charged offending. The elements of the offences were proved beyond reasonable doubt and there was no contention that any of the statutory defences applied in the particular circumstances. As the Magistrate correctly noted, even if the speeding charges were withdrawn, that would not have provided a defence to the charged offending. This was not a case in which, if the trial had been adjourned, there was a reasonable possibility that material of substantial assistance would have been obtained by way of defence. The decisions in Patel and Maider do not assist the appellant. The appellant was required to establish an error by the Magistrate in the exercise of her discretion and the appellant failed to do so. I therefore dismiss the first ground of the notice of appeal.

The appellant’s solicitor clarified that appeal grounds 2 to 4 (that the Magistrate denied natural justice, procedural fairness and requisite practice and procedure) related to the manner in which Service SA and the SAPOL Expiation Branch dealt with the appellant. Any such alleged failures to accord procedural fairness, natural justice and practice and procedure did not relate to any aspects of the conduct of the trial or the conviction and the appeal grounds are thus misconceived. I dismiss grounds 2 to 4 of the notice of appeal.
No submissions were put concerning appeal ground 5, that the Magistrate denied obligations under the Evidence Act 1929 (SA) (“Evidence Act”), or appeal ground 6, that the Magistrate denied the requirements of the Joint Criminal Rules 2022 (SA) (“Rules”). There was no suggestion of any failure to comply with the Evidence Act, the rules of evidence or the Rules. I dismiss grounds 5 and 6 of the notice of appeal.
Appeal ground 7, based on the sentence imposed by the Magistrate, is misconceived in an appeal against conviction. Any leniency in sentence does not necessarily relate to the seriousness of the offence, provide any justification for the assertion the offence was “vexatious” or demonstrate any error by the Magistrate in convicting the appellant. I dismiss ground 7 of the notice of appeal.
No submissions were put on appeal ground 8, that the prosecution was founded on the negligence of executive government. There was no material to support that ground and it did not relate to any aspect of the Magistrate’s reasons for convicting the appellant. I dismiss ground 8 of the notice of appeal.
Orders
I dismiss the appeal.
I will hear the parties in relation to costs.