Hady-Ali v Police - [2015] SASC 84

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HADY-ALI v POLICE
[2015] SASC 84
Judgment of The Honourable Auxiliary Justice Duggan
4 June 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS
Appellant pleaded guilty to driving at a speed exceeding the speed limit - appellant appeals against Magistrate's refusal to order that the demerit points incurred be reduced - whether offence was trifling - whether any other proper cause existed to reduce the demerit points.
Held: Appeal dismissed.
Motor Vehicles Act 1959 (SA) s 98B(4), referred to.
Hearn v McCann (1982) 29 SASR 448; Vanderbergh v Police [2005] SASC 197; Siviour-Ashman v Police (2003) 85 SASR 23; Holness v Police [2010] SASC 314; Black v Police [2009] SASC 115; Dycer v Police [2010] SASC 241; Cirillo v Police [2010] SASC 293; Police v Federuzzi [2008] SASC 104; Shillabeer v Linnane (1979) 22 SASR 382, considered.

HADY-ALI v POLICE
[2015] SASC 84
Magistrates Appeal: Criminal

DUGGAN AJ: The appellant pleaded guilty to driving a motor vehicle on the South-Eastern Freeway at a speed in excess of the speed limit of 110 kilometres per hour. It was alleged in the complaint that the offence took place on 18 August 2014 at Mt Barker. It was further alleged that the vehicle was being driven at approximately 149 kilometres per hour.
The appellant was fined $600 and ordered to pay the victims of crime levy and prosecution costs. He also incurred the demerit points applicable to the offence.
The appellant was unrepresented at the hearing before the Magistrate and on the hearing of the appeal. It is clear that he prepared the notice of appeal without legal assistance.
It is apparent from the transcript of the lower court proceedings that the appellant applied for an order that no demerit points be incurred. He gave evidence on the hearing of the application and stated that the reason for speeding was due to a faulty speedometer. He advised the court that the speedometer had been tested by an auto electrician and that it was found to be faulty.
When cross-examined by the police prosecutor the appellant agreed that he told the police when he was stopped that his sister-in-law, who was travelling with him, was being taken to hospital. However he said that she no longer wished to go to the hospital after this incident and she told him not to worry about it. He said nothing to the police about a faulty speedometer.
After hearing the appellant’s evidence the Magistrate made the following ruling:
Mr Hady-Ali I have considered your application. What you have told me is your speedometer on your car is not working or if it was working it was working only intermittently. At one stage it was spiking so it showed a particular speed and then it would drop down again and continue on that way. So you said you couldn’t determine which speed you were going. You said you were driving at night and there was no other traffic around. You said you were taking your sister-in-law to hospital but subsequently that did not happen.
I put to you earlier that if I was travelling at 149 kilometres an hour I would conscious I was speeding. I may not know without looking at the speedometer I was doing 149 kilometres an hour but I would know, even without looking at a speedometer, that I was considerably faster than the signed speed limit for that area. The speed limit there was 110. You were doing 39 kilometres above. In my view the malfunctioning speedometer is not a sufficient excuse for me to reduce the points. The application to reduce the points is refused.
The best I can do for you is this – without recording a conviction I will impose a fine of $600 plus victim of crime levy and prosecution fee. You will have to pay the fine and unfortunately you are going to have to cop the points I am sorry.
The appeal is out of time, but the circumstances warrant an extension of time within which to appeal. The respondent has no objection to an extension of time which is granted.
The grounds of appeal are not in proper form but the essence of the appellant’s complaint is apparent from the following statements in the notice of appeal:
I would like the order to be withdrawn. If I lose my licence I will lose my job.
I was not given the opportunity to explain myself, or the effort I put to fix the car and the faulty speedometer. Documentation provided by [the] mechanic given through the prosecutor was not taken into consideration.
I do not believe I am guilty. I was not given the chance to explain myself or provide documentation that the speedometer was faulty. I purchased the vehicle on the day of the alleged offence and realised a couple of days later that my speedometer wasn’t right.
Although the appellant stated in the notice of appeal that he did not believe that he was guilty, it became apparent on the hearing of the appeal that his real complaint was that the Magistrate erred in refusing to reduce the demerit points which would otherwise apply. In any event there is no basis upon which the plea of guilty could be set aside. In my view speeding offences impose absolute liability and the defence of reasonable mistake of fact is not available. It is not to the point that the driver of a vehicle believed he or she was not speeding.[1] Furthermore, this is not a case of mistaken belief caused by a faulty speedometer. The appellant was aware of the fact that the speedometer was faulty.
[1] Hearn v McCann (1982) 29 SASR 448 and see the discussion by Gray J in Vandenbergh v Police [2005] SASC 197.
However, it is relevant to inquire whether the Magistrate erred in refusing to make an order reducing the demerit points.
Section 98B(4) of the Motor Vehicles Act 1959 (SA) provides that:
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.
In my view the offence could not be categorised as “trifling”. In Siviour-Ashman v Police[2] Doyle CJ, when dealing with a drink driving offence, agreed with the proposition that a normal or typical example of an offence will not be trifling. The learned Chief Justice went on to say:[3]
The intention behind a provision like s 47B(3)(b) must be to deal with unusual or exceptional cases, the circumstances of which call for the usual minimum to be put to one side: see Verran v Roberts [1938] SASR 256 at 259-260; Mancini v Vallelonga (1981) 28 SASR 236 at 239. The offence might be unusual or exceptional in this sense, if it is “a trivial example of the forbidden act”: Brebner v Hersey [1963] SASR 1 at 11.
[2] (2003) 85 SASR 23.
[3] Siviour-Ashman v Police (2003) 85 SASR 23 at [25].
The appellant’s vehicle was travelling at approximately 149 kilometres per hour which was 39 kilometres per hour above the speed limit. There is nothing in the circumstances of the offence which would justify the conclusion that the offence was trifling in the sense discussed above.
The alternative ground upon which demerit points might be reduced is where there is “any other proper cause” for doing so.
In Holness v Police[4] Sulan J referred to the authorities which have established that “proper cause” must relate to the circumstances of the offence and not the circumstances of the offender.[5]
[4] [2010] SASC 314.
[5] See e.g. Black v Police [2009] SASC 115; Dycer v Police [2010] SASC 241; Cirillo v Police [2010] SASC 293; Police v Federuzzi [2008] SASC 104.
As stated above, the appellant relied upon the circumstance that the speedometer on his car was faulty. He said in evidence before the Magistrate:
It was working but it is like, you know, jumping up and down, you know, for the numbers.
Later in his evidence he said:
My speedo was going up and down - I wasn’t speeding that - maybe I was doing 100, 110 something like that. The speedo was going up and down.
It is important to note that, on the appellant’s version, he was aware that the speedometer was not working properly at the time of the driving. It is clear on this version that he was aware he could not rely on the speedometer to give a correct reading. This situation is to be distinguished from a case in which the speedometer was giving a reading which was relied upon by the driver at the time of driving, but which was later proved to have been incorrect. The latter situation occurred in Shillabeer v Linnane[6] where Mitchell J stated:[7]
…the appellant had apparently had no cause to suspect that his speedometer was registering incorrect speeds until he was apprehended by the police. He showed a very responsible attitude when he was stopped and took immediate steps to ascertain whether the speedometer was defective.
[6] (1979) 22 SASR 382.
[7] Shillabeer v Linnane (1979) 22 SASR 382 at 384.
In that case it was discovered upon examination by an expert that the speedometer was not registering the correct speed but instead a speed significantly lower than the correct speed. This discrepancy, of which the driver was unaware, was relied upon by Mitchell J as constituting a “proper cause” to reduce the demerit points which would otherwise apply.
The distinction between the two cases illustrates why the Magistrate was correct in ruling that there was no basis upon which it was appropriate to reduce the demerit points in the present matter. As stated previously, the appellant was fully aware that the speedometer was faulty and yet he drove at a high rate of speed while, on his version, he was unable to say how fast he was travelling.[8]
[8] cf Vanderbergh v Police [2005] SASC 197, another case involving a faulty speedometer.
These circumstances do not disclose a proper cause to reduce the demerit points to a lower level and the Magistrate was correct in refusing to do so.
The appeal will be dismissed.