Harder v Strickland

[1991] TASSC 37

Serial No 6/1991
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Harder v Strickland [1991] TASSC 37; A6/1991

PARTIES:  HARDER, JAMES JONATHON
  v
  STRICKLAND, ROBERT RAE

FILE NO/S:  LCA 14/1990
DELIVERED ON:  7 February 1991
JUDGMENT OF:  Underwood J

Judgment Number:  A6/1991
Number of paragraphs:  10

Serial No 6/1991
List "A"
File No LCA 14/1990

JAMES JONATHON HARDER v ROBERT RAE STRICKLAND

REASONS FOR JUDGMENT  UNDERWOOD J

(Given Orally)  7 February 1991

1. The applicant was summonsed to answer the respondent's complaint that, on 26 August 1990, he committed a breach of the Traffic (General & Local Regulations) 1956, reg5(1)(c)(i). This regulation requires a driver, when overtaking another vehicle, to do so by passing on the right side of that vehicle. The applicant pleaded guilty in the manner prescribed by the Justices Rules, r26(1). The summons came on for hearing before a magistrate sitting in a Court of Petty Sessions on 3 December 1990. The learned magistrate heard the complaint in accordance with r26(2), namely, as if the defendant had appeared and pleaded guilty to the complaint. Rule 36(3) provides (inter alia) that if a defendant pleads guilty the justices may receive such evidence or statements as they think fit before imposing penalty.

1. In accordance with this authorisation the learned magistrate heard a statement from the prosecutor. It was to the effect that on the relevant day, a learner driver was driving a utility displaying "L" plates in the left hand lane at the start of a dual lane section of the Bass Highway. She was driving in a westerly direction. The utility was being overtaken by a truck travelling in the right hand lane. At the same time, the applicant overtook the learner driver on the road verge to her left; basically making it three abreast, as the learned magistrate remarked. The learner driver panicked and the instructor had to seize the wheel to keep the utility away from the overtaking truck. The prosecutor then said:

"The driver of the Laser sedan and he [sic] admitted having overtaken the vehicle on the left. He claimed your worship because he was travelling too fast and if he didn't overtake on the left he would have run into the back of her. Those are the facts, there is one prior matter your Worship."

1. The applicant did not appear and made no written statement in mitigation as is provided for on the form prescribed by the Rules. The learned magistrate then made certain remarks and ordered payment of a fine of $130, costs and that the applicant be disqualified from holding or obtaining a driver's licence for six months. The motion seeks a review of this penalty.

1. Ground 2 of the amended grounds of the motion allege error occurred in that the learned magistrate proceeded to sentence taking into account an aggravating factor that had not been admitted by the applicant and which did not constitute a particular of the offence. The aggravating factor lies in the statement of the prosecutor that the applicant had admitted the offence was committed because he was travelling too fast and had it not been committed he would have run into the back of the utility. It is trite law that a plea of guilty is an unequivocal admission only of the essential elements of the offence to which the plea relates.

1. Learned counsel for the applicant submitted that specific error occurred, vitiating the proper exercise of the sentencing discretion, by the receipt of a circumstance of aggravation other than by way of sworn evidence. He relied on obiter dicta of Burbury CJ in Powell v Webberley [1963] Tas SR 62. That was a case of a conflict between the statement of the prosecutor and the written statement of mitigation filed by the applicant. His Honour referred to the predecessor of r36(3) and stated that whether sworn evidence should be taken or not was a matter for the discretion of the justices. However, he went on to say, at 67,68 that where there is no statement in mitigation and the defendant is not present, "I would think that ordinarily the justices ought to take evidence on oath as to the circumstances in which the police alleged the offence was committed and certainly if those circumstances are of an aggravating character". The report carries a footnote that the former Chief Justice wishes the last quoted words to be substituted by the words, "if those circumstances are adverse to the defendant and go beyond the facts expressly or by necessary implication admitted by the plea of guilty".

1. With great respect I find myself unable to agree with that statement by the learned former Chief Justice. If the facts are necessarily admitted by the plea they are simply admitted. The rule makes it clear that other statements not made on oath may, in the proper exercise of the discretion, be admitted and the obiter dicta places a fetter on the exercise of that discretion not expressed by the rule. I find myself in complete agreement with the following passage in the judgment of Wright J in Coad v Maher, 19 July 1990:

"I must say that I have some difficulty in accepting either the former Chief Justice's words or the submissions of the applicant as embodiments of a principle of general application, although I can appreciate that in some circumstances a proper exercise of discretion by the court would require it to afford an offender the opportunity of making submissions or challenging the accuracy of the prosecution's version of relevant events. But I think that it is only on a separate analysis of any individual case that one will be able to recognise whether or not the infliction of penalty should have been postponed for this purpose. In other words, I do not subscribe to the view that there is a general rule to the effect stated in the passage I quoted from Powell v Webberley (supra)."

1. There is nothing in the present case to warrant the conclusion that the learned magistrate's acceptance of the unsworn statement of the circumstance of aggravation constituted an erroneous exercise of his discretion and ground 2 is not made out.

1. Ground 1 alleges that error occurred in that an interview of the applicant by the police, recorded in writing, was not put to the learned magistrate. To support this ground affidavit evidence was received by consent on the hearing of this appeal (Justices Act 1959, s110(2)). The prosecutor has a duty to put before the magistrate all relevant material, (Powell v Webberley (supra)). This was properly conceded by learned counsel for the respondent. The affidavit material sworn by the applicant and received on the hearing of this appeal discloses that four days after the commission of the offence, the applicant was interviewed by the police and the questions and answers recorded in writing and signed by the applicant. Although the applicant's answers do not make his description of the circumstances of the offence entirely clear, they are at variance with the statement made by the prosecutor in court, at least in that the latter did not disclose the whole account given by the applicant on interview. I interpolate here to make it quite clear that I am not suggesting any impropriety on the part of the prosecutor or any other police officer. The applicant's account given to the police could be construed as follows:

I did not at any time exceed the speed limit. I was following a truck and being followed by another truck all travelling in the left hand lane. The preceding truck pulled out to overtake the utility driven by the learner driver. As it did so I was confronted with the utility (inferentially then moving much slower than me) and the two trucks. The right hand lane was occupied by the first truck and the gap between the utility and myself was closing rapidly. I was concerned that if I braked suddenly the following truck would hit me in the rear, so I moved to the left of the learner driver and continued on to overtake her on the wrong side.

When asked by the police whether he thought overtaking on the inside might have caused an accident he said:

"As far as I was concerned I was preventing an accident. If I braked quickly I would have had a truck hit me in the rear end."

1. Before he imposed penalty the learned magistrate, relying on what he had been told, said (inter alia):

"Clearly his manoeuvre was potentially hazardous and his claim that he was travelling too fast is hardly an excuse at all. It is perhaps an explanation as to why he was carrying out the manoeuvre but he should not have been travelling too fast."

It is most unlikely that the learned magistrate would have made those remarks had he been furnished with the explanation the applicant gave to the police on interview as he should have been. It therefore appears that due to circumstances beyond his control, the exercise of the sentencing discretion was tainted with specific error in that it resulted in the imposition of a penalty which did not take into account matters that it ought to have taken into account. Accordingly the penalty should be reviewed. Chapman v Flemming, [1960] Tas SR 1; cf Pearson v Samuels (1976) 13 SASR 428.

1. In the light of the forgoing it is unnecessary to consider ground 3. Learned counsel for the Crown indicated that it was not conceded that the explanation given by the applicant to the police was true and both counsel were agreed that in the event of the motion succeeding I should set aside the whole of the order of penalty and exercise the power contained in s.10(e) to remit the matter, that is the imposition of penalty, to be retried by a magistrate. There will be orders accordingly. I make an order that the respondent pay the applicant's taxed costs of the appeal.