Hogg v Police - [2013] SASC 192

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HOGG v POLICE
[2013] SASC 192
Judgment of The Honourable Justice Kelly
13 December 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
CRIMINAL LAW - PROCEDURE - LIMITATION OF TIME FOR PROSECUTION
Appeal against conviction of one charge of speeding – expiation notice was posted to appellant on 16 December 2011 but was not received by her until 5 January 2012 – expiation period expired on 12 January 2012 – appellant elected to be prosecuted on 11 January 2012 – the complaint was laid at Registry on 4 July 2012 – at trial the appellant submitted that the complaint had been laid out of time – Magistrate ruled that proceedings were commenced within time.
Whether the Magistrate wrongly interpreted and applied the Expiation of Offences Act 1996 (SA) and the Summary Procedure Act 1921 (SA) – whether the Magistrate erred in finding that the proceedings were commenced within time.
Held:
(1) In determining whether proceedings were instituted within time, the Magistrate correctly interpreted and applied the Expiation of Offences Act 1996 (SA) and the Summary Procedure Act 1921 (SA).
(2) The Magistrate correctly looked to s 6(1)(j) of the Expiation of Offences Act 1996 (SA) when interpreting s 52 of the Summary Procedure Act 1921 (SA).
(3) The reference in s 52 of the Summary Procedure Act 1921 (SA) to “given to the person” includes giving to a person by post.
(4) Proceedings were commenced when the complaint was laid at Registry on 4 July 2012. They were thus commenced within six months of the expiry of the expiation period, within time.
(5) The appeal is dismissed.
Acts Interpretation Act 1922 (SA) s 22; Australian Road Rules r 20; Expiation of Offences Act 1996 (SA) s 6(1)(c), s 6(1)(j), s 8(3), s 16(6); Road Traffic Act 1961 (SA) s 79B; Summary Procedure Act 1921 (SA) s 52, referred to.
Maguire v Pankiewicz (2009) 263 LSJS 340, applied.

HOGG v POLICE
[2013] SASC 192
Magistrates Appeal: Criminal
KELLY J.

This is an appeal against a conviction recorded in the Adelaide Magistrates Court on 9 August 2013. The appellant was found guilty of one charge of speeding contrary to Rule 20 of the Australian Road Rules (SA) and s 79B of the Road Traffic Act 1961 (SA).
The Notice of Appeal contains three grounds which raise two main issues for consideration on this appeal. The first is whether the Magistrate wrongly interpreted and applied the Expiation of Offences Act 1996 (SA) (“Expiation of Offences Act”) and the Summary Procedure Act 1921 (SA) (“Summary Procedure Act”). The second corollary question is whether the Magistrate erred in finding that the proceedings were commenced within time. Although the appellant appeared unrepresented she was assisted by Mr Borick QC who later appeared and made submissions in reply on her behalf.
Background
The relevant Traffic Expiation Notice (expiation notice) alleged…

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 Hogg v Police

Details

AGLC: Hogg v Police [2013] SASC 192
Case: [2013] SASC 192
Decision Date: 13 December 2013

CaseChat Overview and Summary

In the case of Hogg v Police, the appellant was convicted of a speeding offence after electing to be prosecuted instead of paying the expiation notice. The central issue in this appeal was whether the proceedings were initiated within the legally prescribed time, and if the magistrate correctly interpreted and applied the relevant statutes. The appellant claimed that the expiation notice was not received until after the expiation period had expired, arguing that this constituted a delay that warranted an extension of time or withdrawal of the notice. The magistrate, however, ruled that the proceedings were commenced within the time limits set by law.

The court examined whether the magistrate properly applied the Expiation of Offences Act 1996 (SA) and the Summary Procedure Act 1921 (SA) in determining the timeliness of the proceedings. Specifically, the court considered the interpretation of the term "given to the person" in section 52 of the Summary Procedure Act, which was applied in conjunction with section 6(1)(j) of the Expiation of Offences Act. The court found that the reference in the Summary Procedure Act to "given to the person" included delivery by post, which was consistent with the statutory framework. Therefore, the proceedings were deemed to have been initiated when the complaint was laid at the registry on 4 July 2012, well within the six-month period following the expiration of the expiation period. The appeal was dismissed as the magistrate's interpretation and application of the relevant statutes were found to be correct.

In conclusion, the court held that the magistrate correctly interpreted and applied the relevant legislation and that the proceedings were instituted within the required time frame. Consequently, the appeal was dismissed, and the conviction of the appellant stood.

Orders

Orders of the court

Held:

(1) In determining whether proceedings were instituted within time, the Magistrate correctly interpreted and applied the Expiation of Offences Act 1996 (SA) and the Summary Procedure Act 1921 (SA).

(2) The Magistrate correctly looked to s 6(1)(j) of the Expiation of Offences Act 1996 (SA) when interpreting s 52 of the Summary Procedure Act 1921 (SA).

(3) The reference in s 52 of the Summary Procedure Act 1921 (SA) to “given to the person” includes giving to a person by post.

(4) Proceedings were commenced when the complaint was laid at Registry on 4 July 2012. They were thus commenced within six months of the expiry of the expiation period, within time.

(5) The appeal is dismissed.

Background

Background to the litigation

The Notice of Appeal contains three grounds which raise two main issues for consideration on this appeal. The first is whether the Magistrate wrongly interpreted and applied the Expiation of Offences Act 1996 (SA) (“Expiation of Offences Act”) and the Summary Procedure Act 1921 (SA) (“Summary Procedure Act”). The second corollary question is whether the Magistrate erred in finding that the proceedings were commenced within time. Although the appellant appeared unrepresented she was assisted by Mr Borick QC who later appeared and made submissions in reply on her behalf. Background The relevant Traffic Expiation Notice (expiation notice) alleged that on 11 December 2011 the appellant in her vehicle committed the offence of exceed speed limit of 50 kilometres per hour on Osmond Terrace, Norwood. It alleged that the appellant’s vehicle was detected travelling at 64 kilometres per hour in a 50 kilometres per hour zone. The payment due date specified on the notice was 12 January 2012 which was 28 days from the date on which the notice was issued, 15 December 2011.[1] The notice was posted to the appellant on 16 December 2011. At trial, a 79B[2] Certificate of Issue of Expiation Notice by Post, which certified that the expiation notice was posted on 16 December 2011, was admitted into evidence.[1] Expiation of Offences Act 1996 (SA) s 6(1)(c).[2] Road Traffic Act 1961 (SA). However, at the hearing of this appeal on 18 November 2013 the appellant swore under oath that she did not receive the expiation notice until 5 January 2012. On 5 January 2012 the appellant faxed a request for photographic evidence to the Expiation Notice Branch (the Branch). That fax was admitted into evidence (BH1) at the hearing. On 10 January the appellant faxed a letter (BH5) to the Branch conditionally accepting the claim on the basis that traffic camera evidence is provided, as well as a sworn affidavit and other material pertaining to the accuracy of the speed measuring device. The next day on 11 January 2012, one day prior to the expiry of the expiation period, the appellant faxed another letter to the Branch (BH2). She stated that she had received the requested photo that day, and requested that the Branch “put the matter on hold”. Importantly, on 11 January 2012 the appellant also faxed an Election for Prosecution. That was admitted P3 at the trial. On 18 January 2012 the appellant received a reply from the Branch (BH3) informing that the matter would stand and confirming the appellant’s election to be prosecuted. The relevant complaint was laid at Registry on 4 July 2012. The appellant was convicted on 9 August 2013. Discussion Before turning to the grounds of appeal, I should comment on some peripheral matters raised at the hearing of this appeal. The first matter involves the date on which the appellant actually received the expiation notice. I accept the appellant’s evidence that she did not receive the notice until 5 January 2012. It is perhaps unfortunate that the appellant had only seven days to decide whether to elect to be prosecuted, and to obtain material she thought necessary to inform her position. However, s 6(1)(c) of the Expiation of Offences Act states that the expiation period runs for “28 days from (and including) the date of the notice”. I take this to mean 28 days from the date on which the notice is issued, not received. Nowhere in the Expiation of Offences Act is it provided that individuals must have 28 days to consider their position after having received a notice. The Expiation of Offences Act clearly contemplates the possibility of postal delays; s 16(6) states that the issuing authority must withdraw an expiation notice if it becomes apparent that the alleged offender did not receive the notice until after the expiation period, or has never received it, as a result of error on the part of the issuing authority or failure of the postal system. Thus, while the appellant unfortunately received the notice well into the expiation period, the Expiation of Offences Act does not require the police to withdraw the notice, or to grant an extension of time on that basis.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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