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 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.
The second, related matter concerns the material faxed by the appellant to the Branch on 11 January 2012. The following is an extract from the letter:
I received your photo today (one day prior to the “due date” to pay), despite requesting it the day I received your notice. I appreciate the delays may be due to Christmas postal delays.
In order to expedite the settlement of this matter I sent you a letter by fax stating that your claim is conditionally accepted if you provide requested information (10.1.12) and have not had a reply from your office. Please put this expiation notice on hold until you have replied to that communication.
If we can not [sic] resolve this matter I will elect for the matter to be heard in a court of competent jurisdiction. To that end I feel forced into sending this fax and the accompanying completed form despite not having received a reply form [sic] your office to my faxed letter but it is my wish that we settle this matter in a timely way without the need to take the court’s time. Please put this matter on hold and I look forward to you letter in response to mine.
The accompanying form referred to was the appellant’s election to be prosecuted. The appellant, for whatever reason, did not tender that form along with the letter tendered at hearing, though they were faxed together. In any case, I take the view that the police were not entitled to treat the attached election to be prosecuted as conditional by granting an extension of time. The police had no discretion to do so. Section 8(3) of the Expiation of Offences Act provides in no uncertain terms “If an election is made under this section, the expiation notice will be taken to have been withdrawn in respect of the offence to which the election relates”.
I find that upon receiving the election to be prosecuted, the Police withdrew the appellant’s expiation notice in accordance with the Act.
The Magistrate’s Reasons
At trial the Magistrate gave comprehensive reasons for ruling against the appellant’s submission that the complaint had been laid out of time. He said:
Ms Hogg’s argument rests upon her interpretation of the words in s 52(1)(a)(i) given to the person. It is her submission that given to the person means actually given to the person not sent by way of post or any other mechanism and therefore that sub-section is not applicable in her submission to this case. In her submission what is applicable to this case is s 52(1)(a)(ii) which requires in circumstances where an expiation notice has not been given for the proceedings to be commenced within six months of the date of the offence alleged to have occurred. Clearly if that is correct these proceedings are out of time. The Expiation of Offences Act 1996 provides that in relation to an expiation notice in sub-s 6(j) and I will read again ‘an expiation notice may be given (ii) by post addressed to the alleged offender’s last known place of business or residence;’. Ms Hogg submits that that doesn’t apply to the wording in the Summary Procedure Act. However in my view that clearly is an erroneous interpretation of the legislation. S52(1)(a)(i) talks about if an expiation notice is given to the person. The Expiation Act defines how a notice may be given and clearly the provision of a notice by post is acceptable and in my view that aspect of her argument has no substance. When one looks at the definition in the Expiation of Offences Act of the term ‘the expiation period specified in the notice’ sub‑s 4(a) of the Act defines the expiation period as meaning the period specified in an expiation notice for payment of the expiation fee and as I indicated the due date for payment of the fee is the 12th of January 2012. Therefore the six month period for the laying of a complaint before the court runs from the 12th of January 2012 and therefore the complaint that was laid on the 4th of July was clearly laid inside, albeit just inside, but inside the six month period so there is in my view no substance in the submissions been put.
Limitation on time
The appellant submitted that s 52 of the Summary Procedure Act dictates the commencement of proceedings for expiable offences and s 52(1)(a)(ii) of the Summary Procedure Act applied to render the institution of proceedings out of time. That section provides:
52—Limitation on time in which proceedings may be commenced
(1)Subject to any provision of an Act to the contrary, if a person is to be prosecuted for a summary offence, the proceedings must be commenced within the following time limits:
(a) in the case of an expiable offence—
(i)if an expiation notice was given to the person—the proceedings must be commenced within 6 months of the expiry of the expiation period specified in the notice;
(ii)if an expiation notice was not given to the person—the proceedings must be commenced within 6 months of the date on which the offence is alleged to have been committed;
…
The appellant contends that because the expiation notice was posted it was not ‘given to the person’ and as such, the applicable limitation on time for the commencement of proceedings was six months from the date on which the offence was committed, rather than six months from the date of expiry of the expiation period specified in the notice.
The respondent submitted that because the time limits set in s 52 of the Summary Procedure Act are specifically designed to cater for the scheme of the Expiation of Offences Act, s 6(1)(j) of the Expiation of Offences Act is applicable to the interpretation of “given to the person”. That section provides:
6—Expiation notices
(1)An expiation notice—
…
(j) may be given—
(i)personally or by service on an employee or agent of the alleged offender; or
(ii)by post addressed to the alleged offender's last known place of business or residence; or
(iii)if a vehicle is involved in the commission of the alleged offence or offences and is found unattended—by affixing or placing the notice on that vehicle; and
…
I agree with the respondent’s submission on the applicability of the Expiation of Offences Act. Section 22 of the Acts Interpretation Act 1915 (SA) provides that where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act must be preferred. The object of the Summary Procedure Act is to make provision for the procedures of the Magistrates Court in various criminal proceedings. That includes procedures relating to expiable offences. I consider that the Summary Procedure Act is designed to compliment not conflict with substantive criminal legislation. Thus, by virtue of the object of the Summary Procedure Act, and given that “given to the person” is open to more than one construction, the Expiation of Offences Act is relevant to the interpretation of those words. The appellant’s restriction of the terms “given to the person” to instances of personal service runs contrary to the plain words of s 6(1)(j)(ii) of the Expiation of Offences Act which defines “given” to include by post. The reference in s 52 of the Summary Procedure Act to “given to the person” must therefore be read as including given by post. As such, the expiation notice was given to the appellant and s 52(1)(a)(i) of the Summary Procedure Act applied to require that proceedings commence within six months of the expiry of the expiation period specified in the notice.
In my view the Magistrate, in determining whether proceedings were instituted within time, correctly interpreted and applied the Expiation of Offences Act and the Summary Procedure Act.
Commencement of proceedings
Given that the expiation period expired on 12 January 2012, proceedings were required to have commenced by 12 July 2012.
In the event that this Court were to find that s 52(1)(a)(ii) of the Summary Procedure Act was applicable, the appellant submitted proceedings were nonetheless commenced out of time, because proceedings commence from the first court date where the plea is entered and charges are formally read to the defendant. The appellant entered a plea of not guilty on 5 April 2013.
I do not accept this submission. As Gray J held in Maguire v Pankiewicz[3] (citing Bleby J in Police v Korber[4]) summary proceedings are instituted by the filing of the complaint. Given that the complaint was laid at Registry on 4 July 2012, the proceedings were commenced within time, albeit only by one week.
[3] (2009) 263 LSJS 340 at [42].
[4] (2003) 85 SASR 472 at [40].
The Magistrate did not err in finding that the proceedings were commenced within time.
The appeal is dismissed.