Hollick v Police - [2012] SASC 11

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
HOLLICK v POLICE
[2012] SASC 11
Judgment of The Honourable Justice Nyland
1 February 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
Appeal against conviction - appellant charged with two counts of drive disqualified and one count of breach bail - issue at trial and on appeal related to validity of notice of disqualification - onus of proof under s 140(1) Motor Vehicles Act 1959 - whether notice of disqualification was issued by Registrar - right of review - proper reasons for re-issue of notice in accordance with s 139BD(10) Motor Vehicles Act 1959.
Held: Appeal dismissed - appellant failed to discharge onus of proof as to invalidity of notice of disqualification - evidence established appellant was disqualified at time of commission of subject offences.
Appeal against sentence - appellant sentenced to six months imprisonment, three months of which were suspended on condition appellant enter into good behaviour bond - whether sentence imposed was manifestly excessive - prior history of convictions for drive disqualified - appellant's conduct deliberate and contumacious.
Held: Appeal dismissed - no error demonstrated in exercise of sentencing discretion.
Motor Vehicles Act 1959 (SA) ss 5, 7, 81, 81B, 85, 91, 98Z, 139BD, 140, 141; Bail Act 1985 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Evidence Act 1929 (SA) s 45A; Road Traffic Act 1961 (SA) ss 47, 79B, 144, 175, referred to.
Crawford Earthmovers Pty Ltd v Fitzsimmons (1972) 4 SASR 116; Evans v Benson (1986) 46 SASR 317; Police v Cadd and Ors (1997) 69 SASR 150, applied.
Golding v Liddy (1983) 33 SASR 116; Police v Wimshurst [2008] SASC 215; Police v Dodd [2004] SASC 91; Llewellyn v Police [2005] SASC 160; Police v Bulgin [2010] SASC 143, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
""proof to the contrary""

HOLLICK v POLICE
[2012] SASC 11
Appeal against conviction

The appellant was charged on complaint that on 6 April 2010 he drove a motor vehicle on a road whilst disqualified from holding or obtaining a Driver’s Licence, contrary to s 91 of the Motor Vehicles Act 1959 (“MVA”). Secondly, the appellant was charged on complaint that on 26 April 2010 he drove a motor vehicle on a road whilst disqualified from holding or obtaining a Driver’s Licence, contrary to s 91 MVA and, thirdly, that on the same date without reasonable excuse he contravened a term or condition of a Bail Agreement, contrary to s 17 of the Bail Act 1985. The appellant appeared before a Stipendiary Magistrate in the Holden Hill Magistrates Court and pleaded not guilty to all three charges. By consent the three charges were heard together.
On 19 April 2011 the learned Magistrate recorded convictions with…

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.

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Details

Case: [2012] SASC 11
Decision Date: 1 February 2012

CaseChat Overview and Summary

The appeal in Hollick v Police was brought by the appellant who was convicted of two counts of driving while disqualified and one count of breaching bail conditions. The central issue in the trial and subsequent appeal was the validity of the Notice of Disqualification that was allegedly issued to the appellant. The appeal hinged on whether the Notice was correctly issued by the Registrar, and if not, whether this invalidated the appellant's disqualification status at the time of the offences. The court was also required to interpret relevant provisions of the Motor Vehicles Act 1959, particularly s 140(1) which pertains to the onus of proof, and s 139BD(10) which sets out the requirements for the re-issuance of a Notice of Disqualification.

The court found that the appellant had failed to discharge the onus of proving that the Notice of Disqualification was invalid. The evidence presented established that the appellant was indeed disqualified from driving at the times he committed the offences. The court examined the statutory framework and concluded that the appellant's disqualification was properly served, and that the Notice was valid. The court further found that the appellant's conduct was deliberate and contumacious, given his prior history of convictions for driving while disqualified. Therefore, the appeal against both the conviction and the sentence was dismissed. The sentence imposed, which was six months imprisonment with three months suspended on certain conditions, was deemed appropriate given the appellant's repeated and intentional disregard for the law.

In conclusion, the court upheld the conviction and sentence, finding that the appellant's argument regarding the invalidity of the Notice of Disqualification did not hold merit. The appellant was found to have been disqualified from driving at the relevant times, and thus the offences were properly charged and proven. The sentence imposed was not deemed manifestly excessive in light of the appellant's history and the nature of the offences committed.

Orders

Orders of the court

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Background

Background to the litigation

On 19 April 2011 the learned Magistrate recorded convictions with respect to each count. On 24 October 2011, pursuant to the provisions of s 18A of the Criminal Law (Sentencing) Act 1988, the Magistrate imposed one sentence with respect to all offences, namely a sentence of six months imprisonment, of which three months was suspended on condition that the appellant enter into a good behaviour bond in the amount of $500 for the period of the suspended sentence, together with court and other fees and levies. Factual background On 6 April 2010 the appellant was driving a motor vehicle in a northerly direction on Main North Road at Prospect when he was stopped by police to conduct a mobile driver test. Checks undertaken on the appellant’s licence revealed that he had been disqualified from driving for provisional reasons for the period 22 December 2009 to 21 June 2010. The appellant was arrested and thereafter entered into a Bail Agreement which included a provision that he not be seated in the driver’s seat of a motor vehicle unless he was a holder of a current licence for that class of vehicle. On 26 April 2010 the appellant was again stopped by a police patrol when he was driving along Torrens Road at Cheltenham. He was requested to produce his licence and produced a Provisional Licence. Subsequent checks undertaken by the police once more revealed that the appellant had been disqualified from driving for the period 22 December 2009 to 21 June 2010. Prosecution case at trial The prosecution at trial alleged that on 24 November 2009 the appellant had acknowledged the service of a Notice of Disqualification which had been issued on 26 October 2009 pursuant to what was then s 81B(2) MVA. That Notice stipulated that the appellant had incurred a total of four or more demerit points for offences committed on 2 October 2008. Accordingly he was disqualified from holding or obtaining a Driver’s Licence or Learner’s Permit for a period of six months, commencing on the day on which the Notice was to take effect, that is 22 December 2009. It was the prosecution case that notwithstanding those matters the appellant had driven on two separate occasions whilst disqualified from so doing, namely on 6 April 2010 at Prospect and 26 April 2010 at Cheltenham. By the commission of the Cheltenham offence the appellant had also breached the term of the Bail Agreement entered into on 6 April 2010, which precluded him from sitting in the driver’s seat of a motor vehicle without a current appropriate licence. Although the appellant put all matters in issue by his pleas of not guilty, there was no real dispute at trial or on appeal as to the factual matters which gave rise to the charges. The preliminary findings as to those matters made by the learned Magistrate[1] were not in dispute on appeal.[1] Magistrate’s preliminary findings at [41]. The only issue at trial and on appeal related to the validity of the Notice of Disqualification. On the defence case, the purported Notice was invalid and on that basis, it had not been proved that the appellant was disqualified from holding or obtaining a Driver’s Licence at the time of each of the alleged offences. Disqualification Notices

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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