Ianella v Police No. Scgrg-98-370 Judgment No. S6808

IANELLA v POLICE
[1998] SASC 6808

Magistrates Appeal
Mullighan J

The appellant is a young man aged 21 years. He was charged on complaint with two driving offences, namely driving in a manner dangerous to the public contrary to s46 of the Road Traffic Act 1961 and driving without due care contrary to s45 of that Act. The offences are alleged to have occurred at about 9.50 pm on 27th September 1997 in Rundle Street, Adelaide. They arise out of the same incident of driving and are charged in the alternative.
The complaint was served on the appellant and came on for hearing at the Magistrates Court at Adelaide on 16th December 1997. The appellant did not attend and was not represented by counsel. He wrote a letter to the Court on that day advising that he was unable to attend due to work commitments and that he would like another date for hearing to be fixed. It appears that the letter did not come to the attention of the learned Magistrate before whom the complaint was listed on that day or to the attention of the police prosecutor, Ms Eckert. On her application, leave to proceed ex‑parte was granted to the prosecution. The endorsement on the complaint, which was signed by the learned Magistrate, reveals that the appellant was found guilty and convicted of both counts on that day. Pursuant to r15.01 of the Magistrates Court Rules 1992 which provides that where the Court is contemplating an order for disqualification of licence, a notice as to penalty was issued on that day returnable on 27th February 1998. The appellant was informed by the notice that he had been convicted in his absence of the second offence and that as a consequence he could be disqualified from holding or obtaining a licence to drive a motor vehicle and that if he wished to be heard on the question of penalty he had to appear on that day at 11.30 am.
The appellant did not attend Court on that date. He left a message with the Call Centre of the Court to the effect that he was working in Port Pirie and asked that the matter be adjourned for one week. The learned Magistrate sitting on that day adjourned the matter until 6th March 1998.
The court was comprised by a different Magistrate on that day. The appellant attended. He was not represented by counsel or a solicitor. It appears that despite the earlier convictions, he was asked to plead to the first charge and the second charge was withdrawn. The endorsement on the complaint is “B/C Count 2 w/drawn - dismissed”. It may be that the charge was withdrawn in accordance with the usual practice and the endorsement is not entirely correct but I shall approach the matter on the basis that the charge was dismissed. The appellant was again convicted on the first charge and was fined $400 with costs and a levy of $117. He was allowed fourteen days to pay and he was disqualified from holding or obtaining a licence to drive a motor vehicle for a period of seven months commencing at 12.01 am on Saturday, 7th March 1998.
The operation of that order has been suspended pending the determination of this appeal. The police prosecutor on this occasion was again Ms Eckert.
There are various grounds of appeal as to both conviction and sentence.
The first ground is that the process by which the learned Magistrate took the plea of guilty and recorded the conviction on the charge of driving in a manner dangerous to the public and imposed sentence miscarried because he erred in failing to inform the appellant adequately as to the potential penalties which he faced, of his ability to withdraw his plea of guilty, in failing to warn him of the significance of the disparities between his and the prosecution’s versions of events and in advising him that he was guilty of the offence even on his own version of the circumstances of the alleged offending.
In order to consider this ground, it is necessary to make a finding as to what happened before the learned Magistrate. Affidavits of the appellant and Ms Eckert were received on the hearing of this appeal. They each assert a different version of what occurred. According to Ms Eckert, before the hearing commenced, the learned Magistrate informed the appellant of his rights, including his right to legal representation, and that of the minimum penalties for an offence of driving in a manner dangerous to the public. She related the relevant facts to the learned Magistrate which, according to her, are that on the occasion in question a police officer was on foot patrol on the southern footpath of Rundle Street after the Australian Football League Grand Final. They saw the appellant’s vehicle travelling east along Rundle Street and stop in front of a café. It then did what she called a burn out. The vehicle was initially stationary with the rear wheels spinning. A large amount of smoke came from the rear wheels which were spinning for about five to eight seconds. The vehicle began to move forward slowly. There was smoke billowing about 20 metres into the air and there was a black tyre mark on the road about 15 metres long. There were many vehicles in the area and they were basically bumper to bumper. Outdoor tables and chairs were occupied by people and there was considerable pedestrian traffic. The vehicle was stopped at the intersection of East Terrace and Rundle Street by another police officer. The first mentioned police officer spoke to the appellant and asked if he agreed that he had done a burn out. He agreed that he had done so. He was informed that his driving was dangerous and he said that he did not think so. He was asked if he agreed that if he had lost control of the vehicle, people may have been hurt. He said that he raced motor cars but anything could happen. Traffic conditions were heavy and congested and the weather was fine and dry. It was alleged that some embarrassment was caused but it was not specified to whom. It was also alleged that the appellant had two prior convictions for speeding. As will be seen, the appellant contests a number of these allegations.
Ms Eckert also deposed to the learned Magistrate giving the appellant the opportunity of making submissions to the Court and of his having done so. She recalled that the appellant disputed that he had left tyre marks which were 15 metres long and that he said they were 3 metres long. He told the Court that he and a police officer had paced out the length of the marks. The learned Magistrate pointed out that the police officer had written in his report that the tyre marks were in fact 15 metres long and asked why there was so much discrepancy. The appellant could not give any reason for the discrepancy.
Ms Eckert also deposed to the learned Magistrate informing the appellant that the offence of driving in a manner dangerous to the public attracted a minimum licence disqualification for a period of six months and that the only way in which that period could be reduced was if he made an application for an order that the offence was trifling. The learned Magistrate said that on the facts known to him, it would be unlikely that he would find that the offending was trifling, but he thought that a period of disqualification close to the minimum was appropriate. The appellant said that he had some witnesses available but he then decided not to call them. Ms Eckert recalled that there was much discussion between the appellant and the learned Magistrate about various matters, which she did not relate, and that at one stage the appellant left the court room to consider his position. He returned and said he wanted to have the matter completed.
In his affidavit, the appellant deposed that when reading the complaint he did not understand the difference between the two charges but he thought that it would be explained to him at Court. He accepted that he had spun the wheels of his vehicle but he did not regard his conduct as a serious infringement of the law. He thought he would receive a fine but not that he would lose his licence. He did not seek legal advice and was anxious to have the matter resolved as soon as possible. He was working at Port Pirie at the time the matter was first before the Court. He contacted the Court by telephone and told someone that he could not be present. He thought that the matter would be adjourned. When he received the penalty notice, he again contacted the Court and was told that he had not been convicted. At the time of the next hearing on 27th February 1998, he was again working in Port Pirie and again contacted the Court by telephone. The recollection of the appellant seems to be defective in view of the letter which has been mentioned, but it is a matter of no significance.
According to the appellant, upon attending Court when the case was called, he went into the dock and the learned Magistrate asked him if he wished to plead guilty. He said that he did. The learned Magistrate asked him if he wanted any legal help and he said that he did not and gave the reason that he did not believe the charges were serious enough. The learned Magistrate then informed him that there was a possibility that he could lose his licence and receive a “hefty” fine. According to the appellant, he understood from this information that the learned Magistrate had a discretion as to whether to order disqualification of the licence but that upon hearing all of the circumstances, he would not make such an order. He denied that the learned Magistrate told him of a minimum period of disqualification.
He then pleaded guilty. He disagrees with the version of the circumstances of the offending given by Ms Eckert in two respects, that when spinning his wheels, masses of dense smoke came from his tyres and that when spinning the wheels, his vehicle travelled a distance of 15 metres and he informed the learned Magistrate accordingly. According to him, he also informed the learned Magistrate that his vehicle had only travelled about 30 centimetres whilst the wheels were spinning which had lasted only about three seconds.
The appellant denied that he told the Court that he and the reporting police officer had gone to the location of the wheel spinning and had paced out the length of the tyre marks. He says that he does not know if he did leave any tyre marks. According to him, the learned Magistrate said that the difference in the two versions did not matter and on either version the appellant was guilty of dangerous driving. He says that at no time was he advised that he could withdraw his plea of guilty.
The appellant deposed in his affidavit that the learned Magistrate asked him what he had to say and that he could not think of anything to say because he was nervous and “even scared”. He says that he took the view that if the learned Magistrate thought he was guilty, that was the end of the matter. He recalls the word “trifling” being used at some stage but the learned Magistrate did not make him understand that he could give evidence on oath to support a submission that the offence was trifling. He says that he does recall that the learned Magistrate said that on the facts as known to him, it would be unlikely that there would be a finding that the offending was trifling and that the learned Magistrate intimated that a period of licence disqualification close to the minimum was appropriate. The appellant also denies that he told the learned Magistrate that he had witnesses available, although he said that such is the case. According to him, he did not leave the courtroom at any stage during the hearing. The learned Magistrate read a letter from the appellant’s employer. In answer to a question from the learned Magistrate, the appellant informed him that he would lose his employment if he lost his licence. The appellant says that if he had known of the mandatory penalty and minimum period of licence disqualification, he would have sought legal advice and defended the charged of driving in a manner dangerous to the public.
In view of the difference in the versions of Ms Eckert and the appellant, I sought and obtained a report from the learned Magistrate who sentenced the appellant. I set out that report in full:
“This report is prepared partly from perusal of the copy of the court file and from notes contained in the bench book and partly from my own recollection of the matter.
On the 6th day of March, 1998 I was sitting in Courtroom 2 Adelaide Magistrates’ Court doing the general list. Mr Ianella appeared unrepresented. The prosecution intimated that on a guilty plea to count 1, leave would be sought to withdraw count 2. As the defendant was unrepresented, I explained that to him. I also advised the defendant that he could obtain an adjournment (it was his first appearance on the matter) to seek legal advice. He declined to do so and made it plainly clear to me he wanted the matter finalised that day. I explained to him the penalties which applied in respect of count 1. I further explained to him that the minimum period of 6 months disqualification could not be reduced in any way unless the court was satisfied by evidence given on oath that the offence was trifling and in any event the reduced period could not be less than one month. I enquired of the defendant whether he understood the explanations that I had given him, both as to his rights and penalties. The defendant indicated to me that he fully understood the position and again stated he wanted the matter finalised. He also declined the suggestion to make a trifling application by giving evidence on oath. The file was endorsed accordingly to indicate that ‘Rs & Ps” had been explained.
The matter then proceeded in the usual way, the charge was read and the allegations were given. The defendant was asked if he agreed with the allegations. He said he did but did not think that the skid marks were as long as alleged. At that stage I again invited the defendant to seek legal advice if he disputed the allegations. He again declined. I once again informed him of his right to make ‘a trifling application’ and again he showed no interest in doing so. I then intimated that on the prosecution’s assertion of the incident I considered that such an application was unlikely to succeed but that I was willing to hear evidence on oath.
I believe that I then stood the matter down to allow the defendant an opportunity to consider his position. On the matter being recalled, he again informed me he wanted the matter finalised.
The defendant admitted his prior record. I then proceed to impose the penalties.”
After receipt of that report, copies of which were conveyed to counsel, the appeal was re-listed for hearing. The appellant did not accept all that the learned Magistrate wrote in his report. He claimed that his recollection of what happened was different from that of the learned Magistrate. Upon his application, the appellant was permitted to give evidence. In his evidence, he described what he says happened in the driving incident and at Court. As to the latter, his evidence differs in some respects from what is contained in his affidavit. He said that the learned Magistrate, after the plea of guilty, told him that he could lose his licence for a period of six months and receive a hefty fine. As has been seen, he deposed in his affidavit that the learned Magistrate informed him that there was a possibility that he could lose his licence and later in that affidavit he deposed that the learned Magistrate intimated that a period of disqualification close to the minimum was appropriate. In his evidence, he went on to say that he thought he could lose his licence if the learned Magistrate had seen fit to disqualify him or he could be fined and consequently he did not know what was going to happen. He said he could not remember the expression “minimum penalty” being used. Also, he said that he did tell the learned Magistrate of the difference between his version of events and that given by Ms Eckert. He denied that smoke came from the spinning of the wheels or that there were skid marks of 15 metres. According to him, the learned Magistrate said that it did not matter if “the burnout” was a centimetre long or a hundred centimetres long, he was still there to face the charge of dangerous driving and so it did not matter how big or small the incident was, presumably referring to the extent of the driving. Also, he said that the word “trifling” was only mentioned in an interchange between the learned Magistrate and Ms Eckert. However, he did acknowledge that the learned Magistrate did ask him if he wanted to seek legal advice. He explained, in his evidence, but not to the learned Magistrate, that he did not want such advice as he did not think the charge was serious and consequently he did not think legal representation was necessary. He had heard the learned Magistrate make the same enquiry in other cases that day and he thought it was just part of the system.
When he was asked to respond to particular parts of the report of the learned Magistrate, the appellant said in evidence that all the learned Magistrate said was that he could lose his licence for up to six months. He denied that he told the learned Magistrate that he wanted the matter finalised or that he fully understood the position. He denied that it was explained to him that the minimum period of disqualification, if found guilty of the first charge, was six months which could only be reduced if the offending was held to be trifling. He went on to say that at no time were the differences in the versions of the prosecution and his version of events resolved. He also denied that the learned Magistrate asked him if he understood the position or that he said that he wanted the matter finalised. He says he was confused.
Having observed the appellant and considered his evidence, I have not found him to be reliable and convincing. I think he has attempted to create a factual situation which is most suitable for the purposes of this appeal. I see no reason to prefer his version of events of what happened in Court over that of the learned Magistrate and Ms Eckert and for the purposes of the appeal, I accept the version of events related by them.
The learned Magistrate considered the interests of the appellant with patience and fairness. He gave the appellant information and the opportunity to obtain legal advice which was declined. The appellant was encouraged to present his version of events and, to some extent, he did so. It could not fairly be said that at any stage the learned Magistrate should have thought that the appellant was misunderstanding anything which had been explained to him.
In the well known case of Cooling v Steel (1971) 2 SASR 249, Wells J made observations about the obligations of a Magistrate when a defendant appears unrepresented and pleads guilty. Indeed, in that case he was concerned with the same charge of driving in a manner dangerous to the public. He accepted that unrepresented defendants may feel overawed and may not be aware of their rights. He said that, in general, the court should ensure that the defendant is appraised of his rights and duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding. I do not propose to set out all of the matters mentioned by Wells J which should be addressed by a Magistrate in those circumstances. In the present case the learned Magistrate discharged his obligations in the manner discussed by Wells J at pp250-251 with the exception of one matter. In Cooling v Steel Wells J said at p250-251:
“Difficulties arise at a number of stages in the proceedings. I refer more particularly to the typical case of the defendant who attends unrepresented and pleads guilty. It seems to me that the court should give careful attention to the following matters of practice and procedure.
When the defendant answers to his name and the charge is read, before a plea is entered, the court should make sure that the defendant understands the nature of the charge. It is, of course, unnecessary, indeed undesirable, that the bench should deliver a lecture on the law; the charge should be explained briefly and simply, with emphasis upon those ingredients in relation to which misunderstanding may arise. For example, if the charge is receiving stolen property it should be explained (inter alia) that a plea of guilty implies that the defendant was aware that the property was stolen at the time it was received into the defendant’s possession; where the charge is stealing, emphasis could well be placed on the allegation that the property was taken fraudulently or dishonestly with the intention of permanently depriving the owner of the property; where the charge is driving in a manner dangerous to the public, the defendant should be made to understand that the charge alleges that his manner of driving in the circumstances was such that an unwarranted, an unreasonable, risk was created to the life and property of members of the public. When the explanation of the charge has been made, the court should satisfy itself that that explanation has been understood.”

It may be seen from the versions of events related by the learned Magistrate and Ms Eckert that the appellant was not informed of the nature of the charge in the way mentioned by Wells J in Cooling v Steel. Of course, Wells J was not intending to lay down some form of words which must be used on every occasion. Clearly, he was not suggesting that the nature of the charge must be explained in every case. For instance, such an explanation would usually be unnecessary where the charge was speeding, failing to obey a traffic light or signal and in many other types of cases. However, I think the charge of driving in a manner dangerous to the public stands in a different position. It cannot be assumed that the ingredients of the charge will be known to the defendant. There must be a risk to life and property created by the manner of driving. I respectfully agree with Wells J that explanation is required. Often an injustice will be prevented when the defendant gives an explanation which is inconsistent with the plea of guilty in which case the Magistrate will intervene and, usually, permit the plea to be withdrawn. However, it cannot be assumed that an unrepresented defendant will necessarily disclose the circumstances which are inconsistent with guilt.
The present case is unusual. The course of driving was very brief. None of the usual features of driving in a manner dangerous to the public were present, such as excessive speed, disobedience of traffic laws or erratic driving. The bad driving of the appellant is limited to the spinning of the wheels. It is in the context of a busy street with many pedestrians and motor vehicles in the near vicinity. It is alleged by the respondent that there was potential danger to the public which was, and is, denied by the appellant. It will be remembered that the learned Magistrate was informed that the appellant told the police officer on the night in question that he did not think that his driving was dangerous. The appellant maintains that he is an experienced driver, including in motor car races, that the wheel spinning was unintentional and momentary, that he was in control of the vehicle at all times and that there was no potential danger to the public. If his version of the circumstances is correct, it is likely that he is not guilty of the charge.
It seems that upon the appellant giving his version of the circumstances to the learned Magistrate, the focus was upon whether the alleged offending could be categorised as “trifling”. If so, the minimum period of licence disqualification of six months could be reduced pursuant to s46(3). The focus should have been on whether the offence had been committed which is, of course, an entirely different question.
As I have said, the learned Magistrate acted with patience, courtesy and a desire to ensure that the appellant was aware of his rights and obligations, but consideration was not given to whether, on the appellant’s version of the circumstances, an offence had been committed. I have every sympathy for magistrates who are obliged to deal with heavy lists of cases and can only allocate limited time to each case. The learned Magistrate in this case was probably in that position. However, I think this ground is established in the sense which has been explained.
The next two grounds of appeal are that the appellant pleaded guilty under a mistake of law which was apparent to the learned Magistrate and was not corrected and that he is not guilty of the charge of driving in a manner dangerous to the public or, alternatively, has an arguable case. The factual basis for these grounds has been mentioned. It is unnecessary for present purposes to examine them in great detail. Having reached the conclusion that the manner of driving may not amount to driving in a manner dangerous to the public as a matter of law and fact, if the appellant’s version of the circumstances is a reasonable possibility, it may be said that the appellant pleaded guilty to the charge when he should not have done so. To that extent, the grounds are made out.
The final ground of appeal against conviction is that the appellant was convicted in circumstances which amount to a miscarriage of justice. Much more information has been placed before the Court on this appeal than the appellant placed before the learned Magistrate. The appellant claims to have witnesses to support his version of the manner of driving. The basis of an arguable case has been articulated more extensively and precisely. Nonetheless I think that what the appellant did make clear to the learned Magistrate was sufficient to reveal that he may well have an arguable case and his plea of guilty should not have stood. Whether the appellant is guilty of the charge is largely a question of fact. The mandatory licence disqualification will very likely cause the appellant to lose his employment which is a matter of great significance, particularly for a young man. I think it is possible that there has been an injustice and the appellant should have his day in court to present his defence.
There is also an appeal against sentence. If the appellant is guilty, the sentence seems reasonable but as the complaint is to be remitted for rehearing, the sentence must be set aside.
I mentioned the conviction on both counts upon the initial hearing ex parte. It seems that this matter was not drawn to the attention of the learned Magistrate. Those convictions must also be set aside. The appellant could not, in the circumstances, be convicted of both charges as they arose out of the same incident. The proceedings in that respect were irregular and should be corrected on this appeal with the intent that both charges should stand against the appellant to be dealt with afresh according to law.
I allow the appeal. The conviction of the appellant on each charge is set aside. The fine and order for disqualification of licence is set aside. The complaint is remitted to the Magistrates Court for hearing according to law. In my view, there is no reason to disqualify the learned Magistrate from hearing the complaint should it be listed before him but that is a matter for him.

[1998] SASC 6808

21 August 1998