Ireland v Police - [2005] SASC 202

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
IRELAND v POLICE
Judgment of The Honourable Justice Gray
18 May 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - OTHER OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Appeal against sentence - appellant pleaded guilty to driving over the default speed limit in built up area - complaint incorrectly identified a different offence - complaint amended on appeal.
Consideration of section 181 and 182 of the Summary Procedure Act 1921 (SA) - discussion of power of court to amend a complaint on appeal.
Held - complaint amended - no prejudice to the appellant - appeal dismissed.
Motor Vehicles Act (Variation) Regulations 2003 (SA); Road Traffic (Road Rules - Ancillary and Miscellaneous Regulations) 1999 (SA) r 9B; Australian Road Rules r 20; Summary Procedure Act 1921 (SA) s 181, s 182, referred to.
Robey v Police (1993) 18 MVR 121; Lepadatu v Police [1999] SASC 400; Hayward v Whitbread [1966] SASR 1; O'Hair v Killian (1971) 1 SASR 1, considered.

IRELAND v POLICE
[2005] SASC 202
Magistrates Appeal
GRAY J
Introduction

This is an appeal against penalty.
The appellant, Timothy Shane Ireland, was charged on complaint in the following terms:
On the 29^TH day of JUNE, 2003 at ELIZABETH GROVE in the said State drove a vehicle namely a MOTOR VEHICLE on a length of road namely SAMPSON ROAD, in a built up area to which a speed limit sign did not apply, and which was not in a speed-limited area, school zone, or a shared zone, at a speed over the default speed limit of 50 kilometres per hour applying to you pursuant to Regulation 9B of the Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999.
Rule 20 of the Australian Road Rules.
It is further alleged that you were driving a speed of about 90 kilometres per hour. This is a summary offence.
On 5 July 2004 a solicitor in the employ of the Legal Services Commission wrote to the prosecution as follows:
Expiation Notice No. C9381897. This involves a charge of speeding on 29^th of June 2003. My client disputes the allegation that he was travelling at 90 km’s an hour. He is prepared to concede that he was travelling over the speed limit but he believes he was travelling something like 65 or 70 km’s per hour. Notes on the Expiation Notice seem to suggest that it is alleged that my client was followed and timed for 3 tenths of a kilometre on Sampson Street, Elizabeth Grove, and while Police were following and timing my client, they were at a distance of about 30 metres to his rear. My client disputes these statistics. He states that he told the Police that he believed he was travelling at between 65 and 70 km’s per hour. I note the Expiation Notice does not indicate that he said this.
If you were prepared to…

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: [2005] SASC 202
Decision Date: 18 May 2005

CaseChat Overview and Summary

The appellant appealed against his conviction and sentence for driving over the default speed limit in a built-up area. The primary concern raised in the appeal was the loss of his driver's licence, which was suspended following his conviction. The appellant argued that there was an error in the way his offence was identified in the complaint, which was subsequently amended during the appeal. The Crown acknowledged that the notice from Transport SA, which informed the appellant of his licence suspension, was defective.

The court needed to determine whether the complaint, which identified a different offence, could be amended and whether the appellant suffered any prejudice from this error. The court also had to consider the appellant's challenge to the penalty imposed by the magistrate and whether there was any relevant prejudice that arose from the alleged error in the complaint. The appellant did not challenge the penalty but rather focused on the loss of his licence and the demerit points accrued from the offence.

The court found that the appellant’s primary complaint was about the loss of his licence, which was a consequence of the demerit points accumulated from the offence. The court acknowledged the error in the complaint but noted that it did not prejudice the appellant's defence or the fairness of the proceedings. The appellant accepted the penalty and did not challenge it. Therefore, the court dismissed the appeal against both the conviction and the penalty. The court allowed the amendment of the complaint to reflect the correct offence.

The court ordered that the complaint be amended as sought by the appellant and dismissed both the appeal against conviction and the appeal against penalty. The court concluded that no relevant prejudice arose from the error in the complaint and that the appellant’s real concern was adequately addressed in the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It became apparent during the hearing that the appellant’s real concern related to the loss of his driver’s licence. His complaint about what had occurred only arose after he had received the letter from Transport SA advising that his licence had been suspended. As earlier observed, it was acknowledged by the Crown that that notice from Transport SA was defective. Following the hearing of this appeal against the amendment of the complaint and of the terms of the conviction, an appropriate notice can be expected to be sent to the appellant. If the appellant has some complaint about any further notice, then appropriate proceedings will need to be taken to advance any challenge that the appellant may wish to pursue.Conclusion In the circumstances it is appropriate to amend the complaint as sought. The appeal against conviction is dismissed. No relevant prejudice arose to the appellant. On the hearing of the appeal, the appellant made it clear that he did not challenge the penalty imposed by the magistrate. He accepted that it was at the lowest possible end of the range for the offence. The fine was less than the expiation fee that would have been imposed even if his speed had been less than 65 kilometres per hour. The appellant’s real complaint related to the loss of his licence which in turn was related to the number of demerit points that his offending attracted. The appeal against penalty is also dismissed.

Ratio Decidendi

Legal Principle Established

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