Jameson v Police - [2016] SASC 5

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JAMESON v POLICE
[2016] SASC 5
Judgment of The Honourable Justice Bampton
11 March 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS
Mr Jameson elected to be prosecuted in respect of an expiation notice alleging that on 20 October 2014 he drove at a speed of 65 km per hour in an area with a default speed limit of 50 km per hour – a plea of convenience entered – convicted without penalty and ordered to pay court fees of $250, prosecution costs of $100 and a victims of crime levy of $160 – no application pursuant to section 98B(4) of Motor Vehicles Act 1959 (SA) – notice of appeal filed four months out of time seeking permission to withdraw the guilty plea and remission to the Magistrates Court for rehearing – whether an extension of time should be granted – Whether the proposed appeal has merit – whether an application for demerit point reduction would be successful.
Held:
1. Time within which to bring the appeal is extended to 21 December 2015.
2. Appeal allowed for the limited purpose of amending the record to reduce the $250 court fees order to $149 so that Mr Jameson’s total liability is reduced to $409.
3. Otherwise the appeal is dismissed.
Supreme Court Civil Rules 2006 (SA) r 281; National Measurement Act 1960 (Cth); Motor Vehicles Act 1959 (SA) s 98B(4); Magistrates Court (Fees) Regulations 2004 (SA) Sch 2; Summary Procedure Act 1921 (SA) s 189A(2); Victims of Crime Act 2001 (SA) s 32(2), s 32(7)(b), referred to.
Moran v Police [2010] SASC 269; Anastasiou v Police [2013] SASC 112; Kuipers-Lloyd v Police [2013] SASC 137; Millington v Police [2015] SASC 52; Police v Young (2012) 114 SASR 567; Siviour-Ashman v Police (2003) 85 SASR 23; Holness v Police [2010] SASC 314; Black v Police [2009] SASC 115; Dycer v Police [2010] SASC 241; Cirillo v Police [2010] SASC 293; Police v Federuzzi [2008] SASC 104, considered.

JAMESON v POLICE
[2016] SASC 5
Magistrates Appeal: Criminal
BAMPTON J.

Mr Jameson entered a plea of convenience in the Holden Hill Magistrates Court on 20 July 2015 to driving a motor vehicle in excess of the default speed limit of 50 kilometres per hour (km per hour) on South Terrace, Pooraka.
Background
On 3 December 2014, Mr Jameson was issued with an expiation notice (the notice) in respect of an alleged speeding offence. The expiation fee was $409 comprising a fine of $349 and victims of crime levy of $60.[1] The notice stated that “The owner of this vehicle, DES’S CABS PTY LTD, has affirmed in a statutory declaration that you were the driver of the vehicle at the time of the alleged offence”.
[1] The victims of crime levy payable for a summary offence that is expiated pursuant to Schedule 1 of the Victims of Crime (Fund and Levy) Regulations 2003 (SA).
The notice provides the following warning emboldened on the front page: “DEMERIT POINTS MAY APPLY- SEE REVERSE”. On the reverse under the heading Demerit Points the notice states “Demerit points may apply. For more information contact The Department of Planning, Transport and Infrastructure Call Centre on 13 10 84”.
The vehicle driven by Mr Jameson on 20 October 2014 was detected by a road safety camera travelling at 65 km per hour on a length of South Terrace, Pooraka governed by a speed limit of 50 km per hour.
Mr Jameson elected to be prosecuted for the alleged breach. Accordingly by Complaint and Summons, dated 5 June 2015, Mr Jameson was charged:
On the 20^TH day of OCTOBER, 2014 at POORAKA in the said State drove a vehicle namely a MOTOR VEHICLE, REGISTRATION NUMBER DES307 on a length of road namely SOUTH TERRACE, 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 shared zone, at a speed over the default speed limit of 50 kilometres per hour applying to you pursuant to rule 25(2) of the Australian Road Rules.
Rule 20 of the Australian Road Rules.
It is further alleged you were driving at a speed of about 65 kilometres per hour.
This is a summary offence.
Mr Jameson appeared unrepresented before a Magistrate on 20 July 2015. Upon entering his guilty plea Mr Jameson was convicted. The Magistrate’s remarks on penalty record:
Convicted, dismissed without penalty, you are free to go. There are court fees, everyone has to pay those, the government makes us pay them.
The record of outcome for 20 July 2015 records that Mr Jameson was convicted, discharged without penalty and ordered to pay “costs only”. Those costs comprised court fees of $250, prosecution costs of $100 and a victims of crime levy of $160.[2]
[2] By electing to be prosecuted the victims of crime levy payable became $160 pursuant to Schedule 1 of the Victims of Crime (Fund and Levy) Regulations 2003 (SA).
Pursuant to rule 281 of the Supreme Court Civil Rules 2006 (SA), Mr Jameson had 21 days to appeal as of right from the Magistrate’s order.
As Mr Jameson did not file his notice of appeal until 21 December 2015, he seeks an order extending the time within which to appeal.
Mr Jameson appeared unrepresented at the hearing before me and he prepared his notice of appeal and written submissions without legal assistance.
The notice of appeal
In his notice of appeal, filed 21 December 2015, Mr Jameson states that his ground of appeal is that “I do not believe I was speeding and would like the case to go to trial”.
Mr Jameson complains that the Magistrate suggested he enter a plea of convenience and that he would incur no penalty. Mr Jameson asserts he therefore entered a plea of convenience believing that would be the end of the matter.
However in July 2015 he received a Notice of Fine from the Courts Administration Authority notifying him that the sum of $510 had been imposed on 20 July 2015. Mr Jameson said he phoned the Court and was informed that the “fine was dropped but he needed to pay the sum of $510”. Mr Jameson points out that the original expiated fee was $409.
Mr Jameson said that on or about 31 July 2015 he received a Demerit Points Notice notifying him that as at 29 July 2015 he had incurred a total of eight demerit points, which included three demerit points incurred as a result of the offence committed 20 October 2014.
Following receipt of the Demerit Points Notice, Mr Jameson requested a copy of the transcript of the hearing before the Magistrate from the Magistrate’s Court. By letter dated 3 August 2015 the Magistrate’s clerk wrote to Mr Jameson informing him that there was no transcript of the hearing. The clerk further stated that:
The Magistrate has however checked his notes made on the day in question and confirms that you did enter a plea of convenience. As he indicated to you, no penalty would be imposed, and wasn’t. The court fees and other costs are added automatically.
Mr Jameson seeks orders allowing the appeal and remitting the matter to the Magistrates Court for a rehearing on grounds that he only entered a plea of convenience because it was a course suggested by the Magistrate who promised the case would be dismissed without penalty.
Under the heading “Extension of Time” in the notice of appeal, Mr Jameson states:
Since this case was heard on 20th July 2015 I have received another 2 infringement notices. I am contesting these notices but if I lose these cases I will also lose my driver’s license. Given that NO PENALTY should surely have meant NO DEMERIT POINTS I believe I should have the right to argue that this imposition was unjust and should not have been imposed.
(Emphasis in original)
The nub of Mr Jameson’s complaint is that, despite the Magistrate’s order that he be convicted without further penalty, he has incurred three demerit points as a result of the conviction and is liable for the court fees, victims of crime levy and prosecution costs detailed above.
Mr Jameson’s submissions on appeal
In his written and oral submissions, Mr Jameson stated that he intended to plead not guilty believing the case would be sent to trial. He said that when he appeared before the Magistrate he was asked how he intended to defend himself. He was asked if he admitted that he was the driver of the vehicle and if he was doing the alleged speed. Mr Jameson asserted that he told the Magistrate he did not think he was speeding and that if a date was set for hearing he would defend himself at trial.
Mr Jameson said that the Magistrate stressed that because of the evidentiary presumptions prescribed by legislation he would have to prove that the speed camera reading was not accurate. Mr Jameson said he told the Magistrate that he had written to SAPOL asking for details relating to the camera readings but he had not received a response.
Mr Jameson said he was told by the Magistrate that he had the right to take the matter to court but that if he attempted to challenge the legislation he would end up in the High Court and most likely have costs awarded against him.
Mr Jameson maintained the Magistrate told him he could plead guilty under protest and no penalty would be imposed. Mr Jameson asserted that he understood “no penalty” to mean no adverse consequences. That is no fine or costs would be imposed and no demerit points would be incurred.
Mr Jameson said that if the three demerit points incurred by virtue of his guilty plea on 20 July 2015 are not waived and he is convicted of the two other driving offences he is contesting, he will have incurred 14 demerit points and he will lose his license.
Mr Jameson submitted that as a result of incurring too many demerit points he has resigned his job as a mini bus driver. He has now been forced to apply for the aged pension which in turn has caused many domestic and financial difficulties.
Mr Jameson submitted that speed detection devices are not patented and that Datsun’s that are incapable of travelling over 120 km per hour have been clocked at 160 km per hour.
Mr Jameson confirmed that he has an objection to the detection and enforcement of speeding offences. He said that he is a member of Aussie Speeding Fines and he asserted that speed cameras do not conform with the National Measurement Act 1960 (Cth). He implied that he considered that the prosecution of him was an infringement of his constitutional rights, that the laws had not reduced the number of road traffic accidents and that he should be entitled to challenge the police case against him.
It is his firm belief that speed cameras, red light cameras and speed detecting laser guns amount to financial gouging.
Mr Jameson said that on 20 October 2014 he was not looking at the speedometer, that he was aware of the fact that the speed limit was 50 km per hour and that he did not believe he was doing more than 50 km per hour. Further, Mr Jameson argued that even if he was speeding that the punishment must fit the crime. He stated that he has not hurt anyone, he has driven for many years without infringing the law and yet he is at risk of losing his license
Following the hearing my chambers ascertained that there was a recording of the proceedings on 20 July 2015. It is regrettable that Mr Jameson was informed that there was no transcript available.
Upon request the Magistrate’s clerk transcribed the recording and a copy was provided to Mr Jameson and the respondent. The matter was called on again for further submissions.
Having regard to the transcript, Mr Jameson was told by the Magistrate he bore the onus of establishing that the speed recorded was inaccurate. He was also given the opportunity to seek legal advice. There is no record of any discussion regarding demerit points. Mr Jameson made complaint that he did not say certain statements attributed to him in the transcript.
Following this second hearing the transcript was checked for accuracy against the audio recording made 20 July 2015. Mr Jameson and the respondent were notified by my associate that the Acting Manager, Magistrates Clerks Branch had informed my chambers that, apart from page 4, line 17 where the word ‘by’ should be ‘my’, the transcript is accurate.
The only complaint made by Mr Jameson regarding the transcript that has any bearing on this matter is the fact that it confirms that the topic of demerits points was not discussed.
Discussion
This Court has on many occasions considered and rejected very similar, if not identical, arguments to that contended by Mr Jameson regarding alleged non‑compliance with the National Measurement Act.[3] As Peek J stated in Police v Young,[4] the National Measurement Act does not exclude the operation of the State law and does not govern the operation of speed cameras in this State.
[3] See Moran v Police [2010] SASC 269; Anastasiou v Police [2013] SASC 112; Kuipers-Lloyd v Police [2013] SASC 137 and Millington v Police [2015] SASC 52.
[4] (2012) 114 SASR 567.
There is no merit to Mr Jameson’s argument regarding the application of the National Measurement Act.
Further the fact that Mr Jameson did not believe he was doing more than 50 km per hour is not to the point. Speeding offences impose absolute liability and the defence of reasonable mistake of fact is not available.[5]
[5] Hady-Ali v Police [2015] SASC 84 at [9].
I have kept in mind that Mr Jameson was unrepresented before the Magistrate and did not turn his mind to the demerit points he would incur upon pleading guilty. As noted above, the notice warned about the application of demerit points and directed the recipient of the notice to The Department of Planning, Transport and Infrastructure for further information.
A person who elects to be prosecuted (in respect of an expiable offence for which demerit points apply upon conviction or expiation) will upon entering a guilty plea (of convenience or otherwise), unless an order pursuant to s 98B(4) of the Motor Vehicles Act 1959 (SA) (the Act) is made, incur the applicable demerit points.
As no application was made by Mr Jameson under s 98B(4) of the Act, nor brought to his attention by the Magistrate, it is in the circumstances appropriate to consider whether the Magistrate might have made an order that reduced the number of demerit points or an order that no demerit points would be incurred. If the application was made Mr Jameson would have been required to give evidence on oath in support of his application.
Section 98B(4) of the Act provides that:
If a court by which a person is convicted of an offence is satisfied by evidence given on oath forthwith on conviction that the offence is trifling, or that any other proper cause exists, it may order that a reduced number of demerit points, or no demerit points, are incurred by the person in respect of that offence.
In my view the circumstances of the offence are such that it could not be categorised as “trifling”. As Doyle CJ said in Siviour-Ashman v Police,[6] a normal or typical example of an offence will not be trifling.
[6] (2003) 85 SASR 23.
Mr Jameson’s vehicle was detected travelling 15 km per hour above the speed limit. There is nothing in the circumstances of the offence which would justify the conclusion that the offence was trifling.
The alternative ground upon which demerit points might be reduced is where there is any other proper cause to do so. In order to find proper cause regard must be had to the circumstances of the speeding offence and not Mr Jameson’s personal circumstances.[7]
[7] See e.g. Black v Police [2009] SASC 115; Dycer v Police [2010] SASC 241; Cirillo v Police [2010] SASC 293; Police v Federuzzi [2008] SASC 104.
Having regard to the speeding offence on 20 October 2014 on South Terrace, Pooraka, I can find no proper cause that would have entitled the Magistrate to reduce the demerit points or to order that no demerit points are incurred.
There is no merit to Mr Jameson’s proposed appeal. His plea was entered without an appreciation of the adverse consequences that flowed administratively under s 98B of the Act and it would appear he misunderstood the Magistrate’s remarks.
The essential question is whether there has been a miscarriage of justice. In determining this question I have had particular regard to the fact that Mr Jameson was unrepresented before the Magistrate and before me.
I am satisfied having heard Mr Jameson’s submissions that he does not have an arguable case on appeal. There is no basis upon which his plea should be set aside or an order pursuant to s 98B(4) of the Act should be made.
The costs order
Upon Mr Jameson pleading guilty the penalty of $349 for exceeding the speed limit was not imposed. He was, however, ordered to pay court fees and the Prosecution’s Administration Fee.
The court fees are fees imposed pursuant to Schedule 2 of the Magistrates Court (Fees) Regulations 2004 (SA). The Prosecution’s Administration fee is imposed pursuant to s 189A(2) of the Summary Procedure Act 1921 (SA) which provides that if the Court finds a defendant guilty in proceedings for an offence prosecuted by a police officer, the Court must, subject to subsection (3):
make an order for costs against the defendant for—
(a) if an amount is prescribed by regulation for the purposes of this subsection—the prescribed amount; or
(b) if no such amount is prescribed—$100.
Subsection (3) provides that if the prosecution agrees that an order under subsection (2) should not be made, the Court may instead make some other order as to costs (or may make no order as to costs).
The victims of crime levy is imposed pursuant to s 32(2) of the Victims of Crime Act 2001 (SA). Section 32(7)(b) of the Victims of Crime Act provides that:
(7)If a levy is payable under this section by a person who is convicted of an offence—
…
(b) the court may not, at the time of convicting or sentencing the defendant for the offence, reduce the levy or exonerate the defendant from liability to pay it; …
The Magistrate therefore did not have the power to reduce the levy or exonerate Mr Jameson from liability to pay the levy. The Magistrate was obliged to impose the Prosecution’s Administration Fee unless the prosecution agreed it could be reduced or waived.
As pointed out by counsel for the respondent, by electing to be prosecuted Mr Jameson’s total liability is greater than the total cost of expiating the $409 expiation notice. Counsel submitted that the court fees could be reduced so that Mr Jameson’s total liability is $409.
Accordingly, it is appropriate to extend the time within which to appeal to 21 December 2015 and allow the appeal for the limited purpose of amending the record to reduce the court fees order to $149. In doing so Mr Jameson’s liability is reduced to $409, the amount shown on the expiation notice.
Otherwise the appeal is dismissed.