Johns v Police - [2015] SASC 118

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JOHNS v POLICE
[2015] SASC 118
Judgment of The Honourable Justice Stanley
17 August 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - CONVICTION ON EX PARTE HEARING
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS
Appeal against conviction and the refusal to set aside that conviction pursuant to s 76A of the Summary Procedure Act 1921 (SA).
On 13 March 2015 the appellant was found guilty by a magistrate, in her absence, of the offence of exceeding the speed limit by 10 kilometres per hour or more but less than 20 kilometres per hour, contrary to Rules 20 and 21 of the Australian Road Rules. It was alleged that on 18 March 2014 the appellant exceeded the speed limit when driving a motor vehicle on Daws Road in Edwardstown at a speed of about 77 kilometres per hour on a section of road where the speed limit was 60 kilometres per hour as indicated by a speed limit sign. The magistrate imposed a fine of $340 and ordered that the appellant pay a total of $850 to take account of court fees, prosecution costs and the Victims of Crime levy. The appellant applied pursuant to s 76A of the Summary Procedure Act 1921 (SA) to another magistrate to set aside her conviction. On 24 April 2015 that magistrate, after hearing the appellant, dismissed the application pursuant to s76A. The appellant appealed.
On appeal the appellant complained that she was found guilty of the offence without being heard. She further submitted that she was wrongly convicted as she had not been speeding, or if she was speeding, it would only have been over a very short distance. Accordingly, she contended that the conviction was unjust. She had no criminal convictions and this conviction would potentially hinder her in the future as far as employment was concerned given the necessity for obtaining police clearances before employers will offer you a job. She submitted that the national safety guidelines prescribe that any mobile speed camera should only be used in locations which are known black spots or high accident zones. She submitted that there was no evidence that the speed camera in this case was so located. Further, she submitted that she failed to attend on 13 March 2015 when the matter was listed for trial because she had a sick child. She was unaware that she needed to provide a doctor’s certificate. Had she been aware of the need for evidence of her child’s illness she would have done so.
The respondent submits that the matters determining an appeal against the decision pursuant to s 76A of the Summary Procedure Act 1921 (SA) and the appeal against the conviction are the same. The court has a discretion to allow an appeal in circumstances where a defendant fails to attend a hearing. That is an evaluative exercise focussed on whether interests of…

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.

Continue reading Johns v Police

Details

AGLC: Johns v Police [2015] SASC 118
Case: [2015] SASC 118
Decision Date: 17 August 2015

CaseChat Overview and Summary

In the matter of Johns v Police, the appellant contested a traffic offence conviction stemming from an instance of exceeding the prescribed speed limit. The case was heard by the Supreme Court of South Australia, which was reviewing an appeal against a conviction that was obtained during an ex parte hearing. The appellant's grounds for appeal included the lack of personal attendance at the trial due to an alleged illness of a child, and a contention that the conviction was unjust because it could hinder future employment opportunities requiring a police clearance.

The legal issues central to the case involved the validity of the ex parte conviction and whether the appellant's reasons for missing the trial were sufficient to warrant a reconsideration of the conviction. Additionally, the court had to determine if the appellant's claims regarding the speed camera's placement and her potential difficulties in securing future employment constituted valid grounds for overturning the conviction.

The court reasoned that while the appellant's explanation for missing the trial due to an unexpected illness of her child could be understandable, it did not provide sufficient grounds to overturn the conviction. The court noted that the appellant had not demonstrated a meritorious defence to the charge of speeding and did not provide evidence to support her claims regarding the speed camera's location. Furthermore, the court held that any potential future difficulties in obtaining a police clearance were irrelevant to the question of her guilt for the offence. Given these considerations, the court concluded that the appellant would not suffer an injustice by allowing the conviction to stand.

The appeal was dismissed by the Supreme Court, with the court indicating that it would hear arguments regarding costs from both parties.

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

In the circumstances I am not persuaded that the appellant will suffer an injustice if the conviction is allowed to stand. Conclusion The appeal is dismissed. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

Ultimately it is a matter of doing what the justice of the case requires.[8] [8] Maider v Dancis (1985) 39 SASR 136 at 142. Consideration In this case there is no dispute that the appellant had previously indicated an intention to plead not guilty to the complaint. At the hearing of the s 76A application and on appeal to this Court, the appellant has not put forward any evidence that her child was ill on 13 March 2015. The respondent submits that the Court should treat the appellant’s explanation for her failure to attend at the trial with some scepticism given her failure to notify the Court on the day and her previous non-attendance on two occasions. In my view the illness of a child may be a satisfactory explanation for the failure to attend. It is a matter of notoriety that children fall ill unexpectedly and rapidly. Events such as these cannot be anticipated and arrangements for the care of sick children often prove difficult at short notice. However, in the end, it is unnecessary to decide whether the appellant was prevented by genuine misadventure from being present at court to present her case. Assuming for the sake of argument that she had been prevented by the unexpected illness of her child, I am not persuaded that the appeal should be allowed. I am not persuaded the appeal should be allowed because the appellant has been unable to demonstrate that she has a meritorious defence to the charge. By her own admission she may have been speeding, at least for a short distance. Her submission based on the national safety guidelines has not been established. She did not produce these guidelines to the court. In any event, by definition they are no more than guidelines. Further, any argument based on the proposition that the speed camera was located in a position which was not a known black spot or high accident zone fails for lack of evidence. The appellant’s submission that her conviction is unjust because it could cause her difficulties in the future if an employer required a police clearance, is irrelevant to her guilt of the offence charged. In the circumstances I am not persuaded that the appellant will suffer an injustice if the conviction is allowed to stand. Conclusion The appeal is dismissed. I will hear the parties as to costs.