MOORE v Police - [2012] SASC 85

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
MOORE v POLICE
[2012] SASC 85
Judgment of The Honourable Justice White (ex tempore)
9 May 2012
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - JURISDICTION, POWERS AND DUTIES - SUBJECT MATTER - OTHER MATTERS - SOUTH AUSTRALIA
TRAFFIC LAW - OFFENCES - PROCEDURE - HEARING
The appellant, who was charged with the offence of entering an intersection against a red light, denied the contravention and elected to be prosecuted - he later told the Magistrates Court that he would pay the fine if it meant he did not have to attend Court - a Magistate treated the letter as a plea of guilty and sentenced the appellant in his absence.
Held, allowing the appeal and setting aside the orders made by the Magistrate - the Magistrate erred by treating the letter as a plea of guilty and dealing with the complaint in the absence of the appellant.
Summary Procedure Act 1953 (SA) s 57A, s 62B; Australian Road Rules r 59(1), referred to.

MOORE v POLICE
[2012] SASC 85
Magistrates Appeal

WHITE J. The appellant was found guilty by a Magistrate of the offence of entering an intersection against a red light, contrary to r 59(1) of the Australian Road Rules. The prosecution alleged that on 27 February 2010, the appellant had been the driver of a car on Playford Avenue, Whyalla, which entered the intersection with Elliott Street against a red light applicable to traffic in his direction of travel.
The police originally issued an expiation notice to the appellant. However, he denied the contravention and elected to be prosecuted.
On 12 January 2012, a Magistrate found the appellant guilty of the offence and imposed a fine of $300. In addition, the Magistrate ordered the appellant to pay court fees, prosecution costs and the Victims of Crime Levy.
The appellant now appeals against these orders. The respondent concedes that the appeal should be allowed and that the orders made by the Magistrate should be set aside.
I consider that that concession is correct and that the orders sought by the appellant should be made. I set out briefly my reasons for that conclusion.
The appellant was originally charged on a complaint and summons issued on 29 November 2010. For reasons which are not presently apparent, the prosecution issued a fresh summons on 9 March 2011 and it seems that this was treated as a substitute for the original complaint and summons.
In any event, after the fresh summons was served, a number of hearings occurred in the Magistrates Court at Whyalla. The appellant represented himself. On four occasions, the appellant appeared by means of a telephone link, as he resides in the Adelaide Hills.
The matter was listed for trial on 12 January 2012. It seems that the appellant was given to understand by the Magistrate conducting the pre-trial conference that he could participate in the trial by means of a video link to the Whyalla Courthouse, if he was present in the Mount Barker Magistrates Court.
However, shortly before 12 January 2012, the appellant was informed by the clerk of the Magistrate who was to conduct the trial that it would be necessary for him to be present personally at the trial in Whyalla. The appellant responded to the Magistrate’s clerk on 3 January, pointing out the arrangements which had previously been made, and advising of the financial difficulties which he had in attending personally in Whyalla on 12 January. At the direction of the Magistrate, the clerk informed the appellant that the Magistrate was not prepared to conduct the trial by video or telephone link and confirmed that it would be necessary for him to be present in Whyalla on 12 January. The appellant protested this direction and asked that an alternative method of hearing be arranged, raising the possibility of transfer of the matter to the Magistrates Courts at Adelaide or Mount Barker if he could not appear by video link.
When it was confirmed to the appellant that he would need to be in Whyalla on 12 January for the trial, he wrote on 10 January to the Magistrate’s clerk, saying that he would pay the fine for the alleged offence “as soon as I have confirmation that I do not have to attend court on 12 January 2012”. He explained that he was doing this “purely from a financial point of view” because he did not have the funds to travel to Whyalla. The appellant’s email of 10 January, containing this information, did not include any acknowledgment of his guilt of the offence.
It seems that the Magistrate considered it appropriate to treat the appellant’s email of 10 January 2012 as a plea of guilty. The Magistrate also considered it appropriate to proceed on the basis of the plea of guilty in the appellant’s absence. The Magistrate then imposed the fine and made the other orders to which I referred earlier.
The appellant appeals against the Magistrate’s orders on diverse grounds, which it is not necessary for present purposes to identify separately.
I am satisfied that the Magistrate was in error in treating the appellant’s email of 10 January 2012 as a plea of guilty. The email did not contain any statement to the effect that the appellant was changing his previous plea of not guilty. All the appellant said was that he would pay the fine as soon as he had confirmation that he would not have to attend court on 12 January. As indicated earlier, he explained that he was doing so for financial reasons and not because of any acknowledgment of his own guilt.
Further, the appellant’s email of 10 January could not be understood as a form complying with s 57A of the Summary Procedure Act 1953 (SA) which would have entitled the Magistrate to proceed under s 62B of that Act. That section empowers the Magistrates Court, when a defendant does not appear but does serve a form complying with s 57A, to proceed in the defendant’s absence and to adjudicate a complaint and summons in the same way as if the defendant had appeared personally to make the plea.
The Magistrate did not purport to act under s 62BA of that Act, the provision which authorises the Magistrates Court in certain circumstances to proceed to deal with a complaint and summons in the absence of a defendant, and in the absence of the provision by the defendant of a form complying with s 57A. In the circumstances of this case it would, in any event, have been inappropriate for the Magistrate to have done so.
This means that the Magistrate was not authorised to proceed in the way in which he did on 12 January 2012. An error of law has accordingly occurred.
The consequence is that the appeal should be allowed. That being so, it is neither necessary nor appropriate to address the appellant’s remaining grounds of appeal.
I make the following orders:
1. I allow the appeal.
2. I set aside the orders made by the Magistrate on 12 January 2012.
3. I remit the matter to the Magistrates Court for hearing and determination according to law by another Magistrate.