Muto-Henderson v Police - [2017] SASC 139

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MUTO-HENDERSON v POLICE
[2017] SASC 139
Judgment of The Honourable Justice Blue
25 September 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS - OTHER MATTERS
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - CONVICTIONS OF TRAFFIC OFFENCES RELATING TO OTHER MATTERS - DEMERIT POINTS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - WHAT CONSTITUTES TRIFLING OFFENCE
Appeal against refusal to reduce demerit points.
The appellant pleaded guilty to driving at 69 kilometers per hour in a 60 kilometers per hour zone. She had been travelling at the speed limit but felt pressured by the vehicle travelling behind her to increase her speed. She applied to the Magistrate for a reduction in demerit points on the ground that proper cause existed to do so.
The Magistrate declined to reduce the demerit points, finding that proper cause did not exist to do so.
Held:
1.       Observations on the demerit point regime (at [12]-[24]).
2.       The Magistrate did not err in taking into account alternative options available to the appellant rather than speeding (at [28]-[30]).
3.       Given that the appellant believed that she was already travelling at the speed limit before increasing her speed, the Magistrate's finding that the appellant did not check her speedometer could only be favourable to the appellant (at [32]).
4.       In the circumstances, proper cause did not exist to reduce the number of demerit points and the Magistrate did not err in the conclusion that she reached (at [34]-[35]).
5.       Appeal dismissed (at [37]).
Motor Vehicles Act 1959 (SA) s 98B, s 98BC, s 98BE; Motor Vehicle Regulations 2010 (SA) r 67, Sch 4, referred to.
Bialobrzeski v Police [2016] SASC 99; Chan v Police [2014] SASC 35; Gilbert v Owen (1991) 145 MVR 235; House v The King (1936) 55 CLR 499; Newton v Larcombe (1989) 38 A Crim R 254; Police v Hughes (1996) 89 A Crim R 290; Sivour-Ashman v Police (2003) 85 SASR 23, discussed.

MUTO-HENDERSON v POLICE
[2017] SASC 139
Magistrates Appeal: Criminal
BLUE J:

This is an appeal against a decision by a Magistrate declining to order that a reduced number of demerit points be incurred against the appellant for a speeding offence.
The appellant Sally Muto-Henderson pleaded guilty to driving at a speed over the applicable speed limit, namely at 69 kilometres per hour in a 60 kilometres per hour zone.[1] She gave evidence on oath in support of an application pursuant to subsection 98B(4) of the Motor Vehicles Act 1959 (SA) (the Act) for a reduction in the number of demerit points incurred by her on the ground that “other proper cause” existed to make such an order. The Magistrate decided that no “proper cause” existed.
[1] Australian Road…

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: [2017] SASC 139
Decision Date: 25 September 2017

CaseChat Overview and Summary

The appeal in Muto-Henderson v Police concerns the appellant's challenge to the Magistrate's decision to not reduce the demerit points she incurred for speeding. The appellant, who was driving through Robe on holiday, was detected by police radar travelling at 69 kilometres per hour in a 60 kilometre per hour zone. She pleaded guilty to the offence on the agreed basis and was issued an expiation notice. The appellant had previously accumulated 12 demerit points within three years and had elected to accept a condition on her licence requiring her to be of good behaviour for 12 months. By committing this offence, she breached that condition and became liable to disqualification from holding or obtaining a driver’s licence for six months.

The legal issues before the court were whether the Magistrate erred in failing to find that “proper cause” existed, whether the Magistrate applied the appropriate test, and whether the Magistrate placed too much weight on circumstances not relevant to the consideration of proper cause. The appellant argued that the Magistrate should have reduced the demerit points she incurred for speeding due to the presence of a vehicle closely behind her, which caused her to drive faster than the speed limit. The court had to consider whether this constituted “proper cause” within the meaning of subsection 98B(4) and whether the Magistrate applied the correct test in making the decision.

The court found that the Magistrate did not err in failing to find that “proper cause” existed, as the appellant’s feeling of pressure from the vehicle behind her did not amount to “proper cause” within the meaning of subsection 98B(4). The court held that the Magistrate applied the appropriate test in making the decision and did not place too much weight on irrelevant circumstances. The court also noted that the appellant had previously accumulated 12 demerit points within three years and had elected to accept a condition on her licence requiring her to be of good behaviour for 12 months. By committing this offence, she breached that condition and became liable to disqualification from holding or obtaining a driver’s licence for six months.

The appeal was dismissed, and the decision of the Magistrate was upheld. The court found that the Magistrate did not err in failing to find that “proper cause” existed, applied the appropriate test in making the decision, and did not place too much weight on irrelevant circumstances. The court held that the appellant’s feeling of pressure from the vehicle behind her did not amount to “proper cause” within the meaning of subsection 98B(4) and that the appellant’s previous accumulation of demerit points was a relevant factor in the decision.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against the Magistrate’s decision on the grounds that the Magistrate erred in failing to find that “proper cause” existed, erred in applying the appropriate test and erred in placing too much weight on circumstances not relevant to the consideration of proper cause.Background On Easter Sunday 27 March 2016 at about 3.30 pm the appellant was driving through Robe with her brother and son on holiday. When travelling along the main street of the town, she was driving particularly slowly to see the sights and at least one vehicle overtook her car as a result. She then drove along Main Road towards Kingston for approximately three to five minutes to a point where Main Road is straight for approximately half a kilometre after rounding a slight left hand bend at the junction of Main Road and Nora Creina Road and before a right hand bend at the junction of Main Road with Cawthorne Drive. This area is generally built up on the left and the speed limit is 60 kilometres per hour up to and including well beyond the right hand bend. The appellant was at the head of a long line of vehicles all travelling in fairly close proximity to each other. Immediately behind her was a four wheel drive vehicle. She believed that she was travelling at the speed limit (60, 61 or 62 kilometres per hour). The four wheel drive vehicle approached close behind her car, travelling to her perception faster than she was travelling and faster than the speed limit to get there. She felt pressured by its proximity to drive faster. She accelerated as a result. She was detected by police radar travelling at 71 kilometres per hour but she pleaded guilty to speeding on the agreed basis that she was travelling at 69 kilometres per hour and I proceed on that basis. She was pulled over by a police officer and given an expiation notice. The offence of driving at a speed over the applicable speed limit where the excess is not more than 9 kilometres per hour attracts two demerit points. The appellant had previously accumulated 12 demerit points within three years. She had elected to accept a condition on her licence requiring her to be of good behaviour for 12 months. By committing the offence on 27 March 2016, she breached that condition and became liable to disqualification from holding or obtaining a driver’s licence for six months. She gave evidence before the Magistrate that this would cause her hardship but she accepts on appeal that hardship is incapable of amounting to or contributing to “proper cause” within the meaning of subsection 98B(4). On 8 February 2017 the appellant gave evidence in support of her subsection 98B(4) application. Her evidence was as summarised above. She described the line of vehicles behind her as being one metre apart from each other but the Magistrate found that this was an underestimate. There is no challenge to the Magistrate’s finding in this respect, the Magistrate’s finding being that the vehicles were all in fairly close proximity to each other.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given my conclusion, it is not necessary to consider the proper exercise of the discretion if the appellant had established on appeal that proper cause existed to reduce the demerit points incurred by her.Conclusion I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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