NGUYEN v Police - [2007] SASC 190

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NGUYEN v POLICE
[2007] SASC 190
Judgment of The Honourable Justice Layton
25 May 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - CONVICTION ON PLEA OF GUILTY
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - PLEA AND STATEMENT OF DEFENCE - PLEA OF GUILTY - WHERE DEFENDANT NOT REPRESENTED
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA
The appellant, who was unrepresented, pleaded guilty in the Magistrates Court to having driven a motor vehicle under the influence of a drug, contrary to s 47 of the Road Traffic Act 1961 (SA) - appellant not of an English-speaking background - appealed against the conviction and sentence on grounds relating to the circumstances in which the plea was entered - Held: the appellant did not intend to plead guilty to the charge - extension of time granted - appeal allowed - complaint remitted to Magistrates Court for rehearing.
Road Traffic Act 1961 (SA) s 47; Supreme Court Civil Rules 2006 (SA) r 283; r 290, referred to.
Cooling v Steel (1971) 2 SASR 249; The King v Forde [1923] 2 KB 400; Liberti (1991) 55 A Crim R 120, applied.
Collie v Police [2002] SASC 109; Irving v French (1979) 21 SASR 437; Marie v Police (2003) 231 LSJS 399; Police v Warren [2000] SASC 285, considered.

NGUYEN v POLICE
[2007] SASC 190
LAYTON J.
Introduction

This is an appeal against conviction and sentence. On 30 December 2004, the appellant was charged with driving while he was so much under the influence of a drug as to be incapable of exercising effective control of a motor vehicle, contrary to s 47 of the Road Traffic Act 1961 (SA) (“the Act”). The alleged offending occurred on 24 August 2004 on Grand Junction Road at Gepps Cross, and other locations.
On 29 January 2007, the appellant pleaded guilty in the Holden Hill Magistrates Court. The appellant was unrepresented. He was convicted and fined $700 plus court fees and a levy. The appellant was also disqualified from driving for a period of 12 months commencing from 17 February 2007.
Grounds of Appeal
The grounds of appeal are:
1. The Appellant denies that he was driving under the influence.
2.The Appellant did not have an interpreter provided for him. The Appellant is Vietnamese and hence could not fully comprehend what was occurring.
3.The Appellant was advised that there was a Summons against him the weekend before this matter was heard in the Magistrates Court, and only picked up the Summons on the Sunday before the matter was heard in the Magistrates Court.
4.The Appellant was unrepresented, and was not allowed an adjournment to obtain such legal advice.
5.The Appellant advised the Sherriff [sic] on the day of the proceedings that he intended to plead not…

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: [2007] SASC 190
Decision Date: 25 May 2007

CaseChat Overview and Summary

The case of Nguyen v Police involved an appeal by the appellant, who was unrepresented in court, against his conviction and sentence for driving under the influence of a drug. The appellant, who was not of an English-speaking background, pleaded guilty in the Magistrates Court of South Australia to the charge under section 47 of the Road Traffic Act 1961 (SA). The appeal to the Supreme Court centred on the circumstances under which the plea was entered, with the appellant arguing that he did not intend to plead guilty.

The legal issues before the court included whether the appellant genuinely intended to plead guilty and whether the Magistrates Court adequately ensured the appellant's understanding of the plea process. Given the appellant's lack of legal representation and language barriers, the court needed to determine if procedural fairness was observed, particularly in light of the appellant's admission of not fully understanding the court proceedings. The court also had to consider whether the appeal should be allowed despite the appellant having already pleaded guilty.

The Supreme Court found that the appellant did not intend to plead guilty, considering his candid and uncertain responses during his testimony and cross-examination. The court accepted that the appellant genuinely did not understand the implications of his plea due to language barriers and the intimidating nature of the court proceedings. Given these circumstances, the court concluded that allowing the appeal was necessary to prevent a miscarriage of justice. The court extended the time for the appellant to appeal, allowed the appeal, set aside the conviction and sentence, and remitted the complaint to the Magistrates Court for rehearing. To expedite the matter, the appellant was ordered to appear before the Holden Hill Magistrate’s Court on a specified date.

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

LAYTON J

In making all of these observations, I bear in mind that Magistrates are under the pressure of a very heavy workload, and that those precautions may occasionally be imperfectly observed when they are busily dispatching their business.[12][12] Irving v French (1979) 21 SASR 437, 439 per Walters J.Conclusion In this case I was impressed by the evidence given by the appellant and his responses to cross-examination. He gave his evidence in a candid manner and at times indicated when he was uncertain about particular issues. He also conceded in cross-examination that certain things may have been told to him by the Magistrate, but “Probably I don’t understand sir, yes”. However, he maintained that the Magistrate did not indicate to him that he should see a lawyer. He also maintained that at no time did he intend to plead guilty. I accept that the appellant did not intend to plead guilty to being under the influence of a drug contrary to s 47 of the Act. I can understand that the Magistrate may not have appreciated the lack of true understanding which the appellant had during the unfamiliar and intimidating court procedures. He may have considered his language skills to be greater than they were. He may also have misunderstood the appellant and thought that the appellant in admitting that he had taken the anti-depressant tablet, was in the circumstances admitting the offence. I consider that this case falls within the circumstance of not intending to admit guilt as discussed in the cases referred to above. As a consequence, I consider that this is one of those rare cases where a successful appeal after a person has pleaded guilty should be allowed. To not grant an extension of time and allow the appeal in this case would result in a miscarriage of justice, and on that basis I make the following orders:1The time within which the appellant be entitled to appeal be extended to 21 February 2007.2Appeal allowed.3The conviction and sentence imposed by the Magistrate be set aside.4The complaint be remitted to the Magistrates Court for re-hearing.5In the interests of expediting this matter, the appellant is to appear before the Holden Hill Magistrate’s Court at 10am on Monday 18 June.

Ratio Decidendi

Legal Principle Established

Established by: LAYTON J

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