Nielsen v Police (SA)

[2025] SASC 89

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

NIELSEN v POLICE (SA)

[2025] SASC 89

Judgment of the Honourable Justice Gray (ex tempore)

21 May 2025

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - JURISDICTION TO GRANT NEW TRIAL AND OTHER MATTERS

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS

The appellant appeals against both sentence and conviction entered by a Magistrate.  This Court previously made orders allowing the appeals and setting aside the conviction on the basis the respondent acceded that an error of law was made by the learned Magistrate.

The parties remained in dispute both about whether the matter ought to be remitted to the Magistrates Court for re-trial or otherwise dismissed and on the question of costs arising from the appeal.

Held:

(1) The interest of justice weigh in favour of remitting the matter for re-trial particularly in having regard to the public interest in the proper administration of justice which involves the prosecution of offences, and the consequent specific and general deterrence that this provides at [16].

(2) The respondent is to pay the appellant’s costs of the appeals fixed at $570.00, being the amount of the associated filing fees at [17].

Director of Public Prosecutions (Nauru) v Fowler HCA 48; (1984) 154 CLR 627; RGB v Police [2022] SASC 124; R v Brougham [2015] 122 SASR 546; Police v Rogers [2017] SASC 192; Birketu Pty Ltd v Atanaskovic & Ors [2025] HCA 2, considered.

NIELSEN v POLICE (SA)
[2025] SASC 89

Magistrates Appeal:   Criminal

1. GRAY J (ex tempore): This is an appeal by Mark Rudy Nielsen against a conviction imposed by Magistrate Kleinig on 12 November 2024, for the offence of exceed speed limit 10-19 k/h (camera offence).  A notice of appeal against sentence was filed on 15 January 2025, and a notice of appeal against conviction was filed on 9 April 2025.

2. The respondent did not take any issue with the late filing of the notice of appeal against conviction and on 24 April 2025, the respondent filed an outline of argument setting out the basis for conceding the appeal.[1] The respondent submitted that there was an error of law in the learned Magistrate’s reasons in that the incorrect offence was identified and the respondent sought orders that the matter be remitted back to the Magistrates Court for re-trial. The correct offence being an offence against r 20 of the Australian Road Rules.

   [1]     Respondent’s Written Submissions (FDN 6) in SCCRM-25-014321.

3. On 29 April 2025, this Court made orders that the appeal be allowed, and the conviction be set aside.  Those orders were not opposed and were made by consent.  The appellant, however, opposed any order remitting the matter for re-trial in the Magistrates Court.  A remaining issue in dispute on this appeal is whether this Court should remit the matter to the Magistrates Court for re-trial or dismiss the information filed on 24 April 2025.  There is also a dispute concerning the question of costs of the appeal.

   Submissions of the parties

4. I have considered the detail of both the written submissions and the oral submissions made by the appellant in this matter concerning the question of remittal.  There are five central submissions advanced by the appellant concerning the question of the remittal.[2]  These are:

   1.That the prosecution has had the opportunity to run the trial and lost on appeal.

   2.If the matter is remitted to the Magistrates Court, the appellant would be entitled to the plea of autrefois acquit.

   3.There would be prejudice in requiring the appellant to articulate on appeal the original grounds of the appeal, as this would result in prejudice for the re-trial.

   4.No re-trial should be ordered by reason of the principles of double jeopardy and in making these submissions, the appellant relies upon the reasons of Justice Peek in Police v Hanton[3].

   5.That remitting the matter back to the Magistrates Court for a re-trial should only occur in particular circumstances that were not applicable in this case.  In making this submission the appellant relied upon the decision of this Court in Police v Shah.[4]

   [2]     Appellant’s Written Submissions (FDN 11) in SCCRM-25-001955.

   [3] [2018] SASC 96 (‘Hanton’)

   [4] [2025] SASC 47 (‘Shah’)

5. Section 42(5) of the Magistrates Court Act 1991 (SA) gives power to this Court to make a number of orders in determining a criminal appeal from the Magistrates Court. These powers include the power to remit a case for hearing or further hearing before the Magistrates Court.[5]  The respondent submits that the principles enunciated by the High Court in Director of Public Prosecutions (Nauru) v Fowler[6] concern the manner in which this discretion may be exercised.  In that case, the Court held:[7]

   The power to grant a new trial is a discretionary one and in deciding whether to exercise it the Court which has quashed the conviction must decide whether the interests of justice require a new trial to be had.  In so deciding, the Court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. … Then the Court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.

   [5]     Magistrates Court Act 1991 (SA) s 42(5)(b).

   [6] [1984] HCA 48; (1984) 154 CLR 627.

   [7]     Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627 at 630 (the Court), see also RGB v Police [2022] SASC 124 at [161]-[163] (Parker AJ).

6. The respondent contends that the admissible evidence received at the original trial was sufficiently cogent to justify a conviction of the correct offence.  Further, the respondent contends that the reasons given by the learned Magistrate indicate that the evidence satisfied each element of the correct offence.  The respondent contends that a re-trial would not give the prosecution an opportunity to supplement a defective case.  Finally, the respondent submits that any unfairness to the appellant in terms of costs, inconvenience and stress in having to stand trial again is outweighed by the public interest in the proper administration of justice.

7. It is submitted that the public interest in specific and general deterrence requires that traffic offences (when an election is made by an accused not to expiate) should be fully prosecuted if there is sufficient available evidence to do so.  It is said that the public interest in such prosecutions is not diminished in circumstances of this case where an error of law was made in the original conviction by the learned Magistrate.  It is submitted by the respondent that the prosecutor had identified the correct offence in the opening of the original trial.[8]  Finally, the respondent provides reasons as to why the appellant’s submissions should not be accepted by this Court.[9]

   [8]     Trial Transcript (TT) at 3, lines 35-37.

   [9]     Respondent’s Written Submissions in SCCRM-25-014321 (FDN 6) at [12]-[22].

   Consideration

8. I accept that the power to grant a new trial is a discretionary one, and that in deciding whether to exercise this power, consideration must be given to whether the interests of justice require that a new trial be held.[10] 

   [10]   Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627 at 630 (the Court). See also, RGB v Police [2022] SASC 124 at [161]-[163] (Parker AJ).

9. I have considered the submissions advanced by the appellant to the contrary.  I am not persuaded by the appellant’s contention that the prosecution has had the opportunity to run its trial and that this alone would be a good reason for declining a re-trial.  I am also unable to accept the reliance that the appellant places upon the plea of autrefois acquit, as this is a species of estoppel by which the Crown is precluded from reasserting the guilt of an accused person when that question has previously been determined against it.[11]  I am unable to accept that principle has application in this case because on a remittal, there would be no prior extant judicial determination of the guilt or innocence of the appellant.  Orders have already been made in this matter by consent on 29 April 2025, that the appeal be allowed and the conviction set aside.

   [11] Respondent’s Written Submissions in SCCRM-25-014321 (FND 8) at [13].

10. I note that the appellant confirmed that he does not wish to proceed with the other arguments set out in the original grounds of appeal and the matter before the Court today concerns only the question of remittal.  On the question of remittal, in my view, the reliance placed by the appellant upon the decision of Justice Peek in Hanton[12] does not assist the appellant in the manner in which the appellant states.  That case is distinguishable because counsel for the prosecution conceded on the appeal in Hanton that if it was found that the prosecution could not avail itself of the statutory presumption, then the other observations of the police officer could not support a finding of guilt beyond reasonable doubt on either charge.[13]  There has been no challenge on this appeal to the ability of the prosecution to avail itself of the statutory presumptions in respect of the certificates and the certificates were the matters relied upon by the learned Magistrate as being cogent evidence in support of the prosecution case.[14]

    [12] [2018] SASC 96 at [193]-[196] (Peek J).

    [13] Ibid at [193] (Peek J)

    [14] Judgment of Magistrate Kleinig dated 12 November 2024 at [65]. The appellant did not pursue the grounds of challenge initially articulated in the appeal.

11. The final matter relied upon by the appellant concerns the principle of double jeopardy.  As a matter of general principle, the principle of double jeopardy often involves the misuse of the authority of the State and the potential oppression that may be involved in a double trial or double risk of conviction.[15]  The appellant has not in this case identified how the remittal of this matter would be vexatious or amount to the misuse of State power or be potentially oppressive to him such as to give rise to the application of the principle of double jeopardy.

    [15]   R v Brougham [2015] 122 SASR 546 at [7] (Peek J) citing Cooke v Purcell (1998) 14 NSWLR 51, at [55]-[56] (Kirby P).

12. I also find that the general principles referred to in the decision of Shah,[16] do not assist the appellant in the manner contended for by the appellant on this appeal.  That case concerned a prosecution appeal.  The circumstance of this case which concerns the interest of justice in the question of a remittal where there has been an error of law made by the learned Magistrate involves a different issue.  Whilst I have considered the arguments advanced by the appellant, both in the appellant’s written submissions and in the oral submissions made before this Court, they do not persuade me that this matter should not be remitted.  The appellant in submissions did not identify on this appeal a deficiency that supports a submission that the prosecution case was grossly deficient or the manner in which the prosecution would, on remittal, be permitted to supplement deficiencies in the prosecution case.

    [16] [2025] SASC 47 at [20] (Gray J).

13. In determining where the interest of justice lies, I have had regard to the question of whether the admissible evidence given in the original trial was sufficiently cogent to justify a conviction.

14. In this case, the respondent contends that the admissible evidence received at the original trial was sufficiently cogent to justify a conviction.  I accept that submission in the sense that the prosecution case at trial relied largely upon certificates and statutory aids to prove the offence.  Whilst the appellant challenged the admissibility of those documents, the appellant at the trial in the Magistrates Court did not call any evidence to support the challenges that he made to the certificates which were relied upon by the prosecution as statutory aids.  Having regard to these matters, there is no evidence before this Court which would suggest that this is a case where a re-trial would give the prosecution an opportunity to supplement a defective case.  It will be a matter for the appellant as to how on a remittal if the charge is contested the defence will be conducted.

15. I accept that the conviction has been quashed on appeal because the learned Magistrate erred in respect of the identification of the offence.  I accept that having regard to the transcript that that error occurred in circumstances where the prosecutor had identified the correct offence in the opening of the original trial.[17] 

    [17]   TT at 3, lines 35-37.

16. I accept that there is cost, inconvenience and stress which will be occasioned to the appellant by reason of having to stand trial again in the Magistrates Court.  Balancing the interest of justice however, and having consideration to the public interest in the proper administration of justice, which involves the prosecution of offences, and the consequent specific and general deterrence that this provides, I would remit this matter to the Magistrates Court.

17. The final question to consider is the question of the costs of the appeal. Both parties have provided detailed written submissions on the question of the costs of the appeal. The respondent seeks that there be no order as to costs and the appellant seeks that costs be awarded in his favour in the amount of $2,513.00. I have considered the provisions of s 42(5)(c) of the Magistrates Court Act 1991 (SA) which authorise this Court to make orders with respect to costs as are necessary and desirable in the circumstances as well as to the general principles and authorities concerning the question of costs.[18]  I have considered the submissions made by both parties as to the costs that have been incurred, including the submissions of the Crown concerning the costs associated by the dispute concerning the question of remittal.  In the exercise of my discretion, concerning costs I would make an order that the respondent pay the appellant’s costs fixed in the sum of $570.00 being the amount of the two filing fees paid by the appellant to lodge the appeals before this Court.

    [18]   See in particular Birketu Pty Ltd v Atanaskovic & Ors [2025] HCA 2 at [17]-[18] (Gageler CJ, Gordon, Edleman, Gleeson, and Beech-Jones JJ), see also (Steward J) at [62], (Jagot J) at [94]; c.f. Police v Rogers [2017] SASC 192 at [124]‑[128] (Peek J) and the cases cited therein.

    Conclusion

18. It follows that I would order:

    1.The matter be remitted to the Magistrates Court for re-trial.

    2.The Commissioner of Police pay the appellant’s costs fixed at $570.00.

    3.The question of costs of the trial in the Magistrates Court will be determined by that Court.

19. I note in making these orders that the appellant has not identified any relevant prejudice from the matter once remitted before trial being determined by the same Magistrate.  It will be a matter for the Magistrates Court as to which Magistrate is allocated to this matter on remittal.

20. I will hear from the parties as to any other orders.