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

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.
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.
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…

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.

Keep reading for free

Create a free CaseChat account to read Nielsen v Police (SA) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] SASC 89
Decision Date: 21 May 2025

CaseChat Overview and Summary

The case of Nielsen v Police (SA) involved an appeal by the appellant against a conviction and sentence imposed by the Magistrates Court of South Australia. The appellant challenged the decision to convict him on the grounds of errors of law and procedure. The South Australian Supreme Court was tasked with determining whether the appeal should be allowed and, if so, whether the matter should be remitted for a new trial or if the conviction should be quashed. Additionally, the court had to consider the costs associated with the appeal.

The legal issues before the court included whether the appeal should be allowed on the grounds of errors of law and procedure, whether a new trial was warranted, and the appropriate allocation of costs between the parties. The court had to consider whether the errors identified by the appellant warranted a new trial and if the public interest in the prosecution of traffic offences was sufficiently served by the original conviction.

The court held that the appeal should be allowed and the conviction set aside, as there were errors of law that warranted a new trial. The court found that the public interest in prosecuting traffic offences was not diminished by the errors made in the original trial. The court also considered the submissions of both parties on the question of costs and exercised its discretion to award a portion of the appellant’s costs, specifically the two filing fees paid to lodge the appeals before the court. The court declined to award the full amount of costs sought by the appellant, considering the submissions and the overall circumstances of the case.

In conclusion, the court ordered that the matter be remitted to the Magistrates Court for a new trial. The Commissioner of Police was ordered to pay the appellant’s costs in the amount of $570.00. The costs of the trial in the Magistrates Court were to be determined by that court. The court noted that the appellant had not identified any relevant prejudice from the matter being determined by the same Magistrate on remittal and that it would be a matter for the Magistrates Court to allocate the matter to a specific Magistrate.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J

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

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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 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). 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]. 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.