Papas v Police; Papas Waste Equipment International Pty Ltd v Police - [2016] SASC 114

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
PAPAS v POLICE; PAPAS WASTE EQUIPMENT INTERNATIONAL PTY LTD v POLICE
[2016] SASC 114
Judgment of The Honourable Chief Justice Kourakis (ex tempore)
13 July 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS
Appeal against convictions, fines and associated costs on five offences against the traffic laws of speeding.
The appellant, Papas Waste Equipment International Pty Ltd (Papas Waste), pleaded guilty to three offences of exceeding the speed limit. Mr Papas pleaded guilty to two offences of exceeding the speed limit.
Through a misunderstanding of discussions with the police prosecutor, the appellant believed that the costs associated with traffic infringement notices and fines would be significantly reduced, and on that basis he pleaded guilty.
The appellant, Papas Waste, was given leave for the Director, Mr Papas, to represent the company in the appeal proceedings. The appeals for both Mr Papas and Papas Waste were heard jointly.
The period in which the appellants could appeal against the convictions has expired. The appellants applied for an extension of time to appeal in both matters.
Held, dismissing the appeal:
1.     Mr Papas was not deliberately or recklessly misled by the prosecutor.
2.     The appellants do not have strong prospects of defending the charges.
3.     Application for an extension of time is refused on both appeals.
Expiation of Offences Act 1996 (SA) s 8, referred to.

PAPAS v POLICE; PAPAS WASTE EQUIPMENT INTERNATIONAL PTY LTD v POLICE
[2016] SASC 114

KOURAKIS CJ (ex tempore): This is an appeal by Papas Waste Equipment International Pty Ltd (‘Papas Waste’) against convictions, fines and associated costs on three offences against the traffic laws of speeding. This appeal was heard at the same time as an appeal by Mr Chris Papas, who is a director of Papas Waste, against two convictions, fines and associated costs for offences against the traffic rules again with respect to speeding offences.
Mr Papas’ ground of appeal is essentially that the prosecutor told him that if he pleaded guilty, the court would not impose fines and/or costs exceeding the amounts he would have paid if he had expiated notices for those offences.
The appellants also seek an extension of time in which to appeal.
Representation of Papas Waste
At the commencement of the hearing Mr Papas applied for permission to represent Papas Waste on appeal.
Mr Papas informed me from the bar table, and I am prepared to accept without him giving evidence on oath, that the company’s turnover is in the order of $3 million annually. He and his brother, who is another director of the company, have not been able to draw any profit or earnings from the company for some years because the low margins on which Papas Waste operates are so tight. Mr Papas hopes that profitability will improve over time.
The prosecution of the appeal requires Mr Papas to give evidence about a conversation he had with a prosecutor in the Magistrates Court before he entered pleas on behalf of the company but that dispute is likely to be of narrow compass. Moreover, Mr Papas also appears as an appellant in his own right, appealing against convictions and associated fines and orders with respect to speeding offences committed by a car registered in his name. He will have to give the same evidence on that appeal.
In those circumstances I gave Mr Papas permission to appear for the company on the company's appeal.
Background
Mr Papas was issued with expiation notices for two offences of exceeding the speed limit between May and June 2015. Papas Waste was issued with three expiation notices for offences of exceeding the speed limit in June 2015. Both Mr Papas and Papas Waste elected to be prosecuted for these offences pursuant to s 8 of the Expiation of Offences Act 1996 (SA).
The charges were as follows:
·    Police brief Q505799XA charged Mr Papas with being an owner of a motor vehicle that was detected driving in excess of the speed limit (69 km/h in a 60 km/h zone).
·    Police brief Q5546042A charged Mr Papas with being an owner of a motor vehicle that was detected driving in excess of the speed limit (100 km/h in a 90 km/h zone).
·    Police brief Q5364697A charged Papas Waste with being an owner of a motor vehicle that was detected driving in excess of the speed limit (86 km/h in a 60 km/h zone).
·    Police brief Q5354137A charged Papas Waste with being an owner of a motor vehicle that was detected driving in excess of the speed limit (77 km/h in a 60 km/h zone).
·    Police brief Q5285452A charged Papas Waste with being an owner of a motor vehicle that was detected driving in excess of the speed limit (77 km/h in a 60 km/h zone).
The prosecutions against Mr Papas came before the Elizabeth Magistrates Court on a pre-trial conference on 14 October 2015. The prosecutor was Sergeant Harry Scherwitzel. Mr Papas has given evidence that he entered into negotiations with Mr Scherwitzel, as a result of which Sergeant Scherwitzel agreed to reduce the alleged speed to 68 km/h and 97 km/h which would bring the speeding offences into a lower category and therefore attract a lower fine. There is no dispute as to that aspect of the negotiations.
Mr Papas gave evidence on the appeal that he also negotiated with Sergeant Scherwitzel about the associated costs. Mr Papas testified that he was told by Sergeant Scherwitzel that the combined fines and costs which would be imposed by the Magistrate would not exceed the costs payable on the traffic infringement notice. It was also part of the arrangement that the prosecutor would not oppose a reduction of demerit points. Mr Papas claims that it was only on that basis that he decided to plead guilty to the two offences charged against him personally.
At one point in his testimony before me Mr Papas said that Sergeant Scherwitzel had “guaranteed” that the resulting fines and costs imposed by the court would be no more than the expiation fee and costs amounts on the traffic infringement notice. Mr Papas told me that he understood the concept of the independence of the courts but he nonetheless believed that the prosecutor knew about the operations of the court and that the prosecutor was therefore in a position to guarantee the result. In cross-examination though Mr Papas, to his credit, agreed that the prosecutor may have simply said that he would not oppose the fees and costs being limited in that way.
In the course of the negotiations about the prosecutions of Mr Papas personally, Mr Papas disclosed to Sergeant Scherwitzel that Papas Waste had two speeding charges in the Adelaide Magistrates Court and one in the Mount Barker Magistrates Court. It was agreed to resolve those matters on the same basis. The pre-trial conference was adjourned to 15 December 2015. Sergeant Scherwitzel arranged for the two Adelaide Magistrates Court summonses and the Mount Barker Magistrates Court summons to be transferred to the Elizabeth Magistrates Court. They were all dealt with on 15 December 2015.
On 15 December 2015 the matter was called on before Magistrate Sprod. Sergeant Scherwitzel informed Magistrate Sprod that the corporate defendant, Papas Waste, had some 16 employees and that Mr Papas did not know and was not able to say who the driver was. Mr Papas also confirmed that this was the case in his testimony on appeal, as no log books were kept by the company as to who was driving which car. Mr Papas confirmed in his testimony that with respect to one of the offences charged against him personally, he was the driver.
The Magistrate noted the reductions in the alleged speed in the personal matters from 69 km/h to 65 km/h and from 100 km/h to 97 km/h. With respect to the charges against Papas Waste, the alleged speed was reduced from 86 km/h to 68 km/h and from 77 km/h to 68 km/h on the other two company matters. All five charged therefore were a charge of camera offence exceed speed by less than 10 km/h.
The Magistrate asked Mr Papas how he pleaded and he indicated that he would plead guilty. The Magistrate informed Mr Papas of the possible imposition of demerit points and that he would have to give evidence for those to be reduced. Mr Papas gave evidence that he did not have accurate records as to who was the driver. The demerit points on his personal matters were reduced to zero there being no objection from the prosecution.
At the conclusion of the hearing the Magistrate informed Mr Papas that the fine to be imposed on each of the offences would be $150 but he did no more than indicate that court fees would be imposed on all of the matters. The transcript of the Magistrate’s sentencing orders reads:
HIS HONOUR: … Of the three matters involving the company files 15-1045; 15-1046 and 15-9262 I impose convictions and in each case a fine of $150.
As to the matters involving Mr Papas personally, I impose convictions and a fine of $150.
There are of course court fees, but no demerit points on the two files involving you personally Mr Papas.
The Magistrate did not actually inform Mr Papas of the quantification of the court fees. Accordingly, at the end of the proceedings, when he asked Mr Papas if he had any questions, Mr Papas simply answered 'No'. It was not until 14 January 2016 that Mr Papas received a notice which indicated the actual amount of the court fees.
For the two matters incurred personally by Mr Papas, the fines and fees imposed were:
·Fine - $150
·Court Cost - $256
·Victims of Crime Levy - $160
·Prosecution Costs - $100
The total cost for both matters was therefore $1,332.
The original expiation fee for each of the personal infringement matters was $219 and $409. Had Mr Papas paid the expiation notice he would therefore have incurred a total cost of $628.
For each of the three matters against Papas Waste, the fines and fees imposed were:
·Fine - $150
·Court Cost - $256
·Victims of Crime Levy - $160
·Prosecution Costs - $100
The total cost for the three company matters was $1,998.
The original expiation fee for the three company matters was $709, $709 and $1,069. Had Papas Waste paid the expiation notice the company would have incurred a total cost of $2,487.
Extension of time
The time for appealing against the convictions, fines and costs, expired on 5 January 2016. Mr Papas did not, of course, file the notice immediately thereafter because he was not aware of the fines and costs until 14 January 2016. After Mr Papas received his notification, he made some inquiries about how to go about appealing but he claims that he was not in a position to do so before he left to go overseas in February.
Mr Papas remained overseas from 12 February 2016 until 14 March 2016. The appeals in both matters were not filed until 24 May 2016. Accordingly, Mr Papas requires an extension of time within which to proceed.
The essence of Mr Papas' appeals is that he was misled into pleading guilty and would have contested the charges if he had known that it could not be guaranteed that the total of fines and costs imposed by the court would not be less than the amounts on the traffic infringement notices.
The total amount of fines and costs with respect to the company offences was, in fact, less than the total of the expiation amounts but Mr Papas contends that he was led to believe, not only that the court fines and costs would be no more than the traffic infringement notices, but that the Victims of Crime Levy would also be in the same amount.
I accept Mr Papas' evidence that he believed, as a result of the discussions, that the total amounts of fines and costs that would be imposed by the court would be no more than the amount on the traffic infringement notices. I accept his evidence that he believed that the Victims of Crime Levy would be the same. I am not satisfied however, on his evidence, that the prosecutor guaranteed those amounts. I am not satisfied that the prosecutor expressly said that the Victims of Crime Levy would be the same. I find no more than that, consistently with his notes, Sergeant Scherwitzel said that he would not oppose a result which would see the total amount of the costs and fines being no more than the total amounts on each of the traffic infringement notices.
I do not positively find that Mr Papas is not telling me the truth about the conversation he had with Sergeant Scherwitzel. I find only that, to the extent that he believed it, it was a result of his misunderstanding of what the prosecutor said.
On Mr Papas’ evidence, neither he nor the company have any positive defence to the charges. Mr Papas cannot exclude, except on one of the charges, that he was the driver. From Mr Papas’ evidence he is not in a position to give evidence directly that he was not speeding. His intention is to defend the charges on the basis that the speed detection devices might not have been properly calibrated. He has some experience of Australian Standards on the calibration of equipment but he is not himself an expert in speed detection devices. I do not understand him to have obtained any expert opinion from anyone else about these particular speed detection devices. He certainly has not relied on that on this appeal.
My findings are that to the extent that Mr Papas believed that he would not receive fines and costs greater than amounts on the traffic infringement notices, that belief was based on a misunderstanding of what Sergeant Scherwitzel said. In any event, the total with respect to the company was less even though the individual Victims of Crime Levies imposed by the court were greater.
Moreover I find that Mr Papas does not have strong or good prospects of defending the matter if I were to remit the matter to the Magistrates Court. Finally, I can understand the difficulty Mr Papas would have had in working out how to appeal, the fact is that the appeal is some months out of time and much of that is explicable by his absence on holidays overseas. I understand that the holidays were pre-arranged but ultimately Mr Papas decided to go on holiday instead of attending to the appeal. Nor did he arrange for others to attend to the filing of the appeal whilst he was away.
For a combination of those reasons:
·the fact that I have not found that he was deliberately misled or recklessly misled by the prosecutor;
·the poor prospects of any defence and the delay, without a strong reason, for bringing proceedings within time;
I refuse Mr Papas permission to extend time within which to appeal and refuse the company an extension of time within which to appeal.
I observe that Mr Papas' appeal, although it has been dismissed, was not completely without merit. There were some arguable matters which he put and he may wish to bring my observations and my reasons to the attention of the Fines Enforcement Recovery Unit for its consideration as to any late penalties it may have imposed on the expiation notices.
Conclusion
The application for an extension of time is refused on both appeals. I order that the appellant pay the respondent costs in the sum of $200.