Pawlak v Police - [2017] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PAWLAK v POLICE
[2017] SASC 40
Judgment of The Honourable Justice Vanstone
24 March 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - CONVICTION ON EX PARTE HEARING
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS - GENERALLY
Appeals against four convictions for speeding in the Magistrates Court. Where first charge went to trial and appellant was convicted. Where he was convicted for the other three charges in his absence.
Whether the Judge erred in convicting the appellant of the three charges in his absence. Whether error in the description of the charge on the Certificate of Record vitiated the trial. Whether the Judge erred in accepting the accuracy of the speed detection device. Whether the Magistrates Court is a court of competent jurisdiction under Chapter III of the Commonwealth Constitution. Whether the penalty imposed on the appellant contravenes the International Covenant on Civil and Political Rights. Whether the Road Traffic Act is validly proclaimed.
Held: The appeals are dismissed.
Magistrates Court Act 1991 (SA) s 42; Magistrates Court Rules 1992 s 26; Road Traffic Act 1961 (SA); Summary Procedure Act 1921 (SA) s 62, s 62BA, s 76A, referred to.
Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; Grant v Irrgang (1991) 160 LSJS 334; Johns v Police [2015] SASC 118; Laurendi v Police [2010] SASC 32; Millington v Police [2015] SASC 52; Police v Childs (2000) 76 SASR 425; Tomasevic v Travaglini (2007) 17 VR 100; Van Ryswyck v Hicks (1974) 8 SASR 376, considered.

PAWLAK v POLICE
[2017] SASC 40
Magistrates Appeal: Criminal
VANSTONE J.

The appellant faced four charges of speeding in the Magistrates Court. The first charge went to trial and the appellant was convicted. He was convicted for the other three charges in his absence, a Magistrate proceeding pursuant to s 62 of the Summary Procedure Act 1921 (SA). He now seeks an extension of time within which to appeal against all four convictions, taking a variety of grounds.
Background
There are two irregularities in relation to the notice of appeal which should be mentioned. As can be seen from the above, the notice of appeal addresses two separate sets of orders. While the three convictions imposed in the appellant’s absence can be the subject of one appeal, the separate conviction after a trial should have been the subject of a separate notice of appeal. I propose to treat the matter as two appeals.
In addition, the appeal in relation to the group of three convictions purports to be against the decision of a Magistrate made pursuant to s 76A of the Summary Procedure Act refusing to set aside the convictions. There is authority in this Court that such an appeal is incompetent, as the Magistrate’s decision under that section is interlocutory in nature: Section 42 of the Magistrates Court Act 1991 (SA) and Laurendi v Police [2010] SASC 324; Johns v Police [2015] SASC 118. The appeal should have been against the original order recording the three convictions. I am prepared to treat the appeal as relating to the recording of those convictions. It will not make any difference so far as evaluation of the appellant’s arguments are concerned.
The four charges which the appellant faced arose from incidents in 2015. I shall refer to the first of them as the first offence. I set out its particulars:
On the 7TH day of AUGUST, 2015 at GREENACRES in the said State drove a vehicle namely a MOTOR VEHICLE REGISTRATION NUMBER S012AGS on a length of road namely REDWARD AVENUE, to which a speed limit sign applied to you pursuant to rule 21(1) of the Australian Road Rules, over the speed limit of 50 kilometres per hour as indicated on the speed limit sign which was on the said road. Rule 20 of the Australian Road Rules.
It is further alleged you were driving at a speed of about 67 kilometres per hour.
This is a summary offence.
The balance of the charges related to conduct at Greenacres and Gepps Cross on 7 October and 13 October 2015. I shall refer to those as the three charges.
The four Complaints initially travelled together in the Magistrates Court. On 14 July 2016 there was a pre-trial conference in which all four were mentioned. The appellant was present and was not legally represented. The Complaint containing the first offence was set down for trial on 22 August 2016 and the three charges were adjourned to another pre-trial conference listed for 22 September 2016. On 22 September 2016 the appellant failed to appear at the pre-trial conference. The Magistrate, Magistrate Sprod, proceeded to deal with the matters utilising sections 62 and 62BA of the Summary Procedure Act. He regarded the allegations contained in the Complaints as sufficient evidence of the matters alleged. The appellant was convicted for all three charges. While he proceeded to impose penalty, in accordance with s 62C of the Act the Magistrate did not impose any license disqualification, or a sentence of imprisonment.
The first offence was tried before Magistrate Broderick on 25 October 2016. The prosecution case consisted of the tender of a number of documents by use of evidentiary aids provided in sections in the Road Traffic Act 1961 (SA), together with the evidence of Senior Constable Baldwin, who operated the True Speed Laser which detected the first offence. The appellant cross-examined the witness. No defence case was presented. Arguments put by the appellant went to the validity of the Road Traffic Act, the authority of the Magistrates Court and the accuracy of the speed detection device. The Magistrate gave brief ex tempore reasons for finding the appellant guilty.
Arguments on appeal
The grounds of appeal are six in number. Ground one relates to the three charges and grounds two to six relate to the first offence. I set them out as they appear in the notice of appeal. Then I shall deal with them in turn.
1.For the three charges of Exceed Speed 10-19 kilometres per hour I did not get the opportunity to defend myself in court I require this opportunity that is only available to me through appeal.
2.The charge brought before the Magistrate was incorrect, as the original fine/expiation notice was issued for exceeding the speed limit by only 10-19 kilometres per hour, not 20 – 29 kilometres per hour.
3.Ignored my challenge of court jurisdiction based on High Court ruling of Forge v ASIC that all counts must conform to the Commonwealth Constitution Chapter III.
4.The Magistrate erred in law as he ignored my request for proof that A) the Road Traffic Act has been legally enacted in the name of the Queen’s Most Excellent Majesty, as is required, pursuant to the Commonwealth Constitution and, B) for production of a copy of the Hansard entry for that purported Act.
5.The Magistrate erred in law as he ignored my statement of the possibility of operator errors, interference and slip and sweep effect on the device being relied upon by the Prosecution.
6.The Magistrate erred in law as he ignored my request for proof that the Government Gazette addendum, relied upon as evidence by the prosecution that instrument is an approved speed measuring device, was enacted by the Parliament of South Australia in the name of the Queen’s Most Excellent Majesty, as is required, pursuant to the Commonwealth Constitution.
Ground one – Convictions recorded in absence of defendant
The appellant complains of the findings of guilt entered in his absence on 22 September 2016. Since he did not file an outline of argument and addressed the grounds of appeal only briefly, his argument on this ground can be concisely stated.
Mr Pawlak asserts from the bar table that he did not intentionally fail to attend the pre-trial conference on 22 September 2016. He says he thought the pre-trial conference was to occur on another day.
Turning to his arguments on the merits, he submits that the court which convicted him was not a court of competent jurisdiction as described in Chapter III of the Commonwealth Constitution “having a minimum of two justices present”. He adds that the penalty imposed is in contravention of “Article 15 of the Covenant of Civil and Political Rights” … “brought into effect by the Human Rights and Equal Opportunities Act (1986)”.
Section 42(1) of the Magistrates Court Act provides the right of appeal exercised here. The question for decision on such an appeal is whether the interests of justice require that the appeal be allowed. While that inquiry can certainly extend to an examination of the circumstances in which the appellant failed to attend the Magistrate Court hearing, it is not confined to that. Before allowing an appeal on that basis the Court would need to be persuaded that the appellant has a viable defence and is likely to suffer injustice if the conviction or convictions are to stand: Van Ryswyck v Hicks (1974) 8 SASR 376 at 379; Grant v Irrgang (1991) 160 LSJS 334 at 337-339. The reason put forward by Mr Pawlak for his failure to attend amounts to something less than misadventure. Ordinarily something more in the way of explanation – and some sworn material – would be required. In light of the view I take of the other grounds of appeal it is unnecessary to say more about this aspect of the matter.
The argument that the Magistrates Court is not a court of competent jurisdiction seems to be presently a popular ground among unrepresented defendants. Parker J recently rejected a similar argument: Millington v Police [2015] SASC 52. I adopt his Honour’s reasons in relation to this ground of appeal. I am satisfied the Magistrates Court, constituted of one Magistrate, has jurisdiction to hear and determine matters such as these charges under the Magistrates Court Act.
As it happens, in the same case, Parker J also dealt with the appellant’s further argument concerning a suggested increase in penalty from the time of the offending to the time penalty was imposed: Millington at [31]-[34]. Leaving aside the detail that no ground of appeal raises the issue of penalty, the argument would fail for the same reasons Mr Millington’s appeal on this basis failed. That is, there was no increase in penalty in the relevant period. Had there been, the Magistrate would have imposed a penalty by reference to the then applicable maximum. That would be so under state law, without need of reference to the International Covenant on Civil and Political Rights, relied on by the appellant. I take the appellant to argue that, because court costs and the like were imposed and exceeded the total of the expiation fees, the penalty was thereby increased. I reject that argument for the same reasons as Parker J. The appellant chose not to expiate the offences. That he consequently incurred various court costs and other imposts is not relevant to penalty. Even if the Covenant were seen to strictly apply, it does not speak to this eventuality. International treaties to which Australia is a party do not form part of Australian law unless they have been validly incorporated into municipal law by statute: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-287. That said, international law may indirectly influence domestic courts by, for example, assisting in statutory interpretation and informing the application of the rules of natural justice and judicial understanding of the value placed on fundamental human rights by contemporary society: Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337 at [74]. As I said, the Covenant has no work to do in the present circumstances.
For these reasons ground 1 is not made out.
I have considered an additional matter. The hearing of these charges took place in what was to be a pre-trial conference. Pre-trial conferences are regulated by rule 26 of the Magistrates Court Rules 1992. They take place in a closed court unless the Court directs to the contrary. They need not be presided over by a Magistrate, although, as mentioned, Magistrate Sprod was to preside over the one which was scheduled for 22 September 2016.
The nature of a pre-trial conference was considered by Bleby J in Police v Childs (2000) 76 SASR 425. His Honour observed that an officer conducting a pre-trial conference pursuant to rule 26 is not exercising judicial power. Its purpose is purely procedural. The conference is conducted with the aim of enhancing case flow management. The public does not have a right to be present. It is not intended that orders disposing of proceedings should be made during the course of such a conference. At [16] Bleby J noted that, if in the course of a pre‑trial conference it was determined that the matter was resolved and a plea could be taken, the Magistrate should announce that the matter would now proceed in open court. In other words, the transition from conference to hearing needed to be made clear.
Returning to the present matter, the clear implication from the Magistrate’s decision to proceed ex parte is that the planned pre-trial conference was abandoned and the Magistrate convened the Court – an open court – to sit as a Magistrate and to the hear the charges. There was no impediment to his Honour doing so. I note that there is a clear warning about the perils of failing to attend Court on the Form 2, being the form of the Complaint and Summons which was originally served on the appellant. On the face of the form appears the following:
Important Notice to Defendant
If you fail to appear on the hearing date set out below or on any day to which this matter is adjourned the Court may:-
* Proceed in your absence or
* Issue a warrant for your arrest
As seen, the Magistrates Court Act provides machinery by which non-attendance through misadventure can be addressed.
The appeal against conviction on the three charges is dismissed.
Ground two – Error in Certificate of Record
In this ground the appellant complains that the charge heard by Magistrate Broderick was incorrect, as the expiation notice alleged that he exceeded the speed limit by 10 to 19 kilometres per hour, rather than 20 to 29 kilometres per hour which appears in the Magistrates Court Certificate of Record.
I have already set out the particulars of the Complaint containing the first offence, as it proceeded to trial. It can be seen that the charge did not contain any computation of the number of kilometres per hour by which the speed alleged exceeded the relevant speed limit. It did allege that the appellant drove at 67 kilometres per hour and, plainly, such a speed was 17 kilometres per hour in excess of the speed limit. The error to which the appellant points occurs, not in the charge, but in the Certificate of Record. It seems that, from the time the Certificate of Record relating to this charge was generated, the band of excess speed within which this offence was said to fall (relevant to penalty) was described as 20 to 29 kilometres per hour. Consequently, the Record shows a conviction for speeding falling within that band. That needs to be corrected. However, that error has no bearing on the charge itself, or upon the trial.
Ground three – Challenge to jurisdiction
As I understand this argument, it is a contention, based on Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, that the Magistrates Court had no jurisdiction to determine these charges. That decision concerned a challenge to the appointment an acting judge in New South Wales. The appellant did not elucidate how that decision could have any bearing on his appeal. It does not.
Ground four – Enactment of Road Traffic Act
The appellant contends that the Road Traffic Act has not been validly proclaimed. This argument was also recently dealt with in separate proceedings by Parker J in Millington at p 19-21. I am content to rely on the reasons of Parker J. The ground is unarguable.
Ground five – Accuracy of speed detection device
As I understand the appellant’s argument, it is that he demonstrated in his cross-examination of Senior Constable Baldwin that there was a possibility of significant error in the readings taken by the speed detection device. An examination of the transcript refutes that suggestion. Senior Constable Baldwin said that the device was operating correctly and was accurate. He said any minor inaccuracy due to the device measuring speed at an angle to the direction of travel of the subject vehicle (as opposed to being directly in front of it) would be negligible, but would favour a lower recorded speed. He said that variation in the level of light would not affect accuracy, although it might affect the ability of the device to “lock on” to the target.
In my view the Magistrate was correct in finding that such arguments as were raised by the appellant were merely speculative and did not amount to the “proof to the contrary” required if the relevant certificates were to be disputed.
Ground six – Proof of approval of speed detection device
As I understand the appellant’s argument, it again rests on the contention made under ground four that the Road Traffic Act was not enacted in the name of “the Queen’s most excellent Majesty”. For the same reasons this ground fails.
Conclusion
For the foregoing reasons I dismiss both appeals. The orders I make are:
1The time in which to appeal is extended to 1 December 2016.
2The appeal against the conviction for speeding on 7 August 2015 at Greenacres is dismissed.
3I direct the Registrar of the Magistrates Court to correct the Certificate of Record for that offence so that the offence appears as:
Exceed Speed Limit by 10-19km/hr
4The appeal against the convictions for speeding on 7 August 2015 at Greenacres, 13 October 2015 at Gepps Cross and 13 October 2015 at Greenacres is dismissed.