Perovic v Police
[2011] SASC 174
•13 October 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PEROVIC v POLICE
[2011] SASC 174
Judgment of The Honourable Justice White
13 October 2011
TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE AND PENALTY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT - GENERALLY
A Magistrate ordered the forfeiture of the appellant's car under s 12 of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (the Impounding Act) - the appellant submitted that an order for forfeiture would cause him "severe financial or physical hardship" and therefore that the Magistrate should exercise the power under s 13(1)(a) of the Impounding Act not to order forfeiture - the Magistrate rejected the appellant's submission - the appellant appealed against the forfeiture.
Whether the Magistrate's decision not to make an order under s 13 of the Impounding Act was a discretionary decision to be reviewed in accordance with the principles in House v The King (1936) 55 CLR 499, or whether the Court could reach its own independent conclusion on the evidence which was before the Magistrate - whether the Magistrate correctly applied s 13(1).
Held: appeal allowed - the review of a decision by a court not to apply s 13(1) may not be restricted by House v The King principles, but it is not necessary to reach a final decision - the Magistrate applied too narrow a test in considering whether the forfeiture of the appellant's car would cause severe financial or physical hardship - matter remitted to the Magistrates Court for reconsideration.
Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 11, s 12, s 13; Road Traffic Act 1961 (SA) s 47, s 47B; Motor Vehicles Act 1959 (SA) s 91; Magistrates Court Act 1991 (SA) s 42; Veterans Entitlements Act 1986 (Cth); Supreme Court Civil Rules 2006 (SA) r 281; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles ) Regulations 2007 (SA) reg 4, referred to.
House v The King (1936) 55 CLR 499; Warren v Coombes (1979) 142 CLR 531; Taylor v Hayes (1990) 53 SASR 282; Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; Frohling v Police [2011] SASC 53; Taylor v Attorney-General (1991) 55 SASR 462; Repatriation Commission v Hall (1988) 78 ALR 687; Electricity Trust of South Australia v O'Leary (1986) 42 SASR 26; Morley v Police [2005] SASC 233, considered.
PEROVIC v POLICE
[2011] SASC 174Magistrates Appeal
WHITE J. On 8 March 2011, a Magistrate made an order under s 12(1)(a) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (the Impounding Act) that the appellant’s vehicle be forfeited to the Crown. The Magistrate was not satisfied that the forfeiture would cause “severe financial or physical hardship”, and he rejected the appellant’s submission that he should, under s 13(1)(a) of the Impounding Act, decline to make an order on that ground.
The vehicle which was the subject of the forfeiture order was a 1991 Toyota Soarer coupe owned by the appellant.
The appellant now appeals against the Magistrate’s forfeiture order. He did not commence the appeal until 21 July 2011, well outside the 21 day period fixed by r 281(1) of the Supreme Court Civil Rules 2006 in which such appeals must be commenced. I will address his application for an extension of time in which to commence the appeal later in these reasons.
The Impounding Act
The Impounding Act came into operation on 16 December 2007. It contains a regime by which vehicles used by offenders in the commission of specified offences and some others may be clamped and impounded by the police and may be forfeited by court order to the Crown.
In relation to the forfeiture of a vehicle, s 12 of the Impounding Act provides relevantly:
(1)Subject to section 13, if this Part applies to a conviction for a prescribed offence, the court that records the conviction must, on the application of the prosecution—
(a) order that the motor vehicle specified in the application is forfeited to the Crown if—
(i) the offence is a forfeiture offence; or
(ii)the convicted person has been found guilty of or expiated at least 1 other prescribed offence committed or allegedly committed within 12 months of the date of the offence; or
(iii)the convicted person has been found guilty of or expiated at least 2 other prescribed offences committed or allegedly committed within 10 years of the date of the offence; or
(b) …
…
(5)If a court makes an order for the impounding or forfeiture of a motor vehicle under this section, the relevant authority is authorised to seize the motor vehicle and deal with it in accordance with this Act and the requirements (if any) specified in the order.
Thus, subject to s 13, discussed below, s 12 obliges a court which has convicted a person of a prescribed offence and to which an application for forfeiture is made by the prosecution, to order the forfeiture of a motor vehicle specified in the application if one or other of three separate circumstances exist (s 12(1)(a)). Relevantly for present purposes, the Court must order the forfeiture if the convicted person has been found guilty of at least two other prescribed offences committed within 10 years of the date of the subject offence (subs (1)(a)(iii)). Section 12(1) is expressed in mandatory terms and does not itself vest a court with any discretion to refrain from making an order for forfeiture.
The forfeiture power in s 12 is enlivened when an offender commits a prescribed offence after the commencement of Part 3 of the Impounding Act and, relevantly, when the convicted person has been found guilty of, or expiated, at least one other prescribed offence committed within 10 years of the date of the offence (s 11). That is to say, provided that the offence giving rise to the application for forfeiture was committed after the commencement of Part 3 of the Impounding Act, it does not matter that the previous offences were committed before that commencement, provided only that they were committed within 10 years of the date of the subject offence.
Section 13 of the Impounding Act vests a court with a discretion in limited circumstances to decline to make a forfeiture order. It provides:
(1)A court that records a conviction to which this Part applies may decline to make an order under this Part if satisfied that—
(a) the making of the order would cause severe financial or physical hardship to a person; or
(b) the offence occurred without the knowledge or consent of any person who was an owner of the motor vehicle at the time of the offence; or
(c) the making of the order would significantly prejudice the rights of a credit provider; or
(d) the motor vehicle the subject of the application is a motor vehicle referred to in section 11(c)(i) and has, since the date of the offence, been sold to a genuine purchaser or otherwise disposed of to a person who did not, at the time of the sale or disposal, know or have reason to suspect that the motor vehicle might be the subject of proceedings under this section.
(2) If—
(a) a court declines to make an order under this Part; and
(b) the court is satisfied that it would be reasonably practicable for the convicted person to instead perform community service, the court must order the convicted person to perform not more than 240 hours of community service.
(3)An order to perform community service under subsection (2) must be dealt with and enforced as if it were a sentence of community service (and in any enforcement proceedings the court may exercise any power that it could exercise in relation to a sentence of community service).
Of relevance to the present case, the court may decline to make the order if satisfied that to do so “would cause severe financial or physical hardship to a person” (s 13(1)(a)).
Background Circumstances
In the present case, the appellant pleaded guilty, as I understand it, to a contravention on 12 November 2010 of s 47B(1) of the Road Traffic Act 1961 (SA) (RTA), namely, driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol. It appeared to be common ground that the appellant was using his Toyota at the time. On 8 February 2011 the Magistrate sentenced the appellant. Apart from the fact that the Magistrate disqualified the appellant from holding or obtaining a driver’s licence until December this year, the details of the sentence were not disclosed to this Court.
A contravention of s 47B of the RTA is a prescribed offence for the purposes of the Impounding Act.[1]
[1] See reg 4(b) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 made under the Impounding Act.
Within the period of 10 years before 12 November 2010, the appellant had been convicted of one offence (committed on 30 March 2003) of driving under the influence of alcohol, in contravention of s 47 of the RTA; one offence (committed on 30 October 2003) of driving a vehicle on the a road while disqualified from doing so, in contravention of s 91(5) of the Motor Vehicles Act 1959 (SA); and one offence (committed on 15 February 2008) of driving while there was present in his blood the prescribed concentration of alcohol, a contravention of s 47B(1) of the RTA. Each of these offences is a prescribed offence for the purposes of s 12 of the Impounding Act.[2]
[2] See reg 4(b) and (g) respectively of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007.
This meant that unless the Magistrate was satisfied that the forfeiture would cause severe financial or physical hardship, he was bound, on the prosecution application, to order the forfeiture of the Toyota. None of the other circumstances specified in s 13(1) of the Impounding Act was applicable.
The Magistrate was not satisfied that severe financial or physical hardship had been established. He said:
[Mr Perovic] tells me today that the vehicle concerned has a value of about $200. He says the reason he is defending the application for forfeiture is because he is a single parent and he needs to get his child to school. I can understand that. However, it appears that his mother takes the child to school as he presently doesn’t have a licence. She uses her vehicle but Mr Perovic would prefer that she used his vehicle because she is doing him a favour so to speak.
The Magistrate then addressed Mr Perovic’s suggestion that he had sold the vehicle to his mother. It is implicit that the Magistrate did not accept that suggestion. The accuracy of Mr Perovic’s estimate of the value is also doubtful. The Magistrate noted that the appellant is unemployed and on Centrelink benefits.
Were the Proceedings Before the Magistrate Unfair?
The appellant submitted that two matters had made the proceedings at first instance “unfair”.
The first was that at very short notice he had found that he had to represent himself as, until only minutes before the hearing, he had thought that a solicitor (Mr McAuliffe) would be representing him. In consequence, he had not had sufficient time to prepare both evidence and submissions.
Secondly, counsel submitted that the appellant’s psychiatric condition had impaired his ability to represent himself, to give appropriate evidence, and to make pertinent submissions.
It was not altogether easy to discern what consequences the appellant submitted should follow from an acceptance of these submissions. Counsel’s submissions hinted at the possibility of a denial of procedural fairness, but no positive submission to that effect was made. Nor did counsel refer to any of the relevant authorities.
The submission seemed to be that the difficulties which the appellant had experienced should make this Court more ready to receive fresh evidence on the appeal, and to consider afresh the extent of the financial and physical hardship which forfeiture would cause. However, in relation to the first, counsel for the respondent had not objected to the Court receiving the fresh evidence proffered by the appellant and I did receive it (putting to one side the issues of relevance and admissibility to which it gave rise). It was appropriate to receive the appellant’s evidence under s 42(4) of the Magistrates Court Act 1991 because there is no record of the evidence and submissions made in the hearing before the Magistrate. The prosecutor’s affidavit provided only limited details of the interchange between the appellant and the Magistrate. By reason of the fact that the appellant did not make any notes at the time, his ability to give an accurate account of what was put to the Magistrate was also limited. It is, in any event, difficult to distinguish between that part of the content of his affidavit which relates to matters which were put to the Magistrate, on the one hand, and that part of the content which is new.
The second way in which the appellant sought to rely on the alleged unfairness raises the nature of this Court’s function on the appeal. That turns in part on a characterisation of the Magistrate’s decision. Is it a discretionary judgment of the kind requiring the appellant to establish some error of the House v The King[3] type? Alternatively, is it a judgment of the kind requiring the court on appeal to conduct a review of all the evidence, to reach its own independent conclusion, and to substitute its own decision for that of the Magistrate if it comes to a different conclusion as the correct inferences to be drawn?[4]
[3] (1936) 55 CLR 499.
[4] Magistrates Court Act1991 (SA) s 42; Warren v Coombes (1979) 142 CLR 531 at 552; Taylor v Hayes (1990) 53 SASR 282 at 291-2; Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141 at [38].
A decision to decline to make an order for forfeiture under s 13(1) will involve at least some discretionary judgment: the opening words in sub-s (1) use the word “may” in contrast with the mandatory word “must” used elsewhere in s 13 and in s 12. However, before that discretion is enlivened, the Court must be satisfied of at least one of the matters specified in sub-pars (a)-(d).
The complaint on the present appeal is not so much about the exercise of the discretion under s 13(1) but about the Magistrate’s decision that circumstances enlivening that discretion did not exist. That does not mean, however, that the Magistrate’s decision is not of the discretionary kind attracting House v The King principles on appeal as it is also necessary to consider the nature of a Magistrate’s decision concerning the existence or otherwise of the circumstances specified in sub-paras (a)-(d).
In general, judgments are regarded as discretionary in nature if they involve the making of a value judgment about which reasonable minds may differ. Mason and Deane JJ explained the rationale for this approach in Norbis v Norbis:[5]
If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part.[6]
[5] (1986) 161 CLR 513.
[6] Ibid at 518.
Similarly, in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission,[7] Gleeson CJ, Gaudron and Hayne JJ said:
"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result". Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.[8]
(Citations omitted)
In Coal & Allied, the Court held that the decision by a Deputy President of the Australian Industrial Relations Commission that industrial action was “threatening to endanger the welfare of part of the population,” and that it was “threatening through its potential for escalation to cause significant damage to the Australian economy or an important part of it” involved a discretionary judgment attracting the application of House v The King principles on appeal.
[7] [2000] HCA 47; (2000) 203 CLR 194.
[8] Ibid at [19]; 204-5.
As the Court observed in Coal & Allied, the notion of discretion can signify a number of different concepts. Its meaning can vary according to context. The authorities reviewed in Dwyer v Calco Timbers Pty Ltd[9] indicate that there may be some discretionary judgments in which an appellate court may interfere even in the absence of House v The King type error. Further, the court in Calco Timbers contrasted various kinds of discretionary judgments with those situations in which a statute creates a legal norm (in that case “serious injury”) and does so in terms which require for its operation in a given dispute the identification and evaluation of facts and assigns that fact finding in the first instance to a judge sitting alone.[10]
[9] [2008] HCA 13 at [37]-[40]; (2008) 234 CLR 124 at 138-9.
[10] Ibid at [40]; 138.
Section 13(1) of the Impounding Act provides for four different circumstances enlivening the court’s discretion to decline to make an order for forfeiture. The concepts of “severe financial or physical hardship” and “[significant] prejudice” in sub-paras (a) and (c) respectively require an evaluation by the decision-maker based on evidence or materials placed before the decision-maker. The circumstances decided in sub-pars (b) and (d) involve more fixed or objective criteria, although even in those cases the court must make a determination about the absence of knowledge of the owner and purchaser respectively.
Both the nature, and the different kinds, of decisions which may be made under s 13(1)(a)-(d) incline me to the view that those decisions ought not to be regarded as being of the discretionary kind reviewable only under House v The King principles. I acknowledge that it is possible that the different kinds of judgments required by each of the sub-paragraphs in s 13(1) allows for the possibility that this Court’s task on appeal may vary from case to case. However, I prefer the approach of considering s 13(1) as a whole. This is especially so as it is quite possible that one or more of the circumstances specified in sub-pars (a)-(d) may be involved in any one case.
The parties did not address submissions to this issue and it may therefore be inappropriate to express a concluded view. For the purposes of this appeal, however, I consider it appropriate to proceed on the basis that the appellant is not obliged to establish House v The King type error, and that this Court should conduct an appeal by way of hearing in accordance with the principles discussed in Warren v Coombes;[11] Taylor v Hayes;[12] and Martin v Department of Transport; Energy and Infrastructure.[13]
[11] (1979) 142 CLR 531.
[12] (1990) 53 SASR 281.
[13] [2010] SASC 141.
Accordingly, it is not necessary for the appellant to rely upon the alleged unfairness in order to have this Court receive the evidence which he put forward on the appeal and to consider afresh all the evidence.
However, in case this matter goes further, I indicate that I am far from satisfied that the proceedings before the Magistrate were affected by any relevant unfairness.
First, the evidence indicates that the appellant was on notice that a hearing of the prosecution application for forfeiture under the Impounding Act would take place on 8 March 2011. The prosecution application for forfeiture was made on 29 November 2010 and was served on the appellant on 2 December 2010. The appellant was accordingly on notice of the prosecution application for more than three months before the Magistrate made the order on 8 March 2011.
The appellant was represented by a legal practitioner, Mr McAuliffe, in relation to the PCA offence for which he was sentenced on 8 February 2011. Mr McAuliffe has deposed that although he was aware of the forfeiture application, he was not retained by the applicant in relation to it. He did not take any instructions from the appellant, and did not meet with him to prepare for the hearing. After the conclusion of the prosecution for the PCA offence, Mr McAuliffe sent the appellant what he described as his “final letter of report” as well as his account. He then closed his file.
Mr McAuliffe saw the appellant at the Port Pirie Magistrates Court on 8 March 2011 by coincidence only, as he happened to be at the Court at the time in relation to another matter.
I see no reason not to accept Mr McAuliffe’s account in this respect. The appellant’s account is, in effect, to impute to Mr McAuliffe a dereliction of his duty as a practitioner by terminating his instruction at the last moment and leaving his client unprepared to deal with the prosecution application. This Court would only reach a conclusion to that effect on the basis of cogent evidence. Apart from his bare assertions, the appellant has not provided any other evidence. He has not, for example, exhibited the correspondence which he received from Mr McAuliffe, and he has not proffered any explanation for the absence of communication between him and Mr McAuliffe in the period from 8 February 2011 to 8 March 2011 of the kind which may have been expected in connection with the preparation for the hearing. Finally, it is pertinent that the appellant did not seek to cross-examine Mr McAuliffe on his affidavit.
In any event, the appellant represented himself before the Magistrate on 8 March 2011 on the hearing of the forfeiture application. As I have said, the Court has not been provided with a detailed account of the evidence given and submissions made. However, two matters are well apparent. First, the Magistrate enquired of the applicant whether he had sought legal advice and whether he sought to be legally represented in relation to the hearing. The appellant indicated that he wished to proceed. Secondly, the Magistrate endeavoured to assist the appellant by alerting him that he could avoid forfeiture if he could establish severe financial or physical hardship, and by asking him appropriate questions about his personal and financial position.
Severe Financial or Physical Hardship
The expression “severe financial or physical hardship” is not defined in the Impounding Act.
In Frohling v Police,[14] Nyland J discussed aspects of s 13 of the Impounding Act. Her Honour adopted some of the reasoning of Debelle J in Taylor v Attorney‑General[15] in relation to confiscation of property used in the commission of drug offences. In relation to such forfeiture Debelle J said:
The fact that hardship will occur is not a factor which, standing alone, will militate against an order for forfeiture. It is necessary to bear in mind that it is the intention of the Act that the forfeiture of property will cause a measure of hardship … So, when considering the ground of hardship, something more than ordinary hardship in consequence of the operation of the order for forfeiture is meant; otherwise the purpose of the legislature would be frustrated. …[16]
(Citations omitted)
This led Nyland J in Frohling to conclude that a defendant seeking to resist forfeiture on this ground is required to establish something more than ordinary hardship, ie, more than some hardship.[17]
[14] [2011] SASC 53; (2011) 109 SASR 389.
[15] (1991) 55 SASR 462.
[16] Ibid at 473-4.
[17] Frohling v Police [2011] SASC 53 at [18]; (2011) 109 SASR 389 at 393.
The expression “severe physical or financial hardship” is a composite one and should be understood as such. However, some assistance can be obtained by considering the words individually. The Macquarie Dictionary gives a number of meanings for the adjective “severe” including “harsh”, “serious” and “hard to endure”. For the word “hardship” the Macquarie Dictionary gives meanings which include “a condition which bears hard upon one” and “something hard to bear”. It is not however a synonym for “suffering”.
In the context of the Veterans Entitlements Act 1986 (Cth), the Full Court of the Federal Court has held that the expression “severe financial hardship” does not require proof of destitution.[18]
[18] Repatriation Commission v Hall (1988) 78 ALR 687 at 694.
Section 13(1)(a) refers to hardship “to a person”. That person may be the defendant who has been convicted, or some other person, for example, a person who is dependant on the defendant.
A decision by a court under s 13(1)(a) of the Impounding Act requires consideration of two matters. The first is whether the making of the order would cause severe financial or physical hardship to a person and the second, which arises only if the first is answered in the affirmative, is whether the court should, in the exercise of its discretion, decline to make the order for forfeiture. Normally, a finding that the making of the order would cause severe financial or physical hardship to a person would result in the court exercising its discretion against forfeiture but that should not obscure the fact that there are two separate stages in the decision-making process. There may be some exceptional cases in which, even when a court is satisfied that severe financial or physical hardship to a person will result, it nevertheless considers that an order for forfeiture should be made. For example, a court may conclude that the protection of the public requires the incapacitation of a defendant by the forfeiture of his or her vehicle despite the effect which that forfeiture may have on a member of the defendant’s family.
A finding that forfeiture would result in severe financial or physical hardship is a conclusion of fact to be reached after consideration of the personal and financial circumstances of the defendant. It will usually involve a consideration of both the defendant’s income and reasonable expenditures, and the defendant’s asset and liability position. A defendant who is able with relative ease to replace the forfeited vehicle may have difficulty in establishing severe financial or physical hardship.
The enquiry will be as to the hardship in the defendant’s personal circumstances. The test is not an objective one, although the adjective “severe” and the noun “hardship” may involve implicitly some notions of comparison of the defendant’s position with others.
The relevant time at which to consider the possible financial or physical hardship is of course the time when the court is asked to make the order, but the circumstances which the court may then consider are not necessarily confined to those existing at that time. Section 13(1)(a) refers to the hardship which the making of the forfeiture order “would cause” to a person. That is capable of including both present and future hardships. The hardship may not occur until sometime after the forfeiture has occurred, for example, if it be known or be likely that alternative means of transport presently available to the defendant will cease to be available in the reasonably foreseeable future.
A court will be entitled, when considering s 13(1)(a) to have regard to the means reasonably available to the defendant by which the hardship which may otherwise be caused may be alleviated. For example, in relation to a defendant residing in the metropolitan area, the availability of public transport would be a relevant consideration. For the same reason, I consider that it would be appropriate for a court to have regard to the assistance which the defendant may be able to derive from those to whom he or she can reasonably look for support or assistance, for example, family, workmates or friends, in relation to alternative means of transport.
Finally, the onus is on the defendant seeking to resist forfeiture to satisfy the court, by evidence if necessary, of the circumstances relied upon for the existence of severe financial or physical hardship. In some cases, this will require defendants to adduce evidence, at least of a documentary form.
Hardship in the Appellant’s Circumstances
In the present case, counsel referred to a number of matters. They were that the appellant is now a 46 year old man residing in a small country town (Port Germein) some 270 kms north of Adelaide and some 26 kms north of Port Pirie. He is the sole carer of his three year old daughter who attends pre-school in Port Pirie. The forfeited vehicle is his only vehicle. There is only limited public transport between Port Germein and Port Pirie consisting of the Stateliner bus service operating between Whyalla and Adelaide. There are four services in each direction each day. In addition, the appellant suffers from a psychiatric condition which has disabled him from working for some time and which is likely to do so in the future. He is accordingly dependent upon Centrelink benefits.
Counsel submitted that it was to be inferred from these matters that the appellant is a man with limited income and limited resources and that the forfeiture of the Toyota would be the loss of a significant asset.
Since the disqualification of his driver’s licence for his most recent PCA offence the appellant has been entirely dependent upon his parents (who also reside in Port Germein) for transport. Because of his father’s physical condition, it is his mother who provides most of the assistance. He has lent his mother his vehicle for this purpose as the two vehicles which his parents own are aged and said to be beyond economic repair in the event of a breakdown.
In my opinion, this combination of circumstances, and inferences which can be drawn from them, may be capable of supporting a conclusion that forfeiture of the appellant’s vehicle would cause him severe financial and physical hardship. I have said “may be capable” because much of the detailed information necessary before a court could reach that conclusion with confidence has not been provided. The appellant has not provided details of his actual fortnightly income or of his expenditures, or of his general asset and liability position. The evidence provided concerning his health is some two years out of date and the only evidence of the value of the vehicle to be forfeited is that of the price at which someone in Queensland has offered to sell a vehicle of the same make and model. Evidence of this kind is not admissible as evidence of value.[19]
[19] Electricity Trust of South Australia v O’Leary (1986) 42 SASR 26.
I repeat that it is incumbent upon the defendant to adduce the material necessary to satisfy a court that forfeiture would result in severe financial or physical hardship. The absence of relevant evidence gives rise to reservations as to whether the material provided by the appellant does justify such a conclusion.[20] However, it is not necessary to reach a final view about that.
[20] Morley v Police [2005] SASC 233 at [20].
The Approach of the Magistrate
The Magistrate’s reasons indicate, in my respectful opinion, that he adopted too narrow a view of what may constitute severe financial or physical hardship. I set out the relevant passage from the Magistrate’s reasons above. It can be seen in that paragraph that the Magistrate considered the possible hardship to the appellant by reference to the period during which he is disqualified from holding or obtaining a driver’s licence. I was told that that period expires in December this year. The Magistrate does not appear to have considered the appellant’s position once he becomes entitled to drive a vehicle on a road again.
It is true, as the respondent pointed out, that there is no evidence that the appellant needs a vehicle for the purposes of employment. Nevertheless, the importance to the appellant, in his own right and as the father of his young daughter, in having access to a vehicle can readily be appreciated. This is especially so as Port Germein is a small country town, with limited local services and is some distance from Port Pirie. This means that the impact on the appellant once he again becomes entitled to drive is important.
On the basis of the submissions on the appeal (which were not supported by evidence), it seems likely that the appellant may not have the resources with which to purchase another vehicle. This means that he may be very reliant in the long term, on the support of his parents. As noted, there was some evidence that their vehicles are aged and of doubtful reliability.
In these circumstances, I consider that the Magistrate had to consider more than just the appellant’s position during the period in which he is disqualified from obtaining a driver’s licence. I conclude that the Magistrate has erred in this respect.
Subject to the question of an extension of time it is appropriate therefore to allow the appeal and to remit the matter to the Magistrates Court for further hearing.
Extension of Time
The appellant needs an extension for a substantial period in which to commence the appeal. His delay in commencing the appeal is explained by his mother’s affidavit. Time was taken up in obtaining relevant papers from the Magistrates Court and then in pursuing a misconceived application in the Magistrates Court to have the Magistrate’s forfeiture order set aside.
The respondent opposed the grant of an extension of time, but did not suggest that an extension would cause it any prejudice or embarrassment.
As there is an adequate explanation for the delay, the respondent is not prejudiced, and the appeal has merit, I consider it appropriate to grant the appellant the extension of time which he seeks.
Conclusion
For the reasons given above, I grant the appellant an extension of time to 21 July 2011 in which to commence his appeal and I allow the appeal. I set aside the order for forfeiture made by the Magistrate on 8 March 2011 and remit the matter to the Magistrates Court for rehearing of the prosecution application made on 2 December 2010.
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