Police v Campbell - [2015] SASC 27

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v CAMPBELL
[2015] SASC 27
Judgment of The Honourable Justice Sulan
25 February 2015
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES
The respondent pleaded not guilty to two counts of driving whilst his licence was suspended. The Magistrate dismissed both counts as the charges were incorrectly laid pursuant to s 91 of the Motor Vehicles Act 1959 (SA). The suspension was made under s 70E of the Criminal Law (Sentencing) Act 1988 which was later repealed. Transitionary provisions in the Statutes Amendment (Fines Enforcement and Recovery) Act 2013 (SA) were in operation in relation to instances of suspension of licence before s 70E was repealed, and breach of that suspension after s 70E was repealed. The issue which arose is whether the penalty provisions under the repealed Act applied or whether the breach was an offence pursuant to s 91 of the Motor Vehicles Act.
Held: That the transitionary provisions maintained the s 70E penalties for the period of transition, after which time s 91 became the penalty provision. As this breach occurred within the transition period, the Magistrate was correct in dismissing the charges.
Appeal dismissed.
Motor Vehicles Act 1959 (SA) s 91; Statute Amendment (Fines Enforcement and Recovery) Act 2013 (SA) s 16(4), s 16(5), s 16(8); Criminal Law (Sentencing) Act 1988 (SA) s 70E(1) (repealed, s 70E(5) (repealed), s 70E(5)(a) (repealed), s 70E(5)(b) (repealed), s 70E(5)(c) (repealed), s 70M, Part 9 Division 3, Part 9 Division 3 (repealed), referred to.
M, PA v Police [2014] SASCFC 24, discussed.

POLICE v CAMPBELL
[2015] SASC 27
Magistrates Appeal: Criminal

SULAN J: The respondent, James Read Campbell, was charged on two separate complaints relating to offending on two different days.
The first complaint concerned events which occurred on 11 February 2014 of driving an unregistered vehicle, driving an uninsured vehicle and driving during a period of licence suspension, contrary to s 91 of the Motor Vehicles Act 1951 (SA) (‘the MVA’). The second complaint related to events which occurred on 22 February 2014 of driving during a period of licence suspension, contrary to s 91 of the MVA, and of breaching a bail agreement. The bail conditions included not driving or being seated in the driver’s seat of a motor vehicle unless licensed.
The respondent pleaded guilty to all counts, other than the offences of driving whilst disqualified. The respondent submitted that s 91 of the MVA did not apply and he had, therefore, been charged under the incorrect statute.
The Magistrate upheld the respondent’s submission and dismissed the charge on each complaint of a breach of s 91 of the MVA.
Background
11 February 2014
On 11 February 2014 the respondent was driving a white Ford panel van UVG 067 on Diagonal Road, East Glenelg. The respondent entered a BP petrol station at…

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.

Continue reading Police v Campbell

Details

AGLC: Police v Campbell [2015] SASC 27
Case: [2015] SASC 27
Decision Date: 25 February 2015

CaseChat Overview and Summary

The appeal in Police v Campbell involves the respondent who was charged with breaching the Motor Vehicle Act 1959 (SA) by driving while disqualified. The respondent's licence had been suspended due to non-payment of fines, and he was arrested for driving both an unregistered and uninsured vehicle while his licence was suspended. The Magistrate dismissed the charges, leading to the appellant's appeal against the dismissal.

The central legal issues addressed in this appeal were whether the respondent's driving while disqualified constituted an offence under the Motor Vehicle Act 1959 (SA), and whether the penalties for such an offence were governed by the Sentencing Act or the Motor Vehicle Act. Specifically, the court needed to determine the applicability of the amendments made by the Motor Vehicles (Suspension and Cancellation of Driver’s Licences) Amendment Act 2014 (SA) to the respondent's fines suspension, which was imposed before the amendment came into effect.

The court examined the legislative framework, including the transitional provisions of the amending Act. It held that the offence of driving while disqualified was indeed created at the time the fines suspension was imposed. The court found that the penalties for breaching the suspension order were governed by the Sentencing Act at the time the suspension was imposed. Therefore, the breaches of the suspension order committed after 3 February 2014 should be penalised under the Sentencing Act, not the Motor Vehicle Act. The court concluded that the Magistrate's decision to dismiss the charges was correct, and thus dismissed the appeal.

There are no further orders to be made as the appeal was dismissed. The court's decision reinforces the importance of understanding the legislative context and transitional provisions when determining the applicable laws and penalties in cases involving suspended driving licences.

Orders

Orders of the court

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Background

Background to the litigation

The Magistrate upheld the respondent’s submission and dismissed the charge on each complaint of a breach of s 91 of the MVA.Background11 February 2014 On 11 February 2014 the respondent was driving a white Ford panel van UVG 067 on Diagonal Road, East Glenelg. The respondent entered a BP petrol station at Glenelg East. A mobile uniformed police patrol was also in the petrol station. A registration check was conducted on the respondent’s vehicle, revealing it to be unregistered and uninsured. The police spoke to the respondent. Further checks revealed that the respondent’s licence had been suspended for non-payment of fines (“fines suspension”) from 8 January to 9 March 2014. The respondent was arrested. The respondent told police that he had been notified of the suspension of his licence. However, he had forgotten about the notice. The respondent stated he had driven to the service station in order to purchase petrol and check the tyres. He was aware that driving whilst suspended was an offence.22 February 2014 On 22 February 2014, at about 11.09 pm, police were travelling south along Bright Road, Hove. A vehicle check was conducted on a white Nissan Pulsar, VCA 455, which revealed an expired registration. The respondent was driving the car whilst the suspension referred to earlier was still in force. The respondent told police that he was aware of the suspended licence condition. The respondent said he was driving to visit his ex-girlfriend and children. He was aware that driving whilst suspended was an offence, and that he was also breaching his bail conditions.The appeal The appellant seeks orders that the dismissal of the charge in each complaint of driving whilst disqualified be set aside and be remitted to the Magistrates Court. The respondent’s licence was suspended pursuant to the Criminal Law (Sentencing) Act 1988 (SA) (‘the Sentencing Act’), which provides:70E—Suspension of driver's licence(1)An authorised officer may make an order suspending a debtor's driver's licence for a period of 60 days (and such an order may be made despite the fact that the debtor is currently disqualified from holding or obtaining a licence).(3) The authorised officer will—(a) cause a copy of an order under this section to be served on the debtor personally or by post; and(b) notify the Registrar of Motor Vehicles of the order.(4)An order under this section takes effect 21 days from (and including) the day on which the order was made.(5)A person must not drive a motor vehicle on a road while his or her licence is suspended under this section.Maximum penalty: (a) $2 500; or(b) disqualification from holding or obtaining a driver's licence for a period not exceeding 6 months; or(c) cancellation of the person's driver's licence and disqualification from obtaining such a licence for a period not exceeding 6 months. The respondent was, therefore, subject to a 60-day “fines suspension” made under s 70E(1), beginning on 8 January 2014 and expiring on 9 March 2014.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondent further submits that express provision is required if the amending Act is to operate retrospectively. If there be any ambiguity, it must be resolved in favour of the respondent.Decision There is no issue that breaches of suspension orders made pursuant to s 70M of the amending Act constitute an offence under s 91 of the MVA. The section is applicable to driving while suspended offences, where the “fines suspension” was made after s 70M came into operation, that is, on or after 3 February 2014. Section 16(4) of the amending Act operates so that “relevant orders” made before 3 February 2014 under Part 9 Division 3 of the Sentencing Act remain in force. A “relevant order” is defined as a penalty enforcement order made under Part 9 Division 3 before 3 February 2014. A “fines suspension” is a relevant order. Section 16(5) provides that Part 9 Division 3, as in force before 3 February 2014, continues to apply to relevant orders continued under sub‑s (4), including a fines suspension imposed pursuant to s 70E(1) of the Sentencing Act. Sub‑division 7 of the amended Act, containing the rights of review and appeal, is expressly excluded from continued operation. Sub-section (5) provides that all references to the various officers under different titles in the Sentencing Act are to be read as referring to the one officer, namely, the Fines Enforcement Recovery Officer. Pursuant to s 16(4) and (5), orders made under the Sentencing Act continue in force. It follows that any penalty for breaching an order is also preserved by the amended Act. I note that the maximum suspension that could be ordered under s 70E(1) is 60 days, and the final day on which such a suspension could be made is 2 February 2014. Therefore, all breaches of a “fines suspension” committed after 3 April 2014 would necessarily be under s 91 of the MVA. The transitional provisions operate so that suspensions imposed pursuant to s 70E(1) of the Sentencing Act are to be penalised under that Act; that is, penalties for a “fines suspension” under s 70E(5) are, therefore, applicable if a person breaches the suspension order. I find that the offence was created upon the “fines suspension” being ordered on 8 January 2014. As the offence was created at that time, the relevant penalties attaching to the offence were those in force at that relevant time, namely s 70E(5). For these reasons, I conclude that the Magistrate was correct in dismissing the charges. I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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