Police v Casey

[2010] SASC 301

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

POLICE v CASEY

[2010] SASC 301

Judgment of The Honourable Chief Justice Doyle (ex tempore)

22 October 2010

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPOSITION OF FINES - OTHER CASES

TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE

Appeal against a decision of a Magistrate refusing to order that respondent pay impounding fee – prosecutor did not allege offence was a second offence and therefore a prescribed offence – appeal dismissed.

Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 9(1); Summary Procedure Act 1921 (SA) s 62B, referred to.
Police v Fewings [2010] SASC 300, considered.

POLICE v CASEY
[2010] SASC 301

Magistrates Appeal:  Criminal

1. DOYLE CJ (ex tempore):              What I have said in relation to the appeal involving Mr Fewings (Police v Fewings [2010] SASC 300) is of general application to the appeal against the decision in relation to Mr Casey. However, I propose to dismiss this appeal for these reasons in brief.

2. The Magistrate could have made an order that Mr Casey was liable to pay the impounding fee only if satisfied under s 9(1) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) that the offence in question was a prescribed offence. As it happens, the police prosecutor before the Magistrate did not allege the earlier offence that Mr Casey had committed, and so did not in fact allege that the offence for which Mr Casey was appearing was a second offence and therefore a prescribed offence.

3. It might be said that by applying for the fee the prosecutor was implicitly alleging that this was a second offence.  However, as Mr Soetratma pointed out, s 62B of the Summary Procedure Act 1921 (SA) and subsection (6) in particular, states clearly that where a person has pleaded guilty in writing the Court cannot treat the offence as other than a first offence unless the complainant proves that the defendant has been previously convicted.  It is clear that a mere allegation could not amount to proof.

4. In saying this, I am proceeding on the basis that the letter that Mr Casey wrote to the Magistrates Court can be treated as bringing to life the powers in s 62B.  There might be room for argument as to that, but there is no dispute about it today, and so I proceed on the basis that s 62B was applicable.

5. Therefore, although it seems likely that the Magistrate refused to make the order because as in the matter of Police vFewings he took the view that it was not appropriate to do so, and although, in my opinion, that was an error on his part, as it turns out, having regard to the manner in which this particular prosecution was conducted, the Magistrate lacked the power to make the order.  Accordingly on the appeal in relation to Mr Casey I order that the appeal be dismissed.