Police v Clayton-Smith

Case [2010] SASC 127

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v CLAYTON-SMITH

[2010] SASC 127

Reasons for Decision of The Honourable Justice Gray

7 May 2010

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - PROCEDURE ON SENTENCING - OTHER MATTERS

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SETTING ASIDE AND AMENDMENT - ORDERS - GENERALLY

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IMPROPER PURPOSES

Appeal against decision of Magistrate to vacate orders made by another Magistrate on an earlier occasion pursuant to section 76A of Summary Procedure Act – Magistrate re-convicted the appellant in regard to the earlier matters - in so doing the Magistrate avoided the operation of section 74 of the Motor Vehicles Act which mandated the imposition of a three year disqualification from driving for a subsequent offence - whether the Magistrate acted for a purpose not authorised by section 76A of the Act - whether denial of procedural fairness to the Police - discussion of the operation of relevant provisions - whether power to re-record convictions operative at another date.

Held: appeal allowed - denial of procedural fairness occasioned when Magistrate proceeded to act under section 76A without giving adequate notice to the Police - Magistrate acted under section 76A for purpose of avoiding or limiting the operation of section 74 of the Motor Vehicles Act - Magistrate acted for an improper purpose - interests of justice did not call for the setting aside of the earlier orders - pursuant to section 47IAA of the Road Traffic Act, in fixing a period of mandatory disqualification for the offence for which the notice of appeal was issued, the Court is required to take into account the relevant period imposed for another offence arising out of the same course of conduct - it would require extraordinary circumstances to justify the re-recording of the convictions which have been set aside purportedly because it was in the interests of justice to do so.

Summary Procedure Act 1921 (SA) s 76A; Motor Vehicles Act 1959 (SA) s 74; Road Traffic Act 1961 (SA) s 47A and 47IAA, referred to.
Police v Alikaris [2000] SASC 163; Muscat v Magistrates' Court (1996) 66 SASR 367; Brownells Ltd v Ironmongers Wages Board (1950) 81 CLR 108; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Secretary of State for the Home Department; Ex parte Fire Brigades Union [1995] 2 AC 513; Shop Distributive & Allied Employees Association v Minister for Industrial Affairs for State of SA (1995) 183 CLR 552; State of South Australia v Slipper (2004) 136 FCR 259; Swan Hill Corporation v Bradbury (1937) 56 CLR 746; Police v Franco [2008] SASC 268; Bull v Attorney-General (NSW) (1913) 17 CLR 370; Tran v Police (Unreported, 2 October 1998, Judgment…

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AGLC
Police v Clayton-Smith [2010] SASC 127
Case
[2010] SASC 127
Decision Date

CaseChat Overview and Summary

The case of Police v Clayton-Smith involved an appeal by the police against a decision of a Magistrate who had vacated orders made by another Magistrate on an earlier occasion. The appeal was brought pursuant to section 76A of the Summary Procedure Act, and the primary issue before the court was whether the Magistrate had acted for a purpose not authorised by section 76A of the Act. The case also examined whether the denial of procedural fairness to the police was a factor.

The legal issues before the court were whether the Magistrate had acted for a purpose not authorised by section 76A of the Act, and whether the denial of procedural fairness to the police was relevant to the case. The court examined the operation of the relevant provisions and whether the power to re-record convictions was operative at another date. The court found that the Magistrate had acted for an improper purpose and had denied procedural fairness to the police. The court also determined that the power to re-record convictions was not operative at another date.

In light of these findings, the court discharged the order of the Magistrate setting aside the earlier convictions and re-recording them. The court further ordered that the penalties imposed by the Magistrate be confirmed, with the exception of the period of disqualification from holding and obtaining a driver’s licence, which was adjusted to two years and five months. The court's decision was based on the conclusion that it was inappropriate for the Magistrate to proceed in the manner that they did, and that the re-recording of the convictions shortly after they were set aside provided a strong indication that it was not necessary to set them aside in the interests of justice.

The final orders of the court were that the order of the Magistrate of 8 January 2010 setting aside the earlier convictions of 23 July 2009 and re-recording the convictions in regard to those matters be discharged. The court further ordered that the penalties imposed by the Magistrate in respect of the offending before the court on 8 January 2010 be confirmed, save that the defendant be disqualified from holding and obtaining a driver’s licence for a period of two years and five months from the date of the court's order.

Orders

Orders of the court

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Background

Background to the litigation

On completion of the hearing of the appeal on 24 March 2010, I allowed the appeal. I discharged the order of the Magistrate of 8 January 2010 setting aside the earlier convictions of 23 July 2009 and re-recording the convictions in regard to those matters. I further ordered that the penalties imposed by the Magistrate in respect of the offending before the Court on 8 January 2010 be confirmed, save that the defendant be disqualified from holding and obtaining a driver’s licence for a period of two years and five months from the date of my order. These are my reasons for those orders. Background Section 74 of the Motor Vehicles Act is concerned with the duty to hold a licence or a learner's permit. Section 74(5) relevantly provides(5)Where a court convicts a person of an offence against this section for which the maximum penalty is $5 000 or imprisonment for 1 year, the following provisions apply:(a) the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 3 years, as the court thinks fit;(b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence;(c) if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification.[Emphasis added] On 8 January 2010 the defendant appeared before the Magistrate and pleaded guilty to two charges on complaint. The first charge alleged that the defendant had, on 1 August 2009, driven a motor vehicle unauthorised, contrary to section 74(2) of the Motor Vehicles Act.[1] The second charge alleged that on the same date, the defendant drove a motor vehicle on a road while there was present in his blood the prescribed concentration of alcohol,[2] as defined in section 47A of the Road Traffic Act.[3] [1] It was further alleged that the respondent had never been authorised under the Motor Vehicles Act, or any other Act within the Commonwealth to drive a motor vehicle of that class on a road.[2] It was further alleged that the concentration of alcohol in the defendant’s blood was 0.173 grams in 100 millilitres of blood. [3] Contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA) which provides:(1) A person must not—(a) drive a motor vehicle; or(b) attempt to put a motor vehicle in motion,while there is present in his or her blood the prescribed concentration of alcohol as defined in section 47A. On 23 July 2009, the defendant had been convicted of two breaches of section 74(2) of the Motor Vehicles Act, by driving unauthorised, the first being on 26 April 2009 and the second being on 17 May 2009.[4] [4] It is apparent that the occasion of driving on 17 May 2009 was not treated as a subsequent offence to the offence of 26 April 2009 as the defendant, when he drove on 17 May 2009, had not been convicted for the offence of 26 April 2009. Section 74(2) of the Motor Vehicles Act relevantly provides:(2) Subject to this Act, a person who—(a) drives a motor vehicle of a particular class on a road; and(b) is not and has never been authorised, under this Act or the law of another State or a Territory of the Commonwealth, to drive a motor vehicle of that class on a road,is guilty of an offence.Maximum penalty: For a first offence—$2 500.For a subsequent offence—$5 000 or imprisonment for 1 year.[Emphasis added]

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, as a result of my conclusions above, it was inappropriate for the Magistrate to proceed in this way. It would require extraordinary circumstances to justify, absent a re-hearing of the facts of a case, the re-recording by the Magistrate of the very same convictions which were set aside in the first place purportedly because the interests of justice required that they be set aside. Indeed, the re-recording of the convictions shortly after they were set aside provides a strong indication that it was not necessary, in the interests of justice, to set them aside, but that the setting aside was done for an improper purpose.Conclusion As a consequence of the above, I resentenced the defendant to reflect the mandatory provisions of the Motor Vehicles Act. I adjusted the period of disqualification to a period of two yeas and five months for the reasons set out above.

Ratio Decidendi

Legal Principle Established

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