Police v Di Fava

Case [2017] SASC 189

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v DI FAVA

[2017] SASC 189

Judgment of The Honourable Justice Peek

21 December 2017

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - FRESH EVIDENCE

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS

Appeal against a Magistrate’s refusal to reduce the prescribed number of demerit points incurred for an offence against the Australian Road Rules.

The appellant elected to be prosecuted for driving past a “no entry” sign contrary to rule 100 of the Australian Road Rules. Before the Magistrate, he pleaded guilty and applied to reduce the number of demerit points to be incurred from the three points prescribed by the Motor Vehicles Regulations 2010 (SA) to one. The Magistrate refused the application, finding that there was no “proper cause” within the meaning of s 98B(4) of the Motor Vehicles Act 1959 to justify a reduction in the points to be incurred.

The appellant appeals against this refusal. On appeal, he applied to lead further evidence that his solicitor failed to submit his instructions to the Magistrate to the effect that he had mistakenly assumed that the “no entry” intersection was similar to one on a nearby road with which he was familiar which ran parallel to the subject road, but which had the no-entry signs directed to traffic travelling in the opposite direction.

Held per Peek J, allowing the appeal:

(1) The admission of further evidence under subsection 42(4) of the Magistrates Court Act 1991 is not limited to evidence that was not reasonably available at trial.

(2)     It is in the interests of justice to admit the further evidence as it puts quite a different light on the factual circumstances of the subject offence, and in the circumstances, the appellant should not be saddled with the adverse consequences of his solicitor’s carelessness.

(3)     Upon considering the application afresh, in light of the different factual matrix, it is appropriate to allow the application and reduce the number of demerit points.

Australian Road Rules R 100; Motor Vehicles Regulations 2010 s 67, sch 4; Motor Vehicles Act 1959 ss 98B(4), 98BE; Magistrates Court Act 1991 s 42; Supreme Court Civil Rules 2016 R 286, referred to.
Holder v Lewis [2003] SASC 397, applied.
Bialobrezeski v Police [2016] SASC 99; Siviour-Ashman v Police (2003) 85 SASR 23; Gilbert v Owen (1991) 14 MVR 235; Muto-Henderson v Police [2017] SASC 139; Apostolakos v Police [2017] SASC 90, discussed.
Jameson v Police [2016] SASC 5; Holness v Police [2010] SASC 314, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"proper cause"

POLICE v DI FAVA
[2017] SASC 189

Magistrates Appeal:  Criminal

PEEK J.

Introduction

  1. On 22 February 2017, the appellant was issued with an expiation notice in which it was alleged that he drove past a “no entry” sign contrary to rule 100 of the

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Police v Di Fava [2017] SASC 189
Case
[2017] SASC 189
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CaseChat Overview and Summary

In Police v Di Fava, the appellant sought to appeal a decision made by a Magistrate in the Magistrates Court of South Australia. The appellant was convicted of contravening a traffic sign and fined. The central issue in the appeal was whether the Supreme Court could consider fresh evidence regarding the appellant's familiarity with the area where the offence occurred, which might have provided a mitigating factor for the offence. The appellant claimed he had previously travelled through the area, which could explain why he mistakenly entered the prohibited area, arguing this was "other proper cause" for reducing the demerit points assigned.

The Supreme Court considered whether the concept of "other proper cause" in the Magistrates Court Act 1991 (SA) allowed for the introduction of fresh evidence that was personal to the offender, such as their familiarity with the area. The court referenced previous decisions which suggested that "other proper cause" generally required considerations that were not merely trifling and often involved factors external to the offender, such as the seriousness of the offence or driving conditions at the time of the incident. The appellant's familiarity with a similar road intersection, while potentially relevant, was seen as a personal circumstance rather than an objective factor typically considered under "other proper cause".

Ultimately, the Supreme Court held that the fresh evidence provided by the appellant did not constitute "other proper cause" as it was personal to the offender and did not align with the legislative intent behind the concept. The appeal was dismissed, and the original decision of the Magistrate was upheld. The court reiterated that "other proper cause" generally required considerations that were not merely trifling and often involved factors external to the offender, such as the seriousness of the offence or driving conditions at the time of the incident.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant was also fined $460 in total, including the Victims of Crime levy and prosecution costs.Application to lead further evidence on appeal On 28 November 2017, the appellant provided this Court with affidavits of the appellant and Mr Andrew Ey. The appellant seeks to rely on these affidavits as fresh evidence on appeal pursuant to s 42(4) of the Magistrates Court Act 1991 (SA). In his affidavit the appellant deposes:4. Whilst I cannot recall the exact words or details of the conversation I recall telling Mr Ey that my wife, from whom I was separated at the time, used to live on Palmerston Road and that when I would visit her I would travel from Greenhill Road South along Palmerston Road. I would visit her a few times a week during the period she lived on Palmerston Road, which was from approximately January 2015 until May 2015.5. There is a one way road closure on Palmerston Road in the same position as the once I offended against on Salisbury Street, except operating in the opposite direction.6. Part of the reason for my offending is that prior to the offending I had become accustomed to travelling south from Greenhill Road along Palmerston Road to visit my wife.7. I did not have cause to travel on Salisbury Street during this period and part of the reason for the offending was my familiarity with an intersection of a similar nature that travelled in the opposite direction.…9. I gave my solicitors these instructions regarding my wife in March 2017. I did not notice that they did not appear in the affidavit that was put before the Magistrates Court. Having given my solicitors full and detailed instructions, they prepared my affidavit. I relied on my solicitors to filter those parts of my instructions which were relevant from those which were not. I assumed that those parts of my instructions that were not included in the affidavit were not relevant to the application to reduce the number of demerit points. It might be thought that this material appears to be inconsistent with the appellant’s initial explanation which he gave to the police, and later to the Magistrate that he had “never been down here before” and was unfamiliar with the area. However, that apparent inconsistency was quickly resolved during the appellant’s cross-examination on the appeal:QI’m just going to ask you a couple of questions more particularly about the most recent evidence that you’ve given in your affidavit. You say in your most recent affidavit that you had, in fact, travelled in and around the area that the offence occurred regularly on previous occasions when your wife or ex-wife lived in that area, is that correct?AIf I could just elaborate on that: my wife lived in Palmerston, No 1 Palmerston and I used to come in off Greenhill Road and just enter straight through the entry signs and then just park right there at No 1 and then when I left there I went straight through to the top of Young Street and then turned on to Unley Road. I was familiar with the area but only on the Palmerston Street side of things, not the Salisbury Street, I had never travelled in Salisbury Street before. I have been through it at the intersection of Young and Salisbury but that’s the opposite then on the way through to Unley Road.

Decision

Reasons for decision

PEEK J

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Ratio Decidendi

Legal Principle Established

Established by: PEEK J

It does appear clear that “other proper cause” does not encompass circumstances personal to the offender. This was recently acknowledged by Bampton J in Jameson v Police[22] and by Doyle J in Bialobrezeski.[23] In the latter decision, Doyle J went on to say:[24]It will generally require that the offending be of a lesser seriousness than the typical offence of its type. In the case of a speeding offence, relevant considerations might include the extent to which the speed limit was exceeded, whether the speeding was momentary or fleeting, the driving conditions, whether there was any other traffic on the road, whether there was any embarrassment to other vehicles or road users, and whether there was any explanation for the speeding such as an emergency.As Blue J explained in Chan v Police,[25] while “proper cause” refers to something that is not quite trifling, there are no closed categories of a case. It is ultimately a matter of judgment, in light of the circumstances of the case, as to whether a reduction of demerit points is warranted on the basis of “other proper cause”.[22] [2016] SASC 5, [43]. See also Svilans v Police [2014] SASC 173, [27]; Chan v Police [2014] SASC 35, [22]; Holness v Police [2010] SASC 314, [13]–[22]; Black v Police [2009] SASC 115; Dycer v Police [2010] SASC 241; Cirillo v Police [2010] SASC 293; Police v Federuzzi [2008] SASC 104; Gilbert v Owen (1991) 14 MVR 235.[23] [2016] SASC 99, [19].[24] Bialobrezeski, [20]-[21].[25] Chan v Police [2014] SASC 35, [23].Consideration In the present case, the appellant submitted that “other proper cause” arose by way of the cumulative effect of the following considerations. First, as to the purely objective aspects of the offence:-The offending occurred at 10:47am on a Wednesday morning rather than at peak hour;-Traffic was very light and conditions were good;-No other road user was endangered or embarrassed; and-The primary purpose of the placement of signage here was to address traffic flow and amenity rather than public safety. Second, as to the subjective aspects of the offence:-The offending was atypical in that it was inadvertent rather than deliberate. The typical offence would be committed deliberately and be borne of laziness and a conscious decision to breach the road rules in an attempt to save time or effort;-While not amounting to a legal defence, a number of considerations contributed to the inadvertent commission of the offence, including:othat the appellant was familiar with the similar Park Lane/Palmerston Road intersection and mistakenly assumed that both intersections permitted travel to the south; and othat as the appellant was travelling to the east along Park Lane and approaching the intersection, the “no entry” signs were not plainly visible. One was entirely obscured by a brush boundary fence on the southern side of Park Lane, and remained so until the appellant had virtually entered the subject intersection;othat the “no entry” signs were angled towards traffic travelling to the south along Salisbury Street (rather than to the east along Park Lane) such that, even when the “no entry” sign on the right was no longer obscured by the brush fence it remained difficult to see; andoon looking south on entering the subject intersection, motor vehicles are to be seen parked on both sides of Salisbury Street road for travel in each direction, a matter not reinforcing of the idea that travel to the south through the intersection was not permitted.