Police v Di Fava

[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 Australian Road Rules.  On 1 March 2017, he elected to be prosecuted for the sole purpose of applying to the Magistrates Court to reduce the number of demerit points to be incurred from the three points prescribed by Schedule 4 of the Motor Vehicles Regulations 2010 (SA) (the Regulations) to one.[1]  This application was refused by the Magistrate, and the appellant appeals against that refusal.

   [1]    See s 67 of the Motor Vehicles Regulations 2010.

2. For the reasons which follow, I allow the appeal and reduce the number of demerit points incurred by the appellant to one demerit point.

   The circumstances of the offending

3. There are a number of uncontested facts surrounding the subject offence.  First, it occurred in Unley, at the intersection of Salisbury Street and Park Lane.  Just to the south of that intersection there are two “no entry” signs directed at vehicles travelling to the south along Salisbury Street.  The south-bound side of Salisbury Street is built up with a tree and other obstructions with the north-bound side being limited to a single narrow lane.  The consequence is that anyone who ignores the signs and travels to the south beyond them must by necessity travel on the wrong side of the road for a short distance, and thus block access to any north -bound vehicles that might be present.

4. Second, to the west of Salisbury Street and running parallel to it, is Palmerston Road.  At the intersection of Palmerston Road and Park Lane is a similar “no entry” blockade, but on Palmerston Road the permissible direction of travel through the intersection is north-south only, and not south-north as on Salisbury Street.  Presumably these limited access points have been inserted strategically by the council to manage traffic flow in the neighbourhood.

5. Third, on 22 February 2017, the appellant attended at premises in the Unley area to consult with a plumber.  After leaving the premises, he drove his motor vehicle east along Park Lane, towards Salisbury Street.  His intention was to turn right at the intersection of Park Lane and Salisbury Street and to travel to the south down Salisbury Street, in the same direction as he previously driven (lawfully) on Palmerston Road.  He did indeed travel through the intersection as planned, and hence the present charge.

6. Fourth, the appellant agrees that he is guilty of the strict liability offence but asserts that he did not appreciate that he was behaving unlawfully, erroneously assuming that the intersection permitted travel to the south down Salisbury Street in the same way as was permitted on Palmerston Road. 

   The statutory framework:  the demerit points scheme

7. The South Australian demerit point scheme is enacted by Part 3B of the Motor Vehicles Act 1959 (the Act), and the number of demerit points to be incurred by persons who contravene provisions of either that Act or the Australian Road Rules are prescribed in Schedule 4 of the Motor Vehicles Regulations 2010 (SA).[2] Specifically, s 4 of the schedule prescribes that three demerit points are ordinarily to be incurred by persons who contravene rule 100 of the Australian Road Rules but sub-s 98B(4) of the Act gives a Magistrate authority to reduce the number of demerit points to be incurred as follows:

   (4)     If a court by which a person is convicted of an offence is satisfied by evidence given on oath forthwith on conviction that the offence is trifling, or that any other proper cause exists, it may order that a reduced number of demerit points, or no demerit points, are incurred by the person in respect of that offence.  

   [2]    This is by virtue of s 67 of the Motor Vehicles Regulations 2010.

8. There are thus two alternatives which enliven the Magistrate’s discretion to reduce demerit points under s 98B(4): that the offence is “trifling” or if “any other proper cause exists”.[3]  The appellant here concedes that the offence is not “trifling”[4] and seeks a reduction on the basis that “other proper cause exists”.

   [3]    If a person incurs an aggregate of 12 or more demerit points within a three year period, that person is liable to have their driver’s licence disqualified by virtue of s 98BC of the Act.  However, s 98BE enables a person who is liable for disqualification to apply to enter into a good behaviour bond for 12 months, instead of being disqualified from driving.

   [4]    Doyle J recently considered the meaning of the word trifling in this context in Bialobrezeski v Police [2016] SASC 99 (Bialobrezeski).  His Honour, adopting the phraseology of Doyle CJ in Siviour-Ashman v Police (2003) 85 SASR 23, succinctly said that: “Trifling connotes an offence which is of slight importance, insignificant or of little moment. It is a corollary of this that an offence which is a normal or typical offence of its type will not be trifling.”

   The Magistrate’s Court proceedings

9. The appellant initially appeared before Magistrate Dixon on 4 September 2017 and then on 3 October 2017 when he pleaded guilty and made an application to reduce the demerit point penalty.  The solicitor for the appellant, Mr Andrew Ey, tendered a series of photographs apparently taken from “Google Maps”, a website which permits users to produce still photographs of locations on streets across the world at points in time.  He also called the appellant to give evidence in support of the application, which evidence including the following passage:

   QJust in relation to this particular intersection, had you travelled along this intersection before?

   A     No.

   QSo you admit that it was very new, you had never [seen] the street signs or anything before?

   A     No.

   QIn para 7 you have accepted that you were slightly distracted at the time of driving in this area as you were talking on Bluetooth, that’s correct?

   A     Correct.

   QIn para 10 you’ve stated that you did not take heed of the no entry signs.  So you weren’t really paying all that much attention as you were taking on Bluetooth, is that right?

   AI was paying attention, I was looking for the on – it is a four way intersection, I was looking for the traffic.  I was talking on the phone and then I just turned south.

   QDriving on roads you’ve never driven on before, would you agree you do need to pay a little bit more attention?

   A     Yes.

10. The Magistrate declined the application to reduce the number of demerit points incurred from the three prescribed by Schedule 4 of the Regulations.  His Honour considered that “there was nothing” that had been put to him that brought the matter “with the range of cases where I should find that there are special circumstances which would enable me to reduce the number of demerit points”.  His Honour stated:

    This is the usual type of case.  The intersection, in my view, is marked clearly enough and the shape of the intersection clearly makes it obvious that it is for exit for vehicles travelling on the left-hand side of the road only.  You cannot get into the right-hand side of the road because of the shape of the traffic islands.  In my view that, together with the red no entry signs makes it clear.  Whilst I accept that Mr Difava may not have seen that because of his distracted attention while talking on Bluetooth, in my view that is not good enough reason to allow the application, nor are the other matters that have been referred to.  I am not prepared to reduce the number of demerit points.

11. The appellant was also fined $460 in total, including the Victims of Crime levy and prosecution costs.

    Application to lead further evidence on appeal

12. 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.

13. 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.

14. I am satisfied that any apparent inconsistency is illusory.  Having “never been down here before” was intended to mean “down this street” (Salisbury Street) rather than a broader geographical area.  I consider the appellant’s testimony before this Court to be truthful.

15. The appellant’s solicitor also deposed:

    12.     In the week following the hearing I prepared a brief for counsel Mr Andrew Culshaw.  In doing so I realised that I had misplaced my copies of the two photos I tendered through my client at the hearing, referred above at paragraph 5.

    13.     I went on to Google Maps Street View and searched for the intersection again.  I ended up viewing the Palmerston Road one way road closure rather than the Salisbury Street one way road closure accidentally.  It became apparent to me that the Palmerston Road one way road closure was in the same position as the Salisbury street one way road closure but operated in the opposite direction.

    14.     Viewing the Palmerston Road one way road closure immediately jogged my memory that in a previous interview between the appellant and I (that I can now say occurred on 1 March 2017 having refreshed my memory from notes) the appellant had mentioned that his wife, with whom from memory he was separated at the time, lived on Palmerston Road at a point that he regularly travelled from Greenhill Road to her address travelling South on Palmerston Road in the correct direction through the one way road closure.  I recalled that the appellant had mentioned words to the effect that whilst he was unfamiliar with the Salisbury Street one way road closure he was in effect used to travelling in the southerly direction through a similar one way road closure on Palmerston Road.

    15.     Unfortunately this was not raised again at a follow up interview with the appellant in September 2017 from which I prepared the appellant’s affidavit sworn 3 October 2017 and as such I did not put this before the Court.  I recall now that at the initial interview I had wanted to put this before the Magistrates Court as part of the proper cause given that the appellant was familiar with travelling through a similar type of intersection albeit in the opposite direction.

16. I note that the solicitor deposes to a sequence of unfortunate acts.  First, the two tendered photos are defective.  In one of them, a relevant sign is obscured by a cyclist who happens to be passing; in the other, a relevant sign is obscured by a “glitch” produced by Google Earth; and in both, the position and angles are far from ideal.  A glance should have revealed all these matters, with the simple solution being to have photographs taken at the scene in the normal way.  Second, he apparently “misplaced” his copies of the tendered photographs.  Third and fourth, when again looking at Google Earth, he got the wrong intersection; but this mistake serendipitously jogged his memory concerning another previous mistake, namely that he had omitted an important part of the appellant’s instructions when drafting the appellant’s affidavit – and hence the application to adduce fresh evidence.

17. The respondent did not seek to cross-examine Mr Ey, and nor was the credibility or reliability of this evidence challenged on appeal.

    The power of the court to receive this evidence

18. Section 42 of the Magistrates Court Act 1991 governs appeals against judgments made in the Magistrates Court. Subsection 42(4) provides that:

    (4)     On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.

19. The term “fresh” is not defined in the provision, nor in the interpretation section of the Act.  I consider that the Full Court decision in Holder v Lewis (Holder)[5] is applicable.  Doyle CJ (with whom Prior and Perry JJ agreed) there stated:[6]

    That provision should not be read as permitting the receipt of evidence only if that evidence was not reasonably available at trial.  In some circumstances that will be the only justification for admitting further evidence.  However, that should not be taken as the sole basis for the admission of evidence on appeal.  I consider that the provision should be read as enabling the court to permit an oversight or mistake of the kind in question here to be corrected, if that can be done without causing any injustice.  In short, the reference to “fresh evidence” should not be read as referring only to one kind of evidence of the type that appeal courts are often able or empowered to receive.

    In any event, r 97.18(b) of the Supreme Court Rules gives the court hearing such an appeal power to receive “further evidence upon any question of fact”.  There is no doubt that that provision empowered the Judge to receive the evidence.

    [5] [2003] SASC 397.

    [6] Ibid, [15]-[16].

20. With respect, I agree.[7]  I will receive the further evidence (being the affidavits of the appellant and Mr Andrew Ey, both sworn on 28 November 2017, and the oral evidence of the appellant given at the hearing of this appeal).  It is in the interests of justice to do so because, first, it puts a quite different light on the factual circumstances of the subject offence and second, in all the circumstances of the present case, I do not consider it fair that the appellant should be saddled with the adverse consequences of his solicitor’s carelessness.

    [7]    Rule 286(3)(a) of the Supreme Court Civil Rules 2016 connotes an additional source of power to receive "further evidence" on appeal.  See generally Sands v South Australia (2015) 122 SASR 195, 279-280.

    The correct approach to resolution of this appeal

21. After some discussion on the appeal, it was agreed between the parties that while there are some remaining differences in some authorities concerning the precise ambit of the House v The King[8] principles, a consequence of the admission of the further evidence in the present case is that I may consider afresh what is a different factual matrix to that considered by the Magistrate and proceed to determine afresh whether “proper cause” exists to warrant a reduction in the demerit point penalty under s 98B(4) of the Act.

    [8] (1936) 55 CLR 499.

    “Proper cause” under the demerit point scheme

1. In Gilbert v Owen (Gilbert) Olsson J, in an oft cited passage, identified the “critical features” which may be taken into consideration when determining whether “other proper cause” exists thus:[9]

   First the proper cause envisaged by s 98b(10) must relate to the circumstances of the offence rather than the offender.

   Secondly, they must be such as to distinguish it from the more serious, or even typical, breaches of the section so as to render it, in at least practical terms, a lesser offence.

   Thirdly, there are no closed classes cases, but aspects relevant for consideration may include the fleeting nature of the offence in very light traffic conditions, the non-embarrassment of others and an occurrence of the offence on a dual highway without intersections.  Moreover, the need to exercise a rapid judgment in a particular situation may also be important.

   [9] (1991) 14 MVR 235, 236-237; see also Apostolakos v Police [2017] SASC 90, [13], Muto-Henderson v Police [2017] SASC 139, [21], Chan v Police [2014] SASC 35, [22].

2. In the recent decision of Muto-Henderson v Police, Blue J gathered together some of the authorities concerning the “critical features” indicative of “other proper cause” thus:[10]

   [10] [2017] SASC 139, [20].

   In Newton v Larcombe,[11] White J[12] said:

   [11]   (1989) 38 A Crim R 254.

   [12]   Justice Michael White.

   A number of authorities discuss the meaning of the words “any other proper cause” in subs (10).  These authorities decide that “proper cause” refers to a cause associated with the circumstances of the particular offence.  A particular offence is either trifling or some other proper cause, associated with the circumstances of the particular offence, exists.  If so satisfied, the court can, if it is right and just and in accordance with the scheme or code in s 98b to do so, fix no demerit points or fix a reduced number of demerit points.  These authorities also hold that the fact that the convicted person will suffer hardship from the recording of the demerit points and any disqualification is not of itself proper cause.  In all of these cases, there were special circumstances which rendered the offence not quite trifling but sufficiently atypical to warrant a merciful reduction of the points, usually so as to avoid disqualification.  For example, the traffic was very light, the speedometer was not working, the excess over the speed limit was slight, there had been no danger to others, and so on.[13]

   …

   In Chan v Police,[14] I said:

   Whilst “proper cause” refers to something which is not quite trifling, there are no closed cases.  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”.[15]  

   In Bialobrzeski v Police,[16] Doyle J said:

   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.[17]

   [13]   At 255-256 (Authorities omitted).

   [14] [2014] SASC 35.

   [15]   At [23] (Citations omitted).

   [16] [2016] SASC 99.

   [17] At [20].

3. And in the recent case of Apostolakos v Police, Stanley J stated:[18]

   In Miles v Police,[19] Doyle CJ observed that the authorities suggest that “proper cause” refers to something different from a trifling offence, and so not necessarily as minor a matter as that, but nevertheless something sufficiently out of the ordinary to warrant a reduction in demerit points.[20]  As can be seen, the analysis of what constitutes “proper cause” involves a comparison with what constitutes a “trifling” offence.  In Siviour-Ashman v Police,[21] Doyle CJ reviewed the authorities dealing with the topic.  The relevant principles which can be distilled from that analysis are as follows:

   ·    the word “trifling” means of slight importance, insignificant or of little moment;

   ·    the fact that an offence is serious does not, of itself, preclude the finding that a particular incidence of it is trifling;

   ·    a normal or typical example of the offence ordinarily will not be trifling;

   ·    ordinarily, there should be a soundly-based belief in the lawfulness of the impugned conduct;

   ·    the court must pay regard to the purpose behind the obligation to observe the statutory requirement in question; and

   ·    a deliberate breach would rarely be described as trifling, save in cases where humanitarian considerations or considerations of urgency arise.

   [18] [2017] SASC 90, [12].

   [19] [2012] SASC 69.

   [20] [2012] SASC 69, [25].

   [21] (2003) 85 SASR 23, [23]-[42].

4. 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

5. In the present case, the appellant submitted that “other proper cause” arose by way of the cumulative effect of the following considerations.

6. 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; and

   oon 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.

7. I take into account the above matters.

8. Counsel for the appellant also sought to rely upon the fact that the appellant was talking on his Bluetooth and was “slightly distracted by this”.  I accept that he did not commit a “mobile telephone offence” by using his hands free telephone and that the police have not charged him with a broader offence of driving without due care.  However, I consider that the fact that the appellant was “slightly distracted by this” can only be used as relevant to the question of whether he was telling the truth when he stated that the offence was committed inadvertently rather than deliberately.  I do not take it into account as a positive factor going to establish “other proper cause”.

9. I also make plain that although the appellant has alluded to hardship that he would endure should he lose his driver’s licence (which is apparently the inevitable result should the three demerit point penalty be upheld), I accept the respondent’s submission that, subsequent to the 2001 introduction of the present legislative scheme in s 98BE (disqualification and discounting of demerit points) and surrounding provisions, such hardship has no part to play in applications to reduce the number of demerit points incurred pursuant to s 98B(4) of the Act.[26]

   [26]   See Holness v Police [2010] SASC 314, [13]-[23] (Sulan J).

   Determination

10. I accept the appellant as an honest and reliable witness and that he did not commit the offence deliberately.  I find that he mistakenly believed that he was permitted to travel through the intersection in the way that he did.

11. I determine that, having regard to the cumulative effect of the above circumstances, “other proper cause” within the meaning of s 98B(4) of the Act does exist so as to warrant a reduction in the number of demerit points to be incurred by the appellant to one demerit point and I so order.

12. I mention that counsel for the appellant indicated during the course of the hearing that, due to the actions of the appellant’s solicitor detailed above, he would not be seeking an order for costs should the appeal be successful.

13. The order of the Court is therefore that the Magistrate’s refusal to reduce the number of demerit points pursuant to s 98B(4) of the Motor Vehicles Act 1959 is set aside, and substituted with an order that the number of demerit points to be incurred by the appellant be reduced to one demerit point.  In all other respects, the Magistrate’s other orders remain undisturbed.