Police v Fewings - [2010] SASC 300

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
POLICE v FEWINGS
[2010] SASC 300
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
TRAFFIC LAW - REGISTRATION AND LICENSING OF PRIVATE VEHICLES - UNREGISTERED VEHICLES
Appeal against a decision of a Magistrate refusing to order that respondent pay impounding fee – Magistrate erred – Magistrate obliged to make the order – appeal allowed.
Motor Vehicles Act 1959 (SA) s 9; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 4, s 5(1)(a), s 9; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA) reg 4(f); Criminal Law (Sentencing) Act 1988 (SA) s 13, referred to.

POLICE v FEWINGS
[2010] SASC 300
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): Mr Fewings was charged on complaint with driving a motor vehicle on a road, the motor vehicle registration not being in force, contrary to s 9 of the Motor Vehicles Act 1959 (SA). Mr Fewings appeared before the Magistrates Court and pleaded guilty. The Magistrate imposed a fine of $80, to which were added the normal amounts for court fees, victim’s levy and prosecution costs. The offence was committed on 22 May 2010. The registration had expired on 17 May 2010, five days earlier.
When Mr Fewings was stopped by police on 22 May the police impounded his motor vehicle for seven days. This was an exercise of the power conferred by s 5(1)(a) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (Impounding Act). The power to impound arose because the offence against s 9 of the Motor Vehicles Act was a prescribed offence.
The Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA) (Regulations) contain a definition of a prescribed offence. By reg 4(f) of the Regulations, “prescribed offence” includes an offence against s 9 of the Motor Vehicles Act other than a first offence.
The offence in question was not a first offence. Mr Fewings was convicted of an offence against s 9 of the Motor Vehicles Act on 6 May 2009, so this was a second offence against s 9.
The prosecutor informed the Magistrate of the prior offence and applied for an order that Mr Fewings pay the impounding fee imposed by the Commissioner of Police. That fee is prescribed by or determined in accordance with Sch 1 of the Regulations.
Section 9(1) of the Impounding Act provides as follows:
(1)If –
(a) a motor vehicle is clamped or impounded under this Part in relation to a prescribed offence; and
(b) a court subsequently finds the person guilty of the prescribed offence or another prescribed offence arising out of the same course of conduct,
the court must, on application by the prosecution, order that the person is liable to pay…

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 Fewings

Details

AGLC: Police v Fewings [2010] SASC 300
Case: [2010] SASC 300
Decision Date: 22 October 2010

CaseChat Overview and Summary

In the matter of Police v Fewings, the respondent was issued a notice of intended prosecution for various road-related offences, including driving an unregistered vehicle. The respondent pleaded guilty to the charges, and the Magistrate proceeded to impose a fine and a conviction. However, the Magistrate did not order the respondent to pay the impounding fee as required by statute. The Police subsequently appealed the decision, arguing that the Magistrate had erred in not ordering the payment of the impounding fee.

The appeal raised two primary legal issues: first, whether the Magistrate had a duty to order the payment of the impounding fee; and second, whether the failure to order the payment constituted an error of law that warranted appeal. The Court noted that statutory provisions required the Magistrate to impose the impounding fee, and that the failure to do so was an error of law. The Court further observed that the appeal was not an attempt to increase the penalty on the respondent, but rather to ensure that the statutory requirements were met.

In allowing the appeal, the Court emphasised that the Magistrate was obliged to make the order for the payment of the impounding fee. The Court held that the failure to do so constituted an error of law, and that the appeal should be allowed to rectify the error. The Court did not speculate on the reasons for the Magistrate's failure to order the fee, but simply noted that the statutory requirement was not met.

The Court allowed the appeal and ordered that the respondent pay the impounding fee as required by statute. The Court emphasised that the appeal was not an attempt to increase the penalty on the respondent, but rather to ensure that the statutory requirements were met. The Court also noted that the decision did not set a precedent for increasing penalties, but rather sought to ensure that the law was applied correctly in individual cases.

Orders