Police v Hallett

Case [2010] SASC 256

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v HALLETT

[2010] SASC 256

Judgment of The Honourable Justice Gray

20 August 2010

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, AND CANCELLATION AND SUSPENSION OF LICENCES - GENERALLY

Police appeal against sentence – defendant pleaded guilty to offences of driving a motor vehicle while unauthorised and while that motor vehicle was unregistered and uninsured contrary to the Motor Vehicles Act 1959 (SA) – incident giving rise to charges was the defendant riding a mini-motorcycle on a public roadway – whether Magistrate’s failure to hear the prosecution constituted a denial of procedural fairness – whether Magistrate inappropriately took into account extraneous matters in finding that offence “trifling” – whether evidence on oath required when determining if offence trifling.

Held: appeal allowed – orders of the Magistrate set aside – matter remitted for rehearing – Police denied procedural fairness – Magistrate took into account extraneous matters when finding that the offence was trifling – evidence on oath not required when considering trifling pursuant to sections 15 and 16 of the Criminal Law (Sentencing) Act 1988 (SA) – meaning of conviction discussed – effect of proceeding without recording a conviction on obligation to impose mandatory licence disqualification discussed – reach and effect of sections 15 and 16 of the Sentencing Act discussed – nature of mini-motorcycle discussed.

Motor Vehicles Act 1959 (SA) s 5, s 9(1), s 24, s 74, s 98B and s 102; Criminal Law (Sentencing) Act 1988 (SA) s 15, s 16, s 17, s 18, s 20 and s 39; Motor Vehicles Regulations 2010 (SA) reg 5, reg 6, reg 7, reg 8, reg 9 and reg 10, referred to.
Przybytniak v Police (1998) 100 A Crim R 196; W v Marsh (1983) 35 SASR 333; Francis v Police (1997) 193 LSJS 443; Police v Bridges (1998) 100 A Crim R 20; Dean v Police (2008) 49 MVR 416; Maxwell v The Queen (1996) 184 CLR 501; Attorney-General v Smith [2002] TASSC 10; Miles v Police (2009) 104 SASR 127; Price v Police (2008) 254 LSJS 275; Ramsay v Samuels (1975) 14 SASR 77; Cobiac v Liddy (1969) 119 CLR 257; Police v Betts (2009) 104 SASR 442; McLean v Kowald (1979) 9 SASR 384; Goodwin v Phillips (1908) 7 CLR 1; Maybury v Plowman (1913) 16 CLR 468; Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 4 ALR 353, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"Conviction"

POLICE v HALLETT
[2010] SASC 256

Magistrates Appeal

GRAY J:

Introduction

  1. This is an appeal by the Police against sentence. 

  2. Christopher Gary Hallett, the defendant and respondent, pleaded guilty to the offences of driving a motor vehicle while unauthorised,[1] and while that…

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Police v Hallett [2010] SASC 256
Case
[2010] SASC 256
Decision Date

CaseChat Overview and Summary

In the case of Police v Hallett, the defendant was charged with driving a motor vehicle while unauthorised and while that vehicle was unregistered and uninsured under the Motor Vehicles Act 1959 (SA). The defendant pleaded guilty to these charges after riding a mini-motorcycle on a public roadway. The primary legal issues before the court were whether the Magistrate's failure to hear the prosecution constituted a denial of procedural fairness, whether the Magistrate inappropriately considered extraneous matters in determining the offence to be trifling, and whether evidence on oath is required to determine if an offence is trifling under sections 15 and 16 of the Criminal Law (Sentencing) Act 1988 (SA).

The court found that the Magistrate's failure to hear the prosecution did indeed constitute a denial of procedural fairness, which warranted setting aside the Magistrate's decision. Furthermore, the Magistrate had taken into account extraneous matters, such as the community interest in not disqualifying the defendant from driving and the confusion about the need for registration of mini-motorcycles, when assessing whether the offence was trifling. The court held that these considerations were inappropriate in determining the triflingness of an offence. Additionally, the court clarified that evidence on oath is not required when considering whether an offence is trifling under sections 15 and 16 of the Sentencing Act, rejecting the argument that such evidence was necessary based on an interpretation of section 98B of the Motor Vehicles Act.

As a result of these findings, the appeal was allowed, the orders of the Magistrate were set aside, and the matter was remitted for rehearing. The court emphasised the importance of adhering to the social policy embodied in legislation and not tailoring penalties to fit personal social theories or other extraneous matters.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The above observations were made in the context of an application for a reduction in the number of demerit points recorded following a plea of guilty to having failed to wear a seatbelt. In this respect, section 98B of the Motor Vehicles Act relevantly provides: (1)Where a person is convicted of, or expiates, an offence of a kind prescribed by the regulations, the number of demerit points prescribed by the regulations in relation to that offence is, subject to this section, incurred by that person.…(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.[Emphasis added]It is to be observed that the two authorities relied on by Kelly J in Dean also involved consideration of section 98B of the Motor Vehicles Act. In the within proceeding, as the offence did not involve the incursion of demerit points pursuant to the above legislative provision, a consideration of trifling would occur in the context of sections 15 or 16 of the Sentencing Act. For the reasons outlined earlier, the Magistrate must have proceeded under section 15. That section relevantly provides:(1) Where a court finds a person guilty of an offence but finds the offence so trifling that it is inappropriate to impose any penalty, it may—(a) without recording a conviction, dismiss the charge; or(b) upon recording a conviction, discharge the defendant without penalty.(2) A court may exercise the powers conferred by this section despite any minimum penalty fixed by a special Act.[Emphasis added] It is immediately apparent that section 15 does not require on its terms evidence on oath for a finding that the offence was trifling. Counsel for the Police contended that although the consideration of trifling in the within proceeding did not take place in the context of section 98B of the Motor Vehicles Act, Kelly J’s observations were equally applicable to a consideration of trifling, whether pursuant to sections 15 or 16 of the Sentencing Act. It was said that the comments of Kelly J indicated that a consideration of trifling in relation to the commission of a vehicular offence, whether pursuant to section 98B or sections 15 or 16, would always require evidence on oath. This contention should be rejected. As previously observed, section 15 does not explicitly require evidence on oath.[10] Nor does section 16. [10] It is to be observed that other authorities which have suggested that evidence on oath is required for a finding of triviality have considered provisions with a similar stipulation to section 98B of the Motor Vehicles Act1959 (SA). See eg Przybytniak v Police (1998) 100 A Crim R 196 (Bleby J) which considered section 47b of the Road Traffic Act 1961 (SA). The comments of Kelly J relied upon arose in the context of section 98B. It is apparent that when observing that it was unclear whether the magistrate proceeded to determine an application under section 16 of the Sentencing Act or section 98B(4) of the Motor Vehicle Act, Kelly J was not suggesting that either application would require evidence on oath for a finding of trifling to be arrived at. Rather, the difficulty faced by Kelly J in that case, was identifying which provision had been proceeded under, in order to assess whether there had been an error in that case in failing to hear evidence on oath. A conclusion later in the judgment of Kelly J supports this interpretation:[11]In the light of the magistrate’s remarks and the affidavit material filed I cannot agree with the submission from counsel for the respondent that the position is clear. It is far from clear and it seems to me that the only appropriate course for this court to take is to resolve the ambiguity about what occurred in favour of the appellant. At the very least it seems to me there may well have been a misunderstanding on the part of the magistrate as to what application he was being invited to hear. I accept the submission from counsel for the appellant the only application that he sought to make at the hearing was an application under s 98B(4). In all of the circumstances I have concluded that the fact that the solicitor for the appellant … did not persist with his application that the appellant give evidence on oath is perfectly understandable in the light of the magistrate’s intimation that he would not have time to hear such an application.[11] Dean v Police (2008) 49 MVR 416 at [18].

Decision

Reasons for decision

The mini-motorcycle, being a motor vehicle not exempted from registration, but not capable of being registered, is not a vehicle capable of being lawfully driven on a public road. It was an offence to drive the vehicle unregistered and uninsured on the public road. The submissions of counsel with respect to the size of the motor and the classification of licence are irrelevant to this analysis. The contention that the mini-motorcycle constitutes a category of vehicle not contemplated nor covered by the Motor Vehicles Act should also be rejected. As discussed, absent an exemption from registration, the Motor Vehicles Act requires all motor vehicles on the road to be registered and insured. Conclusion In the circumstances of the within proceeding the appeal should be allowed. The failure to accord procedural fairness to the Police and the consideration of extraneous matters when assessing whether the offence was trifling, warrant the setting aside of the orders of the Magistrate. It is appropriate to remit the matter for rehearing.

Ratio Decidendi

Legal Principle Established

The denial of procedural fairness is sufficient to disturb the Magistrate’s decision. However it is appropriate to comment on the further matters arising on the appeal.Consideration of Extraneous Matters in Finding Offence “Trifling” The Magistrate’s sentencing remarks disclose that in proceeding without imposing any penalty, the Magistrate took into account what he described as the community interest in not disqualifying the defendant from driving in addition to the confusion about the need for registration of mini-motorcycles. On the hearing of the appeal, the Police contended that these matters were extraneous to a consideration of trifling.[5] It was said that the relevant penalty to be applied had been identified by Parliament and that the Magistrate was in error in taking into account a suggested community interest in overriding that penalty. It was submitted further that despite any confusion occasioned by the fact that mini-motorcycles are able to be purchased lawfully but unable to be registered, it was not appropriate for the Magistrate to take into account such considerations when assessing triviality.[5] For the purposes of this judgment I use the words “trivial” and “trifling” as interchangeable expressions; see discussion in W v Marsh (1983) 35 SASR 333 at 337-339 (Johnston J) regarding the interrelation of those terms. In Francis,[6] King AJ made the following apposite remarks in relation to the role of social policy in sentencing:[6] Francis v Police (1997) 193 LSJS 443 at 444-445 (King AJ). …It is not the role of the courts to tailor penalties to fit some social theory held by some sections of the public. The social policy which is binding on the courts is that which is embodied by parliament in legislation. …In Bridges[7] Bleby J referred to the remarks of King AJ and continued:[7] Police v Bridges (1998) 100 A Crim R 20 at 22-24.Likewise it is not the role of the magistrate to tailor a penalty or lack of it to suit some social theory of the magistrate concerned. The only relevant social policy is that reflected by Parliament in the Acts which it passes…In relation to the relevance of social policy when undertaking a consideration of trifling pursuant to section 15 of the Sentencing Act, Bleby J continued:…Nor will it be a relevant consideration that the magistrate, as a matter of policy or for some other reason, considers that the offender should not have been charged or that the magistrate holds some view about the policy of the law or of its administration, and whether it is or is not appropriate to charge the offender with the offence in question.So much was made clear in Phillips v Evans [1896] 1 QB 305 where the court had dismissed a charge against a dog owner for not having paid a licence fee when the owner had applied to commissioners for, but had not obtained, a certificate of exemption. Section16 of the Summary Jurisdiction Act at that time was in similar terms to s 15(1)(a) of the Criminal Law (Sentencing) Act. Kay LJ said (at 308):"It comes to this - that as the commissioners have not granted a certificate of exemption to the respondent, although he refuses to pay for a dog licence, we (the magistrates) think his offence so trifling that we shall not convict. How can it be said that a man refusing to pay the dog tax commits a trifling offence? Of course if all the facts were not before us we could not interfere with the discretion of the justices; but here we have not only a full account of them, but also what amounts to an explanation of the reason why the magistrates think the offence a trifling one. They think so because in their opinion the commissioners ought to have granted the respondent a certificate of exemption. They have no right to entertain that question, and therefore they have no ground for saying that the offence is trifling."…Other judges have made it quite clear that a magistrate's view of the appropriateness of the offence, or of the policy of the law, cannot be taken into account in determining whether an offence is trifling: Mancini v Vallelonga per Mitchell J at 239; Hughes and Hodge (1996) 89 A Crim R 297 per Debelle J at 291.