Police v HANLEY - [2011] SASC 175

Supreme Court of South Australia
(Civil)
POLICE v HANLEY
[2011] SASC 175
Judgment of The Honourable Justice White (ex tempore)
5 October 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPOSITION OF FINES
TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE AND PENALTY
Police appeal against decision of Magistrate - respondent pleaded guilty to the offence of driving while disqualified - respondent's vehicle impounded by police - prosecution sought an order under s 9(1) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) requiring respondent to pay impounding fees - Magistrate declined to make the order - whether Magistrate erred in declining to order that the respondent pay the impounding fees.
Held: appeal allowed - Magistrate erred in law in failing to give reasons for refusing to make an order under s 9(1) - Magistrate's refusal to order payment of impounding fees set aside - matter remitted to the Magistrates Court for further consideration of the prosecution application for impounding fees.
Motor Vehicles Act 1959 (SA) s 91(5); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 4, s 5(1), s 9(1), s 9(3); Criminal Law (Sentencing) Act 1988 (SA) s 3(1), s 13; Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA) reg 6; Sch 1, referred to.
Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Palme (2003) 216 CLR 212; Police v Fewings [2010] SASC 300; Morely v Police [2005] SASC 233, considered.

POLICE v HANLEY
[2011] SASC 175
Magistrates Appeal (ex tempore)

WHITE J. On 10 November 2010 the respondent drove a motor vehicle on a road at a time when she was disqualified from holding or obtaining a driver’s licence in contravention of s 91(5) of the Motor Vehicles Act 1959 (SA). The police officer who detected the respondent’s offence impounded her vehicle, acting under s 5(1) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (the Impounding Act).
The respondent pleaded guilty in the Magistrates Court to the offence of driving while disqualified from doing so. The Magistrate imposed a conviction and a fine of $50 together with orders that the respondent pay certain costs and levies.
At the same time, the prosecution sought an order under s 9(1) of the Impounding Act requiring her to pay impounding fees as defined in that Act to the Commissioner of Police. The Magistrate declined to make that order.
The appellant appeals against that refusal.
The appeal was first listed for hearing on 21 September 2011. The respondent was notified of that hearing but did not attend. Because of the respondent’s personal circumstances as disclosed in the prosecutor’s affidavit, I adjourned the hearing and requested that the appellant ensure that the respondent was notified appropriately of the date and time of the adjourned hearing.…

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 HANLEY

Details

AGLC: Police v HANLEY [2011] SASC 175
Case: [2011] SASC 175
Decision Date: 5 October 2011

CaseChat Overview and Summary

The Police appeal a decision of a Magistrate in South Australia, where the respondent, who had pleaded guilty to driving while disqualified, had their vehicle impounded by the Police. The prosecution sought an order under section 9(1) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) requiring the respondent to pay the impounding fees. The Magistrate declined to make the order, prompting the Police to appeal to the Supreme Court.

The appeal concerned the legal issues of whether the Magistrate erred in declining to order that the respondent pay the impounding fees, and whether the Magistrate gave adequate reasons for the decision. The Police argued that the Magistrate failed to provide sufficient reasons for refusing the order and that the Magistrate's decision was legally flawed.

The Supreme Court found that the Magistrate did indeed err in law by failing to give reasons for refusing to make the order under section 9(1). The Court held that the Magistrate's refusal to order payment of the impounding fees was set aside, and the matter was remitted to the Magistrates Court for further consideration of the prosecution's application for impounding fees. The appeal was allowed on the basis that the Magistrate's failure to give reasons for the decision constituted an error of law.

Orders