Police v John Lawrence Cumming No. SCGRG 92/2783 Judgment No. 3798 Number of Pages 4 Magistrates Appeal

[1993] SASC 3798

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA APPEAL FROM A COURT OF SUMMARY JURISDICTION AT PORT ADELAIDE PERRY J.

CWDS
Magistrates appeal - Prosecution appeal against dismissal of speed camera offence when respondent appeared in person before justices, pleaded guilty, then said that he was not driving, whereupon the justices purported to dismiss the charge - observations as to the need to adduce sworn evidence in support of any defence to a speed camera offence, having regard to s.79b(2) of the Road Traffic Act - further observations as to course to be taken if the defendant wishes to maintain a plea of guilty notwithstanding his assertion of facts which would constitute a defence.
Ailion v Lawrence (1970) SASR 172 referred to.
Road Traffic Acts.79b(2).

HRNG ADELAIDE, 13, 14 January 1993 #DATE 14:2:1993
Counsel for appellant:         Miss J M Rugless
Solicitors for appellant:     Mr B M Selway, Crown Solicitor
Respondent in person.

JUDGE1 PERRY J. In this matter, the appellant, Police, appeal against the dismissal of a complaint brought in the Port Adelaide Magistrates Court alleging that the respondent on 16 May 1992 at Angle Park, was the registered owner of a vehicle which through the operation of a speed camera, appeared to have been driven on South Road, Angle Park, at a speed greater than 60 kms an hour, namely, 71 kms an hour, (ss.49 and 79b of the Road Traffic Act 1961). 2. When the matter was called on in the court below, which was at the time constituted by two Justices of the Peace, the respondent appeared in person. He pleaded guilty after declining an invitation to obtain legal advice. The prosecutor proceeded to allege the facts of the case, namely, that the offence had occurred at 10.54 am on the day and at the place in question, and that the recorded speed was as alleged, namely, 71 kms an hour. The justices then enquired of the respondent whether he had anything to say to the Court. 3. Thereupon the respondent informed the Court that he was not the driver of the vehicle at the time but was in Queensland on business. He said, however, that he had seen the photographs of the vehicle, and that it appeared that it was his vehicle. He was surprised, however, at that, as the vehicle had been booked in for repairs when he had gone to Queensland, and on the day of the offence he had expected that it would have been mounted on blocks with its wheels removed. 4. According to the affidavit of the prosecutor, which has not been challenged on the hearing of the appeal before me, one of the Justices of the Peace then told the respondent that he could not accept the plea of guilty in view of what had been said by the respondent. The respondent replied by saying that, as it was his vehicle, he was prepared to plead guilty to the offence. The prosecutor then submitted to the court that as the charge was being the registered owner of the vehicle and not the driver of it, if the defendant did not avail himself of any defence and was prepared to maintain a plea of guilty, a conviction should be recorded and the appropriate penalty imposed. 5. The prosecutor further submitted that the defendant's comments were not on oath, and could not amount to proof as referred to in s.79b(2) of the RoadTraffic Act, to which I will in due course refer. Notwithstanding the comments of the prosecutor, the court then proceeded to dismiss the complaint. The endorsement on the complaint is as follows:
    "We accept the (D) statement that he was not the driver.
    Prosecution will probably not reissue TIN even on stat.
    declaration from defendant and ask us to convict because
    defendant had pleaded guilty.... Dismissed." 6. There follows the signature of one of the two justices. On the hearing of the appeal the respondent again appeared in person. Miss Rugless, for the appellant, conceded that the matter might be regarded as one of small moment, but that because this was not the first occasion upon which justices had taken a course along the lines indicated, some guidance from this court should be given as to the appropriate procedure in cases such as this. She contended that the appeal should be allowed and the order quashed, and that the matter should be referred to the Magistrate's Court to be dealt with according to law, although she indicated that there was every prospect that if this court made an order in those terms, the prosecuting authorities might not see fit to take the matter any further. 7. S.79b of the Road Traffic Act creates what is commonly described as a status offence. In particular, the relevant part of s.79b(2) provides:
    "(2) Where a vehicle appears from the evidence obtained
    through the operation of a photographic detection device to
    have been involved in the commission of a prescribed offence,
    the registered owner of the vehicle is guilty of an offence
    against this section unless it is proved:-
    (a) ....
    or
    (b)(i) where the registered owner is a natural person or that
    the registered owner was not driving the vehicle at the time;
    or
(ii) ...." 8. In a case such as this, where the registered owner appeared in answer to a charge under the section, he has the right to offer evidence in an endeavour to discharge the onus of proof which falls upon him, that someone else was driving the vehicle at the time. Such proof need only be on the balance of probabilities. However, the onus can only be discharged by sworn evidence given either by the registered owner or by some other person. When, as is the case here, the registered owner pleads guilty, but then suggests that he was not driving, it is the duty of the Court to offer to allow the plea of guilty to be withdrawn and to allow the defendant to contest the charge. If he then withdraws the plea, and pleads not guilty, he should then be given an opportunity to enter the witness box and swear to a defence under s.79b(2), or call witnesses to prove such a defence, as the case may be. Alternatively, the matter should be adjourned to give to the defendant an opportunity to satisfy the prosecuting authorities that somebody else was driving, as it is, as I understand it, not uncommon in such cases for the prosecution authorities, if satisfied by credible evidence of the identity of the driver being a person other than the owner, not to proceed with the charge against the owner but to substitute a charge against the driver. 9. In this case, when the defendant was informed of the willingness on the part of the Court to allow the plea of guilty to be withdrawn, he nonetheless stated that he wished to maintain it, notwithstanding the comments he had made as to the circumstances. 10. If the defendant to a charge wishes to have the matter over and done with and maintain a plea of guilty, notwithstanding that there may be evidence available which could exculpate him, the duty of the court is to allow the plea of guilty to stand and to proceed to impose a penalty in accordance with the allegations of the prosecution. That much is clear from Ailion v Lawrence
(1970) SASR 172. 11. Here, the justices took none of the permissible courses. Instead, they purported to act on the unsworn comments of the defendant, and proceeded to dismiss the charge. This was irregular. 12. It is not proper to dismiss a charge of this kind upon the say-so of the defendant, which is unsworn. There must be sworn evidence from either the defendant or some other person to make out one of the grounds of defence before the matter can be dismissed. Furthermore, if the plea of guilty is maintained, notwithstanding advice to the defendant as to his right, a conviction must be entered appropriate to the plea and an appropriate penalty imposed on the basis of the prosecution's allegations. 13. The course taken by the justices constituting the court appealed from in this case being irregular, the appeal must be allowed. There is an order that the order of dismissal be quashed, and that in lieu thereof the matter is referred back to the Port Adelaide Magistrate's Court differently constituted, to be further dealt with according to law and in the light of these reasons. 14. However, I observe that having regard to the information given to the Court by Miss Rugless, and bearing in mind the fact that the respondent has had already now more than two appearances in different courts, it appears to me that the authorities may well take the view that the appropriate procedure having been pointed out in the reasons which I have delivered, the interests of justice would be served if no further action was taken on the charge against the respondent. I urge that view upon the prosecuting authorities. There is no order for costs.