Police v Jordan (No 2) - [2018] SASC 52

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Criminal)
POLICE v JORDAN (No 2)
[2018] SASC 52
Judgment of The Honourable Justice Lovell
30 April 2018
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - STATUTORY PROVISIONS AS TO PRIMA FACIE EVIDENCE - AS TO AVERMENTS AND ALLEGATIONS
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN BREACH OF SPECIFIC SPEED LIMITS
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - GENERAL MATTERS - NATURE AND SCOPE OF COMMONWEALTH POWERS - SEPARATION OF POWERS
Appeal against conviction and sentence – appellant convicted in the Magistrates Court of two offences; exceeding the speed limit by less than 10 kilometres per hr (km/hr) and exceeding the speed limit by between 10-19km/hr, pursuant to s 79B of the Road Traffic Act 1961. Whether reliance on the lawfulness of the averment provisions by the police prosecutor namely ss 175(1)(I) and sub-s 174A(2) of the Road Traffic Act 1961 breached the doctrine of separation of powers and Australia's obligations under the International Covenant on Civil and Political Rights (ICCPR). Whether court should consider questions of policy behind the regulation of speed limits. The appellant also sought a reduction in the number of demerit points imposed by the Magistrate.
Held:
1. The averment provisions relied upon are not bad at law and do not breach the separation of powers or the ICCPR.
2. The Magistrate did not err when sentencing the appellant.
3. Appeal dismissed.
Road Traffic Act 1961 (SA) Sections 79B, 174A and 175, referred to.
Jordan v Police [2006] SASC 205; Fox v Percy (2003) 214 CLR 118, applied.

POLICE v JORDAN (No 2)
[2018] SASC 52
LOVELL J:

Neville Jordan (the appellant) was convicted in the Magistrates Court of two speeding offences, namely: exceeding the speed limit by between 10-19 kilometres per hour (km/hr) and exceeding the speed limit by less than 10km/hr. The appellant appeals against both convictions and the appeals have been heard together. The appellant also appeals against the penalty imposed.
Background
The two offences occurred in almost identical factual circumstances. It was alleged that on 5 July 2016 a Toyota van which the appellant owned travelled along Stonehouse Avenue, Camden Park at a speed of 59km/hr. The speed limit for this portion of road is 50km/hr. 24 minutes later the appellant was detected driving along Stonehouse Avenue in the opposite direction in a Ford sedan at a speed of 61km/hr, again in a 50km/hr zone. Pursuant to s 79B of the Road Traffic Act 1961 the appellant was convicted for the first offence as the owner of the speeding vehicle and for the second offence as the driver.
The appellant was fined $50 for exceeding the speed limit by less than 10km/hr and a further $80 for exceeding the speed limit by between 10 and 19km/hr. The appellant also lost two demerit points for each offence. For the later offence the Magistrate exercised his discretion to reduce what would otherwise have…

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 Jordan (No 2)

Details

AGLC: Police v Jordan (No 2) [2018] SASC 52
Case: [2018] SASC 52
Decision Date: 30 April 2018

CaseChat Overview and Summary

Neville Jordan, the appellant, appealed against his conviction and sentence for two speeding offences in the Magistrates Court of South Australia. The offences involved exceeding the speed limit by less than 10 kilometres per hour (km/hr) and exceeding the speed limit by between 10-19 km/hr, in contravention of section 79B of the Road Traffic Act 1961. The appeal questioned the legality of the provisions used by the police prosecutor under sections 175(1)(I) and 174A(2) of the Road Traffic Act 1961, specifically whether they breached the separation of powers doctrine and Australia's obligations under the International Covenant on Civil and Political Rights (ICCPR). The appellant also contested the penalty imposed, seeking a reduction in the demerit points assigned.

The legal issues before the court were twofold: firstly, whether the reliance on the averment provisions by the police prosecutor was in breach of the doctrine of separation of powers and Australia's ICCPR obligations, and secondly, whether the court should consider the policy behind the regulation of speed limits. The appellant argued that the averment provisions, which allow the police to rely on a written statement of facts without the need to call witnesses, contravene the separation of powers principle by encroaching upon judicial power. The appellant also contended that this reliance breached Australia's obligations under the ICCPR by denying him the right to a fair trial as enshrined in Article 14 of the Covenant. Additionally, the appellant sought a review of the penalty imposed, arguing that the demerit points should be reduced.

The court examined the constitutionality of the averment provisions and their compatibility with the doctrine of separation of powers and Australia's ICCPR obligations. The court found that the averment provisions did not breach the separation of powers doctrine as they did not encroach upon judicial power, and the requirement for a magistrate to conduct a real and independent review of the evidence provided sufficient safeguards. The court also held that the provisions were consistent with Australia's ICCPR obligations, as the appellant's right to a fair trial was not infringed. Regarding the penalty, the court found no basis to reduce the demerit points assigned, affirming the magistrate's discretion in the matter.

The court upheld the convictions and sentence imposed by the Magistrates Court. The appeal was dismissed, and the appellant was required to pay the costs of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

Neville Jordan (the appellant) was convicted in the Magistrates Court of two speeding offences, namely: exceeding the speed limit by between 10-19 kilometres per hour (km/hr) and exceeding the speed limit by less than 10km/hr. The appellant appeals against both convictions and the appeals have been heard together. The appellant also appeals against the penalty imposed. Background The two offences occurred in almost identical factual circumstances. It was alleged that on 5 July 2016 a Toyota van which the appellant owned travelled along Stonehouse Avenue, Camden Park at a speed of 59km/hr. The speed limit for this portion of road is 50km/hr. 24 minutes later the appellant was detected driving along Stonehouse Avenue in the opposite direction in a Ford sedan at a speed of 61km/hr, again in a 50km/hr zone. Pursuant to s 79B of the Road Traffic Act 1961 the appellant was convicted for the first offence as the owner of the speeding vehicle and for the second offence as the driver. The appellant was fined $50 for exceeding the speed limit by less than 10km/hr and a further $80 for exceeding the speed limit by between 10 and 19km/hr. The appellant also lost two demerit points for each offence. For the later offence the Magistrate exercised his discretion to reduce what would otherwise have been a loss of three demerit points. General Principles The appellant’s right of appeal against conviction arises pursuant to s 42 of the Magistrates Court Act 1991 and is by way of rehearing. It is not an appeal de novo and usually proceeds on the documents albeit with power to receive further evidence. The court hearing the appeal is required to conduct a real and independent review of the evidence put before the magistrate and come to its own conclusions.[1] The court however must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence given at trial. The court should always bear in mind that it did not hear or see the witnesses and it should not interfere with a magistrate’s findings of fact unless they are demonstrated to be wrong by “‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”.[2] As the plurality stated in Fox v Percy:[3][1] Martin v Department of Transport, Energy and Infrastructure (2010) 269 LSJS; [2010] SASC 141, [38]-[39] (White J); Pol v City of Port Adelaide Enfield [2017] SASC 116, [15] (Nicholson J).[2] Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 687 (French CJ, Bell, Keane, Nettle and Gordon JJ).[3] Fox v Percy (2003) 214 CLR 118, 128 [29] (Gleeson CJ, Gummow and Kirby JJ).In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process. (Citations Omitted)Appeal Grounds

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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