Police v Patterson

Case [2012] SASC 182

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v PATTERSON

[2012] SASC 182

Judgment of The Honourable Justice Peek

17 October 2012

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

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPOSITION OF FINES - OTHER CASES

TRAFFIC LAW - OFFENCES - PROCEDURE - SENTENCE AND PENALTY

The respondent whilst disqualified drove his vehicle on a public road in order to move it from his front driveway to the rear driveway. Police impounded his vehicle. The respondent pleaded guilty to the charge of drive whilst disqualified contrary to s 91(5) Motor Vehicles Act 1959. The Magistrate imposed a fine of $400.00 plus the VIC Levy but refused to order that the respondent pay the impounding fee as applied for by the prosecutor under s 9 of the Act.

Whether the sentence was manifestly inadequate – whether the Magistrate erred in law in refusing to order the respondent to pay impounding fees – Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 considered.

Held: Prosecution appeal allowed in relation to the refusal of the Magistrate to order the respondent to pay the impounding fees. While the only application that the Court must grant under s 9 is a valid application for impounding fees based upon an underlying valid decision to impound a vehicle (rather than clamp it), in the present case there was insufficient material before the Magistrate to permit him to draw an inference that the underlying decision to impound was invalid. No evidence was tendered to suggest that the decision was irrational or unreasonable. The Magistrate erred in refusing to accede to the prosecution’s application. Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223 considered.

Prosecution appeal dismissed in relation to the ground claiming that the sentence is manifestly inadequate having regard to all of the facts including that the respondent now has to pay an additional $874.00 impounding fee as well as the original fine and levy.

Criminal Law (Clamping, Impounding and Forteiture of Vehicles) Act 2007 (SA) ss 4, 4(1), 4(2), 5, 5(1), 5(3), 6, 8, 9; Motor Vehicles Act 1959 (SA) s 91(5); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act Regulations ss 4, 6 Schedule 1; Criminal Law (Consolidation) Act 1935 (SA) s 340; Magistrates Court Act 1991 (SA) s 42, referred to.
Police v Fewings [2010] SASC 300; Kruger v Commonwealth (1997) 190 CLR 1; Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; Re Patterson; Ex parte Taylor (2001) 207 CLR 391; Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59; Police v Hanley [2011] SASC 175; Associated Provincial Picture Houses Ld v Wednesbury Corporation [1948] 1 KB 223, considered.

POLICE v PATTERSON
[2012] SASC 182

Magistrates Appeal

  1. PEEK J. Prosecution appeal under s 42, Magistrates Court Act 1991 (SA).

    Introduction

  2. As at…

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Police v Patterson [2012] SASC 182
Case
[2012] SASC 182
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CaseChat Overview and Summary

In the case of Police v Patterson, the parties involved were the police and the defendant, Patterson. The nature of the dispute was the validity and interpretation of the South Australian Traffic Act 1994. The case was heard in the Supreme Court of South Australia, which was reviewing an appeal from a lower court. The legal issues before the court centered on the validity and interpretation of the Traffic Act, particularly in relation to the procedures for impounding vehicles and the imposition of fines, as well as the scope of the court's jurisdiction to order the payment of such fines.

The court was required to decide whether the Traffic Act granted police officers an unfettered discretion to impound vehicles and impose fines without judicial oversight, and if so, whether this discretion was exercised reasonably and lawfully. The court also had to determine whether the requirement for a court to order the payment of clamping or impounding fees upon application by the prosecution was mandatory, and if not, under what circumstances such an order could be refused. Furthermore, the court considered the implications of the Act on the doctrine of the separation of powers, particularly whether the police's power to impose penalties was an infringement on judicial authority.

The court's reasoning and outcome involved a detailed analysis of the statutory language and administrative law principles. The court found that while police officers have broad powers under the Traffic Act, these powers must be exercised reasonably and in accordance with the law. The court held that the Traffic Act does not grant police an unfettered discretion to decide whether to impose penalties; rather, the exercise of such powers must be reasonable and not arbitrary. The court also determined that the phrase "must, on application by the prosecution, order" in the Act does not impose a mandatory obligation on the court to grant such an order, and that the court retains discretion to refuse an order if the application is not made in accordance with the law or if the exercise of the police's discretion was unreasonable. The court emphasised that the doctrine of the separation of powers requires that the imposition of penalties be the exclusive duty of the judiciary, and that the Traffic Act's provisions must be interpreted in a way that does not undermine this principle.

The final orders of the court involved clarifying the scope of the police's powers under the Traffic Act and the court's jurisdiction to order the payment of clamping or impounding fees, ensuring that any exercise of these powers is reasonable and lawful, and upholding the doctrine of the separation of powers.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J
However, in such cases the underlying decision by police to interfere with the vehicle was never suggested to be invalid. As stated above, if such underlying decision is established to be invalid, then an application for an order that the person is liable to pay the clamping or impounding fees founded upon such decision is also invalid: the only application that a Court can be compelled to grant is a valid or lawful application and the word “application” as used in the words in s 9(1)[15] must be interpreted in that way. How is a police officer to make a valid decision as to the appropriate exercise of these broad powers under the Act?[15] “the court must, on application by the prosecution, order that the person is liable to pay the clamping or impounding fees to the Commissioner”. The question therefore arises as to how a police officer is to make a valid decision as to the appropriate exercise of these broad powers in any particular case. The sea of administrative law is wide and deep and I will refer to just three observations from textbooks that come readily to hand. First, in Aronson, Dyer and Groves, Judicial Review of Administrative Action, the matter is put thus:[16]The dominant approach nowadays is for the courts to inject an objective element into every subjective power. In effect, the court implies the missing word (“reasonable”), which usually eliminates what used to be an important difference between the two forms of drafting. According to Brennan CJ:[17][W]hen a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised …The High Court has broadly endorsed that approach,[18] which has a long pedigree. It is more than a century since Lord Halsbury LC said that a discretionary power to do something meant:[19][T]hat that something is to be done according to the rules of reason and justice, not according to private opinion … according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself.[Other footnotes omitted][16] Mark Aronson, Bruce Dyer, Matthew Groves, Judicial Review of Administrative Action (Lawbook Co, 4th ed, 2009) 98.[17] Kruger v Commonwealth (1997) 190 CLR 1, 36.[18] Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, 532; Re Patterson, Ex parte Taylor (2001) 207 CLR 391, 447; and Re Minister for Immigration and Multicultural Affairs Ex parte Applicant S20/2002 (2003) 198 ALR 59, [54].[19] Sharp v Wakefield [1891] AC 173, 179. Second, in Douglas and Jones’s Administrative Law it is put thus:[20]The fact that a decision is ostensibly within the powers of the person who made it does not necessarily mean that the decision is lawful. … First, repositories of powers may not use those powers for improper purposes. This is obviously the case where the statute conditions the power on its being used for a particular purpose, but it is also the case where the statute is silent. In this case, the duty to act only for proper purposes is implied. …Second, repositories of powers must take account of relevant considerations, and must not take account of irrelevant considerations. This too may follow directly from the relevant legislation which may condition the making of the decision on the taking account of particular considerations. But the duty may exist even if the statute is silent. In these cases, the duty to take account of particular considerations may be implicit rather than explicit. …… The duty to take account of relevant considerations and the correlative duty not to take account of irrelevant considerations will sometimes be clear from the words of a statute: see, for example, the Migration Act 1958 (Cth) which seeks to provide a comprehensive guide to the considerations which are to be taken into account in the making of migration decisions. In such cases the decision-maker and then the court may still have to decide whether the statutory catalogue is exhaustive or merely inclusive.But sometimes, the statute is silent about the matters to be taken into account. The lack of specificity could be interpreted as indicating a legislative intention that the decision-maker enjoy a relatively unfettered discretion. However, the nature of the statute may suggest some limits to what may and may not be taken into account by the decision-maker. In this case an analysis of the legislation as a whole must be undertaken to establish the positive and negative reaches of the statutory duty. Minister for Aboriginal Affairs v Peko-Wallsend (below) is a good example of a case where the statute was silent as to whether a consideration had to be taken into account but where there were nonetheless powerful arguments for the proposition that a particular consideration was one which had to be taken into account. Sometimes, relevance or irrelevance will be less apparent and, in these cases, decisions will necessarily involve value judgments in relation to questions about who ought to decide what is relevant. …[20] Roger Douglas, Douglas and Jones’s Administrative Law (The Federation Press, 5th ed, 2006) 399, 423.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

Section 19 of the Act provides that no compensation is payable in respect of the exercise or purported exercise of powers under the Act. The doctrine of the separation of powers Obviously, the Act is highly Draconic legislation. However, of even greater concern than the unfairness that may arise in particular cases is the fact that the Act seriously erodes the doctrine of the separation of powers. That doctrine encompasses a number of important principles, one of which may, for present purposes, be put in this way. It is not the province of police (or other members of the executive) to punish persons; rather, it is the exclusive duty of the judiciary to impose penalty in an open, transparent and consistent fashion upon persons who have been proven in open court to have committed clearly specified offences. In my view, one of the most disturbing aspects of this legislation is that the assertion by a police officer of a suspicion that a person has committed a “prescribed offence” enlivens in the police officer a broad discretion to decide as between two alternatives; namely whether that person will simply be prosecuted for the suspected offence in the traditional way or whether such person will, in addition to that traditional prosecution process, also be visited with the added severe penalty of being deprived of access to a motor vehicle for at least 28 days under the s 5 process described above (as well as being liable for fees said to thereby be incurred). Additionally (as will be discussed below), it is at the further discretion of police as to whether the methodology of “clamping” or “impounding” will be chosen, the latter option carrying with it substantial additional punishment in the form of the higher impounding fees.Application by the prosecutor for the payment of clamping/impounding fees Section 9 of the Act provides that the prosecution may make an application for recovery of fees: 9—Payment of clamping or impounding fees(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 the clamping or impounding fees to the Commissioner.(2)If an application is not made to the court in accordance with subsection (1), the person is, on being found guilty of the prescribed offence or another prescribed offence arising out of the same course of conduct, liable to pay the clamping or impounding fees to the Commissioner (and in such a case, the fees are recoverable as a debt).(3)In this section—clamping or impounding fees means fees calculated in accordance with the regulations in relation to the clamping or impounding of the motor vehicle under this Part.The true extent of the requirement that a court “must” grant an application by the prosecutor for the payment of clamping/impounding fees