Police v RYAN - [2011] SASC 16

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v RYAN
[2011] SASC 16
Judgment of The Honourable Justice Nyland
18 February 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
Prosecution appeal - unrepresented respondent initially pleaded not guilty to charge of using mobile phone whilst driving - respondent maintained she had not used mobile phone but had used iPod to check time - respondent's version conflicted with sworn statement of police officer as to circumstances of offence - without resolving dispute Special JP accepted plea of guilty and imposed penalty without recording conviction on basis of respondent's version notwithstanding that disclosed a defence - appeal allowed - remitted matter back to Magistrates Court.
Australian Road Rules Rule 300; Magistrates Court Act 1991 (SA) s 42(2)(b); Criminal Law (Sentencing) Act 1988 (SA) ss 9, 16, referred to.
R v Osenkowski (1982) 30 SASR 212; Everett v R (1994) 181 CLR 295; Pollard v Police [2010] SASC 23; Hodgson v Police [2002] SASC 35; R v Perre (1986) 41 SASR 105; R v Nemer [2003] SASC 375, considered.

POLICE v RYAN
[2011] SASC 16
Magistrates Appeal

NYLAND J: This is a prosecution appeal against orders made by a Special Justice of the Peace in the Magistrates Court at Adelaide on 16 October 2010.
Background
The respondent was charged on complaint that on 19 August 2010 at Hackney, being the driver of a vehicle stationary but not parked on the road, namely Botanic Road, she used a hand held mobile phone contrary to the provisions of Rule 300 of the Australian Road Rules. It appears that at the time of the alleged offence the respondent was issued with an expiation notice by the police but on 7 September 2010 she elected to proceed to court.
On 16 December 2010 she appeared before a Special Justice of the Peace sitting in the Petty Sessions Division of the Magistrates Court at Adelaide. She was unrepresented. She initially entered a plea of not guilty but subsequently changed her plea to guilty, following which the Special JP ordered that no conviction be recorded.
The Special JP imposed no penalty and waived court costs but ordered the respondent to pay the Victims of Crime Levy.
The respondent was also unrepresented on the hearing of the appeal. Due to some confusion as to her correct postal address the respondent was not notified of the date of the appeal hearing until a few days preceding it. However, she indicated that she was happy for the appeal to proceed on the appointed date, notwithstanding the short notice, and she did not require an adjournment in order to obtain legal advice.
On the hearing of the appeal counsel for the appellant relied upon the affidavit of Tracy Marie Bridgland, Police…

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 RYAN

Details

AGLC: Police v RYAN [2011] SASC 16
Case: [2011] SASC 16
Decision Date: 18 February 2011

CaseChat Overview and Summary

The Police appealed against a decision made by a Special Justice of the Peace in the Magistrates Court of South Australia, where the respondent, unrepresented, had pleaded not guilty to a charge of using a mobile phone while driving. The respondent maintained that she had not used a mobile phone but had used an iPod to check the time. The respondent's version of events conflicted with the sworn statement of a police officer regarding the circumstances of the offence. The Special Justice of the Peace accepted the plea of guilty without resolving the factual dispute and imposed a penalty without recording a conviction, based on the respondent's version, despite it disclosing a defence.

The legal issues before the Supreme Court were whether the Magistrates Court had correctly exercised its discretion in accepting the plea of guilty without resolving the factual dispute, and whether the court should interfere with the discretion exercised by the Special Justice of the Peace. The court examined the principles on which it acts when considering appeals and reviews, and the extent to which it should interfere with the exercise of discretion by the Magistrates Court.

The Supreme Court found that the Magistrates Court had not correctly exercised its discretion in accepting the plea of guilty without resolving the factual dispute. The court held that it was important for the court to be satisfied that there was a factual basis for the plea of guilty, and that it should not accept a plea of guilty where there was a factual dispute that disclosed a defence. The court also held that it should interfere with the discretion exercised by the Magistrates Court in this case, as the Special Justice of the Peace had not adequately considered the conflicting evidence and had imposed a penalty without recording a conviction. The appeal was allowed, and the matter was remitted back to the Magistrates Court for further consideration.

The Supreme Court did not make any final orders in the case, as it was remitted back to the Magistrates Court for further consideration. The court emphasised the importance of ensuring that the court is satisfied that there is a factual basis for a plea of guilty, and that it should not accept a plea of guilty where there is a factual dispute that discloses a defence. The court also highlighted the need for the Magistrates Court to adequately consider conflicting evidence and to properly exercise its discretion when accepting a plea of guilty and imposing a penalty.

Orders