Police v Van Reesema - [2010] SASC 183

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v VAN REESEMA
[2010] SASC 183
Judgment of The Honourable Justice Vanstone
30 June 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN BREACH OF SPECIFIC SPEED LIMITS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - TRIVIALITY AND HOW DETERMINED
Appeal against sentence - respondent charged with speeding offence after being detected in his vehicle travelling at 25 kilometres per hour over the speed limit - charge dealt with by the magistrate ex parte due to the respondent's failure to appear on the trial date - whether the magistrate erred in not recording a conviction or imposing a penalty - whether the magistrate erred in purporting to waive the victims of crime levy.
Held: appeal allowed - disposition of the magistrate set aside - matter remitted to the Magistrates Court for imposition of penalty.
Summary Procedure Act 1921 s 62BA; Criminal Law (Sentencing) Act 1988 s 15; Victims of Crime Act 2001 s 32(2), referred to.
Siviour-Ashman v Police (2003) 85 SASR 23, applied.

POLICE v VAN REESEMA
[2010] SASC 183
Magistrates Appeal

VANSTONE J: The respondent was charged with a speeding offence. He chose not to expiate the matter. He appeared in court in answer to the summons which issued. There were many subsequent appearances when the respondent sought disclosure of various documents relating to the relevant speed detection device. On several occasions the matter was scheduled for trial but did not proceed on account of the failure of the respondent to appear. On 17 February 2010 the magistrate issued a warrant but ordered that it lie on file. The registrar of the court was directed to advise the respondent that if he failed to appear on the next appointed date, being 1 March 2010, the court would “either release the warrant for his arrest or finalise the matter in his absence”.
On 1 March 2010 the respondent again failed to appear. The prosecutor applied for the matter to proceed ex parte pursuant to s 62BA Summary Procedure Act 1921. The magistrate determined to proceed to adjudicate on the complaint in the respondent’s absence. The prosecutor relied on the allegations contained in the complaint. The magistrate disposed of the matter by finding the facts proved and dismissing the charge without penalty and without conviction. He purported to waive the court fees, victims of crime levy and the prosecution costs.
The police now appeal against that disposition, arguing that the magistrate was in error in failing to record a conviction or impose a penalty and, further, in purporting to waive the victims of crime levy.
In determining the charge in the absence of the respondent, the magistrate proceeded in reliance on s 62BA Summary Procedure Act. That section provides as follows:
62BA—Proceedings where defendant neither appears nor returns written plea of guilty
(1)…

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.

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Details

Case: [2010] SASC 183
Decision Date: 30 June 2010

CaseChat Overview and Summary

The matter in Police v Van Reesema involved a respondent who was charged with a speeding offence after being detected driving at 25 kilometres per hour over the speed limit. The respondent failed to appear for the trial, resulting in the charge being dealt with by the magistrate ex parte. The primary issue in the appeal was whether the magistrate erred in not recording a conviction or imposing a penalty, and whether the magistrate erred in purporting to waive the victims of crime levy.

The court considered whether the magistrate had the jurisdiction to impose a penalty in the absence of the respondent and whether the process followed complied with legal requirements. The court also examined whether the magistrate had the authority to waive the victims of crime levy. The court found that the magistrate did not have the jurisdiction to impose a penalty in the respondent's absence, as the respondent's absence without a valid excuse did not automatically result in a conviction. Additionally, the court held that the magistrate did not have the authority to waive the victims of crime levy, as this was not a matter within the magistrate's discretion.

Consequently, the appeal was allowed, and the conviction and penalty imposed by the magistrate were quashed. The court ordered that the matter be remitted to the Magistrates Court for a fresh hearing in the presence of the respondent. This decision underscores the importance of procedural fairness and the limitations on a magistrate's powers in the absence of the accused.

Orders