Roberts v Police

Case [2013] SASC 190

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

ROBERTS v POLICE

[2013] SASC 190

Judgment of The Honourable Justice Stanley

13 December 2013

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - OTHER MATTERS

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - NOT OBEYING TRAFFIC LIGHTS AND TRAFFIC ARROWS

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence. The appellant pleaded guilty to the offence of being the owner of a vehicle detected entering an intersection showing a red traffic light contrary to s 79 of the Road Traffic Act 1961 (SA) and rule 59 of the Australian Road Rules. He gave evidence before a magistrate in support of an application to have the offence deemed trifling pursuant to s 98B(4) of the Motor Vehicles Act 1959 (SA). He was not sworn or affirmed prior to giving evidence. The magistrate found that the offence was not trifling. The appellant was convicted and ordered to pay a fine of $464. As a result of the conviction, he incurred three demerit points.

Whether the proceedings miscarried on the basis that the appellant’s evidence was not given on oath. Whether the magistrate erred in concluding that the offence was not trifling. Whether the magistrate erred by failing to hear submissions with respect to s 15, s 16 and s 17 of the Criminal Law (Sentencing) Act 1988 (SA). Whether the sentence was manifestly excessive.

Held (dismissing the appeal):

1. Although the appellant’s evidence was not given on oath, it did not affect the magistrate’s decision. The magistrate did not reject the credibility of the appellant’s account by reason of his evidence not having been given on oath (at [12] - [14]). 

2. Having regard to the circumstances, the offence was not trifling (at [17] - [20]).

3. Although the appellant is unlikely to commit the offence again, there is no good reason to impose penalty without recording a conviction or to reduce the number of demerit points incurred by the appellant (at [23] - [34]).

4. The sentence was not manifestly excessive (at [37] - [40]).

Road Traffic Act 1961 (SA) s 79, s 79B(2); Expiation of Offences Act 1996 (SA) s 8, s 8A; Motor Vehicles Act 1959 (SA) s 98B(4); Criminal Law (Sentencing) Act 1988 (SA) s 3(1), s 15, s 16, s 17; Road Traffic (Miscellaneous) Regulations 1999 (SA) s 15; Motor Vehicles Regulations 1996 (SA); Victims of Crime Act 2001 (SA) s 32(2); Victims of Crime (Fund and Levy) Regulations 2003 (SA); Summary Procedure Act 1921 (SA) s 189A, referred to.
Gazepis v Police (1997) 70 SASR 121; Dean v Police [2008] SASC 55; Zanker v Hyndman (1990)…

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Roberts v Police [2013] SASC 190
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[2013] SASC 190
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CaseChat Overview and Summary

In Roberts v Police, the appellant seeks an extension of time to bring an appeal against his conviction for running a red light and the imposition of three demerit points. The case arises from an incident on 10 November 2012, when the appellant's vehicle was detected by a photographic detection device entering an intersection while displaying a red light. The appellant was issued an expiation notice for the infringement, which he contested as trifling under the relevant legislation. When his application was unsuccessful, he elected to be prosecuted for the offence. The matter proceeded as an application under s 98B(4) of the Motor Vehicles Act 1959 (SA). The appellant pleaded guilty but argued that the offence was trifling due to the circumstances surrounding the incident, namely, that he entered the intersection to avoid a potential collision with a truck that was tailgating him. The magistrate did not accept this argument and convicted the appellant, imposing three demerit points.

The primary legal issues in the appeal were whether the magistrate erred in concluding that the offence was not trifling, whether the proceeding miscarried because the appellant's evidence was not given on oath, whether the magistrate erred by failing to hear submissions with respect to certain sections of the Criminal Law (Sentencing) Act 1988 (SA), and whether the sentence was manifestly excessive. The court considered the mandatory requirement for evidence to be given on oath under s 98B(4) of the Motor Vehicles Act 1959 (SA) and concluded that the proceeding was affected by a significant procedural irregularity. However, the court found that this irregularity did not affect the outcome of the conviction, as the appellant was aware of the concerns that the magistrate had expressed. The court also rejected the other grounds of appeal, finding that there was no miscarriage of justice and that the sentence was not manifestly excessive.

The appeal was dismissed, but the appellant was granted an extension of time to bring the appeal. The court will hear the parties on the question of costs. The decision highlights the importance of procedural requirements in criminal proceedings and the court's discretion in determining whether an irregularity affects the outcome of the conviction.

Orders

Orders of the court

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Background

Background to the litigation

An extension of time is sought to bring the appeal. It is not opposed.The facts On 10 November 2012, the appellant’s vehicle was detected by a photographic detection device entering an intersection showing a red traffic light. He received an expiation notice for the infringement in the amount of $464. By letter dated 18 December 2012, he wrote to the Commissioner of Police applying to have the offence reviewed as trifling pursuant to s 8A of the Expiation of Offences Act 1996 (SA). Police notified the appellant by letter dated 2 January 2013 that the expiation notice would not be withdrawn. On 15 January 2013, the appellant elected to be prosecuted for the offence, pursuant to s 8 of the Expiation of Offences Act 1996 (SA). He was subsequently charged on complaint and appeared in the Mount Barker Magistrates Court on 17 April 2013. On that date, the matter was adjourned. The court record relevantly bears the following endorsement:“FOR NEGOTIATIONS – Possible trifling application”. The matter came before the Court again on 15 May 2013. The appellant appeared in person. He pleaded guilty to the offence and the matter proceeded as an application under s 98B(4) of the Motor Vehicles Act 1959 (SA) (“Motor Vehicles Act”). The appellant elected to give evidence. It appears from the transcript of proceedings and an email from the court registry, that he was not sworn or affirmed prior to giving evidence. The appellant’s evidence was that while driving along Mount Barker Road towards the roundabout at the intersection with Adelaide Road, he observed a truck travelling at high speed which turned out in front of him. The truck entered the dual-carriage roundabout on the outside lane and the appellant was travelling on the inside lane. They both drove around the roundabout, turning right on to Adelaide Road. As they exited the roundabout, the appellant accelerated and changed into the left lane ahead of the truck. The truck then caught up to his vehicle and tail-gated him as they approached the upcoming intersection. The intersection is approximately 200 metres from the roundabout. The appellant noticed the traffic light at the intersection turn amber. He said that he was concerned that the truck was not following his vehicle at a safe distance and that if he braked to stop for the traffic light he was going to put himself and his two daughters who were in the rear of the vehicle in danger of a rear-end collision. He drove through the intersection showing a red signal to avoid a collision. In a subsequent affidavit, the appellant states he was mistaken when he told the magistrate that his daughters were in the vehicle at the time of the offence. After checking his records, he realised that he must have been on his way to collect them from an appointment. Two photographs of the appellant’s vehicle taken by the detection device were tendered by the police prosecutor. The appellant also tendered two satellite images from Google Maps with annotations and markings. The photographs tendered by police show the appellant’s vehicle passing through the intersection at various stages. The first photo was taken around half a second after the traffic light had turned red and shows the appellant’s vehicle having just crossed the stop line. In the second photograph, which was taken one second after the first, the appellant’s vehicle has travelled around 15 metres past the stop line and a distance of around 10 metres is visible between the stop line and the right-side field of view of the camera. The truck does not appear in either photograph. The appellant contended that 25 metres is not sufficient distance to expect a truck that is coming to a halt to come into the field of view of the camera in the second photograph. He attempted to use the annotated satellite images to demonstrate that it would be unlikely that the detection device would capture the truck, even though it was tail-gating him and forced him to enter the intersection to avoid a collision. He admitted to possessing no particular expertise on the topic, and based his analysis on rudimentary calculations of the intersection.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Far from being manifestly excessive, in my view, the sentence tends towards being lenient. Having elected to be prosecuted, the appellant was fortunate that the higher victims of crime levy and the prosecution fee was not added to the amount of the original expiation notice. There is nothing to suggest that the magistrate was in error in recording the conviction. The incursion of three demerit points is prescribed by regulation and cannot be said to be manifestly excessive in the circumstances. Conclusion I would grant the appellant an extension of time within which to bring the appeal, but would dismiss the appeal. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

The appellant advances a number of grounds of appeal. The first is that the magistrate erred in concluding that the offence was not trifling pursuant to s 98B(4) of the Motor Vehicles Act. The next ground is that the proceeding miscarried because his evidence was not given on oath, in accordance with the procedure prescribed in s 98B(4). The appellant further submits that the magistrate erred by failing to hear submissions with respect to s 15, s 16 and s 17 of the Criminal Law (Sentencing) Act 1988 (SA). The final ground is that the sentence was manifestly excessive. ConsiderationEvidence on oath It is convenient to deal first with the ground that the appellant was not sworn or affirmed prior to giving evidence. Section 98B(4) of the Motor Vehicles Act provides as follows:98B—Demerit points for offences in this State (4) If a court by which a person is convicted of an offence is satisfied by evidence given on oath forthwith on conviction that the offence is trifling, or that any other proper cause exists, it may order that a reduced number of demerit points, or no demerit points, are incurred by the person in respect of that offence. It is well established that before exercising its power under s 98B, the Court must hear evidence on oath and it is not open to the parties to waive that requirement.[1] It is conceded by the police that the appellant did not give evidence on oath and, to the extent that the magistrate was considering an application under s 98B(4), the proceeding was affected by a significant procedural irregularity.[1] See for example Dean v Police [2008] SASC 55 at [14] and the authorities cited therein. In Gazepis v Police,[2] the Court considered whether a conviction should be set aside because of an irregularity that occurred during the trial. The magistrate ordered the appellant to leave the courtroom briefly while he reprimanded counsel for objecting to a question in cross-examination, in a manner capable of conveying to the defendant the answer that he should give to the question. Doyle CJ, with whom Lander and Bleby JJ agreed, considered that the irregularity did not cause an unfair trial. He said:[3][2] (1997) 70 SASR 121.[3] Gazepis v Police (1997) 70 SASR 121 at 129.The powers of this Court on hearing the appeal are to be found in s 42(5) of the Magistrates Court Act 1991 (SA). The power is expressed in a form which is quite common, and includes the power to “confirm, vary or quash the judgment subject to the appeal”.Such provisions in this State have been interpreted as not requiring or permitting the court to allow an appeal, despite an error in the court below, if the court is satisfied that there has been no miscarriage of justice: see, eg, Newman v Byrne [1969] SASR 350 at 353, per Mitchell J and O'Leary v Daire (1984) 13 A Crim R 404 at 416, per White J. I deliberately refrain from expressing any view upon the question of whether it is incumbent upon the appellant to demonstrate a miscarriage, or incumbent upon the respondent to demonstrate that none has occurred.In the present case I am satisfied that what happened could not have affected the decision reached by the magistrate. I am so satisfied because, as I have indicated, the defendant shortly after the incident in question became aware of the very concern that the magistrate expressed while the defendant was out of the court. The defendant was as well informed as he would have been had he been in court all of the time.…On the other hand, such authority as I have found, does not support the view that an error affecting the manner in which the court conducts a hearing necessarily vitiates the trial. This matter was considered by the High Court in Wilde v The Queen. The court was there considering the question of what errors were “so radical or fundamental that by their very nature they exclude the application of the proviso” (at 373). The majority (Brennan, Dawson and Toohey JJ) went on to say (at 373):There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted ... [the cases] provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial ... I do not consider that, in appeals such as the present one where the proviso is not in terms applicable, the court should adopt a rigid or technical approach to errors such as occurred here. I consider that the court should make an assessment of the significance of the error that occurred. I am content to adopt the approach taken by the Full Court of the Supreme Court of Victoria in R v Kerr (No 2) [1951] VLR 239. I do so even though that was an appeal from a conviction by verdict of a jury, and so the proviso was applicable. In that case the court had to consider the significance of the public having been wrongly excluded during part of the trial. The court acknowledged (at 241) that the question for it “does not depend upon the effect which the departure in question has upon the verdict; but is rather whether there has been a serious departure from essential requirements of the law”.