ROBERTSON v Police - [2015] SASC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ROBERTSON v POLICE
[2015] SASC 13
Judgment of The Honourable Justice Parker
6 February 2015
MAGISTRATES - ORDERS AND CONVICTIONS - DISMISSAL, CONDITIONAL DISCHARGE OR CONVICTION WITHOUT PENALTY FOR TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - RELEVANT CONSIDERATIONS - TRIVIAL NATURE OF OFFENCE
MAGISTRATES - HEARING - EVIDENCE - ORAL EVIDENCE
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - NOT GIVING WAY - NOT GIVING WAY AT UNSIGNED INTERSECTION
Appeal against sentence imposed by a magistrate. The appellant pleaded guilty to one count of failing to give way to a vehicle travelling from the right. The appellant applied for an order under s 98B(4) of the Motor Vehicles Act 1959 that the number of demerit points be reduced by the court. The magistrate took sworn evidence by himself putting questions to the appellant, without objection by counsel. The magistrate did not find the offence to be trifling, but reduced the number of demerit points from three to two because of the unusual configuration of roads at the intersection.
Whether the magistrate erred in not finding that the offence was trifling. Whether the procedure adopted by the magistrate in conducting the appellant’s evidence in chief constituted an error that vitiates the sentence. Whether the procedure adopted by the magistrate in taking the appellant’s evidence without providing counsel an opportunity to examine in chief impeded the proper presentation of the appellant’s case.
Held (dismissing the appeal):
1. There was proper basis for the magistrate to conclude that the offence was not trifling.
2. In conducting the appellant’s evidence in chief the magistrate was ensuring that the information referred to by the appellant’s counsel in his opening submissions was received on oath as required by s 98B(4) the Act.
3. The proper presentation of the appellant’s case was not impeded as the appellant’s case would not have been assisted by the further evidence referred to by counsel on appeal.
Motor Vehicles Act 1959 s 98B(4); Summary Procedure Act 1921 s 181; Australian Road Rules Rule 73, referred to.
Newton v Larcombe (1989) 38 A Crim R 254; Chan v Police [2014] SASC 35; Roberts v Police [2013] SASC 190; Police v Ludlow [2008] SASC 43; Siviour-Ashman v Police (2003) 85 SASR 23; Jones v National Coal Board [1957] 2 QB 55; Yuill v Yuill [1945] 1 All ER 183; Black v Police [2009] SASC 115; R v T, WA (2014) 118 SASR 382, considered.

ROBERTSON v POLICE
[2015] SASC 13
Magistrates Appeal (Criminal):
PARKER J.

This appeal from a decision of a magistrate concerns the reduction in demerit points under s 98B(4) of the Motor Vehicles Act 1959 (“the Act”).
The appellant sought an extension of time to file the appeal. The appellant’s solicitor has deposed that he made an error of a few days in recording in his diary the date for lodgement of the appeal. The respondent did not oppose the extension. I granted the extension.
The respondent applied under s 181 of the Summary Procedure Act 1921 to amend the complaint. The complaint before the Magistrates Court alleged that the appellant had failed to give way in accordance with Rule 72 of the Australian Road Rules to a vehicle approaching from the right. The amended complaint would allege that, contrary to Rule 73, when turning right from a terminating road onto a continuing road, the appellant had not given way to a vehicle approaching from the right on the continuing road.
The respondent submitted that the amendment would leave the pith and substance of the alleged offence (ie failing to give way) intact. The only change would be to the description of the intersection. The true nature of the intersection was well understood by the appellant and also by the magistrate. The prosecutor had tendered three photographs of the intersection downloaded from Google maps.
The appellant did not object to the amendment. I approved the amendment and the appeal proceeded on the basis of the complaint as amended.
Background
On 13 August 2014 the appellant entered a plea of guilty to one count of failing to give way to a vehicle travelling from the right. The maximum penalty for this offence was a fine not exceeding $2,500. The offence also attracted three demerit points. The appellant applied for an order that the number of demerit points be reduced by the court.
It is necessary to describe the unusual road configuration at the particular intersection and the movement of the relevant vehicles. The appellant turned right from Thornton Street, Kensington into Wellington Street. Thornton Street terminates at Wellington Street as a T-junction. That junction is a very short distance from the intersection of Wellington Street with Portrush Road. The latter intersection is not at a right angle. The right hand turn of the vehicle driven by the appellant from Thornton Street into Wellington Street caused the driver of a police car turning into Wellington Street from Portrush Road to brake heavily.
The application to reduce the number of demerit points was heard in the course of a busy general list. Counsel for the appellant (not being the practitioner who appeared on the appeal) informed the magistrate of the basis of the application to reduce demerit points. The magistrate then took sworn evidence from the appellant as required by s 98B(4) of the Act.
The magistrate summarised what he believed to be the effect of the submissions made by counsel and gave the appellant the opportunity to agree or disagree with the matters put to him by the magistrate. Following the taking of sworn evidence from the appellant, his counsel made further submissions.
Counsel for the appellant was present during the examination by the magistrate. He did not object to the procedure adopted by the magistrate nor did he object to any of the questions asked. Counsel did not seek to ask further questions and it has not been suggested that he was prevented by the magistrate from asking further questions of the appellant. The prosecutor did not seek to cross examine the appellant.
The finding by the magistrate
The magistrate made the following finding:
I do think there are aspects of his driving that were quite poor. He seemingly looked both ways and thought the road was clear and it patently was not although I accept that the police vehicle had turned into his path reasonably quickly because of the manner in which the road is set up at this particular location. It is reasonably serious offending because the police vehicle had to brake harshly to avoid a collision. It is fortunate no collision actually occurred and it is fortunate no embarrassment was caused to anybody else other than the police vehicle.
I accept it was inadvertent. I accept he was paying some attention but obviously not enough in relation to the matter. The factor that causes me, notwithstanding the opposition of prosecution, to at least partly reduce the number of demerit points, is the unusual or peculiar aspect of the roads intersecting at that location. It seemed [it] was just one of those things that occurred in a split second at the time. He thought the road was clear and commenced his manoeuvre and then the police vehicle appeared. As I have said, though, it is in some respects it is still a serious failure to give way.
The magistrate determined under s 98B(4) of the Act that the number of demerit points incurred by the appellant should be reduced from three to two. A fine of $384 was also imposed.
The grounds of appeal
The appellant has advanced three grounds of appeal. They are:
1.   The magistrate erred in not finding that the offence was trifling;
2.   The procedure adopted by the magistrate in conducting the appellant’s evidence in chief constituted an error that vitiates the sentence; and
3.   The procedure adopted by the magistrate in taking the appellant’s evidence without providing counsel an opportunity to examine in chief impeded the proper presentation of the appellant’s case.
The failure to find the offence trifling
Section 98B(4) of the Act provides as follows:
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 clear that the magistrate reduced the number of demerit points from three to two because of what he described as “the unusual or peculiar aspect of the roads intersecting at that location”. He did not find the offence to be trifling but did find that “other proper cause” existed to reduce the number of points.
Counsel for the appellant contended that the submission that the offence was trifling had not been abandoned and also noted that his client was not called upon to elect whether the submission that the demerit points should be reduced was being made on the basis that the offence was trifling or that there was other proper cause.
Counsel for the appellant relied upon Newton v Larcombe[1] and Chan v Police[2] to support a submission that a finding that an offence was trifling would warrant a greater reduction in demerit points than a finding of “other proper cause”.
[1] (1989) 38 A Crim R 254.
[2] [2014] SASC 35.
In Newton v Larcombe,[3] after reviewing a number of authorities, White J noted:
In all of these cases, there were special circumstances which rendered the offence not quite trifling but sufficiently atypical to warrant a merciful reduction of the points, usually so as to avoid disqualification for example, the traffic was very light, the speedometer was not working, the excess over the speed limit was slight, there had been no dangers to others, and so on.
[3] (1989) 38 A Crim R 254 at 256.
In similar vein in Chan v Police[4] Blue J noted:
While “proper cause” refers to something which is not quite trifling, there are no closed cases. It is ultimately a matter of judgment, in light of the circumstances of the case, as to whether a reduction of demerit points is warranted on the basis of “other proper cause”.
[4] [2014] SASC 35 at [23].
There is nothing in the text of s 98B(4) to suggest that a finding that an offence is trifling should necessarily attract a greater reduction in the number of demerit points than a finding that other proper cause exists.
The judgments in Newton v Larcombe and Chan v Police also do not provide support for the interpretation pressed by counsel for the appellant. In both of those cases the Court was simply noting that, even though the circumstances did not render the offence trifling, a finding of “other proper cause” was still open.
It was immaterial whether the magistrate reduced the demerit points because he found that offence was trifling or because he concluded that other proper cause existed.
In case I am wrong about that issue, I will consider whether the magistrate erred by not finding that the offence was trifling.
Whether or not an offence is trifling involves a finding on a question of fact and the characterisation of a state of affairs rather than an exercise of a judicial discretion.[5]
[5] See Roberts v Police [2013] SASC 190 at [17]; Police v Ludlow [2008] SASC 43; (2008) 181 A Crim R 235.
When the word “trifling” appears in an ameliorative provision, it means “being of slight importance, insignificant or of little moment”.[6] A number of factors have been identified as being relevant in determining whether an offence is trifling. These include:
·The fact that an offence is serious does not, of itself, preclude a finding that in the particular case it is trifling;
·A typical or normal example of the offence will generally not be trifling;
·Ordinarily there should be a soundly based belief in the lawfulness of the impugned conduct;
·The court must have regard to the purpose behind the obligation to observe the statutory requirement; and
·A deliberate breach will rarely be trifling except where humanitarian considerations or urgency arises.[7]
[6] Siviour-Ashman v Police [2003] SASC 29 at [24]; (2003) 85 SASR 23 at 27 (Doyle CJ; Besanko J concurring).
[7] Roberts v Police [2013] SASC 190 at [17]; Chan v Police [2014] SASC 35 at [21].
Counsel for the appellant has submitted that the magistrate should have found that the offence was trifling because:
·The offence was of slight importance, no collision occurred and there was no embarrassment to other road users;
·While the offence was classified as “reasonably serious” by the magistrate, that does not preclude a finding that it was trifling;
·The offence was not a normal or typical offence of its type for the following reasons:
-The short distance between Portrush Road and the intersection with Wellington Street and Thornton Street resulted in the appellant having far less time than usual to assess the situation before commencing to turn;
-Because the angle of movement from Portrush Road to Wellington Street was greater than 90° that would inevitably cause cars coming off Portrush Road onto Wellington Street to move at a higher speed than if the turn had been one of 90°;
-The preceding two factors allowed for the possibility that the road had been clear when the appellant commenced his manoeuvre as he had stated in his evidence; and
-There was an illegally parked car that impeded his view of the relevant area of the road;
·As the appellant looked both ways for other traffic and the road was clear, he held a soundly based belief as to the lawfulness of his conduct;
·For this latter reason there was not a large departure from the required standard of conduct;
·The conduct was not a sustained example of the offence;
·The incident was inadvertent and not a wilful failure to obey the road rules; and
·There was a need to exercise “rapid judgment” which arguably lessened the appellant’s culpability.
I reject the submission that the magistrate should have found that the offence was trifling The finding by the magistrate that there were aspects of the appellant's driving which were quite poor and that he had failed to pay sufficient attention provided a proper basis for him to conclude that the offence was not trifling. I also note that the assertion that the road was clear when the appellant entered the junction is inconsistent with his plea of guilty to the charge of failing to give way.
Was the sentence vitiated by a procedural error?
Counsel for the appellant relied upon the judgment of Denning LJ in Jones v National Coal Board[8] to submit that it is not the role of a judge or magistrate to conduct all of the questioning of a witness. Counsel also referred to the importance of a judge avoiding having “his vision clouded by the dust of conflict”.[9]
[8] [1957] 2 QB 55.
[9] Yuill v Yuill [1945] 1 All ER 183.
While acknowledging the pressures placed upon magistrates presiding over very busy general lists, counsel submitted that the magistrate had usurped the critical role of defence counsel and thereby vitiated the sentencing process.
While it would have been preferable for counsel to have conducted the examination in chief, in the particular circumstances, for the reasons that follow I reject the contention that the procedure adopted by the magistrate vitiated the sentencing process.
The appellant had entered a plea of guilty. His sworn evidence in support of the application under s 98B(4) was not disputed by the prosecutor. There was no objection by counsel to the procedure followed by the magistrate, nor did counsel seek to ask any additional questions of the appellant. For these reasons, I do not consider that the magistrate “descended into the dust of the arena”.
The magistrate was clearly seeking to ensure that the information referred to by counsel in his opening submissions was received on oath as required by s 98B(4). I infer that the magistrate considered that he was best equipped to inform himself as rapidly as possible of the matters relevant to the decision required under s 98B(4).
The requirement under s 98B(4) that an application for a reduction in demerit points be supported by sworn evidence was met. In that respect the circumstances can be distinguished from Roberts v Police[10] where unsworn evidence had been given and Black v Police[11] where the defendant was denied the opportunity to give sworn evidence.
[10] [2013] SASC 190.
[11] [2009] SASC 115.
Most significantly, as discussed at paragraph [40] below, the appellant has not identified any evidence that he could have given if counsel had conducted the examination that may have made a difference to the magistrate's decision.
The proper presentation of the appellant’s case was impeded
As an alternative to the submission that the procedure adopted by the magistrate had, of itself, vitiated the sentence, the appellant also submitted that a miscarriage of justice had occurred. The source of that miscarriage was said to be the failure of the magistrate to provide counsel with an opportunity to examine the appellant. That disrupted the full and proper presentation of his case.
In support of this latter submission counsel has referred to the judgment of the Full Court in R v T, WA.[12] The three grounds identified by the Full Court in determining whether there has been a miscarriage of justice were:
(a)The questioning unfairly undermines the proper presentation of a party’s case (the disruption ground);
(b)The questioning gives an appearance of bias (the bias ground); and
(c)The questioning is such an egregious departure from the role of the judge presiding over an adversarial trial that it unduly compromises the judge’s advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground).
[12] [2014] SASCFC 3; (2014) 118 SASR 382.
The appellant submitted that the considerations identified by the Full Court in R v T, WA should apply to a sentencing hearing where sworn oral evidence is to be given. Counsel submitted that the appellant was not given the opportunity to ask questions that would have elicited evidence from the appellant about the following matters in support of his application:
(a)That there was no sign or line on the road directing a driver to give way;
(b)The experience of the appellant as to the increased speed in which cars come off the intersection with Portrush Road and turn on to Wellington Street due to the road conditions in the area; and
(c)The order in which the appellant directed his vision so as to check that the road was clear at the time of those movements.
Counsel for the appellant also complained that at one point in the taking of evidence the magistrate had directed the appellant to agree with the question asked by the magistrate. I do not consider that interpretation to be correct. The magistrate asked a clearly leading question about the movement of the appellant’s vehicle into the path of the police vehicle and asked whether the appellant agreed. The appellant corrected and enlarged upon two aspects of the statement put to him by the magistrate. The magistrate then asked again whether the statement he had put to the appellant was correct. The appellant then agreed. I do not consider that the magistrate was directing the appellant what answer he was to give but rather asking leading questions. The correction and enlargement by the appellant of his answer suggests that he was not overborne by the magistrate.

I have already noted that counsel for the appellant did not object to the approach adopted by the magistrate and did not seek to ask additional questions at the conclusion of the examination by the magistrate. If there were additional matters that counsel considered significant to the appellant’s case, they could have been pursued.
In any event, for the reasons that follow, the additional evidence referred to by counsel for the appellant was either before the magistrate or not relevant.
While the magistrate did not ask the appellant whether there was a line on the road or a sign directing drivers to give way, this information was before the magistrate in two separate ways. The absence of a sign or line was plainly apparent in the three Google map photographs tendered by the prosecutor. More importantly, the complaint made by the police on 26 March 2014 specifically stated that the intersection of Thornton Street and Wellington Street did not have a give way sign or give way line. That particular was not varied in the complaint as amended on appeal under s 181 of the Summary Procedure Act.
It is clear from the reasons of the magistrate where he stated “the police vehicle had turned into his path reasonably quickly because of the manner in which the road is set up” that he was aware of the difficulties for drivers caused by the road configuration. The magistrate relied upon the unusual road layout as the basis to reduce the number of demerit points. In that light I do not consider that examination conducted by counsel could have added anything to the facts taken into account by the magistrate.
The appellant’s case would not have been assisted by evidence that he was particularly aware of the risk that vehicles may enter Wellington Street at speed from Portrush Road because of the obtuse angle. That knowledge may have been a consideration weighing against a reduction in the number of demerit points as it would have suggested that he was aware of the need to take particular care because of the configuration of the intersection.
I do not consider that evidence as to the order in which the appellant had looked in order to check the road was clear could have made any difference to the magistrate's decision. The magistrate specifically found that the appellant “seemingly looked both ways and thought the road was clear”. That finding, combined with the finding to which I have already referred about the speed of the police vehicle, indicates that the magistrate was fully aware of the relevant facts and circumstances. The obligation lay upon the appellant to ensure that the road was clear before he entered the junction. The direction in which he chose first to look could not have made a difference as to whether the offence was trifling or whether proper cause existed to reduce the number of points and the extent of any such reduction.
I also note that an assertion by the appellant that Wellington Street was clear of other vehicles at the time he entered the intersection would not have been consistent with his plea of guilty. It would have been necessary for that plea to be set aside and the matter remitted for trial. The plea of guilty precluded the magistrate from considering the possibility that Wellington Street had been clear when the appellant entered the intersection.
For these several reasons I reject the submission by counsel for the appellant that the presentation of his case was unfairly impeded by the approach adopted by the magistrate. I do not consider that any of the three additional matters referred to by counsel support that contention.
Conclusion
In the particular circumstances, while it would have been preferable for counsel to conduct the examination of the appellant, I do not consider that the approach adopted by the magistrate vitiated the sentence or otherwise led to a miscarriage of justice. I dismiss the appeal.