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…

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 ROBERTSON v Police

Details

AGLC: ROBERTSON v Police [2015] SASC 13
Case: [2015] SASC 13
Decision Date: 6 February 2015

CaseChat Overview and Summary

In the case of Robertson v Police, the appellant contested the magistrate's decision to not reduce the number of demerit points associated with his conviction for failing to give way at an unsigned intersection. The appellant pleaded guilty to the offence, which carried a maximum penalty of a fine not exceeding $2,500 and three demerit points. The appeal focused on the magistrate's handling of the application to reduce the demerit points, particularly the magistrate's decision to take sworn evidence from the appellant directly, rather than having this done by the appellant's counsel.

The central legal issue was whether the magistrate's direct examination of the appellant constituted an unfair impediment to the presentation of the appellant's case. The appellant's counsel argued that this approach was inappropriate and potentially prejudicial, as it deviated from the usual procedure where counsel conducts the examination of the defendant. The court had to determine whether this deviation affected the fairness of the proceedings or led to a miscarriage of justice.

The court found that the magistrate's approach did not unfairly impede the appellant's case. It held that the appellant's counsel did not object to the procedure or the questions asked, and there was no evidence suggesting the magistrate prevented any further questioning. Furthermore, the prosecutor did not seek to cross-examine the appellant. The court concluded that while it would have been preferable for counsel to conduct the examination, the magistrate's direct examination did not vitiate the sentence or result in a miscarriage of justice. Therefore, the appeal was dismissed.

The final orders of the court were to dismiss the appeal and uphold the magistrate's decision not to reduce the number of demerit points associated with the appellant's conviction.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PARKER J

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.

Ratio Decidendi

Legal Principle Established

Established by: PARKER J

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