Rogers v Police - [2011] SASC 215

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ROGERS v POLICE
[2011] SASC 215
Judgment of The Honourable Justice White
8 December 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE
The appellant was convicted of driving in a manner dangerous to the public and driving on a road whilst suspended from doing so - prosecution sought forfeiture of his car under the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (the Impounding Act) - the Magistrate rejected the appellant's submission that forfeiture would cause severe physical or financial hardship and ordered the forfeiture - the car had been obtained by the appellant following the commission of the offences, but before his convictions.
Whether Part 3 of the Impounding Act applied to the appellant's convictions; whether the appellant's acquisition of the car after the commission of the offences meant that s 13(1)(b) of the Impounding Act applied so as to enliven the Magistrate's discretion to decline to make the forfeiture order; whether the Magistrate was correct in failing to hold that the making of the forfeiture order would cause severe financial or physical hardship to the appellant.
Held: appeal allowed - providing that the other elements specified in s 11 of the Impounding Act are established, Part 3 of that Act applies to a conviction for a prescribed offence if the defendant used a vehicle which was lawfully in his or her possession in the commission of a prescribed offence, or if the defendant is the owner of a vehicle at the time of the conviction - there is no requirement for continuity of ownership between the time of the commission of the offence and the time of the conviction - Magistrate's conclusion as to hardship correct - however, as the appellant's car was owned by a third party at the time of the offence, and that third party did not know of, or consent to, the offending, the discretion under s 13(1)(b) of the Impounding Act was enlivened - although the appellant had not relied upon s 13(1)(b) before the Magistrate, it was open to him to do so on appeal - the discretion with respect to forfeiture should be re-exercised - order for forfeiture set aside.
Road Traffic Act 1961 (SA) s 46; Motor Vehicles Act 1959 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s3, s 12, s 13; Statutes Amendment (Misuse of Motor Vehicles) Act 2004 (SA); Summary Offences Act 1953 (SA) Pt 14A; Acts Interpretation Act 1915 (SA) s 22; Aged and Infirm Persons Property Act 1940 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) (Miscellaneous) Amendment Act 2009 (SA); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA) reg 4; Supreme Court Civil Rules 2006 (SA) r 78, r 79, referred to.
Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1984) 191 CLR 404; David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; Perovic v Police [2011] SASC 174, considered.

ROGERS v POLICE
[2011] SASC 215
Magistrates Appeal

WHITE J. On 31 March 2011, and after a trial, a Magistrate sentenced the appellant for two offences: driving in a manner dangerous to the public[1] and driving on a road whilst suspended from doing so.[2] Both offences were committed on 30 May 2009.
[1] Contrary to s 46(1) of the Road Traffic Act 1961 (SA).
[2] Contrary to s 91(5) of the Motor Vehicles Act 1959 (SA).
The Magistrate recorded convictions on both counts and required the appellant to enter into a bond to be of good behaviour for a period of three years. The Magistrate also disqualified the appellant from holding or obtaining a driver’s licence until further order.
At the same time, the Magistrate made an order under s 12(1) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (the Impounding Act) that the appellant’s 2009 model Toyota sedan be forfeited to the Crown.
The appellant appeals against the order for forfeiture. There is no appeal against the remaining elements of the Magistrate’s orders.
The Impounding Act
The Impounding Act was amended by the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) (Miscellaneous) Amendment Act 2009 which came into operation on 31 October 2010. Apart from ss 20 and 21, it is the Impounding Act in its unamended form which applies in this case, as the appellant’s offences were committed on 30 May 2009.
By s 12 of the Impounding Act, a court is obliged, subject to s 13, to order the forfeiture of a vehicle if the circumstances described in that section exist. Section 12 provides:
(1)Subject to section 13, if this Part applies to a conviction for a prescribed offence, the court that records the conviction must, on the application of the prosecution—
(a) order—
(i)if the convicted person has, during the period of 10 years immediately preceding the date of the offence, been found guilty of, or expiated, 1 other prescribed offence—that the motor vehicle specified in the application be impounded by the relevant authority for a period not exceeding 3 months; or
(ii)if the convicted person has, during the period of 10 years immediately preceding the date of the offence, been found guilty of, or expiated, 2 other prescribed offences—that the motor vehicle specified in the application be impounded by the relevant authority for a period not exceeding 6 months; or
(iii)if the convicted person has, during the period of 10 years immediately preceding the date of the offence, been found guilty of, or expiated, 3 or more other prescribed offences—that the motor vehicle specified in the application is forfeited to the Crown; and
(b) …
…
(4)A court making an order under this section may make any consequential or ancillary order or direction that it considers necessary or expedient in the circumstances of the case.
(5)If a court makes an order for the impounding or forfeiture of a motor vehicle under this section, the relevant authority is authorised to seize the motor vehicle and deal with it in accordance with this Act and the requirements (if any) specified in the order.
For the purposes of the present case, it is s 12(1)(a)(iii) which is pertinent.
Each of the offences for which the Magistrate recorded convictions on 31 March 2011 is a prescribed offence.[3] Further, the appellant had been found guilty of four other prescribed offences (all driving while his licence was suspended) committed in 2008. Thus, if Part 3 of the Impounding Act was applicable, then, subject to s 13, the Magistrate was bound to order the forfeiture of the appellant’s Toyota, that being the vehicle specified in the prosecution application.
[3] See the definition of “prescribed offence” in s 3(1) of the Impounding Act and reg 4 of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (SA).
Section 13 of the Impounding Act vests a discretion in a court, in limited circumstances, to decline to make a forfeiture order:
(1)A court that records a conviction to which this Part applies may decline to make an order under this Part if satisfied that—
(a)     the making of the order would cause severe financial or physical hardship to a person; or
(b)     the offence occurred without the knowledge or consent of any person who was an owner of the motor vehicle at the time of the offence; or
(c)     the making of the order would significantly prejudice the rights of a credit provider; or
(d) the motor vehicle the subject of the application is a motor vehicle referred to in section 11(c)(i) and has, since the date of the offence, been sold to a genuine purchaser or otherwise disposed of to a person who did not, at the time of the sale or disposal, know or have reason to suspect that the motor vehicle might be the subject of proceedings under this section.
(2)     If—
(a)     a court declines to make an order under this Part; and
(b)     the court is satisfied that it would be reasonably practicable for the convicted person to instead perform community service, the court must order the convicted person to perform not more than 240 hours of community service.
(3)An order to perform community service under subsection (2) must be dealt with and enforced as if it were a sentence of community service (and in any enforcement proceedings the court may exercise any power that it could exercise in relation to a sentence of community service).
It can be seen that a court’s discretion to decline to make a forfeiture order is enlivened only if the court is satisfied of one or other of the factual circumstances enumerated in sub-pars (a)-(d).
Both ss 12 and 13 refer to convictions to which Part 3 of the Impounding Act applies. Section 11 of the Impounding Act identifies those convictions. It provides:
This Part applies to a conviction for a prescribed offence if—
(a)     the offence was committed after the commencement of this Part; and
(b)     the convicted person has, during the period of 10 years immediately preceding the date of the offence, been found guilty of, or has expiated, at least 1 other prescribed offence; and
(c)     either—
(i)a motor vehicle was used by the convicted person in the commission of the offence and that motor vehicle was not, at the time of the offence, stolen or otherwise unlawfully in the possession of the person or being used by the person in circumstances (if any) prescribed by regulation; or
(ii)    the convicted person is a registered owner of a motor vehicle.
The Impounding Act came into operation on 16 December 2007 and, as noted, the offences committed by the appellant on 30 May 2009 were prescribed offences. The appellant also had other convictions for prescribed offences within the period of 10 years immediately preceding 30 May 2009.
The appellant did use a motor vehicle in the commission of the offences on 30 May 2009. Further, the appellant was the registered owner of the Toyota on 31 March 2011, although it had been acquired by him only after the commission of the offences on 30 May 2009.
The Magistrate’s Decision
At the hearing before the Magistrate, the appellant accepted that Part 3 of the Impounding Act applied to his convictions. He sought to resist forfeiture of the Toyota by reference to s 13(1)(a), contending that the making of the order would cause him severe financial or physical hardship. The Magistrate was not satisfied that the order would result in such hardship.
Appointment of a Litigation Guardian
The appellant was represented by counsel (Mr D’Angelo) in the proceedings before the Magistrate. The firm of D’Angelo Kavanagh commenced the appeal in this Court on the appellant’s behalf. However, the appellant represented himself on the hearing of the appeal, having terminated the instructions of D’Angelo Kavanagh shortly before the hearing.
Although the appellant is a former magistrate, it was very apparent that he had difficulties in representing himself on the appeal.
During the hearing of the appeal, the respondent provided to the Court a copy of Mr D’Angelo’s affidavit sworn on 30 March 2011. The original of this affidavit had been filed in the Magistrates Court, but was not on the Magistrates Court file provided to this Court in relation to the appeal.
The appellant also tendered a medical certificate from his general practitioner, Dr Anderson, dated 8 September 2011. Dr Anderson certified as follows:
This is to certify that Mr Kevin Rogers is a long-term patient of mine. He has cerebral palsy and also has a clear cut diagnosis of cognitive difficulty which has been formally assessed by a neuro-psychologist. This makes him behaviourally challenging. He becomes very agitated in stressful situations and struggles in crowds and queues. Because of these issues he is absolutely reliant on his carers and is also dependent on having a car so that his carers can transport him. This is critical to his everyday function and should be absolutely supported as far as possible. It is highly likely that these behavioural issues will be progressive and the importance of transport with his carers will be even more important in the future.
In his affidavit, Mr D’Angelo referred to the concerns which he held as to the appellant’s ability to instruct him in relation to the proceedings in the Magistrates Court and to investigations which he had attempted to make by way of investigation of the appellant’s capacity. He exhibited to his affidavit a short letter from Dr Raeside, the forensic psychiatrist, in which Dr Raeside said:
[O]n the basis of further information received I have serious concerns about your client’s cognitive functioning and consider he requires neuro-psychological assessment to assess for cognitive impairment and its impact on his fitness to instruct, fitness to plead and mental competence.
Mr D’Angelo deposed that he had been unable to obtain instructions from the appellant for a neuro-psychological assessment as recommended by Dr Raeside.
The Magistrate’s reasons indicate that she too had concerns about the appellant’s cognitive functioning.
Having reserved my decision on the appeal, I reflected on those materials. I then listed the matter again in order to receive submissions as to whether a litigation guardian should be appointed for the appellant under rr 78 and 79 of the Supreme Court Civil Rules 2006, which govern the present appeal.
On 11 October 2011, acting on the Court’s own initiative and under r 79(3) of the Supreme Court Civil Rules 2006, I appointed the Public Advocate as litigation guardian for the appellant in relation to the present appeal. Subsequently, the Public Advocate retained Mr D’Angelo to make further submissions on behalf of the appellant.
Issues on the Appeal
The appeal gives rise to the following issues:
(1)Does Part 3 of the Impounding Act apply to the convictions of the appellant on 31 March 2011?
(2)If so, did the circumstances contemplated by s 13(1)(b) of the Impounding Act apply so as to enliven a discretion in the Court to decline to make the forfeiture order sought by the prosecution?
(3)Was the Magistrate correct in refusing to hold that the making of the forfeiture order would cause severe financial or physical hardship to the appellant?
(4)If either of issues (2) or (3) are resolved in the appellant’s favour, what order should be made to dispose of the appeal?
The first two issues arise from the circumstance that the vehicle of which the prosecution sought the forfeiture was acquired by the appellant only after the commission of his offences on 30 May 2009. As a result of the collision caused by the appellant’s manner of driving on that day, his vehicle was damaged beyond repair. The appellant claimed indemnification from his insurer. The prosecutor deposed that the appellant was provided with a replacement vehicle (the Toyota) which was registered in his name on 2 July 2009. It was this vehicle which was the subject of the prosecution application for forfeiture.
Does Part 3 of the Impounding Act Apply to an After Acquired Vehicle?
As noted above, it is s 11 which stipulates the convictions to which ss 12 and 13 apply.
A number of features of s 11 should be noted. Section 11 makes Part 3 applicable to a conviction for a prescribed offence having regard to certain features of the offence itself and of the defendant. First, the offence for which the conviction was recorded must have been committed after the commencement of Part 3 (16 December 2007). Secondly, the convicted person must have been found guilty of, or expiated, at least one other prescribed offence in the period of 10 years immediately before the subject offence.
The next requirements are expressed as alternatives. Either the convicted person used a motor vehicle which was lawfully in his or her possession in the commission of the offence (s 11(c)(i)), or the convicted person is a registered owner of a motor vehicle (S 11(c)(ii)). The contrast in language between the past tense “was” in s 11(c)(i) and the present tense “is” in s 11(c)(ii) appears to be significant. It suggests that the former is looking backwards to a circumstance of the commission of the offence, whereas the latter is directed to a circumstance existing at the time of the conviction. If the legislature had wished to indicate that it was ownership of a vehicle at the time of the commission of the offence, even if not used in the offence, which could attract the operation of Part 3, it would have been more natural for it to have used the past tense “was” in s 11(c)(ii). There is also some awkwardness in construing the present tense “is” as a reference to a state of affairs which existed at an antecedent time.
The structure and language of s 11 indicates that an offence may be prescribed for the purpose of the Impounding Act even though its commission did not involve the use of a motor vehicle at all. This is implicit in the alternatives contained in s 11(c), and there is nothing in the definition of “prescribed offence” in s 3(1) to indicate that it is confined to offences involving the use of a motor vehicle only. This is consistent with an intention that an order for forfeiture under the Impounding Act may have both a punitive and an incapacitating effect on offenders.
Although s 11 of the Impounding Act specifies the convictions to which ss 12 and 13 apply, there is no express identification of the vehicle which may be made the subject of a forfeiture order under s 12. Each of the sub-paragraphs in s 12(1)(a) refer only to the “motor vehicle specified in the application”. It could be said that s 12(1) enables the prosecution to identify any vehicle it chooses, regardless of its connection to the defendant, to be the subject of the application.
However, in my opinion, s 12 should be read in conjunction with s 11, with the effect that an application may be made for the forfeiture of a vehicle used in the commission of an offence (whether owned by the defendant or not) or of any other vehicle owned by the defendant. It is natural to understand the latter as referring to a vehicle owned by the defendant at the time of the conviction, as there would be some absurdity in understanding the Act as requiring a court to order the forfeiture of a vehicle which is neither owned by the defendant nor used by the defendant in the commission of the prescribed offence.
A further indication that s 11(c)(ii) is not to be understood as referring to a vehicle owned by the defendant at the time of the commission of the offence is seen in s 13(1)(d). That subsection refers only to s 11(c)(i). If s 11(c)(ii) was to be understood as referring to the defendant’s ownership of a vehicle at the date of the commission of the offence, it is reasonable to suppose that it too would have been mentioned in s 13(1)(d) so as to allow for the possibility that a defendant may have disposed of the vehicle between the date of the offence and the date of conviction.
On this understanding, I consider that, providing that the elements specified in s 11(a) and (b) are established, Part 3 of the Impounding Act will apply to a conviction for a prescribed offence if the defendant used a vehicle which was lawfully in his or her possession in the commission of a prescribed offence, or if the defendant is the owner of a vehicle at the time of conviction. There is no requirement for continuity of ownership between the time of the commission of the offence and the time of conviction. Accordingly, s 11(c) is capable of being satisfied if the defendant acquires a vehicle after the time of the commission of the prescribed offence, but before the time of conviction.

This means that the Impounding Act is capable of producing arbitrary results with harsh consequences. A person who acquires a vehicle voluntarily or involuntarily (eg, by bequest) before being reported and charged for an offence and who maintains ownership of the vehicle until the time of conviction is liable to have it forfeited, but a person who defers the acquisition of a replacement vehicle until after conviction for a prescribed offence will avoid forfeiture. Other examples of arbitrary results could be given.
Nevertheless, I consider that provided that the other circumstances stipulated in s 11 are established, Part 3 of the Impounding Act is applicable to the convictions of defendants who have acquired a vehicle after the commission of the prescribed offence in question.
The prospect that arbitrary consequences may occur suggests that the ameliorative powers granted to the Court under s 13 ought not be construed narrowly.
The Application of s 13(1)(b) – Absence of Knowledge of Owner
As seen above, s 13(1)(b) empowers a court recording a conviction to which Part 3 applies to decline to make an order for forfeiture if satisfied that “the offence occurred without the knowledge or consent of any person who was an owner of the motor vehicle at the time of the offence”.
The appellant did not rely upon this provision before the Magistrate. He contended only that the forfeiture would cause him severe financial or physical hardship as contemplated by s 13(1)(a).
On the hearing of the appeal, the Court raised the possibility that s 13(1)(b) may also be applicable in the appellant’s circumstances because the owner of the Toyota on 30 May 2009, whoever it was, could not have known of the appellant’s conduct. Following the appointment of the Public Advocate as the appellant’s litigation guardian, Mr D’Angelo adopted this position.
The offence to which s 13(1)(b) refers must be the prescribed offence, the commission of which is relied upon for the Court ordered forfeiture under s 12. On its face therefore, s 13(1)(b) authorises a court to decline forfeiture of a vehicle in any circumstance in which the defendant committed the prescribed offence without the knowledge or consent of any person who was an owner of the motor vehicle at the time of the offence. In most cases in which a defendant had acquired the vehicle which is the subject of the application only after the commission of the prescribed offence, the previous owner will not have had any knowledge of, nor consented to, the commission of that offence.
Of course, that is not the only circumstance to which s 13(1)(b) may apply. It is also capable of referring to a person who was a co‑owner with the convicted person of the motor vehicle at the time of the offence, and to persons who have lent or hired the vehicle used by the defendant in the commission of the offence.
The respondent argued that s 13(1)(b) should be understood as referring to circumstances of the latter kind only. This was consistent, it was submitted, with what was said in the Second Reading Speech for the Statutes Amendment (Misuse of Motor Vehicles) Bill 2004 which led to the introduction of Part 14A of the Summary Offences Act 1953 (SA). Part 14A was a predecessor to the provisions in the Impounding Act. That Second Reading Speech indicates that the purpose of s 13(1)(b) was to provide some means of protection for an “innocent” owner.
The respondent then submitted that effect should be given to this purpose by applying s 22 of the Acts Interpretation Act 1915 (SA). Section 22 requires a court to adopt a purposive approach to issues of statutory construction. Section 22(1) provides:
Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
In my opinion, the purposive approach to statutory interpretation has limitations in the present context. In the first case, resort to the Second Reading Speech for the Impounding Act itself[4] indicates that the principal purpose of the Impounding Act was to be a deterrent to “hoon driving and associated offending”.[5] The then Attorney-General referred to the Government’s 2006 “election pledge on hoon driving”. He said that the Impounding Act would add “further deterrence to hoon driving and associated offending and [enhance] the powers of the police and the courts to deal with vehicles in response to such offending …”. It is questionable that construing s 13(1)(b) as not applying to an owner who has, since the commission of the prescribed offence, disposed of the vehicle to the convicted person would promote that purpose.
[4] Hansard, House of Assembly, 1 May 2007, p 31.
[5] Ibid.
Further, it is not readily apparent that the construction of s 13(1)(b) in a way which would enable the exercise of the ameliorative powers in cases in which the stringent application of s 12 may produce unjust results could be said not to promote the purposes of the Impounding Act.
Further still, it is the words of s 13(1)(b) which must be construed. It is not easy to construe its language so as to include an innocent co-owner, lender or hirer on the one hand, but to exclude an innocent former owner, on the other.
In my opinion, there is no reason to construe s 13(1)(b) narrowly. The High Court has observed on more than one occasion that it is “quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”.[6] That is an appropriate approach to adopt in the present case.
[6] Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1984) 181 CLR 404 at 421. See also the observation of Gummow J in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 275.
For these reasons, I consider that the Magistrate’s discretion to decline to order forfeiture was enlivened by s 13(1)(b). Although the appellant did not rely on that provision in the proceedings in the Magistrates Court, the respondent did not contend that it was now too late for him to do so. In particular, the respondent did not contend that any further evidence could have been led in the Magistrates Court if it had known then that the appellant also relied upon s 13(1)(b).
As the Magistrate did not consider s 13(1)(b) at all, the exercise of the power under s 13 of the Impounding Act to decline to order a forfeiture should be reconsidered.
Section 13(1)(a) – Severe Financial or Physical Hardship
In the light of my conclusion concerning s 13(1)(b), it is not necessary, strictly speaking, to consider the appellant’s submissions concerning s 13(1)(a). However, in case this matter goes further, I will do so.
As noted earlier, the Magistrate rejected the appellant’s submission that the forfeiture of his vehicle would cause him severe physical or financial hardship. Her Honour noted that the appellant is a former magistrate and continued:
[I]n the present circumstances there is nothing before me to satisfy me that the effect of this order would result in severe financial hardship or physical hardship to Mr Rogers. One would expect that he is a man of at least average means and that he would be in a position to use alternative transportation if the need arises.
I regard the option of an order that he perform community service as impractical, and in [saying] that I bear in mind the fact that here is a man with some physical and mental incapacities at this time. I have not been provided with any information which would encourage me to believe that an order for community service would be appropriate in the present case.
A finding that a forfeiture order would cause severe financial or physical hardship is a conclusion of fact. It is a finding which can be made only after a consideration of the evidence put before a court, whether formally or informally, and after consideration of any relevant submissions. It is the defendant who has the onus of establishing that forfeiture in his or her case would cause severe financial or physical hardship.
In Perovic v Police,[7] I made a number of observations concerning the concept of severe financial or physical hardship in s 13(1)(a). I will not repeat those observations. It is however appropriate to emphasise that it is incumbent upon a defendant who asks a court to decline to make the otherwise mandatory order for forfeiture on the grounds of severe financial or physical hardship to adduce the evidence necessary to satisfy the Court of that consequence. This will usually require evidence of the defendant’s assets and income. Evidence of that kind was lacking in the present case.
[7] [2011] SASC 174.
In these circumstances, the Magistrate’s conclusion concerning the application of s 13(1)(a) is very understandable. There is no basis upon which to conclude that the Magistrate’s decision concerning s 13(1)(a) was erroneous.
Disposition of the Appeal
At one stage I was inclined to think that if s 13(1)(b) was applicable in the present case, it would be appropriate for the matter to be remitted to the Magistrate for her to reconsider whether forfeiture should be declined. I consider that there would be no impediment to doing this because, to‑date, the Magistrate has not considered at all the wider discretion available to her under s 13(1)(b).
However, the appellant submitted that this Court should itself exercise the power under s 13. Although I have some reservations about this course, I am prepared to do so. There is a public interest, as well as the appellant’s personal interest, in bringing these proceedings to finality in the near future
The discretion enlivened by s 13(1)(b) is broader than that enlivened by s 13(1)(a). Whilst account can be taken of hardship to the defendant, that hardship does not necessarily have to be of the kind specified in s 13(1)(a). Account may also be taken of other considerations personal to the defendant. An appropriate exercise of the discretion enlivened by s 13(1)(b) in the circumstances of this case is not easy. This is a sad case and, in many respects, of an exceptional kind.
The appellant is not a hoon driver in the commonly understood sense of that term. He previously served as a magistrate for many years, and in a number of other ways has provided valuable and responsible service to the community. It seems that the prosecution application for the forfeiture of his vehicle was prompted by the appellant’s irrational behaviour in persisting in asserting his entitlement to drive despite the fact that his driver’s licence has been suspended. By reason of his cognitive and physical infirmities, the appellant is now a danger to other road users. The prosecution is concerned that action should be taken to protect the public from the appellant’s driving and has sought to achieve that by removing his vehicle, ie, by imposing a form of incapacitation.
The prosecution concerns are well justified. In early December 2007, the appellant was served with a notice from the Registrar of Motor Vehicles informing him that his licence was, under s 80(2a)(e) of the Motor Vehicles Act 1959, suspended. The Registrar did, however, grant the appellant a temporary driving permit to enable him to undergo a second driving test. The appellant underwent that test on 14 December 2007, but failed it. This had the consequence that the suspension of his driving licence remained in force after the expiry of the temporary driving permit on 5 January 2008.
Despite this, the appellant has continued to drive vehicles on a road. He has been the driver of a vehicle involved in collisions, albeit seemingly minor, on three separate occasions in 2008: 31 January 2008, 5 April 2008 and 9 April 2008. The appellant pleaded guilty in the Magistrates Court on 19 December 2008 to charges arising out of these incidents. A magistrate convicted him, imposed a fine of $1,000 and suspended the appellant from holding or obtaining a driver’s licence.
Despite being warned specifically that he was not permitted to drive, the appellant has continued to do so. He has made claims of a bizarre kind by way of justification. Amongst other things, the appellant has claimed that he had received a letter from the Magistrates Court informing him that his licence was no longer suspended; that he was told on a private occasion by Magistrates (his former colleagues) that they would “fix it”, and that they had done so by revoking the order of suspension; and by otherwise asserting that he was entitled by Court order to drive. It is quite understandable that the Magistrate rejected those explanations.
The collision in which the appellant was involved on 31 March 2009 was serious. On the Magistrate’s findings, the appellant drove on the incorrect side of Port Road, colliding head on with a vehicle travelling correctly on that road. This was a dangerous circumstance and could easily have resulted in very serious injuries to those involved.
As the appellant has refused to undergo a neuropsychological assessment, one cannot be certain as to the extent and quality of his current cognitive functioning. The indications are, however, that there has been a deterioration and that this explains the appellant’s erratic and bizarre behaviour (not all of which has been described in these reasons).
However, the forfeiture of the Toyota in these circumstances is a rather blunt instrument by which to achieve the purposes sought by the prosecution. Amongst other things, the order would not remove the possibility of the appellant obtaining another vehicle and, if so minded, continuing to drive.
It is also apparent that the appellant has a number of carers upon whom he relies to drive him, using his own car, as necessary. The forfeiture of the Toyota would, at least for a time, preclude this occurring. Dr Anderson referred to the appellant’s needs in this respect in his certificate of 8 September 2011.
I consider that the harshness involved in the forfeiture of a virtually new vehicle, the appellant’s need for a vehicle so that his carers may drive him, and the bluntness of forfeiture in achieving the prosecution aims, indicate that, provided that the public may be protected by other means, forfeiture should be declined in this case.
It is not reasonably practicable for the appellant to perform community service. This is because of his physical and cognitive impairments. Accordingly, I am satisfied that it is not appropriate to make an order under s 13(2) of the Impounding Act requiring the appellant to perform community service.
Before leaving this issue, I record my view that it is inappropriate to regard s 13(2) as establishing community service as an “option” in lieu of forfeiture. Section 13(2) does not allow a court to choose between forfeiture and community service. Instead it imposes an obligation on a court in some circumstances when the court declines to make a forfeiture order. That is to say, a requirement that a defendant perform community service is consequential upon such an order when it is otherwise justified, rather than an alternative which may, by itself, justify a court declining to order forfeiture.
The appellant’s circumstances are such that it is appropriate for this Court to consider the possible application of the Aged and Infirm Persons Property Act 1940. Alternatively, it may be appropriate for the bond into which the appellant entered on 31 March 2011 to be varied, so as to insert conditions which would have the effect of limiting the appellant’s access to his vehicle. These are matters about which I would like to hear counsel further.
Summary
In summary, subject to appropriate protections in relation to the appellant’s use of his vehicle being put in place I consider that the appeal should be allowed and the order for forfeiture set aside. I will, however, defer making formal orders for the time being in order to give the parties an opportunity to consider these reasons and their implications. Those implications include the possible application of the Aged and Infirm Persons Property Act 1940 or a variation of the appellant’s bond.