SANDEMAN v Police

[2023] SASC 53

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

SANDEMAN v POLICE

[2023] SASC 53

Judgment of the Honourable Justice McIntyre 

14 April 2023

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS - OTHER MATTERS

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - CONVICTIONS OF TRAFFIC OFFENCES RELATING TO OTHER MATTERS - DEMERIT POINTS

The appellant pleaded guilty to a speeding offence, but he elected to be prosecuted for the purpose of applying to the Magistrates Court to reduce the number of demerit points incurred pursuant to s 98B(4) of the Motor Vehicle Act 1959 (SA). The application was refused by the Magistrate.

The appellant brought two grounds of review, namely that the learned Magistrate erred in the exercise of his discretion in refusing the appellant’s application for a reduction of demerit points and that the learned Magistrate failed to afford the appellant a fair hearing with respect to his application.

Held:

1.      Appeal dismissed.

Motor Vehicles Act 1959 (SA) pt 3B, ss 98B, 98BE; Australian Road Rules (SA) r 20; Magistrates Court Act 1991 (SA) s 42; Motor Vehicles Regulations 2010 (SA) sch 4, referred to.

Manuel v Police [2010] SASC 169; House v The King (1936) 55 CLR 499; Newton v Larcombe (1989) 38 A Crim R 254; Gilbert v Owen (1991) 14 MVR 235; Bialobrzeski v Police [2016] SASC 99; Chan v Police [2014] SASC 35; Muto-Henderson v Police [2017] SASC 139; Apostolakos v Police [2017] SASC 90, considered.

SANDEMAN v POLICE
[2023] SASC 53

Magistrates Appeal: Criminal

1. The appellant pleaded guilty to a speeding offence.  Ordinarily, his offending would attract a $300 expiation fee, but he elected to be prosecuted for the purpose of applying to the Magistrates Court to reduce the number of demerit points incurred from two to one.  The application was refused by the Magistrate on 2 December 2022.  The appellant appeals against that refusal.

2. For the reasons that follow, I dismiss the appeal.

   Background

3. The speeding offence occurred on 11 August 2021 on the Eyre Highway at Port Augusta West. The speed limit was 60 km/h. The appellant’s speed was measured at 69 km/h. At the time of the offence the appellant had incurred 12 demerit points and was subject to a licence condition that he be of good behaviour under s 98BE of the Motor Vehicles Act 1959 (SA) (MVA).

4. On 31 August 2021, the appellant elected to be prosecuted. Following negotiations, an Information was filed by the respondent on 16 November 2022, charging the appellant with driving at 69 km/h in a 60 km/h zone under r 20 of the Australian Road Rules (ARR).  The maximum penalty for this offence is a fine not exceeding $187.  In addition, the offence attracts two demerit points. On 2 December 2022, the appellant appeared before the Magistrate and pleaded guilty to the charge.  Subsequently, the appellant’s counsel made an application under s 98B(4) of the MVA (demerit point application).  The Magistrate refused the demerit point application, fined the appellant a sum of $50, and ordered him to pay a victims of crimes levy and costs of prosecution.  No conviction was recorded.

5. The appellant appeals under s 42 of the Magistrates Court Act 1991 (SA) (MCA) against the Magistrate’s decision to dismiss his demerit point application. He seeks orders that the appeal be allowed and that the Court find that there were proper grounds to reduce the demerit points to one.

   Notice of Appeal

6. The appellant’s notice of appeal discloses a single ground of appeal; that the Magistrate erred in not finding that the appellant established proper grounds in his evidence on oath in his demerit point application.  At the hearing, I granted leave to the appellant to add a second ground of appeal.  This second ground contends that the learned Magistrate failed to afford the appellant a fair hearing by not permitting his counsel to develop the evidence and submissions in a way that enabled the Magistrate to give them proper consideration.

   Ground 1 - The demerit point application

7. The South Australian demerit point scheme is enacted by part 3B of the MVA.  The number of demerit points incurred by drivers who contravene provisions of either the MVA or the ARR are prescribed in schedule 4 of the Motor Vehicles Regulations 2010 (SA) (Regulations).  In this case, the offence attracts two demerit points due to the operation of the Regulations and s 98B of the MVA.  The appellant had already incurred 12 demerit points and was subject to a licence condition that he be of good behaviour. The acquisition of two points would mean that the appellant would lose his driver’s licence.

8. Section 98B(4) of the MVA gave the Magistrate authority to reduce the number of demerit points incurred if he was satisfied by evidence on oath that the offence was trifling or that “any other proper cause” existed.  The appellant gave evidence on oath.  He did not contend that his offence was trifling.  Rather, he sought a reduction on the basis that “other proper cause” existed.  The appellant contends that the Magistrate misconceived the basis of his application.  He says that the Magistrate confined his consideration to the effect of a loss of licence upon the appellant, with little or no consideration given to other aspects of his evidence concerning the circumstances of the offending and the appellant’s state of mind at the time.

   Ground 2 - Was the demerit point application hearing procedurally unfair

9. The appellant further contends that the Magistrate failed to afford him a fair hearing because his counsel was not permitted to lead relevant evidence and make appropriate submissions due to the Magistrate’s interjections.  It is further argued that the Magistrate had pre-determined issues for consideration on the demerit point application such that he failed to consider all relevant factors in the exercise of his discretion.  The appellant abandoned a complaint of apprehended bias raised in written submissions and I do not consider that issue further.

   Application to adduce further evidence

10. The appellant seeks leave to adduce fresh evidence in the form of two affidavits.  His affidavit affirmed on 25 February 2023 and one of Mr Michael David Lloyd, his counsel in the Magistrates Court, sworn on 27 February 2023.  I admitted those affidavits provisionally for the purpose of determining the question of leave.

11. Section 42(4) of the MCA provides statutory power for the court to admit fresh evidence on appeal if the interests of justice so require. The statutory power is wide and requires the court to balance the interests of the public in the finality of litigation against the interests of justice in the case on appeal.[1] 

    [1]     Manuel v Police [2010] SASC 169 at [28].

12. The affidavit of the appellant contains material which is arguably relevant to both grounds of appeal.  I do not consider that it is appropriate to admit further evidence in relation to the first ground of appeal.  The appellant gave evidence at the hearing on that topic.  The additional information amounts to establishing the appellant’s general practice of relying on his vehicle’s cruise control to not exceed the relevant speed limit and that the road was a good bitumen road with no main intersections, junctions or entry points for driveways or dirt tracks.  These additional factors do not add greatly to the material adduced before the Magistrate and taken into account by him. They are not matters of such significance that their inclusion in the evidence at the primary hearing would have produced a difference in the exercise of the discretion.  Accordingly, it is not in the interests of justice to admit that additional evidence as “fresh evidence” on appeal in relation to the first ground.   The sole ground on which this affidavit could be admitted is the second ground of appeal, namely that the Magistrate did not afford the appellant or his counsel the proper opportunity to adduce that information or make those submissions contextualising the oral evidence adduced on the demerit point application.

13. The evidence in Mr Lloyd’s affidavit deals solely with the second ground of appeal.  Relevantly, it states that counsel was not afforded the opportunity to put to the Magistrate that the circumstances of the offending, combined with the speed alleged, would constitute proper grounds to reduce the demerit points to zero or one. 

14. I will admit the further affidavit material to the extent that it is relevant to the consideration of ground two of the appeal. 

    Consideration

15. The principles regarding the nature of an appeal under s 42 of the MCA are set out by the High Court in House v The King[2] as restated over the years.  An error would exist if the Magistrate committed some mistake of fact or law, took into account extraneous or irrelevant considerations, failed to have regard to relevant considerations or made a decision that was so obviously unreasonable or unjust that it can be said that there was a failure to exercise the discretion properly.  The appellate court is not to substitute its own opinion merely because it would have exercised its discretion in a different manner to the sentencing court.

    [2] (1936) 55 CLR 499 at 505.

16. The question of what might amount to proper cause has been considered in several cases.  Several features have been identified and can be summarised as follows:

    ·The proper cause must relate to the circumstances of the offence rather than the offender.[3]  Accordingly, personal hardship is not a factor that can be taken into account in determining whether proper cause exists to reduce demerit points under s 98B(4).

    ·The features must be such as to distinguish the offence from the more serious, or even typical, breaches.[4] It will generally require that the offending be of a lesser seriousness than the typical offence of its type.[5]

    ·There are no closed cases.  It is a matter of judgment, considering the circumstances of the offence, as to whether a reduction of demerit points is warranted on the basis of “other proper cause”.[6]

    [3]     Newton v Larcombe (1989) 38 A Crim R 254 at 225–6; Gilbert v Owen (1991) 14 MVR 235 at 236.

    [4]     Gilbert v Owen (1991) 14 MVR 235 at 237.

    [5]     Bialobrzeski v Police [2016] SASC 99 at [20].

    [6]     Chan v Police [2014] SASC 35 at [23]; Muto-Henderson v Police [2017] SASC 139 at [21].

17. The authorities regarding the meaning of “trifling” provide the statutory context that informs the meaning of “other proper cause”.[7]  The relevant principles are conveniently summarised by Stanley J in Apostolakos v Police[8] as follows:

    ·the word “trifling” means of slight importance, insignificant or of little moment;

    ·the fact that an offence is serious does not, of itself, preclude the finding that a particular incidence of it is trifling;

    ·a normal or typical example of the offence ordinarily will not be trifling;

    ·ordinarily, there should be a soundly-based belief in the lawfulness of the impugned conduct;

    ·the court must pay regard to the purpose behind the obligation to observe the statutory requirement in question; and

    ·a deliberate breach would rarely be described as trifling, save in cases where humanitarian considerations or considerations of urgency arise.

    [7]     Muto-Henderson v Police [2017] SASC 139 at [18].

    [8] [2017] SASC 90 at [12].

18. The appellant contends that the learned Magistrate did not take into account, nor turn his mind sufficiently to, the evidence that the road leading out of Port Augusta approaches an open speed limit, that there were no other vehicles on the road at the time, that the Eyre Highway is a sealed bitumen road in good condition, that the speed detection was from a radar gun 400 metres away and that the combination of those matters with the fact that the appellant had set his cruise control to avoid speeding and that he genuinely believed he was not speeding were all matters relevant to the exercise of his discretion.

19. The appellant gave oral evidence before the Magistrate as to the circumstances of the offence, including that he had pleaded guilty to a charge of driving at 69 km/h in a 60 km/h zone on the Eyre Highway at Port Augusta and that he was driving a 2021 Ford Ranger Dual Cab 4x4 which had cruise control installed.  He described his vehicle as being in immaculate condition.  On passing the last traffic light out of Port Augusta, he was aware that the speed limit was 60 km/h.  He set the cruise control to 60 km/h.  He described traffic conditions as normal and not particularly heavy.  It was not raining; the weather conditions were overcast.  He was surprised to be pulled over as he did not believe that he was exceeding the speed limit but accepted that he was.  He further gave evidence concerning his personal circumstances, his business and the difficulties that would ensue if he were to lose his driver’s licence. 

20. I accept the respondent’s contention that the Magistrate’s remarks on penalty encompass his demerit point application ruling and are to be read as a whole and interpreted from that standpoint.  Read as a whole, the Magistrate’s remarks indicate that he properly considered the combination of evidence and submissions received on the application.  The Magistrate accepted the appellant’s evidence.  His ex tempore remarks accurately outline the evidence adduced by the appellant. 

21. The Magistrate accepted that the loss of the appellant’s licence was a real prospect and that this would cause hardship but stated, correctly, that this could not constitute proper cause under s 98B(4).  He did not, as contended by the appellant, confine his consideration of “proper cause” to personal hardship.  It is plain from the remarks on penalty that the Magistrate took into account the evidence that the appellant’s vehicle was in immaculate condition, that the road conditions were as described by him in his evidence and that he accepted that the appellant had set the cruise control at 60 km/h.  Implicitly, the Magistrate accepted that the offending was not deliberate but described it as “typical offending”.  I agree with that characterisation. 

22. On an application to reduce demerit points, the assessment of the seriousness of the offence must be considered in the context of the demerit point scheme outlined in schedule 4 of the Regulations.  The scheme makes allowance for various levels of offending and operates by reference to several bands by which the speed limit has been exceeded.  Here, the relevant band was exceeding the speed limit by one to nine km/h.  The appellant was convicted for exceeding the speed limit by nine km/h and accordingly it cannot be said to be at the lower end of the relevant speeding band.  The appellant failed to establish on the evidence to the requisite standard that the offending was a lesser offence than the typical one.  There is nothing in the evidence before the Magistrate regarding the offending that was so unusual in these circumstances that it could be said that the learned Magistrate must have erred by declining to exercise the discretion in the appellant’s favour. 

23. The appellant’s second appeal ground relates to the conduct of the hearing.  It is said that counsel was not permitted to develop the evidence and submissions in a way so that they could be given proper consideration by the Magistrate.  The appellant further contends that the Magistrate prevented counsel from leading relevant evidence and making appropriate submissions due to his interjections.  I have considered the affidavit material from the appellant and Mr Lloyd in this context.

24. The transcript discloses that the Magistrate did interject on occasion.  However, this appears to be no more than the Magistrate seeking clarification or testing his understanding of what was being put to him. The interjections were not so frequent as to disrupt the proceedings.   Taken as a whole, the transcript indicates that the Magistrate properly and adequately afforded counsel opportunities to make submissions in support of the demerit point application.  In particular, the Magistrate concluded the hearing by inviting counsel to make further submissions prior to delivering his ex tempore decision.[9] 

    [9]     T10.30.

25. The appellant further suggested that the Magistrate pre-judged the matter. Having considered the transcript, I do not accept that this is the case.  The exchanges identified do not establish that the Magistrate had pre-determined the outcome of the demerit point application. Rather, the exchanges were an indication of the Magistrate’s preliminary view expressed to afford counsel the opportunity to make further submissions relevant to the application. 

26. I therefore dismiss the second ground of appeal.