Saqipi v POLICE

[2007] SASC 126

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

SAQIPI v POLICE

[2007] SASC 126

Judgment of The Honourable Justice Layton (ex tempore)

3 April 2007

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRELIMINARY PROCEDURE - TIME FOR APPEAL AND EXTENSION OF

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE

TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES

Magistrates Appeal - appellant pleaded guilty to driving unauthorised on a road having never been authorised to do so, contrary to s 74(2) of the Motor Vehicles Act 1959 (SA) - on appeal material was adduced indicating that the appellant previously held learner's permits and therefore could not have committed the offence - the appeal was instituted more than two and a half years out of time - the respondent conceded that an extension of time should be granted and that the appeal should be allowed - Held: the evidence adduced indicated that the charge pleaded to could never have been made out - a manifest miscarriage of justice would have resulted if an extension of time were not granted and the appeal were not allowed - extension of time granted - appeal allowed.

Motor Vehicles Act 1959 (SA) s 74(s); s 74(3); s 75(5)(a), referred to.
Vella v R (1984) 14 A Crim R 90, considered.

SAQIPI v POLICE
[2007] SASC 126

Magistrates Appeal:  Criminal

LAYTON J:      

Introduction

1. This is an appeal against conviction and sentence pursuant to s 42 of the Magistrates Court Act 1991 (SA). On 30 April 2004, the appellant was charged with having on 15 December 2003, driven a motor vehicle of a particular class on a road when not authorised to drive such a motor vehicle, contrary to s 74(2) of the Motor Vehicles Act1959 (SA) (“the Act”). The appellant, who appeared unrepresented, pleaded guilty on 31 August 2004 at the Holden Hill Magistrates Court, and was convicted and fined $250 plus court fees and a levy. In addition, the Magistrate imposed a mandatory disqualification of licence for a period of three years, pursuant to s 74(5)(a) of the Act.

   Grounds of Appeal

2. The appellant appeals against his conviction on the ground that he was wrongly convicted and sentenced for an offence he could not have committed. Further, the appellant appeals on the basis that the three-year disqualification of licence was manifestly excessive.  For reasons which counsel for the respondent, Mr Jacobi has helpfully outlined, the respondent has quite appropriately conceded that an extension of time should be granted and that the appeal should be allowed for reasons which I will now indicate.

   Extension of time

3. As indicated, the order of the Magistrate was made on 31 August 2004, but the Notice of Appeal was received on 6 February 2007.  As a consequence, the appeal is more than two and a half years out of time.  An extension of time is sought on the basis that the appellant was unrepresented and that he had pleaded guilty to an offence that he had not in fact committed.

4. The basis upon which the respondent has conceded an extension of time and that the appeal should be granted, is contained in further material which was placed before me.  I received two affidavits: the first being an affidavit of the appellant, Daniel Diljaver Saqipi sworn 26 March 2007 (Exhibit A1), the second being an affidavit of Eric van Kruyssen sworn on 23 March 2007 (Exhibit A2).  In addition, I received extracts from the Registrar of Motor Vehicles (Exhibit R3).

5. The appellant, in his affidavit, deposes:

   ·To his unrepresented status;

   ·That he had pleaded guilty;

   ·That prior to the date of the offence, he held a learner’s permit, but that he did not appreciate that the permit had anything to do with the charge;

   ·That he had a learner’s permit in 1980 when he was 16 years of age, but did not discuss that matter with the Magistrate;

   ·That acting on advice of a solicitor, he then sought to appeal.

6. Mr van Kruyssen, a solicitor at the Legal Services Commission, deposes to matters which led him to believe that the appellant had pleaded guilty to the offence contrary to s 74(2) of the Act, when he could not have committed that offence.

   Section 74(2) of the Act

7. Section 74(2) of the Act relevantly provides:

   (2) Subject to this Act, a person who—

   (a)     drives a motor vehicle of a particular class on a road; and

   (b)     is not and has never been authorised, under this Act or the law of another State or a Territory of the Commonwealth, to drive a motor vehicle of that class on a road,

   is guilty of an offence.

   ….

   (3) For the purposes of this section, a person is authorised to drive a motor vehicle of a

   particular class on a road if—

   ….

   (c)     the person holds a learner’s permit. (emphasis added)

8. This section required the prosecution to prove that the appellant had driven a motor vehicle of a particular class, and in addition, that the appellant had not and had never been authorised to drive a motor vehicle of that class on a road.  Section 74(3) provides that person is authorised to drive a motor vehicle of a particular class, if they hold a learner’s permit.  The entry from the Registrar of Motor Vehicles indicates that the appellant held valid learner’s permits from:

   ·22 October 1980 until 21 January 1981;

   ·22 September 1983 until 21 December 1983; and

   ·3 December 1986 until 2 March 1987.

   Conclusion

9. The grounds upon which there can be a successful appeal after a person has pleaded guilty are in fact very rare.[1]  It seems to me that this is one of those rare occasions.  To not grant an extension of time and allow the appeal in this case would result in a manifest miscarriage of justice.  I consider that the material before me shows that there is no way in which such a conviction could ever have been maintained on the evidence, and on that basis I make the following orders.

   [1] See eg Vella v R (1984) 14 A Crim R 90.

   1The time within which the appellant be entitled to appeal be extended to 6 February 2007.

   2The appeal is allowed.

   3The conviction and penalty imposed by the Magistrate is set aside.

   4I make an order dismissing the charge.