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Savage v Police

Savage v Police

Case [2011] SASC 13 18 February 2011

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SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SAVAGE v POLICE
[2011] SASC 13
Judgment of The Honourable Justice Nyland
18 February 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES - WHAT CONSTITUTES TRIFLING OFFENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
Appeal against sentence - appellant pleaded guilty in Magistrates Court to a charge of use of a mobile phone whilst driving - appellant maintained he was only using phone to check time - whether that constituted 'use' under Australian Road Rules - offence at lower end of scale of seriousness - Magistrate refused application pursuant to s 98B(4) Motor Vehicles Act to find offence trifling and exercise discretion to reduce demerit points - whether Magistrate erred in recording a conviction - use of a mobile phone other than for calling or texting not atypical - no error demonstrated in exercise of Magistrate's discretion - appeal dismissed.
Australian Road Rules rule 300; Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 reg 50(1); Motor Vehicles Act 1959 s 98B; Motor Vehicles Regulations 1996 schedule 7; Criminal Law (Sentencing) Act 1988 ss 15(1), 16; Magistrates Court Act 1991 s 42, referred to.
House v The King (1936) 55 CLR 499, applied.
Thorley v Police (Unreported Supreme Court of South Australia, Perry J, 16 December 1997, S6779); Siviour-Ashman v Police (2003) 85 SASR 23; McCade v Chandler (1984) 37 SASR 477; Holness v Police [2010] SASC 314; Piva v Brinkworth (1992) 59 SASR 92; Vitlov v Lewis [2004] SASC 83; Forgione v Police [2008] SASC 54; Brown v Police [2009] SASC 45; Sims v Police (2000) 30 MVR 524; [2000] SASC 102, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"trifling", "use", "other proper cause"

SAVAGE v POLICE
[2011] SASC 13
Magistrates Appeal

NYLAND J:          The appellant was charged on complaint that on 20 April 2010 at Prospect in the State of South Australia, being the driver of a vehicle moving on a road, he used a mobile phone contrary to Rule 300 of the Australian Road Rules. The maximum penalty for this offence is a fine not exceeding $2,500.[1] In addition, the offence attracts three demerit points.[2]
[1]    Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999, reg 50(1).
[2]    Motor Vehicles Act 1959, s 98B and Motor Vehicle Regulations 1996, schedule 7.
The appellant appeared before a Stipendiary Magistrate in the Holden Hill Magistrates Court on 19 October 2010 and pleaded guilty to the charge. The appellant was represented by counsel who made an application pursuant to s 98B(4) Motor Vehicles Act 1959 (“MVA”) for a reduction of demerit points. Section 98B(4) is in the following terms:
If a court by which a person is convicted…

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 Savage v Police

Details

AGLC: Savage v Police [2011] SASC 13
Case: [2011] SASC 13
Decision Date: 18 February 2011

CaseChat Overview and Summary

The appeal in Savage v Police arose from a conviction in the Magistrates Court of South Australia, where the appellant had pleaded guilty to using a mobile phone while driving. The appellant contended that he was merely checking the time and not engaging in calling or texting, arguing that this did not constitute 'use' under the Australian Road Rules. The case reached the Supreme Court of South Australia, which was tasked with determining whether the Magistrate had correctly exercised their discretion under the Motor Vehicles Act.

The primary legal issue before the court was whether the Magistrate had erred in their exercise of discretion when declining to find the offence trifling and reduce the demerit points pursuant to section 98B(4) of the Motor Vehicles Act. Additionally, the court needed to assess whether the Magistrate had erred in recording a conviction, considering the nature and context of the appellant's actions. The court had to interpret what constitutes a 'trifling' offence and whether the appellant's use of the mobile phone, though not for calling or texting, was sufficiently atypical to warrant a different outcome.

The Supreme Court found that the Magistrate had not erred in their decision-making process. The court noted that using a mobile phone for purposes other than calling or texting, such as checking the time, was not an atypical behaviour and thus did not merit the exercise of discretion to find the offence trifling. The court emphasised that the decision to record a conviction or not is largely within the Magistrate's discretion, and the appellant had not demonstrated any error in the Magistrate's exercise of that discretion. Consequently, the appeal was dismissed.

In conclusion, the Supreme Court upheld the Magistrate's decision, affirming that the appellant's use of a mobile phone while driving, even for checking the time, constituted an offence under the Australian Road Rules. The court found no grounds to interfere with the Magistrate's discretion and dismissed the appeal, thereby upholding the conviction and sentence as originally imposed by the Magistrates Court.

Orders