Scylla v Police - [2021] SASC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
SCYLLA v POLICE
[2021] SASC 18
Judgment of the Honourable Justice Peek
26 February 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - TIME FOR APPEAL AND EXTENSION
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - EVIDENCE - ADMISSIBILITY
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - CONVICTIONS OF TRAFFIC OFFENCES RELATING TO OTHER MATTERS - DEMERIT POINTS
Appeal against a Magistrate’s refusal to reduce demerit points.

The appellant, Mr David Scylla (Scylla), was charged on 22 August 2019 with the offence of exceeding the speed limit, namely by driving 68 kph in a 60 kph zone (the subject offence). On 12 August 2020, Scylla pleaded guilty to the subject offence.
On 1 October 2020, the Magistrate heard Scylla’s application to reduce demerit points pursuant to s 98B(4) of the Motor Vehicles Act 1959. Scylla gave evidence on oath that the vehicle involved was fitted with larger rimmed and higher profile tyres such that the car was travelling faster than the speedometer indicated, tendering photographs and print-outs from the internet in support of his argument. Scylla stated that he had done his own ad hoc testing, using different rims and tyres and one or more GPS devices.
On 13 November 2020, the Magistrate delivered judgment and remarks on penalty rejecting Scylla’s application and imposing a fine. On 14 December 2020, Scylla lodged a Notice of Appeal (out of time) against the Magistrates refusal, failing to specify the grounds relied upon or orders sought. At the appeal hearing, it became apparent that Scylla wished to appeal against the Magistrate’s decision on the basis that his Honour erred in not accepting his evidence that the vehicle’s speedometer was understating the vehicle’s speed because of the bigger-than-standard tyres and rims and therefore that he had positively believed that he was driving within the speed limit.
Held, dismissing the appeal:
1.The application for an extension of time within which to appeal is granted.
Gikas v Police (1999) 202 LSJS 301 discussed.
2.The evidence tendered before the Magistrate, and relied upon by Scylla on appeal, did not meet the admissibility requirements of expert evidence.
Clark v Ryan (1960) 103 CLR 486; R v Reed [2010] 1 Cr App R 23 considered.
3.In all of the circumstances, the Magistrate was entitled to find that Scylla had failed to discharge his onus to establish that the offence was trifling or that some other proper cause existed.
Motor Vehicles Act 1959 s 98B applied.
4.On the day of the subject offence, Scylla was in no way misinformed by a mis-calibrated speedometer; he knew at that time that there was a problem with its accuracy.
5.On an independent review of the evidence, the subject offence was not of a trifling nature within the meaning of the legislation and there is no proper cause to reduce Scylla’s demerit points.
Motor Vehicles Act

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.

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Details

Case: [2021] SASC 18
Decision Date: 26 February 2021

CaseChat Overview and Summary

Scylla appealed against a conviction and penalty in the Magistrates Court of South Australia for exceeding the speed limit, arguing that his speedometer was inaccurate due to larger-than-standard tyres and rims. He applied for an extension of time to lodge the appeal, which was initially refused, but this decision was later overturned by the Supreme Court. The court had to determine whether the appeal was lodged within the required time and whether an extension should be granted. Additionally, the court needed to decide if the evidence presented by Scylla about the speedometer was admissible and if the Magistrate's decision was correct in not reducing the demerit points.

The Supreme Court found that the delay in lodging the appeal was not significant and granted the extension. The court held that Scylla's evidence regarding the speedometer was inadmissible as it did not meet the criteria for expert evidence. Scylla's testimony was vague and inconsistent about when he became aware of the speedometer's inaccuracy. The court concluded that the Magistrate was justified in finding that Scylla failed to prove that the offence was minor or that some other proper cause existed. Scylla was also not misled by the speedometer on the day of the offence, as he was aware of its inaccuracy. The court independently reviewed the evidence and found that the offence was not minor and no proper cause existed to reduce the demerit points. Scylla was ordered to pay the respondent's costs of the appeal.

The appeal was dismissed with costs. The court granted the extension of time for lodging the appeal but found that Scylla's evidence did not meet the requirements for expert evidence. The Magistrate's decision was upheld, and the penalty was not reduced. Scylla was also ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

Held, dismissing the appeal:

1. The application for an extension of time within which to appeal is granted.

Gikas v Police (1999) 202 LSJS 301 discussed.

2. The evidence tendered before the Magistrate, and relied upon by Scylla on appeal, did not meet the admissibility requirements of expert evidence.

Clark v Ryan (1960) 103 CLR 486; R v Reed [2010] 1 Cr App R 23 considered.

3. In all of the circumstances, the Magistrate was entitled to find that Scylla had failed to discharge his onus to establish that the offence was trifling or that some other proper cause existed.

Motor Vehicles Act 1959 s 98B applied.

4. On the day of the subject offence, Scylla was in no way misinformed by a mis-calibrated speedometer; he knew at that time that there was a problem with its accuracy.

5. On an independent review of the evidence, the subject offence was not of a trifling nature within the meaning of the legislation and there is no proper cause to reduce Scylla’s demerit points.

Motor Vehicles Act 1959 s 98B applied.

6. Scylla is to pay the respondent’s costs of the appeal in the amount of $500 pursuant to r 104X of the Supreme Court Criminal Rules 2014.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is true that the delay here is not great, being about 10 days. Despite my impression that Scylla was highly disingenuous about the matter, I will grant the required extension of time. Consideration of the appeal It became apparent in Scylla’s oral submissions that he wished to appeal against the Magistrate’s decision on the basis that his Honour erred in not accepting his evidence that the Mitsubishi’s speedometer was understating the vehicle’s speed because of the bigger-than-standard tyres and rims and therefore that he had positively believed that he was driving within the speed limit. However, the admissibility of such evidence is governed by the law relating to expert evidence. The nature of the opinion proffered was such that it would only be admissible under the rules of evidence if given by an appropriately qualified expert speaking to matters within that person’s expertise.[5] Where a party wishes to place expert opinion evidence before a court that party bears the onus of establishing the conditions of admissibility.[6] [5] Clark v Ryan (1960) 103 CLR 486, 491 (Dixon CJ). [6] R v Reed [2010] 1 Cr App R 23, [113]. Such requirements were not met before the Magistrate or on appeal. A further problem was that Scylla’s evidence in cross-examination before the Magistrate as to when he became aware of the incorrect speedometer readings was vague and inconsistent. First, he stated as follows:QMr Scylla, at what point do you say you became aware that these changes to your tyre rims caused what you say was the difference in the speed reading.AOnce I started getting picked for some of these fines, and I probably should’ve cottoned on to it a bit earlier, but generally I try to drive within the speed limit. …QSo if I was to suggest to you as far back as July 2018 you incurred a speed camera fine for this particular car – AYep.Q– would that be about the time that you’d become aware that there might be a problem here. Just looking at these expiation notices that have been issued.AI don’t know. The pressure of being up here in the box, if I answer anything, it’s a little bit, you know – I don’t want to get caught out by a crafty question from yourself Madam Prosecutor, but what I would just say is I’ve come to this realisation late and, you know, I can’t recall exact things. … Scylla later attempted to assert positively that it was not until after the subject offence that he became aware:HIS HONOURQBut when Mr Scylla. It’s a simple question. When.AOkay, when. When did I realise? God, it’s hard to answer. Sometimes after all these – at some time after I started getting all these sort of niggling; what I would call niggling tickets that is sort of like what I would call – again, I don’t mean to be provocative – what I would call revenue-raising tickets. You know, these little, silly little tickets.XXNQSo when was it.AAt some time – well, obviously after this incident we’re talking about; the 68 in a 60 zone.