Scylla v Police
[2021] SASC 18
•26 February 2021
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 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.
Motor Vehicles Act 1959 (SA) s 98B; Motor Vehicles Regulations 2010 (SA) Sch 4; Supreme Court Criminal Rules 2014 (SA) rr 104G, 104X, referred to.
Gikas v Police (1999) 202 LSJS 301, discussed.
Clark v Ryan (1960) 103 CLR 486; Jameson v Police [2016] SASC 5; R v Reed [2010] 1 Cr App R 23; Siviour-Ashman v Police (2003) 85 SASR 23, considered.
SCYLLA v POLICE
[2021] SASC 18
Magistrates Appeal: Criminal
PEEK J: Appeal against a Magistrate’s refusal to reduce demerit points.
The appellant, Mr David Scylla (Scylla), was charged on 22 August 2019 on a Magistrates Court Information with the subject offence as follows:
On the 29TH day of MARCH, 2019 at GOLDEN GROVE in the said State being the owner of a vehicle REGISTRATION NUMBER S753BUC where it appears from the evidence obtained through the operation of a photographic detection device that the vehicle has been involved in the commission of a prescribed offence namely being driven on a length of road namely THE GROVE WAY to which a speed limit sign applied pursuant to Rule 21(1) of the Australian Road Rules over the speed limit of 60 kilometres per hour as indicated on the speed limit sign which was on the said road.
Rule 20 of the Australian Road Rules and Section 79B of the Road Traffic Act, 1961.
This is a summary offence.
It is further alleged that the speed of the vehicle was about 68 kilometres per hour. And the complainant alleges that the said photographic detection device complied with the requirements of the Road Traffic Act.
The matter was to be heard by a Magistrate on 25 October 2019, but on that day, it was adjourned for negotiations. The matter was subsequently adjourned on five occasions on 9 December 2019, 4 February 2020, 18 March 2020 (for disclosure), 15 April 2020 (Pre-Trial Conference postponed due to COVID-19) and 15 July 2020 (Scylla wished to obtain further advice). On 12 August 2020, the matter came before Magistrate Sprod as a Pre-Trial Conference. At this hearing, Scylla pleaded guilty to the offence and the Magistrate imposed a conviction.
The application to reduce points on 1 October 2020
A person who elects to be prosecuted in respect of an expiable offence for which demerit points apply upon conviction or expiation will, upon entering a guilty plea, incur the applicable demerit points unless an order pursuant to s 98B(4) of the Motor Vehicles Act 1959 (the Act) is made.[1] Section 98B(4) provides:
(4)If a court by which a person is convicted of an offence is satisfied by evidence given on oath forthwith on conviction that the offence is trifling, or that any other proper cause exists, it may order that a reduced number of demerit points, or no demerit points, are incurred by the person in respect of that offence. [Emphasis added]
[1] Jameson v Police [2016] SASC 5, [38].
Scylla made such an application for an order reducing the demerit points by two demerit points (the application).[2] On 1 October 2020 that application was heard by Magistrate Sprod. Scylla was unrepresented. He gave evidence on oath that the vehicle involved, a Mitsubishi Magna, was originally fitted with 15-inch rims, but he had replaced them with 16-inch rims and a higher profile tyre about six months after purchase in 2014 or 2015. He opined that that change meant that the car was from then on travelling faster than the speedometer indicated. He tendered photographs he had taken comparing tyre sizes to the standard size tyres (although these were not photographs of his tyres as at the time of the subject offence) together with print-outs of information he had found on the internet (with various handwritten annotations on them). He said that he had performed some ad hoc testing, using different rims and tyres and one or more GPS devices of unproven accuracy. The Magistrate reserved judgment.
[2] Motor Vehicles Regulations 2010, Sch 4, cl 5.
On 13 November 2020, the Magistrate delivered judgment and Remarks on Penalty. His Honour did not accept that Scylla was appropriately qualified to give expert evidence upon the above matters and ruled that the whole of the submissions and admissible evidence before him did not establish that the subject offending was trivial, or that proper cause existed to reduce the recordable number of demerit points. The Magistrate fined Scylla $200, plus the usual Court fees and associated government costs (in all, a total amount of $796).
The present appeal proceedings
Scylla completed the Notice of Appeal (the Notice) as follows:
Particulars of Judgment
Date of judgment: (date) 13-NOV-2020 [handwritten]
Judicial Officer appealed from: (name) D.Y. SPROD [handwritten]
File No of Court appealed from: (number) MCPAR-19-9220 [handwritten]
…
1. Orders complained of
(set out the text of the relevant orders)
(set out whether the appeal is against the whole or a part of the orders and if a part, identify them)
Everything [handwritten]
2. Orders sought
(set out the relief sought in numbered paragraphs)
Not sure you mean but i’ll see you in Court for everything [handwritten]
3. Grounds of appeal
(set out grounds of appeal in numbered paragraphs)
Whole thing was wrong. Appealling [sic] just about everything there [handwritten]
4. Permission to appeal (if applicable) ü [tick handwritten]
(set out grounds for permission to appeal)
5. Extension of time (if applicable)
(set out grounds for extension of time)
Thank you ü [handwritten]
Transmission of documents
(if applicable) The Registrar of the (Court) is requested:
No Problema. GOOD LUCK ü [handwritten]
(a) to advise the Registrar of the Supreme Court of the existence of the appeal and afford that Court access to any electronic file relating to this matter; and
(b) to forward to the Registrar all hard copy material relevant to the appeal that is not contained in such electronic file.
While the Notice makes clear that it is the decision on 13 November 2020 that is complained of, there is no indication as to the grounds of appeal relied upon or the orders sought.
The appeal was listed for hearing before me on Friday, 5 February 2021 at 10.00 am. On Friday, 29 January 2021, the Court received from the respondent’s solicitors an Application for Directions concerning the fact that Scylla had filed no material in support of his appeal. A Directions Hearing was therefore listed for Tuesday, 2 February 2021 at 10.00 am and Scylla was so notified.
Scylla responded via email on Saturday, 30 January 2021 at 11.48 am thus: “I have to actually work for a living, but i’ll pop in Monday and see what we can arrange”. Later, on Monday, 1 February 2021 at 4.05 pm, Scylla sent a further email thus:
Dear Judge Peek’s office,
Please inform Your Honour that Dave Scylla (The Appellant on Friday 5th) is being overwhelmed by protocols and punished for being a self-Defender.
He believes The Supreme Court has not done enough (send out a pamphlet or email) early enough with the basic steps outlined for his court date.
The matter consists of a 8 kph speed over the 60kph limit.
The original Judge railroaded me with a promise of Reduced Demerits for a Guilty Plea.
The Bait& Switch done, he clobbered me with a full hammering after he forgotto include the favourable mitigating points and evidence i provided vis-a-vis vehicle wheel & rim size that could affect speedometer accuracy.
I can’t make it Tuesday. I work (my Guts out) as a Furniture Removalist.
See you Friday, where I’ll lay out my simple argument.
The Prosecutor reckons i need to be there Tuesday; i’m sticking to the original court date but TRUST that on Tuesday, my respectful wish that i get to explain the traffic ticket on Friday will proceed without undue procedural bias against me.
Yours Truthfully & Respectfully,
Dave Scylla
The Directions Hearing was vacated, with the appeal proper remaining to be heard on Friday, 5 February 2021 at 10.00 am.
The hearing of the appeal proceeding on Friday, 5 February 2021
Scylla failed to file and serve an appeal book, or written submissions or a list of authorities in preparation for the appeal as he was required to do. The respondent’s counsel attempted to comply with the Supreme Court Criminal Rules 2014 and provided the Court and Scylla with an outline of submissions and a list of authorities prior to the appeal, noting that this was done without the benefit of the appellant’s submissions.
At the outset of the appeal hearing before me on Friday, 5 February 2021, it was put to Scylla that he had refused to attend the scheduled Directions Hearing. His response was as follows:
MR SCYLLA: ‘Refuse’ is a strong word. I was laying out the fact that I had to work that day and it was short notice, so I was trying to sway things to go my way. If you guys had said, you have to be there, I would have, but I was pretty sure I could twist the arm and get my way, you know. Because I was in the position where I had to, I couldn’t let down my boss, I had to work. I’m a blue-collar bum, can’t afford another day off, so, yes, I persuaded through a series of emails.
HIS HONOUR: Well, I don’t think you persuaded, you just declined to attend; you weren’t prepared to attend.
MR SCYLLA: If I’m definitely forced. I got my way and here we are, it worked out for me. Unless the court is prejudice against me for doing it, like you know what I mean, otherwise case closed, I lose, I guess.
The application for an extension of time
It was then explained to Scylla that he had failed to file the Notice within time in that pursuant to r 104G(1) of the Supreme Court Criminal Rules 2014, Scylla had 21 days within which to file his appeal. The Notice was stamped received by the Higher Courts Registry on 14 December 2020 at about 2.30 pm, and was signed and dated by Scylla on 11 December 2020. Therefore, Scylla was 10 days out of time, as the Notice should have been filed on Friday, 4 December 2020. At the very latest, on a generous interpretation, the Notice should have been filed on Monday, 7 December 2020. Scylla failed to do so.
It was further explained to Scylla that although the Registry had taken his document to be filed, it was still out of time and he needed to apply for an extension of time. He was given several opportunities to provide a reason to persuade the Court to grant his application for an extension of time. The following exchanges occurred:
HIS HONOUR: I want you to tell me what is the reason for you not having lodged it by the end of the time limit, the last day being Monday, 7 December 2020. Do you have any reason for not doing it by then?
MR SCYLLA: The reason would be that, I don’t know, I’m a bum and I’m not as efficient as you guys. But I believe I did lodge it, here it is, is that the document, and here we are.
…
HIS HONOUR: ... Now, the registry took the document, but all that means is that it is then up to you to set out why you should get an extension of time, and that is why that heading there is there: ‘Extension of Time (set out grounds for extension of time).’ Instead, you have simply written in, for reasons perhaps good to you, the words ‘Thank you’. Now, putting aside what you have written there, is there anything you can tell me to explain why you did not comply with the time limit and file it by Monday, 7 December 2020?
MR SCYLLA: Well there would be that little thing of all the COVID stuff and all that sort of stuff, it is quite distracting for all of the day to day business, your Honour would maybe agree with me.
HIS HONOUR: Theoretically. Do you say in your particular case it somehow distracted you and made the difference?
MR SCYLLA: Possibly. It would be more just my lack of – well it would be more my ignorance of the whole court system. I thought I got in on time, squeezed it in with a bit of discretion.
HIS HONOUR: Right, now why did you think you got in on time?
MR SCYLLA: I thought if the office they accept it, it’s sort of like there’s wriggle room down there, it’s informal compared to here. So I think I made it, here I am, I got the summons, the Honourable Louise, lady prosecutor, has emailed me, here we are – it’s a bit late now sort of thing, isn’t it?
HIS HONOUR: Yes and she has made it very plain to you in a written document –
MR SCYLLA: Mrs Kleinig, yes.
HIS HONOUR: – that she is pointing out to you that you are out of time. So it is not as though it hasn’t been drawn to your attention.
MR SCYLLA: Okay, so I might lose on a technicality with the out of time thing. Well how come I’m here?
HIS HONOUR: It is a matter for you to persuade me that I should in fact give you an extension of time, that’s not a technicality.
MR SCYLLA: I don’t think I have got any chance of persuading you that –
HIS HONOUR: I have asked you several times, what is your reason?
MR SCYLLA: – because obviously you aren’t sympathetic to me from your demeanour, respectfully, you’re already annoyed with me, what chance have I got?
HIS HONOUR: Well, I have given you –
MR SCYLLA: Cut me a break here and, yes, I humbly acknowledge that, you know, I’m a self-defender, we’re obviously nightmares, that’s why we have lawyers.
HIS HONOUR: All right, we will move on from there and I’ll –
MR SCYLLA: Thank you, I appreciate it.
HIS HONOUR: No, you don’t appreciate anything, I haven’t said I am granting you an extension of time.
MR SCYLLA: Okay.
HIS HONOUR: I’m saying I’ll leave that to a consideration at the end of the day.
MR SCYLLA: Your Honour, I don’t want to waste the court’s time, I’m just a vigorous self-defender of the Orwellian estate and bureaucracy and the –
HIS HONOUR: The Orwellian estate and bureaucracy?
MR SCYLLA: The Orwellian estate where 10 minutes to midnight there’s going to be another French Revolution, $US going to collapse, blah, blah. This traffic ticket is how I push back – I don’t push back when there is a civil war and I come in and behead all the elites. I am pushing back now vigorously, I am not a thug, I am a civilised guy, I even read Shakespeare, but this is how I push back. If you want to let me go ahead with this, go ahead, but just man-to-man, tell me to kick my arse out of here if you don’t want me in here, I’ll just go.
HIS HONOUR: Well the point is that I am trying to give you every opportunity. I have started with the first logical matter to be addressed, namely an extension of time, we seem to have come to the end of discussion on that.
The Court has a discretionary power to extend the time for filing of a Notice of Appeal.[3] It is for the appellant to establish the circumstances that would justify an exercise of the Court’s discretion in their favour. This discretion exists for the purpose of doing justice between parties. In Gikas v Police, Lander J considered in depth the matter of an extension of time in a normal Magistrates Appeal thus:[4]
[3] Supreme Court Criminal Rules 2014 r 104G.
[4] Gikas v Police (1999) 202 LSJS 301, 304-306.
Of course, the Court will not extend the time within which to appeal if the appeal is bound to fail. However, it is not the case that any appeal which is likely to succeed must attract an extension of time where such is necessary. Whether or not an extension of time will be granted depends upon a number of factors. First the length of the delay. Secondly the explanation for the delay. Thirdly whether there is any prejudice suffered by the opposing party and fourthly whether there are some prospects that the appeal will be successful.
In Ratnam v Cumarasamy [1964] 3 All ER 933 at 935 the Privy Council said:
“The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material upon which the court can exercise its discretion.”
In my opinion no party is entitled to an extension of time within which to appeal unless that party explains, with appropriate frankness and candour, the reasons why the party did not observe the Rules of Court and in particular the time limits imposed by those rules: Hall v Nominal Defendant (1966) 117 CLR 423 at 435. The longer the delay the better the reasons need to be to explain that delay; R v Foster (1996) 187 LSJS 135; R v Balchin (1974) 9 SASR 64; Armstrong v R (1983) 35 SASR 356.
A relatively short delay of a few days will ordinarily, even with a perfunctory explanation, allow for an extension of time for the institution of an appeal. However, where the delay is substantial the application for an extension of time needs to be supported by a full disclosure of the reasons for the plaintiff’s failure to comply with the time limits.
When there has been a substantial delay the applicant will be entitled to an extension of time if the applicant can point to a satisfactory explanation for that delay.
If there is no satisfactory explanation for the delay then an applicant may still be entitled to an extension of time if the applicant can show that the absence of an extension of time might lead to a miscarriage of justice.
…
In summary, any application for an extension of time within which to appeal must be supported by an explanation for the failure to comply with the time limits prescribed by the statute or any Rules of Court regulating the time limit. When the delay is very short and there is no obvious prejudice to any party the explanation need not be in great detail. Where the delay is lengthy or prejudice may be suffered by some other party then there is an obligation on the party seeking the extension of time to give a detailed explanation for the party’s failure to comply with the prescribed time limit.
Where a party is not able to proffer a satisfactory explanation for failing to observe a time limit, or where another party might suffer prejudice by reason of the delay, an extension of time will only be granted if the party seeking the extension of time can point to the real possibility that a miscarriage of justice might occur by the failure to extend time.
That will not necessarily allow that party to fully argue the matter for which the extension of time is sought. That party must be able to point either in the notice of appeal or in the documents supporting the appeal to some evidence which will suggest a real possibility that a miscarriage of justice will occur.
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 HONOUR
QBut 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.
XXN
QSo when was it.
AAt some time – well, obviously after this incident we’re talking about; the 68 in a 60 zone.
Clearly, that evidence was highly unsatisfactory. Further, his evidence before the Magistrate as to the GPS device which he installed in his vehicle was equally uncertain and unclear. He stated that an “acquaintance” of his who worked as a “VDO” car instrument maker/repairer calibrated his GPS by comparing the speed with several GPS devices “by driving along and observing”. Scylla did not know what qualifications, if any, this person had.
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.
At the appeal hearing, Scylla relied upon much the same arguments he had put to the Magistrate. Thus, in the following passages it was stated:
MR SCYLLA: Yes and I put new rims on from a factory, I put factory alloys so I can get better tyres, and that threw out the speedo a bit, and I said ‘Okay, I was speeding’, like, you know, you can see here one wheel is quite a lot larger than the other. I run the wheel on the left, that makes the speedo – he said it’s not evidence, I said Pythagoras and physics, a small circle spins faster than a big circle, what evidence do I need, it’s mathematics. I don’t have evidence that Amelia Earhart is dead but I just presume we all know she is, you know what I mean?
HIS HONOUR: Mr Scylla, the Magistrate made it plain in his remarks on penalty that he simply was not satisfied with the nature of the evidence that you adduced, it was not in a formal way, there was no expert to give evidence as to the matter, it was basically your making reference to something that you had seen on the internet, and so forth.
MR SCYLLA: Well –
HIS HONOUR: I am summarising.
MR SCYLLA: Yes, okay.
HIS HONOUR: But you have seen what his Honour has said in his remarks is what I am saying.
MR SCYLLA: Yes.
HIS HONOUR: Right.
MR SCYLLA: I didn’t get it off the internet, I’m not some jerk that gets everything off the internet, it’s physics, big circles and small circles.
HIS HONOUR: Well, the thing is you haven’t come to court today with any expert witnesses to give evidence before this court, have you?
MR SCYLLA: Obviously not, I’m not going to pay eight grand for an expert to come.
HIS HONOUR: Right.
MR SCYLLA: You don’t need expertise for this.
HIS HONOUR: You haven’t sworn any affidavits either by yourself or tendering any other affidavit of anyone else?
MR SCYLLA: No.
HIS HONOUR: So, you’re really relying on what you said to the Magistrate.
MR SCYLLA: Yes, I just want you to look at the obvious bait and switch, he says ‘Plead guilty and I’ll give you a –’, the court hints that if I plead guilty I can then make an application for points, a demerit point reduction, then time passes, it’s a bait and switch, and then when I get into court he just dismisses this basic physics, insults me by saying I am just some jerk that gets stuff off the internet, don’t we all double check stuff on the internet? I already knew.
HIS HONOUR: I don’t think he called you a jerk.
MR SCYLLA: No, okay I am paraphrasing myself.
HIS HONOUR: Yes, you are.
MR SCYLLA: I’m describing myself as a jerk. I will respect the court and dull down my swear words. I did look on the internet to back up, but I already knew, a big circle and a small circle, small circles spin faster, therefore the speedo reads faster, I’ve tested it with GPS, he dismissed all that, he said I didn’t have enough evidence. …
It has oft been said that “the truth will out, even in an affidavit”.[7] The matter of when Scylla became aware that his speedometer might be understating the speed became clear during the course of his oral submissions on the appeal hearing thus:
HIS HONOUR: And the question arises when did you first suspect that there might be something wrong with your speedometer?
MR SCYLLA: When I fitted my GPS, I didn’t suspect then, I sorta knew.
HIS HONOUR: Yes, and when was that in relation to this particular offence?
MR SCYLLA: Yes.
HIS HONOUR: It was some time before this particular offence, was it?
MR SCYLLA: A little bit before, yes. So, my speedo is out, yeah, but I tend to just put my GPS on if I am going somewhere where I don’t know where I’m going, I knew the route to get to the court, so I didn’t have the GPS on, so, you know, yeah. I mean your Honour what I am saying is I was speeding, no doubt, but I was doing 68 in a 60 zone, I was watching the road rather than the – and even if I did have a GPS I probably wouldn’t have been looking at it going through the intersection. I’m guilty of speeding, I just want you to cut me a break on the points. And I thought the prosecutor at Elizabeth put too much emphasis on the previous record, because that’s like concentrate on this ticket, not the other ones.
HIS HONOUR: No, I’m not having regard to your particular previous record, except for the purpose of this matter of when you first became aware of the problem, and you’ve already answered me in that.
MR SCYLLA: Yes, but I don’t watch – yes, I just answered I didn’t have it on for the route I was on that day, I knew where I was going, but regardless I am watching the intersection as I go through so I don’t clean anyone up, and yes, I did speed. [Emphasis added]
[7] Perhaps the aphorism is to be credited to Lord Buckmaster, but the matter is unclear.
And in a later passage concerning the subject offence:
HIS HONOUR: As to what your speedometer was precisely indicating at that time, you can’t tell us that because you say you were concentrating on the road and so forth, is that right?
MR SCYLLA: Yes but as you glance you sort of think, I’m okay here, yep, no worries because it’s only a little bit pipped above the speed and there’s an effort I’ve made to get things more accurate with the GPS in my car.
HIS HONOUR: You told me that you’d in fact done that a little bit before this day.
MR SCYLLA: I had, yes. The GPS was in the car at the time but it’s a little numeral in the corner of the five inch screen and I still try to rely on the speedo thing –
HIS HONOUR: Yes.
MR SCYLLA: – but I didn’t have it on that day because I knew the route. What I’m saying is it’s easy done –
HIS HONOUR: Just a minute; you had as I say fitted that GPS to your car because you were a bit concerned about previous speed infringement notices?
MR SCYLLA: Definitely. So I don’t want to get done doing 120 in a 110 zone.
HIS HONOUR: Right, so you wanted the GPS device because you thought it would give you a more accurate read out than your speedometer.
MR SCYLLA: Exactly, your Honour, but like I just said I don’t want to focus on a five inch Navman screen or TomTom or whatever it is, it’s a five inch screen, I don’t want to focus on the little numeral in the corner of that screen when I’m going through intersection, so you know what I mean. I still rely on the speedo glance, oh yeah, I’m okay here and then – it’s an aerodynamic car, you know cars nowadays when you take your foot off the accelerator they keep zooming forward.
HIS HONOUR: All right.
MR SCYLLA: I wish I drove a HK Holden so the wind will slow it down. [Emphasis added]
It thus became quite clear that, on the day of the subject offence, Scylla was in no way misinformed by a mis-calibrated speedometer; he well knew at that time that there was a problem with its accuracy.
In a further unconventional move during the appeal hearing, Scylla invited the Court to look at his prior speeding offences:
MR SCYLLA: … I would challenge this court, the prosecutor, anyone, to randomly pick a number, like get all my traffic infringements listed, pick one randomly, like a number between one and 20, however many you’ve got listed, list a number, don’t cherry pick it, and then look at all my others, it’s all 83 in an 80 zone, or 86 in an 80 zone, it’s all minor.
…
MR SCYLLA: … I’ve got a long driving record of not running over anyone or cutting people off; I’m actually a courteous driver. My record indicates I do sit above the speed a fair bit now and again and get busted for it. But there’s so much bad driving out there that doesn’t get picked up. I’m a good driver.
…
MR SCYLLA: … But cut me a break as a blue-collar guy not on welfare, I’m not some crackpot in town intimidating people and getting away with stuff all day ‘cause there’s no cops walking the beat; I’m a guy that drives around in a V6 aerodynamic car, I pop over the speed limit now and again, granted. I actually consider myself a bit of a Steve McQueen when I’m going in the hills if the road’s open, but I drive safely. I’m a good driver. I do pop over the speed. There’s a lot of bad driving out there and a lot of nuisance-level, medium-level crime that’s not getting picked up.
In acceding to his request to look at those other speeding matters, I note that from 9 December 2016 to 12 August 2020, he committed some 12 speeding offences which he took to Court (rather than expiated) and in 10 of those offences he was successful in having the demerit points reduced. I am entirely unpersuaded that that record somehow militates in favour of me yet again reducing demerit points on the present occasion.
Putting aside Scylla’s previous offending, on an independent review of the evidence, I find that the subject offence was of an ordinary type and not atypical.[8] 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 for the subject offence.
[8] C.f. Siviour-Ashman v Police (2003) 85 SASR 23 (Doyle CJ).
As to the matter of costs on the appeal, the respondent applies for an order as to costs in the amount of $500 as foreshadowed in her written submissions delivered to Scylla prior to the hearing of the appeal. Scylla has steady employment and there is no suggestion that he is unable to pay costs in that amount. There is no reason why that order should not be made.
Disposition
I make the following orders:
1.The application for an extension of time within which to appeal is granted.
2.The appeal is dismissed.
3.The appellant 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.
0
7
1