Sutcliffe-Huigol v Police No. Scciv-02-209

[2002] SASC 142

SUTCLIFFE-HUILGOL v POLICE
[2002] SASC 142

Magistrates Appeal

1. WICKS J               This is a purported appeal to this Court by Ms Glynn Sutcliffe from a number of orders of the Magistrates Court sitting at Adelaide.

2. The orders appealed from were orders refusing applications for review of enforcement orders pursuant to s 14(1) of the Expiation of Offences Act 1996 and confirming the enforcement order in each case. The Magistrates Court file numbers in respect of the applications for review were EXREG-9961924, EXREG00-27563, EXREG99-61812, EXREG00-91738 and EXREG98-93408.

3. The Expiation of Offences Act 1996 provides for a scheme whereby fines imposed in respect of certain minor offences may be paid without the necessity of the offender having to attend Court and plead guilty to the charge concerned.

4. In s 8 of the Expiation of Offences Act 1996 a defendant may elect to be prosecuted in respect of the charge in the Magistrates Court in the usual way. He or she could defend the charge or alternatively plead guilty to the charge. That procedure is very expensive. In some cases it also wastes time. Provision is therefore made in the Act for the expiation of offences so that where there is no real dispute about the matter, the fine can be paid and the matter concluded with the minimum of delay and expense.

5. If a person elects to be prosecuted in the usual way, he or she, if unsuccessful in the Magistrates Court, would have a right of appeal to a single Judge of the Supreme Court of South Australia.

6. If a person prefers to be prosecuted in the usual way, he or she must act promptly and before an enforcement order is made under s 13 of the Act.  An enforcement order is the first step in enforcing an expiation notice.

7. Section 14(1) of the Expiation of Offences Act provides that an enforcement order is not subject to appeal, ie the normal appellate procedure under s 42 of the Magistrates Court Act does not apply, but the person liable under the enforcement order may make application for a review order by a Magistrate. The defendant has 30 days within which to apply to a Magistrate for a review of the decision as to the fine imposed. Section 14(6) provides that a decision of the Magistrates Court made on a review of an enforcement order is also not subject to appeal.

8. The date of the alleged offence in each case and the date of the enforcement order in each case was as follows:

File No	Date of Offence	Date of Enforcement Order
EXREG99-61924	3.9.98	8.7.99
EXREG00-27563	18.10.99	23.3.00
EXREG99-61812	19.8.97	8.7.99
EXREG00-91738	14.8.00	18.10.00
EXREG98-93408	8.7.98	14.10.98

1. Ms Sutcliffe has not elected to be prosecuted in relation to each of these five matters.  She proceeded in each case to have a review of the applicable enforcement order conducted by a Magistrate.

2. The date of the application for review in each case was 28 November 2001.  The date of the Magistrates decision on the review was 15 January 2002.  In each case Ms Sutcliffe’s application for a review was refused and the enforcement order confirmed.

3. The grounds of a review are set out in the application for review of the enforcement order in each case.  Six grounds have been listed and provision is made for a box to be ticked against each.  The only box ticked is in relation to a ground specified in the following terms:

   "The expiation notice should not have been given in the first instance."

4. Why it should not have been given in the first place we are not told.

5. There is no suggestion that the procedural requirements for the Expiation of Offences Act were not complied with.  Ms Sutcliffe does not allege that she did not receive a notice required by the Expiation of Offences Act. 

6. It would appear that Ms Sutcliffe did not elect at any stage prior to the enforcement order in each case to take steps to elect to be prosecuted for the offences involved.  If she has not elected to be prosecuted, her only avenue was to seek a review from a Magistrate of the enforcement orders.  This was in fact done with the result as outlined above.

7. In my opinion there is no right of appeal to the Supreme Court in respect of an enforcement order under the Expiation of Offences Act; nor is there a right of appeal to the Supreme Court from an order of a Magistrate on a review made under s 14 of that Act.

8. On 30 April 2002, I said in Court that I was satisfied that I had no jurisdiction in these matters and I dismissed the appeal for want of jurisdiction.

9. I now publish my reasons for that decision.