Svilans v Police - [2014] SASC 173

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
SVILANS v POLICE
[2014] SASC 173
Reasons for Decision of The Honourable Chief Justice Kourakis (ex tempore)
6 November 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - WHERE POINT NOT RAISED IN COURT BELOW
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - CONVICTIONS OF TRAFFIC OFFENCES RELATING TO OTHER MATTERS - DEMERIT POINTS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRELIMINARY PROCEDURE - TIME FOR APPEAL AND EXTENSION OF
Appeal against a sentence imposed in the Magistrates Court of South Australia. The appellant pleaded guilty to an offence of exceeding the applicable speed limit, and was convicted and fined. As a result of the appellant’s conviction, three demerit points were incurred and his driver’s licence was disqualified. The appellant appeals against the purported failure of the special justice to make him aware that the sentence incurred demerit points. The appellant further claims that he was denied the opportunity to conduct his defence. Consideration of whether the appellant was denied procedural fairness and whether personal hardship is a ground for finding that a proper cause exists pursuant to s 98B(4) of the Motor Vehicles Act 1959 – appeal dismissed.
Road Traffic Act 1961 (SA) s 79B; Motor Vehicles Act 1959 (SA) s 98B, s 98BC; Supreme Court Civil Rules 2006 (SA) r 281, referred to.
Holness v Police [2010] SASC 314; Chan v Police [2014] SASC 35, applied.
Miles v Police [2012] SASC 69, distinguished.
Cooling v Steel (1971) 2 SASR 249; Thomas v Police (2010) 55 MVR 76; Chadha v Police [2012] SASC 181; Jaworski v Police (2009) 265 LSJS 254, considered.

SVILANS v POLICE
[2014] SASC 173
Magistrates Appeal: Criminal

KOURAKIS CJ (ex tempore): This is an appeal against a sentence imposed by a special justice sitting in the Adelaide Magistrates Court on 1 September 2014.
The appellant was issued with an expiation notice, but elected to be prosecuted for an offence of breaching s 79B(2) of the Road Traffic Act 1961 (SA) (the RTA).
The offence was detected by a photographic detection device when the appellant drove at a speed of 91 km/h in an 80 km/h zone on the Princess Highway at Leawood Gardens on 8 February 2014.
The appellant was convicted and fined $150. Prosecution costs of $100 and a Victims of Crime levy of $160 were imposed. The court fees were waived.
The statutory consequence of the appellant’s conviction was that he incurred three demerit points pursuant to s 98B(1) of the Motor Vehicles Act 1959 (SA) (the MVA). The accumulation of demerit points in the preceding three years resulted in the disqualification of the appellant’s licence for three months.[1]
[1] Motor Vehicles Act 1959 (SA), ss 98BC(1) and 98BC(3)(a).
The appellant appeals against the alleged failure of the special justice to inform him that as a result of the conviction he would incur demerit points. The appellant claims that he was denied the opportunity to conduct his defence “in a manner that would have involved requesting with good reason that [the demerit points] be waived”.
The appellant instituted this appeal on 24 September 2014 after the time within which to appeal, as prescribed by r 281(1) of the Supreme Court Civil Rules 2006, had expired. The respondent does not oppose the granting of an extension of time. I accordingly extend the time within which to appeal to 24 September 2014.
The appellant appeared in person, he is an anaesthetist engaged at the Lyell McEwin Hospital. His position requires him to be available to be called in at a moment’s notice, usually for obstetric emergencies. The use of alternative transport when he is called in on short notice is, according to the appellant, not feasible. The appellant contends that it would not be possible for him to perform his duties without a driver’s licence.
On this appeal the appellant gave evidence on oath before me. The appellant accepts that the expiation notice he received included a warning that demerit points may apply. The appellant also accepts that he read that warning before electing to be prosecuted. Indeed the appellant’s written submissions on this appeal indicated that he made his election to be prosecuted because he wanted to appear in court to make submissions that the demerit points be reduced.
The appellant acknowledged in his evidence before me that he did not ever intend to dispute that he had driven his vehicle at 91 km/h. The appellant also acknowledged in his evidence that he did not make a formal application pursuant to s 98B(4) of the MVA on 1 September 2014. The appellant testified that the special justice did not inform him of the statutory consequences of his guilty plea, and in particular that demerit points would be incurred as a result of his conviction.
In his written submissions the appellant claims that because the special justice did not inform him that a conviction would attract demerit points, he formed the belief that he would not incur demerit points and, therefore, had no need to, and was not in a position to, enliven s 98B(4) of the MVA to have the number of demerit points reduced.
The appellant gave evidence that before the hearing in the Magistrates Court he had looked at the MVA, and he had seen, and understood, that an application could be made by a defendant for a reduction of demerit points.
The appellant gave evidence that the special justice did not give him any information about the consequences of a guilty plea when he was called on to plead, and that there was no reference to demerit points in the course of the submissions before the special justice. I accept the appellant’s testimony that there was no explicit or express reference to demerit points in the course of his guilty plea and subsequent sentencing.
The appellant went on to explain that at the time of his appearance in the Magistrates Court he did not appreciate that demerit points were imposed on conviction by direct operation of the MVA. The appellant testified that he believed a judicial order was required, that is, that demerit points could only be imposed, after a person has elected to be prosecuted, by order of the court. The appellant testified that when no such order was made he assumed that no demerit points had been imposed.
I will deal first with the appellant’s contention that he was denied procedural fairness. The obligation of a court to inform an unrepresented defendant of the consequences of a guilty plea in the course of proceedings following a plea of guilty is well established.[2] The purpose of giving such a warning is to ensure that an unrepresented defendant has an opportunity to make informed decisions about the course of the proceedings, and in that way to avoid a miscarriage of justice.
[2] Cooling v Steel (1971) 2 SASR 249; Thomas v Police (2010) 55 MVR 76; Chadha v Police [2012] SASC 181; Jaworski v Police (2009) 265 LSJS 254.
The decisions of this Court, which have dealt with the obligation of judicial officers in Magistrates Courts to inform a defendant of the consequences of a guilty plea, have concerned court imposed consequences in the proceedings brought against the defendant. This case is different in two respects. First, the demerit points are imposed by force of the MVA and not by judicial order. Secondly, and this point is related to the first, any reduction of demerit points is ordered on a defendant’s application made pursuant to s 98B(4) of the MVA.
Difficult questions arise as to the extent of the duty of a court to inform a defendant about the collateral statutory consequences of a plea or about the availability of associated applications which the defendant might make to avoid those statutory consequences. I will assume, without deciding for the purposes of this case, that the obligation of Magistrates in those circumstances is at least similar to the more commonly encountered circumstances mentioned in the authorities to which I earlier referred.
Turning to this case, there was no suggestion that Dr Svilans would have done other than plead guilty. In a case such as this, the inevitable consequence of the plea of guilty is that a conviction would have been recorded and, subject to an application made pursuant to s 98B(4) of the MVA, the statutory consequence was that three demerit points would be recorded against Dr Svilans’ driver’s licence.
The gravamen of Dr Svilans’ complaint is that the failure of the special justice to warn him that the offence attracted demerit points or to announce a loss of points as part of his order caused him to mistakenly assume that a conviction for the offence would not result in a loss of demerit points.
Dr Svilans acknowledged in his evidence that when he heard the penalty announced by the special justice he appreciated that no reference had been made to any loss of demerit points. Dr Svilans acknowledged before me that he decided not to make an application pursuant to s 98B(4) of the MVA, lest it reminded the special justice of an oversight in the imposition of penalty. Dr Svilans assumed that fortune had smiled on him and thought it best not to raise the question of demerit points by making an application. In those circumstances the failure to make the application and thereby to avoid the statutory consequence is a result of Dr Svilans’ strategic decision, albeit a badly informed decision, because of his imperfect understanding of the law. Dr Svilans did not contend that he was not in a position to obtain legal advice or representation if he had so chosen. It was not in my view a consequence of any failure by the special justice.
I mention here that in November 2013, Dr Svilans appeared before the Elizabeth Magistrates Court on a speeding offence. A record of those proceedings has been received by me on this appeal.[3] The transcript of those proceedings records that Dr Svilans made an application for reduction of demerit points which was not opposed by the Police, and that an order reducing the points to zero was made by the special justice.
[3] Exhibit R4; SCCIV-14-1304.
Dr Svilans has testified before me that he made no such formal application. He testified that he had no recollection of any such formal order having been made. Rather Dr Svilans testified that there was a discussion about the consequences of a loss of licence. On Dr Svilans’ account, the presiding special justice must simply have decided to make the order even though there had been no mention of it. I doubt that the hearing would have proceeded in that way. Be that as it may, there is no evidence contrary to Dr Svilans’ account so I make no express finding about the course of proceedings at the Elizabeth Magistrates Court in November 2013.
I simply add the fact that Dr Svilans must have been aware that, as a result of the court proceedings in November 2013, he was spared the accumulation of further demerit points as an additional reason for finding, as I do, that the failure to take the opportunity to make a s 98B MVA application results more from Dr Svilans’ strategic choice, admittedly an imperfect understanding of the operations of the Act, than any failure on the part of the special justice.
For these reasons, I reject Dr Svilans’ complaint that he was denied procedural fairness. Even if I had formed the view that Dr Svilans had been denied procedural justice, I would have dismissed the appeal because the circumstances on which Dr Svilans relies for a reduction of demerit points do not justify the reduction. In his written submissions, Dr Svilans relied on the following:
The usual speed limit on the road where the offence was committed is 100kph. Some 33 minutes before I drove past the speed camera, the speed limit had been reduced to 80kph for no apparent reason. The weather conditions were fine and as the photographic evidence shows, traffic was very light.
The speed camera is located on a rather steep downhill section of the road. A momentary lack of observation of the speedometer can result in quickly gaining speed in excess of the speed limit. I would have been watching the road when detected by the camera, and thus inadvertently allowed my vehicle to accelerate under gravity to the point of exceeding the speed limit. There was nothing intentional or deliberate about committing the offence.
Although my offence may not be considered as trifling, I submit that it would be at the lower end of seriousness. My recorded speed of 91kph on a road designed to have a speed limit of 100kph could not be regarded as being dangerous, and since there was no other vehicle in the vicinity, could not be regarded as posing a risk for other road users.
My personal circumstances are very pertinent to the issue of losing my driver’s license.
Counsel for the respondent submits that none of those just cited grounds could satisfy the test posed by s 98B(4) of the MVA, namely “that the offence was trifling, or that any other proper cause existed for the reduction of demerit points”. The respondent’s written submissions continue:
The applicable speed limit (albeit a variable one) has been set on the basis that it is considered appropriate and safe. It does not provide an alternative speed for drivers who consider themselves competent and safe, or for fine conditions and light traffic. Nor does it permit the exercise of a driver’s discretion to assess an appropriate speed in given circumstances, based on his or her perception of the safety of the conduct, and so to render the offending driver’s behaviour trifling.[4]
[4]    Thorley v Police [2009] SASC 4 at [14] per Nyland J.
The offence contrary to s 79B of the RT Act is not concerned with the actual standard of the driving in question. The purpose of the legislative scheme under the RT Act and the Australian Road Rules is to prevent the dangers inherent in a vehicle exceeding the prescribed speed limit.[5]
[5]    See the discussion in Siviour-Ashman v Police (2003) 85 SASR 23, [2003] SASC 29 at [26] per Doyle CJ.
The respondent submits that there is no basis upon which the instant offence could be characterised as trifling:[6]
a.     The appellant was sufficiently in excess of the speed limit for that excess not to be disregarded as trifling.[7]
b.     The offence was not atypical,[8] nor was it committed in circumstances of emergency or pressing necessity.[9]
c.     While it was not the most serious example of an offence of this type, this was acknowledged in the special justice’s remarks, and reflected in the fine.[10]
Point 4 of the appellant’s “specific issues” addresses his personal circumstances. Although the licence disqualification created a hardship, it is one of which he must have been aware, and one which should have resulted in greater care in complying with the road rules.[11]
In any event, in determining whether “proper cause” exists to enliven s 98B(4) of the MV Act, the Court must consider the offence itself, not the factors personal to the offender.[12] In particular, any hardship that may be suffered by an offender is irrelevant and inadmissible.[13]
Factors referred to in the first two issues raised by the appellant may also be relevant to the determination of whether there was proper cause to reduce demerit points. However, the fact that the weather was fine and traffic was light, and that the offence was not attended by intention does not amount to proper cause for a reduction of demerit points.
Footnotes in original
[6]    It is noted that the authorities are inconsistent on the question of whether the determination of whether an offence is trifling is the exercise of a discretion or a factual finding: see Thorley v Police [1997] SASC 6492 per Perry J at p.4, Savage v Police [2011] SASC 13 at [10] per Nyland J, and Draoui v Police [2010] SASC 94 at 20] per Nyland J, c.f. Roberts v Police [2013] SASC 190 at [17] per Stanley J.
[7]    See Miles v Police [2012] SASC 69 at [23] per Doyle CJ.
[8]    Siviour-Ashman v Police (2003) 85 SASR 23, [2003] SASC 29 at [24], [25].
[9]    Thorley v Police [2009] SASC 4 at [14] per Nyland J.
[10] Remarks on penalty at [2].
[11] As in Miles v Police [2012] SASC 69 at [29] per Doyle CJ.
[12] Dycer v Police [2010] SASC 241, Holness v Police [2010] SASC 314 at [13] – [22] and Chan v Police [2014] SASC 35 at [22]; but see Miles v Police [2012] SASC 69 for the contrary view.
[13] Black v Police [2009] SASC 115 at [10] per Vanstone J.
The offence of which Dr Svilans was convicted was an ordinary offence of its type. The circumstances on which Dr Svilans relies do not warrant a reduction in demerit points.
I also accept the respondent’s submission that proper cause does not include the personal circumstances of the appellant. I would follow the decision of Sulan J in Holness v Police[14] and Chan v Police,[15] notwithstanding the contrary remarks made in Miles v Police.[16]
[14] [2010] SASC 314 at [13]-[22].
[15] [2014] SASC 35 at [22].
[16] [2012] SASC 69.
For the above reasons, I would dismiss the appeal. I order that the appellant pay the respondent’s costs in the sum of $500.