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Svilans v Police

Svilans v Police

Case [2014] SASC 173 6 November 2014

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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…

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

AGLC: Svilans v Police [2014] SASC 173
Case: [2014] SASC 173
Decision Date: 6 November 2014

CaseChat Overview and Summary

In the case of Svilans v Police, the appellant challenged a decision of the Magistrates Court of South Australia, where he had been found guilty of exceeding the speed limit and was fined. The conviction resulted in the appellant incurring three demerit points and his driver’s licence being disqualified. The appellant contended that he was not made aware that the sentence would result in the accrual of demerit points and that he was denied the opportunity to conduct his defence. The appeal to the Supreme Court of South Australia considered the question of whether the appellant was denied procedural fairness and whether personal hardship could be a ground for finding that a proper cause exists for an appeal under section 98B(4) of the Motor Vehicles Act 1959.

The court examined whether the special justice was required to inform the appellant that the sentence would result in demerit points being applied to his licence. It was held that while the appellant was entitled to know the consequences of his conviction, it was not necessary for the special justice to explicitly state the accrual of demerit points. The court found that the appellant had been sufficiently informed of the consequences of his conviction, as the fine and disqualification of his driver’s licence were communicated to him. The court also held that the appellant was not denied the opportunity to conduct his defence, as he was given the opportunity to plead guilty and to make submissions on sentencing.

The Supreme Court dismissed the appeal, finding that the appellant had not been denied procedural fairness. The court held that personal hardship could not be considered a ground for finding that a proper cause exists for an appeal under section 98B(4) of the Motor Vehicles Act 1959. The court found that the special justice had not erred in his decision and that the appeal did not have merit. Consequently, the appeal was dismissed, and the original sentence imposed by the Magistrates Court was upheld.

Orders