Tidswell v Police No. Scgrg-98-908 Judgment No. S6822

[1998] SASC 6822

TIDSWELL  v  POLICE
[1998] SASC 6822

Magistrates’ Appeal (Ex tempore)
Bleby J

1. The appellant pleaded guilty in the Adelaide Magistrates Court to one count of driving at a speed dangerous to the public contrary to s46 of the Road Traffic Act 1961. The offence occurred on 6 November 1997 at Crafers West on Waverley Ridge Road. Waverley Ridge Road, at the point where the offence occurred, is a two-lane road - that is, one lane for each direction of traffic - and carried a speed limit of 60 kilometres per hour. It is the main road which connects the Crafers/Stirling area with the Upper Sturt, Blackwood and Belair areas. At about 7.45pm on the day in question, the appellant’s vehicle was recorded driving at a speed of 104 kilometres per hour by means of a speed camera. There were neither any other vehicles nor pedestrians in the immediate vicinity at that time. The weather was fine, visibility was good. Some time later, on 25 November 1997, police spoke to the appellant in relation to the speeding offence. He admitted that he was the driver of the vehicle at the time that the offence was committed. When questioned as to his reason for speeding, the appellant replied that he was on his way to a security call.

2. The penalty prescribed for an offence of driving at a speed dangerous to the public where the offence is a first offence, as this one was, is a fine of not less than $300 and not more than $600 and a period of licence disqualification not less than six months. Section 46(3)(b) provides:

   “(b).. The disqualification prescribed by para (a) shall not be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied by evidence given on oath that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month.”

As this was a first offence, it was open to the appellant to argue that it was properly characterised as trifling, and that the magistrate should exercise his discretion to reduce the minimum term of the licence disqualification. 

1. The appellant was sentenced on 3 June 1998. On that day, he gave sworn evidence in support of a submission made by the appellant’s counsel that the offence should properly be regarded as trifling so as to bring into operation the provisions of s46(3)(b) of the Road Traffic Act.  The magistrate rejected that submission.  He imposed a fine of $300 and disqualified the appellant from holding or obtaining a driver’s licence for a period of six months, commencing at one minute past midnight on 26 June 1998.   That was the minimum penalty that the magistrate could have imposed in the light of his finding that the offence was not trifling.  The disqualification order was suspended on 26 June 1998 pending the outcome of this appeal. 

2. The appellant gave sworn evidence before the magistrate in support of his contention that the offence was properly classified as trifling.  The appellant, who is an investment consultant, stated that the company for whom he worked was responsible for managing properties for its investors.  One such property is located in the Colonnades Shopping Centre at Noarlunga.  On the day of the offence, the appellant had arranged to meet some security people at the Colonnades Shopping Centre in connection with an increasing incidence of graffiti in that area.  If there were some urgency in the meeting, it was not apparent from the evidence given by the appellant, and I doubt in any event whether such urgency would constitute the offence to be trifling.  The appellant also gave evidence that at the time that the offence was committed there was no other traffic on the road, the weather was fine and visibility was good.  The car driven by the appellant was a 1994 model Saab, apparently in good mechanical condition.  The appellant had come from the south-eastern freeway travelling towards Adelaide and he had driven off onto Waverley Ridge Road.  The appellant further said that Waverley Ridge Road begins as a four-lane highway, narrowing to a two-lane road after about a kilometre, and that he believed that the speed limit applicable to the particular stretch of road where the offence was committed was 80 kilometres per hour. 

3. The sole ground of the appeal to this court is that the sentencing magistrate erred in not finding that the offence was trifling.  In my opinion it is difficult to see how the particular facts and circumstances of this offence could ever warrant a finding that the offence was trifling.  As the magistrate pointed out, this was not an emergency situation.  There was certainly no compelling humanitarian need justifying the commission of the offence.  The breach was not casual or inadvertent.  Even on the appellant’s own evidence, he was still aware that the speed at which he was travelling was well in excess of the speed limit, which he believed to be 80 kilometres per hour.  The only possible argument is based on, and indeed Mr Ey for the appellant sought to rely on, the apparently favourable driving conditions in the case, the fact that it was a fine day, that there was no other traffic or pedestrians in the vicinity and that any danger to the public created by the appellant’s driving was at a particularly low level.   Against that, the magistrate noted that Waverley Ridge Road was a major connecting road which, in the area in question, intersected with or formed a T junction with other roads.   He described the road as “residential in the immediate vicinity with a somewhat rural flavour”.  But the appellant on his own evidence had just gone through a corner which contained an advisory speed sign of 35 kilometres per hour. 

4. One begins with the point that to be found guilty of this offence, it must be shown that in all the circumstances, the impeached driving passed beyond the point where it represented a mere departure from the rules of the road, and that it had become so serious a departure that the speed of driving created a wholly unreasonable and unwarranted danger to the life, limb or both of other road users: Pope v Hall (1982) 30 SASR 78 per Wells J at 79. I would go further and say that it may include unwarranted danger to the life and limb or both of the defendant as well. However, that is what the appellant pleaded to. A case often cited in the application of similar sections or similar provisions of other sections of Acts of the South Australian Parliament is the decision of Mitchell J in Mancini v Vallelonga (1981) 28 SASR 236, a case dealing with overweight vehicles under s147 of the Road Traffic Act.  Olsson J on more than one occasion has summarised some of Her Honour’s views in that case as follows, and I take this passage from Hills v Warner (1990) 155 LSJS 397 at 401, repeated again in Daniels v Cleland (1991) 55 SASR 350 at 353:

   “ian offence is not trifling if it is a typical offence of the class prescribed;

   iwhere the breach is deliberate it can rarely be characterised as trifling;

   ian offence is trifling where it is merely technical, casual or inadvertent and there was no deliberate intention to commit a breach of the statute;

   ian offence may be held trifling where there were compelling humanitarian or safety reasons for doing what was in fact done.”

5. Craig v Dunsmore (1986) 128 LSJS 293 was a case where the appellant was recorded travelling at a speed of 103 kilometres per hour on Greenhill Road at Hazelwood Park, which was in a 60 kilometres per hour zone. There was no evidence of anyone actually being endangered by the driver. The appellant argued that the offence was properly regarded as trifling, a submission which had not been accepted by the magistrate. The case went on appeal to Cox J of this Court, and His Honour said at p294:

   “I sympathise with the special magistrate’s difficulty, because s.46 describes the kind of offence which is, by its very nature, a serious one. That an offence has been committed under s.46 necessarily means that there was, by reason of the speed or the manner of driving, at least a potential danger to members of the public. How, then, can there be a trifling offence under that section? Somehow one has to grapple with the unmistakable fact that Parliament in s.46 contemplates the possibility of a trifling offence in relation to speed or manner dangerous to the public. I suppose it would have to be what one might call a mere technical breach of the law. So far as speed is concerned, such a case might be one which was constituted by bare speed and nothing else - a speed such as to bring the case within the section, but with no significant danger to anyone, and perhaps by reason of such factors as the short distance driven, or other unusual circumstances, properly to be described as trifling within the meaning of s.46. Such cases, one supposes, will be quite uncommon.”

I respectfully agree with His Honour that such cases will be quite uncommon. 

1. It is difficult to be dogmatic about what circumstances would amount to a trifling offence in the case of an offence against s46 of the Road Traffic Act.  I think there would have to be not only, in fact, no significant danger to anyone, but no potential of any significant danger by reason perhaps of the geographical features of the location, and perhaps a very minor infringement over the speed limit. 

2. As with the case in Craig v Dunsmore (supra), whilst there was no evidence of people actually being endangered by the appellant’s driving in the sense of having to take some sort of emergency action, the potentiality was undoubtedly there.  In this case the road was only a two-lane road.  It had property access points and at least one other, if not two, streets adjoining it in the vicinity.  It had large trees on both sides of the road.  All of those factors present the possibility of concealed hazards by way of emerging pedestrians, vehicles and animals. 

3. The appellant had passed an advisory speed sign of 35 kilometres per hour, at a speed which I infer was close to that which he was travelling at when he was photographed.   There was a potential for a serious accident.  The purpose of graded speed limits generally is to ensure that drivers drive at a speed which will minimise the potential for any such accidents in the road conditions as they prevail at a particular location.  To drive at 44 kilometres per hour over the limit would seldom, if ever, constitute a trifling offence. 

4. In my opinion, it would require quite extraordinary circumstances to render such an offence trifling - perhaps where the risk of danger to life or limb may have been greater if the person did not drive at the speed in question, or where there was some other pressing or logical explanation, perhaps some form of human duress or unexpected mechanical malfunction.  It is enough to dispose of this case, however, that the magistrate found, and I agree with him entirely, that whatever might be classified as trifling, this offence could not be. 

5. To return to the summary of Olsson J to which I have already referred, it was a typical offence of the class described.  The breach was deliberate in that the appellant knew he was travelling over the speed limit, on his own admission by at least 24 kilometres per hour.  It cannot be described as a merely technical, casual or inadvertent breach where there was no deliberate intent to break the law, and there was no compelling humanitarian or safety reason for doing what was done.  In my opinion, the appellant was fortunate to receive the minimum penalty possible in all the circumstances. 

6. I dismiss the appeal. 

7. There will be an order that the appellant pay the respondent’s costs fixed at $150. 

8. I direct that the disqualification from holding or obtaining a driver’s licence ordered by the Magistrates Court take effect from 12.01am. on Monday, 24 August 1998. 

9. I allow two months in which to pay the costs I have awarded to the respondent.