Varano v Police No. Scgrg-98-267 Judgment No. S6665

[1998] SASC 6665

VARANO  v  POLICE

Magistrates Appeal
Mullighan J  (ex tempore)

The appellant has appealed against a sentence of imprisonment of two months imposed by a learned Magistrate on 20 February 1998, upon the appellant having been convicted of driving a motor vehicle on a road on 26 February 1997 whilst he was disqualified from holding or obtaining a licence to drive a motor vehicle contrary to s91 of the Motor Vehicles Act 1959.

The appeal came on for hearing on 15 April, and during the course of that hearing issues arose as to the basis upon which it is said that the appellant had been disqualified from holding or obtaining the licence.

At the time of the sentence, the prosecution clearly believed that the appellant had been disqualified from holding or obtaining a licence on 6 July 1988 until further order with respect to offending on 25 November 1987. Also it was thought that his licence was disqualified by operation of s61A of the Criminal Law (Sentencing) Act 1988 by reason of non-payment of fines imposed during 1993, and that the licence disqualification imposed at that time was extant at the time of the offending which is the subject of this appeal. However, upon closer scrutiny at the hearing of the appeal, doubt has arisen as to which, if any, orders of disqualification were in existence on 26th February 1997.

The appeal was adjourned to enable some further enquiries to be made.  Upon resuming the hearing today, it is plain that there is some doubt about these matters which the parties have not been able to resolve.  It is unnecessary for present purposes to explain the reason for that doubt, but I am satisfied that there is a genuine issue to be resolved as to whether, in fact, the appellant drove a motor vehicle on 26 February 1997 whilst disqualified from holding or obtaining a driver's licence.

That is a new matter.  This appeal was instituted simply as an appeal against sentence but a question now arises as to whether the appellant is guilty of the offence.  It is now inappropriate to proceed with the appeal against the sentence.

In view of the doubt about the guilt of the appellant, justice requires that matter to be resolved.  That can only be done by evidence.  Should the appellant, after further enquiry, take the view that he has a defence to that charge, it is accepted by both counsel on this appeal that the appropriate forum to resolve that issue, should it arise, is the Magistrates Court.

The appellant pleaded guilty to the charge, but it is possible that he did so upon a genuine misunderstanding that at the time of his driving on 26 February 1997 he was, in fact, disqualified from holding or obtaining a driver's licence.  If that is so, then he may well have a basis for an application to withdraw that plea of guilty.  There is insufficient information before this Court to consider that matter and it is best considered by a learned Magistrate.

In order to ensure that justice is done, it is, as I say, necessary to send the matter back to the Magistrates Court.  It is doubtful whether that Court could set aside the conviction pursuant to s76(a) of the Summary Procedure Act given the lapse of time.  However, this Court clearly has the inherent power to set aside the conviction in appropriate circumstances which clearly exist.

The respondent does not oppose the course which I propose to adopt that the conviction should be set aside, the sentence of imprisonment quashed and the complaint be remitted to the Magistrates Court.  It will be for the appellant to decide if he wishes to make an application to change his plea to the charge and if he does so it will be for the Magistrate to decide whether sufficient grounds exist for such an order.  However, whatever happens, it is clear that the basis upon which the learned Magistrate sentenced the appellant  was wrong at least in some respects.

I allow the appeal.  I set aside the conviction and quash the sentence of imprisonment.  I remit the complaint to the Magistrates Court for further hearing according to law. 

I make no order as to costs of either party.