GREEN v POLICE No. SCGRG-99-982 Judgment No. S412 [1999] SASC 412

Supreme Court of SA|1999-09-15|Before: Bleby J

On Appeal from MAGISTRATES COURT (MR K P EDGECOMB SM)

The appellant was originally charged on complaint with two breaches of the Road Traffic Act 1961 and one breach of the Motor Vehicles Act 1959, all arising out of his driving of a motor vehicle on the Sturt Highway at Lowbank on 16 February 1999.

On 23 July 1999 in the Magistrates Court sitting at Waikerie, the appellant, through his counsel, pleaded guilty to counts 2 and 3 on the complaint, namely count 2, that on 16 February 1999 at Lowbank, he drove a vehicle, namely a motor car, on a road, Sturt Highway, at a speed which was dangerous to the public, contrary to s 46 of the Road Traffic Act, and count 3, that on the same day at Lowbank, being the holder of a licence endorsed with conditions pursuant to s 81A of the Motor Vehicles Act 1959, he drove a motor vehicle, namely a motor car, on Sturt Highway at a speed exceeding 100kph, namely at about 160kph, contrary to s 81A of the Motor Vehicles Act.

The prosecution thereupon withdrew the complaint reflected in count 1 of a breach of s 49 of the Road Traffic Act.

The facts as related by the prosecutor to the Magistrates Court were that police who were performing highway patrol duties on the Sturt Highway at Lowbank by means of a mobile radar unit detected the speed of the appellant's sedan motor car travelling in an easterly direction at 160kph. The car was stopped and the police had a conversation with the appellant, the driver. He produced a provisional driver's licence, but no P plates were displayed on the car.

A conversation then ensued and the facts were reported. The appellant told the police that he was on his way to Mildura for work, that he was driving a rented car and had only just begun his turn at driving. He had two other passengers in the car.

He said that he was unfamiliar with the car and had not been driving it long. He said that he thought he was only travelling at 120kph, and had no reason other than stupidity for driving so fast.

The police prosecutor indicated that the road at that point was a bitumen road with a single lane for east and west-bound traffic; that the road was dry and in good condition; that the permitted speed on that part of the road was 110kph; that the vehicle was in good condition; traffic was medium at the time; that there were no main roads entering the Sturt Highway at the location of the offence and there were no houses nearby. He did say, however, that the area was notorious for kangaroos.

The appellant had a relevant record of previous convictions for driving offences. On 20 September 1996 at Port Adelaide he had been found guilty of a number of charges, including driving at a speed dangerous to the public, for which he was convicted and fined $400, and he was disqualified from holding or obtaining a driver's licence for a period of 7 months.

He was also fined $800 for having the prescribed concentration of alcohol in his blood and for which his licence was also disqualified for a period of 13 months.

He was also convicted of disobeying a provisional licence condition. For that he was convicted and discharged without penalty. He was also convicted of speeding for which he was convicted and discharged without penalty and, finally, for resisting police for which he was convicted and imprisoned for 14 days, suspended on his entering into a 12 month good behaviour bond. There was an appeal to this Court against either the conviction or sentences, but the appeal was dismissed.

Before that, on 13 May 1996 at Port Adelaide, he had also been convicted on another occasion for disobeying a provisional licence condition. For that he was convicted and fined $95. There had been an earlier assault charge in 1993.

The appellant's counsel made submissions about the personal and family circumstances of the appellant to the magistrate, and submitted that the appellant, his wife and his business partner were travelling to Mildura in a hired car, that he had just taken over the driving and did not realise the speed that he was travelling at, as he usually drives a utility.

She mentioned that weather conditions were fine at the time. She asked the court to keep the licence disqualification to a minimum due to the appellant's co-operation with the police, his need for a licence for his job, his financial obligations towards the support of a child, as well as other financial commitments that he had, and that the disqualification would have an obvious effect on the work to be performed by his business partner.

From what was said before the magistrate, it was clear that this was the appellant's second offence for a breach of s 46 of the Road Traffic Act. The penalty that the magistrate was obliged to impose for that breach was a fine of not less than $300 and not more than $600, or imprisonment for not more than three months.

The court was also required to disqualify the appellant from holding or obtaining a driver's licence for a period of not less than three years. For a second offence, that disqualification cannot be reduced or mitigated in any way or substituted by any other penalty or sentence.

The maximum penalty for the appellant's breach of s 81A of the Motor Vehicles Act, that is count 3, was a fine of $1250. The magistrate imposed a single penalty under s 18A of the Criminal Law (Sentencing) Act, namely a fine of $450, and ordered the minimum period of licence disqualification of three years from just after midnight on 24 July 1999.

The appellant now appeals against his conviction on count 2. The one ground of appeal is that he misunderstood the nature of the penalty to be imposed upon a plea of guilty. In particular he understood that his licence would be disqualified for a period of six months only.

It is well established by a number of cases that whether a person breaches s 46 of the Road Traffic Act by driving at a speed dangerous to the public depends on whether the speed at which the defendant drove created a wholly unreasonable and unwarranted danger to road users in the light of the risks of something untoward happening and the consequences if something untoward did happen: Pope v Hall (1982) 30 SASR 78; Firth v Prestwood (1987) 44 SASR 427; Zanker v Modystach (1990) 54 SASR 183. There will be room in some cases for argument as to whether a breach has been committed, given the qualitative nature of the offence prescribed by s 46.

The appellant now claims that he had no knowledge of the penalty consequences he was facing for a second breach of s 46. Had he known, he says he would not have instructed his solicitor to plead guilty to the charge.

He has sworn an affidavit to the effect that his solicitor told him that if he pleaded guilty, his licence would be suspended for a period of not less than six months, and that he would receive a substantial fine. He was asked by his solicitor if he had any previous convictions. He mentioned the drink driving offence and the speeding offence for which he had suffered a licence disqualification, but did not mention his previous conviction for driving at a speed dangerous to the public.

He claimed that had he been aware of the minimum period of disqualification applying to a second offence of driving at a speed dangerous to the public, he would not have instructed his solicitor to plead guilty "without first exploring the options".

He says that in the circumstances, he "would have been prepared to defend the charge" as he did not consider that the speed was dangerous in all the circumstances. He chose his words in his affidavit carefully. He has not deposed to the fact that under no circumstances would he have pleaded guilty had he been aware of the penalty provisions.

At no time has the appellant denied the factual allegations made against him being those to which I have already referred. It was on the basis of his plea of guilty to counts 2 and 3 that the prosecution withdrew count 1, an allegation that the appellant was travelling at 100kph greater than the regulated speed of 60kph, although the submissions by the prosecutor before the magistrate conceded the speed limit at the point of the police observation was 110kph. I infer that there was little or no prospect of that first charge succeeding, given that concession. Any argument that the prosecution now cannot proceed with a charge that it would have proceeded with if there had not been a plea of guilty, loses a great deal of its force on that account.

However, although the magistrate did not specifically mention his plea of guilty, the magistrate did say "In the circumstances", which I infer must have included his plea, he imposed the penalty that he did. It was a very moderate penalty. It may well not have been the same after a plea of not guilty.

Section 42 of the Magistrates Court Act 1991, provides for an appeal by a party to a criminal action to this Court against a "judgment" given in the action. The recording of a conviction, even on a plea of guilty is, in my opinion, a judgment from which an appeal can be brought. Nevertheless, the question is raised as to the circumstances in which an appeal can be successfully brought against a conviction after a plea of guilty to the charge concerned.

A plea of guilty is an admission of all of the essential elements of the charge: Meissner v R [1995] HCA 41; (1995) 184 CLR 132 and Maxwell v R (1996) 184 CLR 501 per Dawson and McHugh JJ. The conviction is entered not upon evidence that was used upon the charge, but upon the confession formally entered in court: R v Massey [1994] SASC 5133; (1994) 62 SASR 481 and R v Sagiv (1986) 22 A Crim R 73. See also R v Frantzis (1996) 66 SASR 558 per Lander J at 562.

The appellant pleaded guilty on advice. It may have been incorrect advice as to penalty, but that was of the appellant's own doing, as he withheld from his solicitor the vital information that he had a previous conviction under this same section.

Nevertheless, he admitted, by his plea, all the essential elements of the charge against him, including their qualitative nature; namely, that it was a speed in all circumstances which was dangerous to the public. He was not compelled to make that admission or induced to do so by intimidation or fraud or any other improper inducement. There is no suggestion that he did not understand the nature of the charge, only the mandatory minimum penalty. And that was only because his instructions to his solicitor were inadequate. He intended of his own free will, in my opinion, to admit his guilt. For reasons to which I return, it cannot be said that he could not possibly have been guilty of the charge on count 2.

If there is to be a successful appeal against a conviction after a plea of guilty, it is one or more of those factors to which I have just referred which must be established, and that it was such that it amounted to a miscarriage of justice: Rainbird v Samuels (1972) 4 SASR 187 per Walters J at188 - 189; R v Caruso (1988) 49 SASR 465 per von Doussa J at 489. I refer also to the judgment of Dawson J in Meissner v R [1995] HCA 41; (1995) 184 CLR 132, in particular at 157. Dawson J said:

"It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another or by an improper inducement or by fraud." (Footnotes omitted.)

Mr Vadasz argued before me that he did not intend to admit the charge. In my opinion, it is plain that he did. He knew the nature of the allegations against him. He intended, in all respects, to admit those allegations, including the qualitative nature attributed to them.

The only other ground which could be argued by the appellant was that he might have had a prospect of acquittal on count 2, because it was not, in all the circumstances, a speed which could be considered to be dangerous to the public. He admitted, as I have pointed out, that he was travelling at a speed of 160kph in a 110kph zone; in other words, 50kph above the limit. 160kph, even on a straight sealed road, in daylight, is a very high speed, especially on a single carriageway for traffic travelling in both directions . It makes no allowance for the unexpected, the sudden emergence of a kangaroo or some other animal, or the unexpected appearance of another vehicle, or some mechanical mishap, any one of which might have caused the vehicle to become, at that speed, irretrievably out of control.

In order to demonstrate a miscarriage of justice on that ground the appellant would have to show that on any assessment of the facts he could not have been found guilty of driving at a speed dangerous to the public. In my opinion, that cannot be shown, and it is confirmed by his own admission. It cannot be said on the admitted facts he could not in law be guilty of the offence. Further, the appellant has not deposed to the fact but for the mistaken information he had, in the penalty for the offence, he would have pleaded not guilty; his affidavit does not go that far.

In my opinion, there is no substance in the appellant's ground of appeal. There has been no miscarriage of justice, and the appeal is dismissed.

In view of the fact that on 12 August 1999 the Magistrates Court directed that the appellant's licence be restored pending the hearing of this appeal, there will need to be a variation of the order for disqualification.

I think I would probably need to set aside the order of disqualification and direct the defendant be disqualified from holding or obtaining a driver's licence for a period of three years commencing, as the magistrate specified, at 12.01am on 24 July 1999 and ending at midnight on 11 August 1999, when the suspension was itself suspended, and then commencing again for the balance of the period at a time which I will specify after hearing Mr Vadasz.

Motor Vehicles Act 1959

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