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SA Anti-hoon laws ruled unconstitutional!

Discussion in 'Politics, Laws, Government & Insurance' started by Noticibly F.A.T, Oct 17, 2012.

  1. South Australia's Chief Justice has ruled the state's anti-hoon legislation is unconstitutional and has overturned an order for a Port Pirie man to forfeit his car.

    Graeme Anthony Bell was convicted and sentenced last year for a third drink driving offence in a 10-year period and was ordered to forfeit his car to the Crown.

    He took his fight to keep his car to the Supreme Court, arguing the state's Forfeiture Act was invalid on constitutional grounds.

    Today, Chief Justice Chris Kourakis ruled in favour of Mr Bell, saying the so-called anti-hoon legislation took away the discretion of the courts and applied a double punishment to offenders.

    He said State Parliament had given South Australian courts powers it was unable to give.

    The State Government can appeal against the ruling to the full bench of the Supreme Court.

    Full article here
    • Like Like x 16
  2. Wow.

    But it wasnt the taking of the vehicle that is unconstitutional but the mandatory aspect and the double punishment. I read this as the government legislature could give the court confiscature power still. Though probably that is fair, losing your vehicle without due process is what I object to rather than the punishment itself.
  3. Very interesting.

    Although, you are right, it doesn't seem as if the court minds about the fellow losing his car, just that the punishment is set by the legislature and not the judiciary. Correct me if I'm wrong.
  4. mmmm just wondering if this has any ramifications for other states ?
  5. Doubtful. The limited report says that the State parliament had given the judiciary powers it wasn't able to.

    Alot of States have their own constitutions that are far more constricting that then the Commonwealth's constitution. Even if it went up to the High Court it would make no difference to other States unless an almost identical provision was enacted there and it conflicted with that State's constitution.
  6. I've got a fairly simplistic view of having property taken off us by the Crown.

    When do we ever really own anything, if it can be forcefully taken from us at any time?
    • Like Like x 3
  7. In an ideal world, representatives of the state who try to take your property would be dealt with just like anyone else who would try it: Send 'em away in an ambulance with the lights off.
    • Like Like x 1
  8. I must say that the SA courts interpretation of the law seems reasonable to me and falls in line with what I've believed to be the case for a while now.

    The only thing surprising to me is that no one has gone done this route and won before.
  9. it becomes even more unfair when the kid gets his dad's car confiscated or the mechanic gets the customer's car confiscated. At least putting this in the hands of the court lets both sides put a case together
  10. Yes, both sides get to put their case, the essence of a fair justice system.
  11. The issue was discussed on Radio National news today. In addition to the jurisdiction and double-sentencing issues, there was comment from the Chief Justice along the line that parliament is both unqualified and disqualified from passing sentence, especially in situations where it may be seen to be the beneficiary of said sentences.
    That's a can of worms I'm salivating to see opened.
    • Like Like x 1
  12. Neither of you are correct.

    Graeme Bell's lawyer had a close look at the Clamping, Impounding & Forfeiture of Vehicles Act 2007 and discovered that the decision about whether a motor vehicle is forfeited or not actually comes down to a decision of the police and not that of a Court, because if police makes an application, the court has to make the order. That makes the law unconstitutional as power has been taken away from the Courts and given to Police. His lawyer convinced the court of the same, and that's where it's at today. Police will no longer be able to obtain forfeiture orders and the government will now need to go back and look at their legislation. Previous determinations by the High Court of Australia protects the independence of judges from political interests.

    & as for ramifications extending past state borders being being "doubtful", I would not be so sure because the outcome may have a flow-on effect to other states that have been impounding vehicles.

    • Like Like x 1
  13. I did mean that but maybe i wasnt clear.

    Why is the double punishment unconstitutional? People get fines and community service all the time.
  14. 1. Because the second punishment (forfeiture) was determined by the decision of Police rather than the Court. Police do not punish. That is the role of the Court, yet once police had sought a forfeiture order, the court had to provide it.
    2. The forfeiture action by police is brought in many years after the Court has already punished the driver.

  15. And I have a fairly simplistic view that if you are 3 times convicted drink driver (which he was), you can go **** yourself, and you deserve to have your car crushed.
  16. Yeah probably should have read it again. I'm sick of law, been reading crap all day. Probably should stay of out discussions like this when I'm knackered,.
  17. Judgment of The Honourable Chief Justice Kourakis

    (Magistrates Appeals: Criminal)


    Judgment of The Honourable Chief Justice Kourakis
    17 October 2012

    Appeal against a forfeiture order imposed by a Magistrate – appellant convicted and sentenced by a Magistrate for the offence of driving with a prescribed concentration of alcohol (PCA) – the appellant’s vehicle was seized and impounded – the prosecution filed an application in the Magistrates Court for the forfeiture of the appellant’s vehicle – an order of forfeiture was made by the Magistrate pursuant to s 12(1)(a)(iii) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (the Act) – the prosecution relied on two previous PCA offences, committed in 2002 and 2005, as the prescribed offences committed within the qualifying period stipulated by the Act – the issues on appeal were:
    (1) whether the previous PCA offences did not come within the scope of the Forfeiture Act because the Forfeiture Act was not yet enacted and therefore the offences were not prescribed at the time the offences were committed; and
    (2) whether the Forfeiture Act is invalid because it requires the Courts to exercise powers which are incompatible with, and repugnant to, judicial power under the Constitution.

    1. KOURAKIS CJ: On 4 December 2010 the appellant, a resident of Port Pirie, drove his 1996 Commodore utility (the ute) on a road in that town with a prescribed concentration of alcohol, in contravention of s 47B(1)(a) of the Road Traffic Act 1961 (SA) (RTA). On his apprehension the ute was seized and impounded.

    2. On 16 December 2010, the police filed an application in the Magistrates Court for the forfeiture of the ute and served a notice to that effect on the appellant. On 10 January 2011, the appellant was convicted of the offence, fined $500 and his licence was disqualified for six months from that date. He was ordered to pay impounding fees of $848.20 pursuant to s 9(1) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (the Forfeiture Act). The forfeiture application was adjourned.

    3. The prosecution’s application for forfeiture was heard and determined on 31 October 2011. The prescribed offences committed within the qualifying period stipulated by the Forfeiture Act on which the prosecution application relied were offences of driving with a prescribed concentration of alcohol (PCA offences), committed on 20 March 2005 and 10 March 2002. The appellant had been convicted of the PCA offences on 10 November 2005 and 10 March 2002 respectively. The Magistrate briefly considered the appellant’s challenge to the operation and validity of the Forfeiture Act but ultimately made an order for the forfeiture of the ute pursuant to s 12(1)(a)(iii) of the Forfeiture Act.

    4. The Forfeiture Act commenced operation on 16 December 2007. The Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2007 (the Forfeiture Regulations) commenced operation on the same day. PCA offences are, and always have been, prescribed by reg 4(b) of the Forfeiture Regulations. Some other offences which had been prescribed by the Forfeiture Regulations when first made were later removed on 31 October 2010, and other offences were prescribed in their place.

    5. The appellant appeals against the forfeiture order on two grounds.

    6. First, he contends that on a proper construction of s 12(1)(a)(iii) and s 11(c)(ii) of the Forfeiture Act, the PCA offences do not come within their scope because the Forfeiture Act had not yet been enacted and because, obviously enough, PCA offences were not yet prescribed offences for the purposes of the Forfeiture Act. I will refer to prescribed offences committed within the periods stipulated by those subparagraphs as qualifying offences, and the prescribed offence, which, on conviction, attracts a forfeiture application as the confiscation offence.


    8. The appellant submits that his construction of the term is also supported by the presumption that statutes are not intended to inflict double punishment. The appellant argues that if forfeiture were to be ordered after a defendant had been sentenced for the confiscation offence, either because of the subsequent prescription of offences of a kind which he had committed in the qualifying period, or on the basis of subsequently committed prescribed offences, the forfeiture would be an additional punishment imposed for both the confiscating offence and the qualifying offences.

    9. I reject the appellant’s first ground. The provisions of the Forfeiture Act reveal an intention to allow an application for forfeiture to be made if the defendant has committed offences within the qualifying period which are, at the time of the application, of a prescribed kind. Section 10 of the Forfeiture Act is, on its face, directed to this very issue and gives the statute retrospective effect in clear and intractable terms. I reject the appellant’s construction of the term “prescribed offence”. I develop my reasons further below.

    10. The appellant’s second ground of appeal is that s 12(1)(a)(iii) of the Forfeiture Act is invalid because it requires the courts of this State to exercise powers, on the application of the prosecution, which are incompatible with, and repugnant to, the exercise of judicial power under the Constitution. I uphold the appellant’s constitutional objection. The subsequent references in my reasons to the effect and invalidity of the scheme implemented by the Forfeiture Act are references to the effect given to that scheme through, and the invalidity of, s 12(1)(a)(iii) of the Forfeiture Act. The Forfeiture Act requires the courts of this State, on an application made by the prosecution, to impose, as a substantial additional criminal penalty, forfeiture of the motor vehicle specified in the prosecution’s application after they have finally sentenced a defendant convicted of a confiscation offence. The forfeiture order substantially increases the effective penalty above that fixed by the Court for the confiscation offence in the exercise of its sentencing discretion and after balancing the competing considerations applicable to that offence. In imposing that additional penalty the Court acts ministerially, in the sense that it acts as an instrument of the executive government, to make an order which is dictated by the very terms of the prosecution’s application. The application, which may be made many years after the offender has been finally sentenced for the confiscation offence in accordance with the ordinary criminal process, is made in the unfettered discretion of the prosecution. The motor vehicle selected for forfeiture may be either the vehicle used in the commission of the offence or any other vehicle of which the offender is the registered proprietor. The prosecution may make the application in circumstances in which the making of an order could only be regarded as capricious, yet the Court is impotent to restrain the use of its process to achieve that result. The forfeiture jurisdiction conferred on the courts of this State is incompatible with their constitutional status as courts which must be fit for investiture with federal judicial power. I develop my reasons for so concluding below.


    44. The appellant also called in aid of his construction the presumption against the statutory imposition of double punishment. I accept that the forfeiture of an offender’s motor vehicle pursuant to Pt 3 of the Forfeiture Act is a punishment. I acknowledge that in some cases a forfeiture order will have a preventative effect because, at least for some period of time after any period of licence disqualification has elapsed, the offender may not have access to another vehicle. However, prevention is a relatively minor consequence of a forfeiture order. In Australia motor vehicles are generally regarded as the second most valuable personal asset, after a home, but, for many, cars are their most valuable asset. The confiscation of an asset of such relative importance is undoubtedly a severe penalty. It is also a symbolic penalty. The primary effect of a forfeiture order is plainly punitive and for that reason it also operates as a general and personal deterrent.

    45. The Forfeiture Act imposes the penalty of forfeiture on a conviction for the confiscation offence. It is not a penalty imposed on the qualifying offence. The preceding, or subsequent, commission of qualifying offences is a necessary condition for the making of the forfeiture order but it does not follow that the forfeiture is an additional punishment for the commission of the qualifying offences. The forfeiture order can only be made upon the offender’s conviction for the confiscation offence and it is with respect to that offence that forfeiture is imposed as a penalty. It is a well established sentencing principle that, all other things being equal, an offender with an antecedent criminal history, will receive a more severe penalty for a particular offence, than a first offender. The greater penalty is not an additional punishment for the other offences but reflects the heightened need for personal deterrence. So too for forfeiture imposed under the Forfeiture Act, the commission of the qualifying offences is a reason for making the forfeiture order, but it is made on conviction of the subsequently committed confiscation offence. The distinction is subtle, but is one of substance and not just semantics. Accordingly, insofar as the Forfeiture Act provides for a forfeiture order to be made on conviction of the confiscating offence by reason of the prior commission of qualifying offences, it does not impose a second punishment for commission of the latter. Indeed, the qualifying offences may have been merely expiated (see Appendix, Line A).

    46. On the other hand, double punishment will often be imposed when a forfeiture order is made on the basis of offences committed in the ten years following the commission of the confiscation offence. An order for forfeiture made on a supervenient application brought by the prosecution some time after conviction and sentence for a prescribed offence is, in form and substance, double punishment. In the ordinary course, the sentence which is imposed by a court upon conviction of a prescribed offence will be framed in a way which satisfies the punitive and deterrent purposes of sentencing on the assumption that there will be no additional penalty by way of forfeiture. A supervenient application founded on the subsequent commission of a qualifying offence, or offences, or the subsequent prescription of offences of the kind previously committed, in form and in substance, requires the Court to impose an additional penalty.


    Judicial control ineffective

    58. In Barton v The Queen , the High Court held that a decision of the Attorney-General to present an ex officio Information under s 5 of the Australian Courts Act 1828 (the ACA) was not examinable by the Courts. Gibbs ACJ and Mason J contrasted the power to lay an Information with “an ordinary administrative discretion conferred by statute.” Section 5 of the ACA provided that all crimes shall be prosecuted before juries “by information in the name of his Majesty’s Attorney-General”. The provision, by implication, conferred a bare power on the Attorney to lay an Information and prosecute it. Gibbs ACJ and Mason J noted that the provision did not limit or restrict the Attorney General’s consideration of the particular case and for that reason made “his decision immune from judicial review”. Of course the history of the Attorney-General’s power to lay an ex officio Information was an important consideration in Barton. However, so too was the consideration that it was undesirable that a court “should become too closely involved in the question whether a prosecution should be commenced”.

    59. Importantly the holding in Barton that the Attorney’s decision was not reviewable was balanced by the High Court’s recognition of the inherent judicial power to prevent an abuse of process by staying proceedings in cases in which it was necessary to ensure a fair trial. A trial is unfair if it is brought for an improper purpose, or if the Court’s capacity to evaluate the evidence has been seriously compromised. Proceedings which are foredoomed to fail are also an abuse of process.

    60. Section 12 of the Forfeiture Act confers, by implication, a bare power to bring an application. It does not, in terms, cast any obligation on, or limit the discretion of, the prosecution to bring the application. Rather, it speaks in mandatory terms to the Court, requiring it to make an order for forfeiture “on the application of the prosecution”. The bare power impliedly granted to the prosecution to bring an application is not conditioned on the actual existence of any objective facts or on the formation of any opinion. The way in which the power is granted largely immunises it from review in a similar way to which the power considered in Barton was immune. The review by a court of the exercise of the very power to initiate judicial proceedings is problematic in a common law system. Moreover, and unlike the power to lay an ex officio Information in Barton, it is difficult to see how the power might be restrained or controlled by the Courts power to
    prevent the abuse of its procedures. The very purpose of Pt 3 of the Forfeiture Act is to secure orders for the forfeiture of vehicles used or owned by an offender, or of another person who knowingly allows an offender the use of his or her vehicle. Forfeiture will invariably be the purpose for which an application is made.

    61. The Forfeiture Act gives no indication of any considerations which should govern the selection of the vehicle to be forfeited where there is a choice to be made between a vehicle used in the commission of the offence which may or may not be the offender’s vehicle, or a vehicle, which may be one of a number, owned by the offender. Moreover, the vehicles owned by an offender might change over time and, importantly, change in value over time. Even though delay in bringing an application may result in the forfeiture of a much more valuable car than the one used in the commission of the offence, it is difficult to imagine circumstances in which it would be an abuse of the process of the Court to bring it. True it is that an application brought for a collateral purpose will be an abuse of process but there is a distinction between the subjective motive of an applicant and the purpose of an application.

    62. The fundamental difficulty in applying abuse of process principles to applications for forfeiture is the very width of the power to bring a forfeiture application and the truly ministerial function of the Court before it is brought.

    63 Judicial review of a decision to bring a forfeiture application on the Wednesbury unreasonable ground would also face substantial obstacles. The policy considerations for bringing an application are not spelt out by the Forfeiture Act. So wide are the policy considerations which have been left at large that rarely could a particular application be characterised as irrational.

    64. Indeed, so wide is the power given to the prosecution by Pt 3 of the Forfeiture Act that it may be doubted that it could be exercised judicially even if it were conferred on the Court itself. It may be asked rhetorically, on what basis, other than the subjective policy position of the presiding judicial officer, could a court decide that a motor vehicle used to commit the offence should be forfeited rather than another vehicle owned by the defendant? Nor is there any statutory guidance on how to choose between a cheap vehicle which might have been used to commit the confiscation offence and another expensive vehicle owned by the offender. The legislation is also silent on whether the owner who knowingly allows the vehicle to be used or the principal offender should primarily be liable to forfeiture. A body of principles could theoretically be formulated to govern the selection of the vehicle for forfeiture. The prosecution authorities who are empowered to bring applications under the Forfeiture Act may well do so. However, the choices to be made are essentially legislative and administrative in nature and not judicial. It is just not possible for the judicial branch to review the prosecutorial discretion, and condemn as an abuse, policy choices which have some rational basis merely because the judicial officer hearing the application disagrees with the policy.

    65. Conversely, such is the limited adjudicative function of the Courts that it is difficult to envisage circumstances in which forensic unfairness would be caused to the defendant by the prosecution’s selection of one vehicle over another. It is unlikely that forfeiture applications could be stayed as an abuse of process on that ground.

    The judicial integrity principle

    66. It is a long accepted principle of Anglo Australian law that penalties for criminal offences should be judicially imposed. That principle is, at a Commonwealth level, constitutionally entrenched. On the other hand the executive governments of the States probably retain a power, under appropriate legislative authority, to impose penalties. However, it is quite another thing for a State legislature to empower a State executive agency to impose, in its discretion, and on an ad hoc basis, an additional penalty after a court has finally judicially disposed of a prosecution. It is also a very different matter to confer a power on the prosecution to order a court to apply and enforce a penalty in addition to the sentence it has previously imposed.


    80. The following features of the Forfeiture Act bring into question its compatibility with the judicial integrity implication:

    1. The penalty of forfeiture must, and can only, be imposed by a court on the application of the prosecution.
    2. There is no, or at least only very limited, capacity for judicial control of the prosecution’s discretion to make an application.
    3. A penalty forfeiture order must be made even in circumstances in which it materially interferes with the penalty already imposed for the confiscating offence in the sense that the earlier penalty was fixed in ignorance of the possibility of a later forfeiture.
    4. The forfeiture order will often be the most substantial part of the penalty imposed for the confiscating offence.
    5. The severity of the penalty imposed by way of forfeiture lies exclusively within the control of the prosecution which may select the vehicle to be forfeited from a number of possible vehicles.
    6. The prosecution’s forfeiture application is, in effect, an executive order to vary a judicial sentencing order.
    7. The discretion allowed to the prosecution involves disputable policy determinations which are likely to embroil orders, over which thecourt has no control, in controversy of a broadly political kind.
    8. The forfeiture orders which the court must make may be founded on the wholly retrospective imposition of a liability to forfeiture by the executive government’s prescription of kinds of offences after the confiscation offence and the qualifying offences have been committed.​


    82. In short, the judicial power to penalise contraventions of prescribed offences when the necessary qualifying offences have been committed, has, to a substantial extent, been placed under the control of the prosecution. The provisions of Pt 3 of the Forfeiture Act are inconsistent with the judicial integrity implication.

    83. I acknowledge the dispensing power conferred by s 13 of the Forfeiture Act. However the scope of the power is limited, in the case of defendants, to cases of “severe financial or physical hardship”. The forfeiture of a motor vehicle would cause substantial financial hardship to most defendants. Something much more than the hardship which forfeiture would ordinarily cause must be shown. In the generality of cases no dispensation can be given. In any event the judicial power to exempt a defendant in a particular case on hardship grounds does not meet the constitutional objection to the nature of the primary power and the manner of its exercise.

    84. I have considered whether the Forfeiture Act might be read down to bring it into conformity with the Constitution by limiting its application to the vehicle used in the commission of the offence. That limitation would reduce the width of the prosecution discretion and remove the risk of the capricious selection of one vehicle over another. Moreover, it would not ameliorate the other objectionable features I have identified and in particular the power of the executive to dictate to a court a variation of a judicially imposed penalty. More importantly, it would substantially change the operation of the Forfeiture Act, particularly in those cases in which the confiscation offence is committed in a vehicle which is not owned by the defendant.

    85. For the above reasons I hold that s 12(1)(a)(iii) of the Forfeiture Act is invalid.

    86. I allow the appeal. I set aside the order of forfeiture.

  18. grrr... three time drink driver gets his car back

    You'd think one drink driving offense would have been enough of a wake up call

    Reminds me of an incident I had last night... filling my tyres up at a service station... this little hatch back violently reverses out of it's park, swinging around, and crashes into a fence. Then puts it in first, revving the shit out his car, speeds out through the service station exit (crossed the footpath, at a very busy location... maccas next to UNSW, could have nearly ran over many pedestrians)

    He has to stop for a red light next to the service station though, and hasn't turned his headlights on. I pointed at his car and said "Headlights!"

    He replies with "Shut up mate, SHUT YOUR FUCKING MOUTH, YOU STUPID FUCK, YOU STUPID FUCK! ... (ranting on like a pyschotic that was about to kill me)"

    He is turning right at the red light, and so is a car in front of him. The car in front is waiting for about 30 pedestrians who are crossing, and have a green light man telling them it is safe to cross.

    The car in front is creeping forward and he is 1 foot behind it... swearing his head off, revving his car, letting the clutch out, braking incredibly hard (maybe it was an auto, but just imagine the most violent and aggresive driving possible). Eventually he squezes past the car in front, almost runs down pedestrians and takes off down the road.

    Just can't believe that that sort of person thinks they deserve to be on public roads. What a scum bag. Probably had some fight with his girlfriend/was psychotic/on drugs or alcohol... whatever.

    But I bet he doesn't wake up to himself the next day and think "Shit, I could have very easily killed someone... I am not responsible enough to own a car". Neither do the repeat drink drivers
  19. Not really the point.
    • Like Like x 3
  20. Oh yes indeedy!

    It's a shame our resident buttheads are focused on the hand that's being dealt and completely missing the house of cards it's being pulled from.