Tuesday, 19 March 2013

Chief Justice's decision upheld in Magistrates Court

On Wednesday, 17 October 2012, His Honour Kourakis CJ handed down his decision in the matter of Bell v Police.

Most of you will have heard of the Hoon Legislation, in particular of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007. A good summary can be found in the Bell judgement, but in short, here is the issue.


If you have been convicted of three prescribed offences (IE PCA, DUI, or other drug driving offences) in a 10 year period, prosecution can bring an application to the Magistrates Court in order for your car to be forfeited to the crown.

  


The difficulty with this is that section 12(a)(iii) says that a Court MUST make the Order; IE the Magistrate has no discretion to make a different Order, or not to make the Order at all.



A Port Pirie man, Mr Bell, appealed the forfeiture Order, and the matter was heard in the Supreme Court of South Australia before the then Justice Kourakis (now Chief Justice).

After about six months, His Honour handed down his judgement, upholding the appeal, and setting aside the Order for forfeiture. And there was much rejoicing. A copy of the judgement can be found here. Incidentally, the Austlii website (www.austlii.edu.au) is perhaps the most useful tool for finding legislation and caselaw in Australia, that is free.

There was a lot of noise about this decision, and it opens up a huge number of potential claims against the Police and the State Government for restitution for forfeited or crushed cars.

The decision has been appealed, and the appeal was heard in the Full Court of the Supreme Court a few weeks ago. We are awaiting the outcome with baited breath!

7 comments:

  1. Any news of the outcome yet. I can not find anything, but im probably not looking in the correct location.

    Any advice or information on the outcome would be much appreciated.

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  2. Alas, there has been no decision in Bell in the Supreme Court (full Court). I will update this as soon as anything comes down.

    It is my understanding that a date has been set for a decision, which is pending.

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  3. To update: The date was set for a decision in a case called Richter, but not yet for Bell.

    What makes this appeal so fascinating is that the Supreme Court is being asked to 'sit in judgement' of their newly appointed Chief Justice!

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  4. Just an update on the Bell decision: it is still pending! Boylans have told me that there is no word of a decision yet. About two months ago, the Full Court of the Supreme Court of South Australia heard further argument, and then a week later asked for further submissions and authorities, but no decision has yet been intimated.

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  5. I have been to court three times now still waiting

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  6. The Full Court has published its decision overturning the decision of Kourakis CJ - http://www.austlii.edu.au/au/cases/sa/SASCFC/2013/88.html

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  7. Unfortunately, the Full Court of the Supreme Court has found against the Chief Justice, and has upheld all aspects of the Forfeiture legislation.

    The Full Court found that they were bound by an obscure High Court decision of Palling v Corfield. I will make a new post about this issue shortly.

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