A driver on a good behaviour condition faced a six-month disqualification for speeding 13 km/h over a 60 km/h limit. After we set aside orders made in the driver’s absence, the Elizabeth Magistrates Court recorded no conviction and reduced the demerit points from three to one.
Our client was charged with speeding at 73 km/h in a 60 km/h zone, at night, on an unlit road. The offence carried three demerit points, and our client’s licence was subject to a good behaviour condition when it was committed. Under section 98BE(2a) of the Motor Vehicles Act 1959 (SA), incurring 2 or more demerit points while that condition applies leads to a disqualification for twice the period that would otherwise have applied. For our client, three points meant a six-month disqualification. One point did not.
The matter was first dealt with in our client’s absence, and a disqualification notice followed. We had those orders set aside and, once the prosecution’s evidence was in, applied on our client’s sworn evidence to reduce the demerit points. The Elizabeth Magistrates Court recorded no conviction and ordered that one demerit point be incurred instead of three.
Outcome at a glance
- Plea of guilty to speeding, 13 km/h over a 60 km/h limit
- No conviction recorded
- Application under section 98B(4) of the Motor Vehicles Act 1959 (SA) granted: one demerit point instead of three
- No disqualification under the good behaviour condition
- Orders made earlier in our client’s absence set aside under section 76A of the Criminal Procedure Act 1921 (SA)
- The Department for Infrastructure and Transport confirmed in writing that a later disqualification notice should not have been served, waived the fee for serving it and confirmed the licence was active
- Heard in the Elizabeth Magistrates Court
What is a demerit point reduction under section 98B(4)?
When a person is convicted of a prescribed driving offence, the demerit points set by the regulations are incurred automatically. Section 98B(4) of the Motor Vehicles Act gives the court one way to change that. If the court that convicts a person “is satisfied by evidence given on oath forthwith on conviction that the offence is trifling, or that any other proper cause exists”, it may order that a reduced number of demerit points, or none, are incurred for the offence.
Two features shape every application. The evidence has to be given on oath when the court deals with the charge, so the driver must be at court and give evidence, usually by an affidavit and then in the witness box. And the application turns on the offence itself: the Supreme Court has held that proper cause “must relate to the circumstances of the offence rather than the offender”, so hardship to the driver, the driver’s family or anyone else cannot establish it (Commissioner of Police v Ellis [2024] SASC 87 at [16]).
What counts as “other proper cause”?
Proper cause sits between a trifling offence and an ordinary one. In Chan v Police [2014] SASC 35 at [23], the Supreme Court said that while proper cause “refers to something which is not quite trifling, there are no closed cases. It is ultimately a matter of judgment”. In Miles v Police [2012] SASC 69 at [25], it described what is needed as “something sufficiently out of the ordinary to warrant a reduction in demerit points”.
For speeding, the relevant considerations listed in Bialobrzeski v Police [2016] SASC 99 at [20] are the extent of the excess, whether the speeding was momentary or fleeting, the driving conditions, whether there was other traffic, whether other road users were embarrassed, and whether there was an explanation such as an emergency. The offending will generally have to be less serious than the typical offence of its type.
The question is answered in two stages. The court first decides whether proper cause exists. If it does, the court then decides, having regard to all relevant circumstances, whether to reduce the points (Ellis at [15]). The circumstances may be considered individually or collectively (Ellis at [19]), and in Police v Di Fava [2017] SASC 189 at [32] the Supreme Court found proper cause “having regard to the cumulative effect” of the circumstances of a no entry sign offence, and reduced the points from three to one.
Recent authority: why 13 km/h over was hard to win
The decided speeding cases were against us.
- In Miles v Police, a driver 12 km/h over a 110 km/h limit, for a short distance after topping a rise, failed: there was “nothing out of the ordinary about the circumstances of the offence” (at [27]).
- In Jameson v Police [2016] SASC 5, the Supreme Court found no proper cause for an offence 15 km/h over the limit (at [42] to [44]).
- In Bialobrzeski v Police, an excess of 17 km/h “tells quite strongly against the existence of any proper cause” (at [22]), and speeding for perhaps a few minutes was “still far from fleeting” (at [17]).
- In Police v Spooner [2015] SASC 196, a magistrate reduced five points to one for a rider 24 km/h over the limit. On the police appeal, the reduction was set aside (at [3] and [17]).
- In Commissioner of Police v Ellis, a reduction granted for driving 25 km/h over the limit was set aside on a police appeal (at [33]). The Court said that a lack of embarrassment to other road users “is a typical feature of speeding offences” (at [20]).
Why this case was hard
- Where the reading was taken. The officer’s statement put the laser reading about 1.2 km along the road, after our client had passed both 60 km/h signs. That ruled out any argument that this was a momentary excess coming out of the bend.
- Night-time visibility. The prosecutor raised visibility at night as a concern about the driving.
- The plea and the evidence. At the roadside our client said they did not think they were speeding, and later estimated their speed at about 55 km/h. A plea of guilty meant the sworn evidence had to accept 73 km/h.
- Hardship could not help. Consequences for work and family could not carry the application, because proper cause lies in the offence, not the offender.
- History. Our client had a prior driving history and was already on a good behaviour condition.
Our strategy
1. Restore the proceedings first
Before the first listing we sought an administrative adjournment, but the matter was dealt with in our client’s absence. Penalties were imposed, and a disqualification notice followed within a week. A demerit point application is made when the court deals with the charge, on evidence given on oath, so the orders had to go before anything else could happen.
We applied to set them aside under section 76A of the Criminal Procedure Act 1921 (SA), which allows the Magistrates Court to set aside a conviction or order on a party’s application made within 14 days of receiving notice of it, including where the parties consent. The prosecution did not oppose, and the orders were set aside about two weeks after they were made. We then wrote to the Registrar of Motor Vehicles, and the disqualification was removed from our client’s licence record.
2. Get the evidence before deciding the approach
We asked for the officer’s notes, the laser evidence, the photographs and the officer’s statement, and for the detection and stopping locations to be clarified. We appeared by telephone and the matter was adjourned so the material could be provided, and adjourned again while the officer’s statement was still outstanding. That statement is what showed where the reading was taken, and it decided which arguments the evidence could support.
While the matter was adjourned, a second disqualification notice was served on our client. We took it up with the Department for Infrastructure and Transport, which confirmed in writing that the notice should not have been served, waived the fee for serving it and confirmed our client’s licence was active.
3. Build proper cause from the offence, not the offender
We built the application from the circumstances of the offence taken together:
- it was night, on a 60 km/h road through open paddocks with no street lighting;
- our client slowed to about 40 km/h for a blind, tight bend, then accelerated and checked the speed soon after;
- the speed came from one laser reading of 73 km/h, taken at about 210 metres;
- traffic was light and the road was dry;
- no other road user was affected; and
- our client pulled over as soon as the police lights appeared.
We left hardship out entirely, and we did not run arguments the evidence could not hold up, such as a momentary excess or distraction. We negotiated with the prosecution and set out the basis of the application in writing before the hearing.
4. Put it on oath, consistently with the plea
We prepared our client’s affidavit over several rounds so that it was accurate and consistent with the plea of guilty, including the speed of 73 km/h. Our client swore it at court on the day, after we conferred and prepared our client to give evidence.
Outcome
Our client pleaded guilty to speeding, and the application under section 98B(4) was made and granted. The Elizabeth Magistrates Court recorded no conviction and ordered that one demerit point be incurred instead of three. With one point, section 98BE(2a) did not apply, so there was no disqualification under the good behaviour condition.
Key takeaways
- Proper cause lies in the offence. The application is decided on the circumstances of the driving. Consequences for the driver’s job or family do not establish proper cause.
- The evidence is given on oath when the court deals with the charge. The driver has to attend and give evidence, and that evidence has to be consistent with the plea.
- Ordinary features can be enough in combination. There are no closed categories, and the circumstances can be weighed collectively.
- Act quickly on an outcome made in the client’s absence. An application under section 76A has to be made within 14 days of receiving notice of the order, and setting the order aside restores the chance to apply.
- Check the licence record after a set-aside. Licensing notices can lag behind the court’s orders.
Related traffic results and guides
- Demerit point reduction
- Trifling offences and other proper cause to reduce demerit points in South Australia
- No conviction for driving while disqualified two days into a demerit disqualification: case study
- Avoiding a conviction in South Australia
- Successful licence appeal in South Australia: case study
- Traffic lawyers Adelaide
Speak with Talon Legal about demerit points
If demerit points from a traffic offence would cost you your licence, get advice before your court date. An application to reduce points is made when the court deals with the charge, on sworn evidence, so preparation matters. Book a free 30-minute consultation or call (08) 7094 2021, or read more on our Demerit Point Reduction page and our Elizabeth Magistrates Court page.
This case study describes one matter. Every case turns on its own facts, and past results do not guarantee a similar outcome.
