A LEGAL ruling that paved the way for drivers to seek compensation for crushed and impounded cars has been overturned by the state's highest court.
The Full Court of the Supreme Court today allowed an appeal, by the State Government, against a ruling its anti-hoon driving laws were unconstitutional.In a unanimous decision, the court reinstated forfeiture orders on Port Pirie man Graeme Bell's $5000 ute following his third drink-driving conviction in a decade.
The decision brings to an end almost 12 months of uncertainty about the laws and means dozens of cases being heard under the legislation - which were on pause pending the ruling - can go ahead.
Under the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act (2007), drivers who commit offences such as drink-driving and excessive speeding twice in 12 months, or three times in 10 years, forfeit their vehicles.
In 2011, courts ordered the destruction or sale of 210 of the 7932 cars that had been clamped and impounded by SA Police.
In October last year, Mr Bell filed a Supreme Court challenge against the enforced forfeiture of his ute.
Mr Bell's appeal was granted by Supreme Court Chief Justice Chris Kourakis, who found the Act removed the judiciary's constitutional independence.
Chief Justice Kourakis said the effect of the wording of the Act was that judges:
MUST order forfeiture whenever a prosecutor asks.
LACKED discretion to say no, or to vary the terms of the forfeit.
MUST order forfeiture even if it interferes with, or adds to, an offender's existing penalty.
He said that went against the concept of judicial independence, as enshrined in the Australian Constitution.
He said the law also meant:
FORFEITURE was often the most substantial part of the penalty.
PROSECUTORS, not the courts, controlled how severe that punishment was because they selected the car to be forfeited.
COURTS were being forced to act politically and punish people months after their offence had been committed.
It was the second time that a Rann-era law had been deemed constitutionally "repugnant", following the failure of the anti-bikie legislation in 2010.
In her judgment today, Justice Trish Kelly said the anti-bikie and anti-hoon laws were markedly different.
Under the scrapped anti-bikie laws, courts were obliged to impose control orders on members of groups that had been deemed criminal by the State Government.
However, car forfeiture occurred only after a person had amassed three court-imposed convictions for driving offences.
"It is not an executive decision but three judicial determinations which ... trigger the exercise of power," she said.
Justice Kelly said a latter section of the Act gave judges the right to refuse a forfeiture order if it would cause undue hardship to an offender.
That, she said, was discretion enough.
"The court retains a real discretion to ensure that the property of innocent third parties will not be involved in a forfeiture and to ameliorate any risk of any unforeseen financial and physical hardship of a severe nature being caused to a person whose vehicle is forfeited," she said.
Justice Malcolm Blue said High Court precedent held that prosecutors in criminal cases could "dictate components" of penalties.
He said it was not for the Full Court to decide High Court precedent had been "superseded or overruled".
Justice Kevin Nicholson agreed, saying the original penalty against Mr Bell should be reinstated.
http://www.adelaidenow.com.au/news/south-australia/full-court-of-sa-supreme-court-upholds-labor-government8217s-antihoon-legislation/story-fni6uo1m-1226709182082
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