Rees, Neil --- "Grantham v Thomas (Driving while disqualified-maximum penalty imposed-no legal representation-appeal)" [1981] AboriginalLawB 6; (1981) 1(1) Aboriginal Law Bulletin 6

• Grantham V Thomas
• Driving While Disqualified-Maximum Penalty Imposed-No Legal Representation-Appeal.

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Grantham v Thomas

Driving while disqualified-maximum penalty imposed-no legal representation-appeal.

Grantham v Thomas

Supreme Court of South Australia (Jacobs J)

28 October 1980; No. 2808 of 1980.

Casenote by Neil Rees

The appellant was convicted of driving whilst disqualified at the Court of Summary Jurisdiction of Kingoonya, sitting at Tarcoola, on 13 August 1980. The Court was comprised o f two Justices of the Peace. The appellant who was unrepresented received the maximum sentence of six months imprisonment, with hard labour, for a breach of s.91 of the Motor Vehicles Act, 1959-80.

An appeal was lodged against the severity of the sentence.

The appellant, a 23-year-old Aboriginal man, pleaded guilty in the Court of Summary Jurisdiction and said nothing by way of explanation or mitigation other than 'give me a bond'. The prosecutor alleged a number of prior convictions-three counts of illegal use, two counts of driving whilst affected by alcohol and two counts of driving while unlicenced. On appeal it was disclosed that the appellant had only driven for a short period of time before being apprehended and that there was nothing wrong with the manner in which he drove the car. Jacobs J was of the opinion that the Justices had given disproportionate weight to the appellant's past record. He then stated:

This case, however, raises once again, problems which confront Courts, particularly Courts of Summary Jurisdiction in remote areas, in dealing with Aborigines charged with serious offences.

I am satisfied that the Court at Tarcoola afforded the appellant an opportunity to obtain advice by employing what might be called a conventional formula, but I am equally satisfied that the appellant was bewildered and unable to take advantage of that opportunity, or to appreciate the options that were open to him.

In the first place, having been arrested at Kingoonya, which is some 200 miles west of Port Augusta, where the appellant resides, he was taken next day to a Court at Tarcoola, which is a further 70 miles or thereabouts west of Kingoonya, and even more remote from Port Augusta. The reason for that change of venue has not been disclosed to me, but assuming it to have been justified, it nevertheless took the appellant even further from any source of advice or help, which would have been made available had he been remanded from Kingoonya to Port Augusta, which is also his place of residence, rather than taken to Tarcoola. In any case, however, there is much to be said for the practice instituted by the Chief Commissioner of the Australian Federal Police, at the request of the Department of Aboriginal Affairs, 'that when an Aborigine is arrested, the police will forthwith notify the nearest office of Aboriginal Legal Services by the most direct means', a practice which is said to have been agreed to by the South Australian Police Department. (Australian Law Reform Commission-Discussion Paper No. 17 at page 86.) No such steps appear to have been taken in the present case. This practice is all the more desirable when an Aborigine has been arrested for an offence which renders him liable to imprisonment upon conviction.

Generally speaking, it is not sufficient compliance with that practice, merely to ask an Aborigine if he wants an adjournment to obtain legal advice, at least without a full explanation to him of the availability of that advice and the steps that he ought to take to obtain it and a real satisfaction that he fully understands what is said to him. There may, of course, be cases where a Court is so satisfied that an Aborigine fully understands what is going on and is able to decide what he ought to do but the fact that in the present case the appellant stood mute, apart from his naive request for a bond, in itself testifies to his bewilderment.

Jacobs J was told by counsel that the appellant had been driving since he was 15 years of age, but had never held a licence. Counsel claimed that this was not uncommon among Aborigines in outback areas and that it was often brought about by an inability to pass the theoretical written test on application for a licence. Jacobs J stated:

Whatever difficulty Aborigines may face in a predominantly white community, whether they be difficulties of assimilation, or recognition of tribal rights, the community is entitled to expect that those who drive a motor vehicle have at least a minimum standard of competence and a reasonable knowledge of the traffic laws and there should be some satisfactory way of testing that competence and knowledge ... To subject him [the appellant) to the severe penal sanctions of driving while disqualified for the rest of his life simply because he cannot comply with the formal requirements for obtaining a licence is not likely to encourage respect for the law which he is expected to obey.

The appeal was allowed and the sentence was reduced to one month's imprisonment,

which the appellant had served whilst awaiting the appeal and before being released on bail.