In addition to the penalties contained in the Road Traffic Act 1961 (SA), many offences also carry demerit points, which are recorded by the Registrar of Motor Vehicles. The demerit points for offences committed interstate are also recorded against a South Australian licence [see Motor Vehicles Act 1959 s 98BB]. Demerit points apply from the date the offence was committed and not from the date of the conviction or the payment of the traffic infringement notice fine. Three years after an offence is committed the demerit points are erased.
In accordance with section 98BB of the Motor Vehicles Act 1959 (SA) demerit points for various offences are applied in the following manner:
To summarise, where a person is convicted or pays an expiation fee for 2 or more traffic offence(s) arising from the same incident (including camera offences, but excluding red light camera offences) they will only receive the demerit points for the most serious offence [see Motor Vehicles Act 1959 s 98B(3)]. Thus, for example, a person charged with both driving without due care and driving a vehicle without lights would only attract the demerit points for the offence which attracted the higher number of demerit points. However, a person charged with a red light offence and a speeding offence which arose from the same incident, would incur demerit points for both offences [see Motor Vehicles Act 1959 ss 98B(3a) and 98B(3b)].
A complete list of offences prescribed by the Road Traffic Act 1961, the Australian Road Rules, the Road Traffic (Road Rules-Ancillary and Miscellaneous Provisions) Regulations 2014 (SA), and the Motor Vehicles Act 1959 (SA) and their corresponding demerit points is set out in schedule 4 of the Motor Vehicles Regulations 2010 (SA).
Where the holder of a driver’s licence (including an interstate learner’s permit or interstate licence) incurs 12 or more demerit points in relation to offences committed within a period of 3 years, their driver’s licence is suspended by the Registrar of Motor Vehicles for a prescribed period [see Motor Vehicles Act 1959 ss 98BC(1) and 98BC(2)]. The relevant prescribed periods are:
The Registrar must give notice in writing to a person when they have incurred half the number of demerit points which would result in disqualification [see s 98BD(1)]. Where a person is liable for disqualification due to the number of demerit points incurred, the Registrar must notify them in writing of the date on which the disqualification will take effect and that their licence will be suspended for a prescribed period [see s 98BD(2); s 139BD for service and commencement of disqualification notices]. A notice of disqualification takes effect 28 days after the day on which the notice was served [see ss 139BD(8)(a) and 139BD(8)(b)]. If the person is already disqualified for another reason (for example, as part of a penalty imposed by a court), the demerit point disqualification begins once the other period of disqualification ends [see s 139BD(9)].
Upon receipt of a notice of disqualification, an eligible person may be offered an opportunity to accept an undertaking to be of good behaviour for a period of 12 months commencing on the day on which the disqualification would have taken effect, and in that case the notice of disqualification does not take effect [see s 98BE(2)]. If two or more demerit points in relation to one or more offences are incurred during the period of the undertaking, the resulting period of driver’s licence disqualification will be doubled [see s 98BE(2a)].
From the day a person either commences their good behaviour period, or commences a period of disqualification, the demerit points that led to the disqualification and any demerit points from offences committed prior to the disqualifying offence are erased [see s 98BE(5)]. However, any demerit points collected between the commission of the offence that raised the total to 12 and the receipt of the notice of disqualification are not erased by the disqualification. Similarly, the disqualification period is not excluded when considering the 3 year period in which a person incurs demerit points. Where demerit points have been erased in circumstances described above, the 3 year rolling period in which a person can incur 12 demerit points before being disqualified will be taken from the date the person began their disqualification.
When convicting a driver of an offence which attracts demerit points, the court can reduce the number of demerit points or order no demerit points if it is satisfied by evidence given on oath forthwith upon conviction that the offence is “trifling” or that any other “proper cause” exists [see Motor Vehicles Act 1959 s 98B(4)]. In either case, the defendant will have to tell the court that they want to plead that the offence is “trifling” or that “proper cause” exists to reduce the number of demerit points. The defendant will then be asked to give evidence on oath (sworn evidence) as to why the number of demerit points should be reduced [see Dean v Police (2008) 49 MVR 416; [2008] SASC 55as an example, but only where section 98B of the Motor Vehicles Act 1959 applies].
The word “trifling” (or trivial) means that the offence is a minor or trivial example of that particular type of offence and refers to the circumstances of the driving itself, not that the offence is a minor offence. Instead, the offence must be particularly exceptional in its nature to justify the demerit points being reduced, and therefore a normal or typical example of the offence will not ordinarily be trifling [see Siviour-Ashman v Police [2003] SASC 29]. If the court is satisfied that the offence is trifling, either no demerit points or a reduced number of demerit points may be imposed. It appears that courts have been very reluctant to find that “proper cause” exists to reduce the number of demerit points [see Gilbert v Owen (1991) 14 MVR 235; [1991] SASC 3059; Dycer v Police [2010] SASC 241 for examples]. Hardship to an offender is generally not accepted as “proper cause” sufficient to reduce the number of demerit points [see Holness v Police (2010) 56 MVR 510; [2010] SASC 314; Black v Police [2009] SASC 115]. In Miles v Police [2012] SASC 69, Doyle CJ decided that it was appropriate to consider both the circumstances of the offender and of the offence, due to some division amongst previous authorities. However, in the recent case of Heyne v Police [2019] SASC 52, Parker J favoured the reasoning in Holnessand found that the Magistrate was only entitled to consider the circumstances of the offences, and was not entitled to consider the circumstances (of the defendant) when determining whether "proper cause" existed.
| SUBMISSIONS ON REDUCTION OF DEMERIT POINTS |
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| Duty solicitors need to be aware of this issue, even though they will rarely be involved in such traffic matters, because they may have to conduct a plea for a defendant in relation to other matters but where a traffic offence is included on the information. |
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