I updated our vehicle impoundment aide mémoire to include the new indictable police pursuit offence in Crimes Act 1958 s 319AA. (That offence commenced operation on 20 December 2012: I’ll discuss it in a bit more detail in a day or two.)
We discussed the vehicle impoundment regime here back in June 2011.
Its structure hasn’t changed much since then, aside from the new pursuit offence in s 319AA, classed as a Tier 1 relevant offence. The existing ‘simple’ pursuit offence contrary to Road Safety Act 1986 s 64A remains a Tier 2 relevant offence.
But two things have changed the way impoundment or forfeiture applications are dealt with.
First, the police have a dedicated unit identifying when relevant offences are charged, and that unit chases informants to ensure they issue and file impoundment or forfeiture applications. Consequently, there’s been a big increase in the number of applications, and practitioners should anticipate them when advising and representing clients charged with relevant offences.
Second, there has been a successful challenge to the validity of similar legislation in South Australia, in Bell v Police [2012] SASC 188. It’s apparently pending appeal, so might change or even receive legislative amendment, but for now, there’s doubt about the scheme.
I speculated that the South Australian decision might raise doubt about our similarly structured scheme, and I hear that someone has unsuccessfully argued the point in the Magistrates’ Court and is now taking the argument to the Supreme Court. The case will be Overend v Chief Commissioner of Police & Magistrates’ Court of Victoria, and will consider the constitutional validity of Road Safety Act ss 84T, 84Z(3) and 84Z(3A) in light of Bell v Police.
I hear that a fair few impoundment and forfeiture applications have already been adjourned pending this appeal. The appeal is listed for oral argument on 6 May 2013. Though a court is not obliged to adjourn other cases pending an appeal or test-case concerning similar issues, it is considered a proper exercise of discretion if it does choose to do so: Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527 at 534; Re Yates’ Settlement Trusts; Yates v Paterson [1954] 1 WLR 564 at 567; Thornton v Repatriation Commission (1981) 52 FLR 285 at 292 – 293. Given the delay is (relatively) finite, and will result in clarification or settling of the law, I expect most Benches will grant adjournment applications in these cases.
Hi Kyle Interesting article where can I find more info on Overend v Chief Commissioner of Police & Magistrates’ Court of Victoria Re: constitutional validity of Road Safety Act
Hi Kyle Interesting article where can I find more info on Overend v Chief Commissioner of Police & Magistrates’ Court of Victoria Re: constitutional validity of Road Safety Act
Overend was scheduled for argument last Monday (the 5th of May), but wasn't reached. Don't know when it’s rescheduled.
Overend was scheduled for argument last Monday (the 5th of May), but wasn't reached. Don't know when it’s rescheduled.