Wednesday, 6 February 2013
Vehicle impoundment, revisited
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  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  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.