ASLIN v Police - [2017] SASC 179

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ASLIN v POLICE
[2017] SASC 179
Judgment of The Honourable Justice Doyle
5 December 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - GENERALLY
The appellant was convicted in the Magistrates Court of assault and failing to give particulars following a car accident, both of which offences arose from a road rage incident. In sentencing, the Magistrate recorded convictions for both offences and imposed other ancillary penalties.
The appellant brings an out of time appeal challenging the conviction for assault, essentially on the grounds that the Magistrate erred in his treatment of the evidence of an independent witness, and in rejecting the evidence of the appellant. The appellant also appeals against sentence, on the ground that the Magistrate erred in rejecting the appellant’s submission that he should exercise his discretion not to record a conviction.
Held per Doyle J, allowing the extension of time but dismissing the appeal:
1. No error has been established in the Magistrate’s treatment of the evidence of the independent witness, or in his rejection of the appellant’s evidence.
2. No error has been established in the Magistrate's rejection of the submission that he should decline to record a conviction.
Road Traffic Act 1961 (SA) s 24; Criminal Law Consolidation Act 1935 (SA) s 20, s 85; Australian Road Rules r 287; Supreme Court Civil Rules 2006 (SA) r 286; Criminal Law Sentencing Act 1988 (SA) s 16, s 39, referred to.
Taylor v Hayes (1990) 53 SASR 282 ; Wade v Australian Railway Historical Society (2000) 77 SASR 221; Fox v Percy (2003) 214 CLR 118; Gazepis v Police (1997) 70 SASR 121; Theophilus v Police (2011) 110 SASR 420; R v Powell [2014] SASCFC 48; Lumb v Police [2008] SASC 198, discussed.

ASLIN v POLICE
[2017] SASC 179
Magistrates Appeal: Criminal

DOYLE J: After a trial before a Magistrate, the appellant was found guilty of assault and failing to give particulars following a car accident. Both offences arose out of a road rage incident that occurred on the South Eastern Freeway on 28 January 2016.
The Magistrate recorded convictions for both offences, and imposed fines of $1,200 and $100 respectively. His Honour also ordered that the appellant pay court costs, a prosecution fee and the victims of crime levy.
In this appeal, the appellant challenges both his conviction for assault, and the sentences imposed. The appeal against conviction raises a number of issues, but focuses upon the Magistrate’s treatment of the evidence of an independent witness, Mr Pedlar, and the Magistrate’s rejection of the version of events given by the appellant in his police interview and evidence. In his appeal against sentence, the appellant contends that the Magistrate erred in recording a conviction.
The appeal against conviction was not brought within the prescribed time.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ASLIN v Police

Details

AGLC: ASLIN v Police [2017] SASC 179
Case: [2017] SASC 179
Decision Date: 5 December 2017

CaseChat Overview and Summary

The appellant, ASLIN, appealed against his conviction and sentence imposed by the Magistrates Court of South Australia. The appeal centred on his conviction for driving without due care, damaging a motor vehicle, assault, and failing to provide particulars. The appeal was brought to the Supreme Court of South Australia. The legal issues before the court involved whether the Magistrate erred in accepting the victim's account of events over the appellant's and an independent witness's accounts, and whether the sentence was excessive.

The court examined the evidence presented by the prosecution and the defence. Ms Wilmott testified that the appellant tailgated her and collided with her vehicle twice, after which a physical altercation ensued where he pushed her. The appellant claimed he only pushed her hands away in self-defence as she was waving them in his face. An independent witness, Mr Pedlar, corroborated parts of Ms Wilmott's account but also noted discrepancies. The court needed to determine whether the Magistrate erred in preferring Ms Wilmott's account over the appellant's and Mr Pedlar's accounts. Additionally, the court reviewed the sentence to ensure it was appropriate given the circumstances.

The court found that while there were some discrepancies in the evidence, they were not significant enough to constitute error on the part of the Magistrate. The court noted that the discrepancies could be explained by the witness not seeing the entire incident or misremembering details. The court further held that the Magistrate's decision to accept Ms Wilmott's account was supported by the evidence and did not amount to error. Regarding the sentence, the court concluded that while it was on the higher end of the scale, it was not excessive given the nature and circumstances of the offences. The appeal was thus dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appeal against conviction was not brought within the prescribed time. But as there is no opposition to me doing so, I will grant the necessary extension of time.Background At about 7.20 pm on 28 January 2016, the appellant and the victim (Ms Wilmott) were driving their respective vehicles in an easterly direction along the South Eastern Freeway. The prosecution case was that after being overtaken by Ms Wilmott, the appellant began tailgating Ms Wilmott’s vehicle. Both vehicles exited the Freeway at the Mount Barker exit. Both vehicles continued along the exit in an easterly direction towards an intersection. As they approached the intersection, the exit road divided into two lanes and then, immediately prior to the intersection, three lanes. There was a left hand slip lane to Littlehampton. There were two lanes to the right of this controlled by traffic lights. The lane to the far right was for traffic turning right to Mount Barker. The lane in the middle was for traffic either turning right to Mount Barker or going straight ahead (and back onto the Freeway). On the prosecution case, after initially driving alongside Ms Wilmott as they travelled along the exit road, the appellant changed lanes and pulled in behind Ms Wilmott’s vehicle in the left hand slip lane. In so doing, the appellant drove his vehicle into the rear of Ms Wilmott’s vehicle. The appellant’s vehicle then drove into the rear of Ms Wilmott’s vehicle a second time. Ms Wilmott and the appellant got out of their vehicles, and a verbal altercation ensued. During the course of this the appellant made physical contact with Ms Wilmott. The prosecution case was that he did so by pushing Ms Wilmott with both of his hands to her upper chest, with sufficient force to wind her and cause her to stagger backwards. On the appellant’s case, Ms Wilmott was waving her hands in his face and he merely pushed her hands away. During the course of her encounter with the appellant, Ms Wilmott took photographs of him and his vehicle. However, the appellant left without providing his name and address. The appellant was charged with driving without due care (count 1),[1] damaging a motor vehicle (count 2),[2] assault (count 3)[3] and failing to give particulars (count 4).[4][1] Contrary to s 24 of the Road Traffic Act 1961 (SA).[2] Contrary to s 85(2) of the Criminal Law Consolidation Act 1935 (SA).[3] Contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).[4] Contrary to r 287 of the Australian Road Rules. Count 1 related to the appellant’s driving at the time he moved into the slip lane behind Ms Wilmott’s vehicle. Count 2 related to the damage caused to Ms Wilmott’s vehicle when he made contact with the rear of it. Count 3 related to his physical contact with Ms Wilmott. And count 4 related to his failure to provide Ms Wilmott his name and address prior to leaving the scene of the accident. The trial was heard by the Magistrate in March 2017. The prosecution led evidence from Ms Wilmott, Mr Pedlar (an independent eye witness) and Senior Constable McGradey (the investigating officer, whose evidence was largely formal). The defence tendered the appellant’s police interview, and called evidence from the appellant.The Magistrate’s reasons

Evidence

Evidence Before The Court

If error is established, then in the usual course the appeal would be allowed. However, establishing error will not always result in the appeal being allowed. If, despite error, the respondent persuades the court that there has been no miscarriage of justice (for example, by reason of the overwhelming strength of the prosecution case, or the inconsequential nature of the error), then the court may nevertheless dismiss the appeal.[10][10] Gazepis v Police (1997) 70 SASR 121 at 129; Theophilus v Police (2011) 110 SASR 420 at [51]-[56].Evidence of independent witness Mr PedlarGround of appeal 2 is that the Magistrate erred in accepting Ms Wilmott’s account of the sequence of events prior to physical contact with the appellant, which was contrary to the accounts given by the appellant and by the independent witness, Mr Pedlar.As developed in submissions, the focus of this ground of appeal was the appellant’s contention that in preferring Ms Wilmott’s version over that of the appellant the Magistrate overlooked, or did not properly bring to account, four inconsistencies or discrepancies between the evidence of Ms Wilmott and Mr Pedlar. The four aspects of Mr Pedlar’s evidence addressed were:· He did not mention seeing the appellant change from the right to left lanes as he approached the intersection on the exit road.· He only mentioned one impact between the appellant’s and Ms Wilmott’s cars.· He described the appellant getting out of his car once, not twice.· He said that Ms Wilmott stepped closer to the appellant, and accepted that the appellant made contact with her hands. The first two of these may be fairly easily put to one side. They are both readily capable of being explained by Mr Pedlar not having seen the entirety of the relevant events. Mr Pedlar said he was first in line at the intersection on the exit road and so there is every chance that the appellant’s car arrived at the intersection from behind him such that he did not see it change lanes. Similarly, while he did suggest that he had been watching for about five seconds before seeing the appellant’s car “tap” Ms Wilmott’s car, it may be that there was contact between the two cars before Mr Pedlar started watching them. Alternatively, the contact may have been sufficiently minor that Mr Pedlar simply did not notice it. While the Magistrate did not specifically address the differences between the evidence of Ms Wilmott and Mr Pedlar on these two issues, a trial judge is not required to address every issue of fact arising on the evidence. In my view, these matters were adequately addressed by the trial’s judge statement, when dealing with the significance of Mr Pedlar’s evidence, that “it is clear either that he did not see the whole of the incident or that there are details which he does not correctly remember, or both”. If, as I have suggested, the first two differences are a result of Mr Pedlar not seeing the entirety of the relevant events, then they are not inconsistencies between the evidence of Mr Pedlar and Ms Wilmott. It thus cannot be inferred that the Magistrate rejected Mr Pedlar’s evidence on these two issues. Nor, in my view, has the appellant otherwise established error in the Magistrate’s treatment of the evidence on these two issues.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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