Benisz v Police - [2023] SASCA 56

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BENISZ v POLICE
[2023] SASCA 56
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice David)
1 June 2023
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - IDENTIFICATION BY STRANGER
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - EVIDENCE - ADMISSIBILITY
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PROCEDURE
Following a trial before a magistrate, the applicant was convicted of two offences, namely failing to stop for a red traffic light, contrary to rule 56(1)(a) of the Australian Road Rules (Count 1), and refusing to comply with all reasonable directions of a member of police in relation the requirement to submit to an alcotest, contrary to 47E(3) of the Road Traffic Act 1961 (SA) (Count 3).
The prosecution case at trial in relation to Count 1 relied upon evidence from a witness to the effect that he recognised a man getting into the driver’s seat of a vehicle as a man he had seen earlier in a Services SA centre. The witness then saw that vehicle drive through a red light. There was no issue at trial that the man seen earlier in the SA Service centre was the applicant. However, the applicant challenged whether the witness’ evidence was sufficient to establish his identity as the driver of the vehicle when it failed to stop for the red light.
The applicant appealed his convictions on Counts 1 and 3 to a single Judge of this Court. That appeal was dismissed.
In his application for leave to appeal to this Court, the applicant confined his challenge to Count 1. In his single proposed ground of appeal, he contends that the evidence of the prosecution witness was not sufficient to sustain the Judge’s conclusions beyond reasonable doubt that the man he saw in the Services SA centre was the same man he saw get into the car, and that this man was driving the vehicle when it failed to stop for a red light.
Held, (per the court), refusing permission to appeal:
1.No error has been established in the Judge’s reasoning or conclusion, and his finding that the applicant was driving the car when it failed to stop for a red light was correct.

2. The proposed appeal is not reasonably arguable.
Australian Road Rules (SA) s 56(1)(a); Magistrates Court Act 1991 (SA) s 42; Road Traffic Act 1961 (SA) s 47E(3); Summary Offences Act 1953 (SA) s 74AB(2)(b), referred to.
Alexander v The Queen (1981) 145 CLR 395; Barry v Police (2009) 197 A Crim R 445; Benisz v Police [2022] SASC 120 [2022] SASC 120; Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593, considered.

BENISZ v POLICE
[2023] SASCA 56
Court of Appeal – Criminal: Lovell, Doyle and David JJA

THE COURT: Following a trial before a magistrate, the applicant was convicted of offences of failing to…

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 Benisz v Police

Details

AGLC: Benisz v Police [2023] SASCA 56
Case: [2023] SASCA 56
Decision Date: 1 June 2023

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia considered an application for leave to appeal by the applicant, Benisz, against a finding that he was the driver of a vehicle that failed to stop for a red light. The appeal concerned the admissibility and weight of identification evidence presented in the original proceedings.

The central legal issue before the Full Court was whether the original judge erred in finding that the applicant was the driver of the vehicle in question, based on the identification evidence of a witness, Mr. Beaumont-Holmes. This involved determining whether the identification evidence was sufficiently reliable to support the finding and whether the judge’s reasoning in accepting that evidence was sound.

The Full Court affirmed the original judge's finding, holding that no error had been established in his reasoning or conclusion. The court agreed with the judge's assessment of Mr. Beaumont-Holmes' evidence, which described seeing the applicant in a Service SA centre appearing intoxicated, and subsequently observing the same man enter the driver's seat of a car in a car park shortly thereafter. The court found that Mr. Beaumont-Holmes' recognition of the applicant, despite the short passage of time and his initial uncertainty about the exact duration, was a credible basis for the identification. The court concluded that the proposed appeal was not reasonably arguable.

Consequently, the Full Court refused permission to appeal.

Orders

Orders of the court

Held, (per the court), refusing permission to appeal:

1. No error has been established in the Judge’s reasoning or conclusion, and his finding that the applicant was driving the car when it failed to stop for a red light was correct.

2. The proposed appeal is not reasonably arguable.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The application for leave to appeal was referred for hearing as on appeal.The evidence of Mr Beaumont-Holmes Mr Beaumont-Holmes’ evidence was that at about 2.00pm on 15 March 2019, he was at the Service SA centre in Modbury. He was there for “some sort of renewal of licences” or something like that. He was sitting two or three rows from the front of the waiting area. Mr Beaumont-Holmes recalled seeing a man, two or three rows in front of him, who “seemed groggy and couldn’t hold himself up properly on his chair”. He was slumped over and looked like he was asleep. Mr Beaumont-Holmes thought that the man was intoxicated. Mr Beaumont-Holmes recalled a number being called, but that no-one approached the service counter. Another person, sitting near the man, pointed out a ticket on the floor. The man picked up the ticket and approached the counter. When asked how long he was observing the man for in the Services SA centre, Mr Beaumont-Holmes said “I can’t remember, but it would’ve been at least a few minutes” while waiting to be served. After finishing his business at the Service SA centre, Mr Beaumont-Holmes left the building and crossed the road, heading towards Tea Tree Plaza where his car was parked. As he did so, he saw the man he had seen in the Service SA centre crossing the road at the same time. When at the driver’s-side door of his car, Mr Beaumont-Holmes heard “some keys or something hitting the ground”. He turned around and saw the man getting into the car that was parked next to his. It was parked with its passenger door next to the driver’s door of Mr Beaumont-Holmes’ car. When asked how he formed the opinion that this man was the man he had seen in Service SA, Mr Beaumont-Holmes said “I just recognised him, he was sitting in there a minute before.” When pressed in cross-examination as to the time that had passed between seeing the man in Service SA and in the carpark, he said that he was not able to say. However, he said he was certain that it was the same man, and that he did not think it could have been someone else who looked like the man he had seen. He added that it was the man he had seen “only minutes earlier”. Mr Beaumont-Holmes said that he saw the man get into the driver’s seat of his car. He saw him sitting on the edge of the driver’s seat, but with his feet still on the pavement. He did not see anyone else in the car, and did not recall seeing anyone else near the vehicle at the time. Mr Beaumont-Holmes reversed his car and then drove out of the carpark. As he did so, he saw the man’s car pull out behind his car, and driving directly behind him. He saw the other car when he was only about 40 metres from where he had parked, explaining that “the vehicle was already right behind us at that stage so yeah it was that person’s pulled out seconds after” he had. He observed that the car was swerving a bit. When he made this observation, the other car was about 15 to 20 metres behind his, without any other vehicle or anything else to obstruct his view.

Decision

Reasons for decision

To the extent the applicant seeks to make an independent challenge to the Judge’s finding on the second issue, we do not think there is any merit in that challenge. We have set out the Judge’s reasoning in relation to this issue. We agree with his Honour’s reasons and conclusion.Conclusion In our view, the applicant’s proposed appeal is not reasonably arguable. We refuse permission to appeal.

Ratio Decidendi

Legal Principle Established

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