Benisz v Police

Case [2022] SASC 120

Supreme Court of South Australia

(Magistrates Appeal: Criminal)

BENISZ v POLICE

[2022] SASC 120

Judgment of the Honourable Justice Kimber 

27 October 2022

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - EVIDENCE - ADMISSIBILITY

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PROCEDURE

The appellant against findings of guilt by a Magistrate in respect of two offences: failing to stop at a red light contrary to rule 56(1) of the Australian Road Rules (SA) (Count 1) and failing to submit to an alcotest as a directed by a member of police contrary to s 47E(3) of the Summary Offences Act 1953 (SA) (SOA) (Count 3).

Count 1

In respect of Count 1, it was alleged the appellant was the driver of a vehicle which failed to stop at a red traffic light on Smart Road, Modbury.  The only issue at trial was whether the appellant was the driver of the vehicle.  The prosecution case was circumstantial.  An aspect of the evidence was exculpatory statements by the appellant to police. 

Count 3

In respect of Count 3, it was alleged that about an hour after the driving the subject of Count 1, the appellant failed to submit to an alcotest as directed by a police officer pursuant to s 47E(3) of the SOA.  There was no dispute at trial that the appellant refused to submit.  The only issue was whether the evidence of the refusals should have been admitted. 

Grounds of Appeal

The appellant effectively put forward two grounds of appeal.  The first with respect to Count 1 and the second with respect to Count 3.  The effect of the grounds of appeal were:

1.      The reasons of the Magistrate for finding the appellant to be the driver at the time of Count 1 were inadequate; and

2.      The Magistrate should have excluded the evidence of the refusals to submit to an alcotest.

Held, per Kimber J, dismissing the appeal with respect to both Counts 1 and 3:

1.      The reasons of the Magistrate with respect to Count 1 were inadequate in one respect.  Nonetheless, the conclusion the appellant was the driver was correct.

2.      Neither of the grounds advanced for the exclusion of the evidence of the refusals were made out.  The evidence was properly admitted. 

Australian Road Rules (SA) r 56(1); Summary Offences Act 1953 (SA) s 47E(3), s 74AB(2)(b), referred to.

Barry v Police (2009) 197 A Crim R 445; R v Keyte (2000) 78 SASR 68, applied.

R v Webb and Hay (1992) 59 SASR 563; R v Dolan (1992) 58 SASR 501, considered.

BENISZ v POLICE
[2022] SASC 120

Magistrates Appeal: Criminal

KIMBER J:

  1. This is an appeal against findings of guilt by a Magistrate.  The appellant was charged on an Information with three offences allegedly committed on 15 March 2019 at Modbury.  The Information was in the following terms:

    1.   On the 15th day of March…

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Benisz v Police [2022] SASC 120
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[2022] SASC 120
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CaseChat Overview and Summary

The appellant, Mr Benisz, appealed against his conviction and sentence in the Magistrates Court of South Australia. He was found guilty of driving without a licence (Count 1), failing to stop at a red light (Count 2), and driving while refusing to submit to a breath test (Count 3). The appeal focused on the admissibility of evidence obtained during an interaction with Constable Cruikshank, particularly the appellant's refusals to submit to a breath test.

The primary legal issue was whether the evidence of the appellant's refusals to submit to a breath test should have been excluded under the 'unfairness' or 'public policy' discretions. The appellant argued that Constable Cruikshank's conduct in not cautioning him before requesting the breath test constituted unfairness. Additionally, the appellant argued that the evidence should be excluded if Constable Cruikshank had formed a suspicion about the appellant being the driver from the moment of his arrival, which would mean the appellant was not cautioned before the suspicion was formed.

The Supreme Court considered the two scenarios proposed by the appellant: whether Constable Cruikshank formed a suspicion before or after arriving at the appellant's house. The court held that neither scenario necessitated the exclusion of the evidence. Regarding the first scenario, the court found that there was no unfairness in investigating while the appellant was intoxicated, nor was there a need for a caution at that stage. The court also noted that even if Constable Cruikshank had a suspicion before the second call with his Sergeant, it did not automatically lead to the exclusion of the evidence. Furthermore, the court held that there was no obligation to caution before exercising the power in s 47E(1) of the RTA, and thus, the failure to caution did not provide a basis for excluding the evidence.

The appeal was dismissed with respect to both Counts 1 and 3. The Supreme Court found no grounds for the exclusion of the evidence based on the arguments presented by the appellant.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against the findings of guilt of Counts 1 and 3. I dismiss the appeal with respect to both Counts 1 and 3. My reasons follow. BackgroundCount 1 There was no dispute at trial the prosecution witness Mr Beaumont‑Holmes had seen a vehicle fail to stop at a red light on Smart Road, Modbury. The only issue was whether the appellant was driving. The evidence the appellant was the driver was circumstantial. In essence, the prosecution case was that Mr Beaumont‑Holmes had observed a man enter the driver’s seat of the vehicle shortly before the driving the subject of the alleged offence, the man observed was the appellant and there was no opportunity for another person to be the driver at the time of the offence. It is necessary to say more about the evidence. At about 2.00pm on 15 March 2019, Mr Beaumont‑Holmes was in the Service SA office at Modbury (the office) when he saw a male whom he believed was intoxicated. There was no dispute the appellant was in the office and was served at 2.07pm. Mr Beaumont‑Holmes said the male went towards the counter to be served. CCTV footage from within the office was tendered and Mr Beaumont‑Holmes pointed out the man he saw. The transcript does not describe which man was pointed out by Mr Beaumont‑Holmes but having viewed the footage, and having considered the evidence of Mr Beaumont‑Holmes, he was the man served at 2.07pm (1.07pm on the CCTV Footage).[1] On the evidence of Mr Beaumont‑Holmes, and as can be seen in the footage, that man had been leaning forward in his chair and another customer had pointed out to him that there was something on the ground and then pointed at the screen in the office. On the evidence of Mr Beaumont-Holmes, the customer was pointing to a ticket on the ground and the screen was displaying the number of the next customer. While the appellant did not formally admit he was the man served at 2.07pm, there was no dispute he was the man pointed out in the footage by Mr Beaumont-Holmes and served at 2.07pm. [1] Exhibit P6 ‘CCTV footage’. Mr Beaumont‑Holmes did not say he saw the male leave the office. Mr Beaumont-Holmes said he waited what might have been a few minutes to be served himself, then he left the office. Having done so, he said he saw the same male crossing the road towards Tea Tree Plaza. Mr Beaumont‑Holmes said he was walking to his vehicle when he saw the male he had earlier seen in the office approach a vehicle parked immediately alongside his own. Mr Beaumont‑Holmes said he saw the male get into the driver’s seat of the vehicle next to his. He said the male was the same person he had seen in the office ‘only minutes earlier’.[2] Mr Beaumont‑Holmes then reversed his vehicle from its park. He said he saw the car of the male ‘pull out behind’ him, said it ‘was pulling out immediately after’[3] him and said that ‘we hoped (sic) in our car, we didn’t linger in the carpark so we hoped (sic) in our car and drove off and the car was yeah only metres behind us’.[4] Having reversed his vehicle, Mr Beaumont‑Holmes then drove through the carpark. He said the other vehicle was ‘directly behind’ his vehicle. He said he had not seen anyone else in the other vehicle. When asked if he saw anyone near the other vehicle, he said ‘no, not that I recall’. [2] Appeal Book, p. 16.[3] Appeal Book, p. 10.[4] Appeal Book, p. 15.

Evidence

Evidence Before The Court

As I understand the submissions of the appellant, he advanced two separate factual ‘scenarios’ said to be open on the evidence which he submitted called for the exclusion of the refusals. Before turning to the submissions of the appellant in any detail, it is helpful to say more about the evidence of Constable Cruikshank.The evidence Constable Cruikshank gave evidence that he was tasked to make enquires about a Mazda said to have been driven through a red light. He described those enquiries in the following way. Constable Cruikshank went to the front door of the home of the appellant, which was answered by the appellant. Constable Cruikshank explained to the appellant there had been a complaint of an intoxicated person committing a road traffic offence and he was following that up. Constable Cruikshank told the appellant that, under s 74AB of the SOA, the appellant was required to inform him as to whom had been the driver of the vehicle at about 2.15pm. In response, the appellant said, ‘my son’, ‘probably my son’ and gave a Christian name. Constable Cruikshank took down the details of the son including his mobile number, asked to speak to him and enquired whether he was at home. Having been invited to do so, Constable Cruikshank also entered the house. The son was not inside. Constable Cruikshank said the appellant was clearly intoxicated. Constable Cruikshank said he had a description of the driver before he arrived at the house but having spoken to the appellant and having entered the house, he contacted his Sergeant by phone seeking clarification of the description. That call took place about 11 minutes after Constable Cruikshank had arrived at the house. In examination in chief, Constable Cruikshank agreed that before making this phone call, he held an ‘opinion’ about the enquiries he had been tasked to make. When asked what that opinion was, Constable Cruikshank said he ‘believed [the appellant] was the driver of the vehicle, based upon the information from the tasking and the description listed on the tasking’.[16] Constable Cruikshank said he contacted his Sergeant to ascertain a description of the driver ‘to better ascertain whether I was looking for possibly a younger man or an older man that matched the description’. It appears the Sergeant contacted a witness to the alleged driving and that person confirmed the description of the driver. The Sergeant passed that confirmation on to Constable Cruikshank in a second call about six minutes after the first. Constable Cruikshank said that having received information in the second call, he formed ‘the belief [the appellant] was the driver of the vehicle’ at the time of the alleged offence about which he was making enquiries. It was then that the appellant was asked to submit the alcotest and refused. [16] T21-22. In cross‑examination, Constable Cruikshank denied that when he arrived he suspected the appellant had committed the offence/s about which he was making enquiries. Constable Cruikshank said he held that ‘opinion’ but drew a distinction between having an opinion and suspecting something. He said ‘I class them as two different things’.[17] Constable Cruikshank said that he only suspected the appellant was the driver after speaking to his Sergeant. To that end, the following exchange occurred during cross examination: [17] T30.QAnd so when you arrived you did not suspect that Mr Benisz was involved in those offences. ANot at the time.QWhen was it during your conversation that you came to suspect that he was involved. AWhen I received the information from my sergeant by phone that he had spoken to one of the witnesses that was in the vehicle at the time of the incident. At that time I moved straight to requesting the alcotest. QWould you agree that - you said, well, you spoke to your sergeant on two occasions.AYes.QAnd do you agree in your evidence earlier today that you were asked prior to your conversation with your sergeant you formed an opinion and your answer to that question was yes. You were asked what that opinion was and you said that Mr Benisz was the driver of the vehicle. Do you remember saying that. ANot exactly.QDo you agree that that was the effect of your evidence.ACan you re-do the question please.QCertainly. The question was, you were asked whether you formed an opinion and you said yes. Then you were asked what that opinion was and this is prior to the conversation with your sergeant that you formed an opinion, you said yes and you said that the opinion was that Mr Benisz was the driver of that vehicle. AYes, that would be accurate. QAnd so when you’ve said just a second ago that you formed an opinion that Mr Benisz was the driver after the phone call with your sergeant, that’s not accurate, is it. AMy opinion and then me suspecting that he was the driver of the vehicle, I class as two different things. QHow so.AHe matched the description given on the tasking and it wasn’t until I had it confirmed from the witness because I hadn’t had an opportunity to speak to the witness directly and because I was dealing with Mr Benisz at the time, that then when I received that information then I then suspected he was - I believed that he was the driver of the vehicle. QIs there a difference between you having an opinion that someone was the driver and you suspecting that someone was the driver. AA small difference, yes.QIs that difference the difference between whether or not you need to issue that person a caution.AYes. QSo if you are of the opinion that someone is the driver of a vehicle that was seen driving through a red light and nearly hitting a pedestrian, if it’s your opinion that you’re speaking to the driver you don’t need to caution. OBJECTION:QIs there a difference between you believing that Mr Benisz was the driver of the vehicle that had committed offences and you suspecting he was the driver of the vehicle. AYes.QDoes that difference or is that difference enough for you to issue a caution in the latter but not the former.AI was investigating as to whether I had formed my suspicions that he was the driver at the time.QYou also used the word ‘belief’ then as well. Did you believe that Mr Benisz was the driver. AYes.The submissions of the appellant

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The appellant described the second scenario as being: that Constable Cruikshank ‘suspected the appellant from the moment of his arrival’. The appellant submitted that if this scenario existed, Constable Cruikshank had failed to caution the appellant and in doing so had ‘either deliberately or negligently departed from his usual practices’. The appellant submitted that in this scenario, there had been an unlawful interview (i.e. –‑one without a caution) before the use of s 47E(1) of the RTA and that called for exclusion of the evidence of the refusals. Consideration of the two factual ‘scenarios’ The Magistrate did not make any finding about the credibility or reliability of the evidence of Constable Cruikshank nor did he make any finding about the two ‘scenarios’ posed by the appellant. In those circumstances and given Constable Cruikshank gave oral evidence, I am not able to choose one scenario over the other. Nonetheless, it is not necessary for me to do so, because for reasons to be given, neither scenario called for the exclusion of the refusals. The appellant and the respondent both made detailed submissions about the ‘unfairness’ and ‘public policy’ discretions. Nonetheless the disposition of this appeal does not require consideration of the circumstances in which evidence might be excluded for reasons of ‘unfairness’ or ‘public policy’. For reasons I will give, there was not any ‘unfairness’ nor was there any improper or unlawful conduct which might have given rise to consideration of the ‘public policy’ discretion. First scenario I turn to the first scenario which assumes the relevant belief on reasonable grounds arose sometime after Constable Cruikshank arrived at the house and was formed as a result of what was learned after that arrival. On this scenario, the appellant submits the matters which caused the belief on reasonable grounds to be formed came only after Constable Cruikshank had acted unfairly in more than one way. It is necessary to consider each aspect of the alleged conduct of Constable Cruikshank said to call for exclusion. I do not consider there was any unfairness in Constable Cruikshank continuing to investigate and speaking to the appellant while he was intoxicated.[18] There is nothing to suggest the intoxication of the appellant made anything he said unreliable. To the contrary, the appellant does not abandon that the statements about his son might have been true. There was no evidence which suggests the appellant had difficulty in understanding and answering any questions. Given the obvious purpose of s 47E(1) of the RTA, it must be a very rare case, if ever, that intoxication may stand in the way of a refusal to submit being admitted. [18] R v Webb and Hay (1992) 59 SASR 563, 573. As for the submission of the appellant about the need for a caution at some point before the requirement pursuant to s 47E(1) of the RTA, the following observations may be made. First, while gathering information and in doing so giving a possible suspect a chance to clear themselves, there is no need for the caution. [19] The conduct of Constable Cruikshank in contacting his Sergeant and seeking further information is more consistent with him still gathering information than with him having a reasonable suspicion at the time of that call. The appellant had told Constable Cruikshank his son had been driving. What Constable Cruikshank said to his Sergeant in the first call was recorded and is consistent with him not dismissing the possibility the son might have been driving as when speaking to the Sergeant Constable Cruikshank said ‘if I can’t prove he’s lying to me, just follow up enquiries in relation to the son?’. Between the first call and the second, the appellant agreed to show Constable Cruikshank the keys to the car and agreed that the son had dropped them at the house and left on foot. It was only then Constable Cruikshank spoke to his Sergeant a second time and only after that call was the appellant asked to submit. On the evidence at trial, I am unable to conclude whether the point of a reasonable suspicion had been reached before Constable Cruikshank had spoken to his Sergeant a second time and received confirmation about the description of the driver. Second, if there had been a failure to give a caution before utilising s 47E(1) of the RTA, the only relevance of that was whether anything said by the appellant from that point should be admitted as evidence to be considered on Count 1. The aspects of the conversation of particular relevance to Count 1 were the statements about the son, the last of which was made only about a minute before the second call with the Sergeant. The appellant did not want those statements excluded, leaving only about a minute before the second call with the Sergeant, immediately after which the request pursuant to s 47E(1) of the RTA was made. I cannot see that Constable Cruikshank learned anything in the minute after the last statement consistent with the son being the driver which might have been a result of him behaving unfairly. Third, a failure to caution with respect to Count 1 provided no basis to exclude the refusal to submit the subject of Count 3. There is no obligation to caution a person before exercising the power in s 47E(1) of the RTA. [19] R v Dolan (1992) 58 SASR 501, 505.