Burt v Police

Case [2025] SASC 129

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

BURT v POLICE

[2025] SASC 129

Judgment of the Honourable Justice Gray (ex tempore)

5 August 2025

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

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN MANNER DANGEROUS TO PUBLIC

This is an appeal which was pursued against conviction in the Magistrates Court of one count of driving in a manner dangerous to any person, contrary to s 46(1) of the Road Traffic Act 1961 (SA).

The appellant drove a vehicle at Walker Flat, and is alleged to have overtaken another driver around a sweeping left-hand bend, when the road was divided by double solid white lines. This is alleged to form the conduct comprising the charge.

At trial, conducted on 11 March 2025, the appellant gave evidence that he was the driver of that vehicle but maintained he was driving with care, and only trying to communicate with the driver of the vehicle he was overtaking.

The learned Magistrate convicted the appellant on 15 April 2025 and delivered reasons.

The appellant complains of erroneous factual findings made by the learned Magistrate and the treatment of the evidence by the learned Magistrate.

Held, dismissing the appeal:

1.That the appellant drove in a manner dangerous was open to the learned Magistrate upon the available evidence (Ground 1): [22];

2.The appellant’s complaint that the learned Magistrate found the road was ‘flat, straight and sealed, vision was clear, and the appellant knew the road and areas well’ is not entirely consistent with the factual findings of the learned Magistrate regarding road conditions (Ground 2): [23];

3.That the appellant had a compromised visibility was an open factual finding upon the available evidence, particularly with regard to the dash cam footage and the distance said to have been visible ahead of the appellant at the time of the offence (Ground 4): [24];

4.It is a relevant consideration to assess what a reasonable person would do in the same circumstances, and the finding as to the appellant’s actions being unreasonable in the circumstances is supported by the evidence. (Ground 5 & 6): [25]; and

5.The crossing of the solid white lines is but a part of a number of factors considered by the learned Magistrate which support a charge of driving in a manner dangerous and is not the sole, or, alternatively, primary, reason upon which the learned Magistrate relied in support of proof of the charge (Ground 3): [26].

Road Traffic Act 1961 (SA) s 46; Magistrates Court Act 1991 (SA) s 42; Joint Criminal Rules 2022 (SA) r 191.1, referred to.

Cater v Police [2012] SASC 120; Georgiou v The Queen [2022] VSCA 172; (2022) 301 A Crim R 229; Jaunay v Police (SA) [2023] SASC 38; Jordan v Police [2006] SASC 205; Kamleh v The Queen (1990) 51 A Crim R 435; King v The Queen [2012] HCA 4; (2012) 245 CLR 588; Ledgard v…

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Burt v Police [2025] SASC 129
Case
[2025] SASC 129
Decision Date

CaseChat Overview and Summary

The appeal in Burt v Police involved the appellant, Burt, who was convicted by the Magistrates Court of South Australia of driving in a manner dangerous to the public, contrary to section 46(1) of the Road Traffic Act. Burt contested his conviction, arguing that the Magistrate's findings were flawed. The appeal was heard in the Supreme Court of South Australia, which has jurisdiction to review decisions of the Magistrates Court in criminal matters. The primary legal issue before the Court was whether the Magistrate erred in convicting Burt of dangerous driving, particularly focusing on the alleged inadequate consideration of the appellant's personal circumstances and stress during the incident.

The Supreme Court considered whether the Magistrate's reasoning was correct and whether any errors were material. The Court noted that the Magistrate had carefully assessed the evidence, including the appellant's actions on the road and the risk posed to other road users. The Court found that the Magistrate did not solely rely on the crossing of the white lines but also considered the unreasonable risk to other road users. The Court held that the Magistrate's decision was well-reasoned and that the appellant's grounds of appeal were without merit.

The Supreme Court dismissed the appeal against conviction, finding that the Magistrate's decision was correct and that no material errors occurred. The Court indicated that it would hear further submissions from the parties regarding any further orders. This decision underscores the importance of the trial court's assessment of the evidence and the appellate court's limited role in overturning findings unless there is a clear error.

Orders

Orders of the court

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Background

Background to the litigation

The final two grounds, namely grounds 7 and 8, concern errors said to have occurred in the sentencing approach such that the learned Magistrate’s sentence is said to be manifestly excessive or otherwise impacted by material error. The learned Magistrate is said to have erred in excluding evidence of the appellant’s stress and anxiety at the time[5] and the learned Magistrate is said not to have given sufficient weight to the appellant’s personal circumstances when applying a 12‑month license suspension, having regard to the appellant’s and the appellant’s partners health issues, location and essential needs.[6] These grounds, grounds 7 and 8, were expressly abandoned at the appeal hearing.[7] The appellant, who appeared unrepresented assisted by a McKenzie friend,[8] indicated that he wished to appeal only against the conviction.[5] Ground 7.[6] Ground 8.[7] Appeal Transcript 3-5.[8] A lay person who provides assistance to a party in proceedings: see McKenzie v McKenzie [1971] P 33.Background and nature of the appeal By information dated 27 May 2024, the appellant was charged with one count of driving in a manner dangerous, contrary to s 46(1) of the Road Traffic Act. The information alleges the offence occurred at Walker Flat in South Australia, when the defendant drove a vehicle on a road, namely Fromm Road and Mallee Road, in a manner which was dangerous to any person. The instance of dangerous driving of which Mr Burt was convicted occurred on the road when the appellant is alleged to have overtaken another driver, a Mr Bond, in the manner described above. At trial, the appellant gave evidence in which he accepted he was the owner of the vehicle and was the driver at the time of the alleged offending. He accepted he drove across double white lines on the sweeping left-hand curve but maintained at all times he drove with care, and he was only trying to communicate with Mr Bond. The trial was conducted on 11 March 2025, and the learned Magistrate delivered his judgment finding the appellant guilty of the offence on 15 April 2025. On the same day, after hearing submissions, the Magistrate delivered ex tempore sentencing remarks recording a conviction and imposing a $750 fine and a mandatory 12-month licence disqualification. The commencement of the licence disqualification was delayed for some three months to commence on 16 July 2025, having regard to the personal circumstances of the appellant. An appeal under s 42(1) of the Magistrates Court Act 1991 (SA) is governed by Chapter 9, Part 3 of the Joint Criminal Rules 2022 (SA). It is to be conducted by way of rehearing, with the Court permitted to draw its own inferences from the evidence adduced in the proceeding at first instance.[9] The Court is required to conduct a review of the evidence before the Magistrate whilst at the same time making due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given at trial.[10] Whilst the Court must set aside a challenged finding of fact which is demonstrated to be wrong, the appeal is not a de novo hearing and the appellate court should not substitute its own view or otherwise interfere unless it is satisfied that the trier of fact fell into error.[11] In the course of conducting such a review, the appellate court should have regard to the findings the trial Judge made, including any advantage that the learned Magistrate had in making those findings, which include the opportunity of the learned Magistrate to assess the reliability of witnesses having seen and heard their evidence in the context of the evidence as a whole.[12][9] Joint Criminal Rules 2022 (SA) r 191.1(1)(a)-(b).[10] Martin v Department for Transport, Energy and Infrastructure (SA) [2010] SASC 141; (2010) 269 LSJS 403 at [38] (White J). [11] Jaunay v Police (SA) [2023] SASC 38 at [55] (Stein J).[12] Jaunay v Police (SA) [2023] SASC 38 at [55] (Stein J).The offence

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
In ground 3, the appellant asserts that the Magistrate treated the crossing of the solid white lines as the primary reasoning in finding the appellant guilty of dangerous driving where the fact on its own is said by the appellant to be a lesser and defendable charge. I would dismiss this ground. The complaint that the appellant makes of the learned Magistrate’s reasoning is not borne out when regard is had to a fair reading of the learned Magistrate’s careful decision. The learned Magistrate does not make the finding of driving in a manner dangerous based solely on the crossing of the white lines, or even primarily on the crossing of the white lines, but indeed gives very careful consideration to the relevant test including the question of the unreasonable nature of the risk. The learned Magistrate considered the wholly unreasonable and unwarranted danger to life, limb or both of other road users that the first manoeuvre involved. The crossing of the two white lines occurred on a sweeping left-hand bend where the appellant would not have been able to see an adequate distance in front of him so as to avoid a collision with oncoming traffic. I dismiss ground 3.Conclusion It follows that I would dismiss the appeal against conviction. I will hear the parties as to any further orders.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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