SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Chol v Frick |
Citation: | [2025] ACTSC 316 |
Hearing Date: | 5 February 2025 |
Decision Date: | 22 July 2025 |
Before: | Burns AJ |
Decision: | (1) The appellant’s appeal on charge CAN 2051/2023 is dismissed. (2) The appellant’s appeal on charge CAN 2052/2023 is upheld. The finding of guilt made by the Magistrate is set aside and a verdict of acquittal is entered on the charge. (3) The result of this appeal may raise questions as to whether costs should be awarded either regarding this appeal or regarding the proceedings in the Magistrates Court. Unless either party makes an application for a different costs order within 21 days of delivery of this decision, I will order that there be no order as to costs in each proceeding. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from ACT Magistrates Court – appeal against conviction – refusing to undergo an alcohol screen test – failing or refusing to provide a sample of breath in accordance with the reasonable directions of a police officer – collision of vehicle into a wall to a residential unit – whether the magistrate erred in finding police had reasonable cause to suspect – whether verdict was unsafe and unsatisfactory having regard to the evidence – appeal on one charge dismissed – appeal on second charge upheld – conviction reversed |
Legislation Cited: | Human Rights Act 2004 (ACT), ss 21, 22(b), 40B, 40C(6) |
Cases Cited: | Alexander v Bakes [2023] ACTCA 49 |
Parties: | Atem Makoul Chol ( Appellant) Adam Frick ( Respondent) |
Representation: | Counsel A Williamson ( Appellant) M Howe ( Respondent) |
| Solicitors Hugo Law Group ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 71 of 2023 |
Decision Under Appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Temby Date of Decision: 18 December 2023 Case Title: Police v Chol Court File Number: 232722 |
BURNS AJ:
Introduction
1․On 18 December 2023 the appellant was found guilty by a Magistrate of the following charges:
(a)Refusing to undergo an alcohol screening test on 24 February 2023 contrary to s 22C(1)(b) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the RTAD Act) (CAN 2051/2023).
(b)Failing or refusing to provide a sample of breath in accordance with the reasonable directions of a police officer on 24 February 2023 contrary to s 22(d) of the RTAD Act (CAN 2052/2023).
2․By a Further Amended Notice of Appeal filed 15 January 2025 the appellant appeals from the findings of guilt made by the Magistrate. Noting that a number of grounds of appeal were not pursued, the grounds ultimately argued by the appellant were:
1.
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- Chol v Frick [2025] ACTSC 316
- Case
- [2025] ACTSC 316
- Decision Date
CaseChat Overview and Summary
The court held that the evidence did not support the magistrate's finding that the police had reasonable cause to suspect that Chol had driven his vehicle while over the prescribed limit. There was no evidence of erratic driving, and the collision with a wall was not sufficient to establish that Chol was over the prescribed limit. The court also held that the verdict on the second charge was unsafe and unsatisfactory because there was no evidence that Chol had refused to undergo an alcohol screen test. The police had not given Chol a direction to undergo an alcohol screen test, and therefore, he could not be found guilty of refusing to do so.
The appeal on the first charge was dismissed, and the appeal on the second charge was upheld. The finding of guilt made by the magistrate was set aside, and a verdict of acquittal was entered on the charge. The result of this appeal may raise questions as to whether costs should be awarded either regarding this appeal or the proceedings in the Magistrates Court. Unless either party makes an application for a different costs order within 21 days of delivery of this decision, the court will order that there be no order as to costs in each proceeding.
Orders
Orders of the court
(1) The appellant’s appeal on charge CAN 2051/2023 is dismissed.
(2) The appellant’s appeal on charge CAN 2052/2023 is upheld. The finding of guilt made by the Magistrate is set aside and a verdict of acquittal is entered on the charge.
(3) The result of this appeal may raise questions as to whether costs should be awarded either regarding this appeal or regarding the proceedings in the Magistrates Court. Unless either party makes an application for a different costs order within 21 days of delivery of this decision, I will order that there be no order as to costs in each proceeding.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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