Choong v Police - [2011] SASC 168

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CHOONG v POLICE
[2011] SASC 168
Judgment of The Honourable Justice White
7 October 2011
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - NOT GIVING WAY - NOT GIVING WAY AT STOP SIGN, GIVE WAY SIGN ETC
The appellant was convicted by a Magistrate of failing to stop at a stop sign and stop line in contravention of Australian Road Rule 67(2) - the complaint on which the accused was charged incorrecly described the offence by reference to Rule 67 in its previous form - the Magistrate determined the charge by reference to the previous version of the rule.
Whether the complaint on which the appellant was tried failed to allege conduct amounting to an offence; whether the Magistrate had mistaken the law which was to be applied; whether the complaint could be amended under s 181 of the Summary Procedure Act 1921 (SA).
Held: Application to amend complaint granted - whilst the complaint did not allege conduct amounting to an offence, and the Magistrate was mistaken as to the law, the complaint could be amended under s 181 of the Summary Procedure Act - such an amendment does not cause significant detriment to the appellant - on the correct charge the appellant is guilty of the offence - appeal dismissed.
Summary Procedure Act 1921 (SA) s 52, s 181; Motor Vehicles Act 1959 (SA) s 98B; Australian Road Rules r 67, r 352, referred to.
Choong v Police [2010] SASC 312; Schultz v Pettitt (1980) 25 SASR 427; Maguire v Modra [2010] SASC 74; Surman v SA Police (1996) 65 SASR 421; Sluiter v Keimeier [1969] SASR 506; Williams v Stewart [1994] SASR 254; Robey v Police (1993) 18 MVR 121, considered.

CHOONG v POLICE
[2011] SASC 168
Magistrates Appeal

WHITE J. On 25 May 2010 the appellant performed a left-hand turn from Poole Avenue at Hampstead Gardens on to Muller Road. Both a stop sign and a stop line applied to vehicles effecting such a turn.
A police officer (Snr Constable Pedler) considered that the appellant had not stopped as required by the Australian Road Rules (the ARR) in compliance with the stop sign and stop line. He issued the appellant with an expiation notice which recorded the offence as “disobey stop sign”.
This seemingly simple state of affairs has given rise to protracted litigation. Until the hearing of the present appeal, the appellant has represented himself throughout. His ability to do so has on occasion been compromised because English is not his first language.
The appellant did not expiate the offence and instead elected to be prosecuted. He was then charged with a contravention of r 67 of the ARR. The complaint alleged that he had not stopped “at the stop line”.
Despite his initial election to be prosecuted, following the pre-trial conference in the Magistrates Court the appellant entered a plea of guilty and applied for a reduction of demerit points.[1] A Magistrate took evidence…

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 Choong v Police

Details

AGLC: Choong v Police [2011] SASC 168
Case: [2011] SASC 168
Decision Date: 7 October 2011

CaseChat Overview and Summary

In Choong v Police, the appellant was convicted by a Magistrate of an offence under Australian Road Rule 67(2) for failing to stop at a stop sign and stop line. The complaint initially misstated the offence by referencing the rule in its previous form. However, the Magistrate correctly interpreted the charge based on the earlier version of the rule.

The legal issue before the court was whether the misdescription of the offence in the complaint, while the charge was correctly interpreted by the Magistrate, warranted a dismissal of the appeal. The court needed to determine if the error in the complaint was sufficiently material to affect the outcome of the case, given that the correct rule was applied by the Magistrate.

The court concluded that the prosecution had proved the charge beyond reasonable doubt. It found that the misdescription in the complaint did not impact the correctness of the Magistrate's interpretation of the charge. Consequently, the court granted the respondent permission to amend the complaint as indicated and dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

Accordingly, I find that the prosecution has proved the charge beyond reasonable doubt. Conclusion For the reasons give above, I grant the respondent permission to amend the complaint in the way indicated and I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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