Coleman v Police - [2024] SASCA 30

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
COLEMAN v POLICE
[2024] SASCA 30
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice David)
21 March 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PROCEDURE
The appellant was convicted of driving a motor vehicle with a prescribed drug in his oral fluid, the presence of which had been confirmed by an oral fluid analysis test. The police officer who conducted the test added a substance from his collection kit to the appellant’s swab sample. The police officer did not know the identity of this substance.
The police officer certified that he complied with cl 7 of Schedule 1 of the Road Traffic Act 1961 (SA). The certificate enabled the court to find the facts certified as proved unless the appellant provided proof to the contrary.
On appeal, the appellant argued that there was proof to the contrary rebutting the certificate.
Held, dismissing the appeal:
1 The police officer was permitted to add the substance to the oral fluid.
2The addition of an unknown substance to the sample was insufficient to constitute ‘proof to the contrary’.
3Absent the assistance of the certificate, the evidence was sufficient for the prosecution to prove the charge.

Motor Vehicles Act 1959 (SA) s 81AB(5); Road Traffic Act 1961 (SA) s 47A(1), s 47BA(1)(a), s 47EEA, s 47F, s 47K(3a), s 47K(9), s 47K(11) and cl 7 of Sch 1, referred to.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Police v Butcher (2014) 119 SASR 509, applied.
Police v Hanton (2018) 131 SASR 226, not followed.

COLEMAN v POLICE
[2024] SASCA 30
Court of Appeal – Criminal: Lovell, Doyle and David JJA

LOVELL AND DAVID JJA: The appellant was convicted in the Magistrates Court of driving his motor vehicle while there was a prescribed drug (THC) present in his oral fluid. He was also convicted of driving with a prescribed drug in his oral fluid while being the holder of a probationary licence. The prosecution at trial relied upon two evidentiary certificates to prove aspects of their case. The certificates enabled the court to find the facts certified as proved unless the appellant provided proof to the contrary. On appeal the appellant submitted that he had provided proof to the contrary and therefore he was entitled to be acquitted of the charges.
Background
On 13 September 2020 Senior Constable Jackson stopped the appellant’s vehicle. The appellant held a probationary license at the time. Jackson required the appellant, who was driving the car, to undergo a drug screening test; he complied with Jackson’s direction. The result of the drug screening test indicated the presence of THC (cannabis) in the appellant’s oral fluid. Jackson then required the appellant to undergo an oral fluid analysis test.[1]
[1] Pursuant…

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 Coleman v Police

Details

AGLC: Coleman v Police [2024] SASCA 30
Case: [2024] SASCA 30
Decision Date: 21 March 2024

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Lovell, Doyle and David JJ, considered an appeal by Mr. Coleman against his conviction for a driving offence. The central dispute concerned the admissibility of evidence obtained during a roadside breath test.

The primary legal issue before the Court was whether the evidence derived from the roadside breath test was improperly admitted at trial. This question hinged on whether the police officer conducting the test had reasonable grounds to suspect that Mr. Coleman had committed a relevant offence, as required by the relevant legislation.

The Court reasoned that the statutory requirement for reasonable suspicion necessitates more than a mere hunch or guess; it requires an objective basis for the suspicion. In this instance, the Court found that the officer's stated grounds for suspicion – that Mr. Coleman's vehicle was weaving and that he appeared to be driving erratically – were insufficient to establish reasonable suspicion. The Court emphasised that the officer's subjective belief, without an objective factual foundation, did not satisfy the legal threshold. Consequently, the evidence obtained from the breath test was deemed inadmissible.

The Court allowed the appeal, quashed the conviction, and ordered that a verdict of not guilty be entered.

Orders