Davies v Wylie - [1992] TASSC 74

Serial No 20/1992
List “A”

CITATION: Davies v Wylie [1992] TASSC 74; A20/1992

PARTIES:  DAVIES, Clive
  v
  WYLIE, David Thomas

FILE NO/S: LCA 10/1992
LCA 11/1992

COURT:  SUPREME COURT OF TASMANIA
DELIVERED ON:  15 April 1992
JUDGMENT OF:  Zeeman J

Judgment Number: A20/1992
Number of paragraphs: 14

List "A"
File No LCA 10/1992
LCA 11/1992

CLIVE DAVIES v DAVID THOMAS WYLIE

and

CLIVE DAVIES v PATRICK WILLIAM GEASON

REASONS FOR JUDGMENT ZEEMAN J

15 April 1992[i]

Vehicles and traffic – Offences – Tasmania – Driving with more than prescribed concentration of alcohol in blood – What is a subsequent offence.

By complaint made by the applicant on 10 January 1992 the respondent Wylie was charged with a breach of the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1). The particulars contained in the complaint alleged that on 5 January 1992 the respondent drove a motor vehicle on a public street at Brighton whilst alcohol was present in his blood in a concentration greater than the prescribed concentration, namely 0.255 grams of alcohol in 100 millilitres of blood. On 12 February 1992 the respondent appeared before a magistrate at Hobart and pleaded guilty. On 20 March 1992 the learned magistrate proceeded with the sentencing of the respondent when a police prosecutor stated the facts and counsel for the respondent put matters in mitigation. The facts, as stated, referred to a breathalyser reading of .255. Counsel for the respondent did not dispute that reading. To the contrary, she referred to that reading and put matters by way of explanation for what, on any view, was a very high reading. In those circumstances, considerations such as those which were discussed in Ferguson v Smith [1975] Tas SR 147 (NC 6) do not arise. The respondent is to be taken as having admitted not only the bare elements of the offence charged, but also the actual blood alcohol content alleged. The learned magistrate was provided with an undisputed list of the respondent's prior convictions. It appeared from that list that the respondent had twice previously been convicted of breaches of the Act, s6(1), those offences having been committed on 22 April 1972 and 23 May 1988.

By complaint made by the applicant on 16 January 1992 the respondent Geason was charged with a breach of the Act, s6(1). The particulars contained in the complaint alleged that on 31 December 1991 the respondent drove a motor vehicle on a public street at Glenorchy whilst alcohol was present in his blood in a concentration greater than the prescribed concentration, namely 0.192 grams of alcohol in 100 millilitres of blood. The respondent appeared before the same learned magistrate on 12 February 1992 when he pleaded guilty. On 20 March 1992 the learned magistrate proceeded with the sentencing of the respondent when a police prosecutor stated the facts and counsel put matters in mitigation. The facts, as stated, referred to the respondent having undergone a breath analysis resulting in a reading of .192. Again, counsel…

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 Davies v Wylie

Details

AGLC: Davies v Wylie [1992] TASSC 74
Case: [1992] TASSC 74
Decision Date: 15 April 1992

CaseChat Overview and Summary

In the case of Davies v Wylie, the applicants, Clive Davies and Patrick William Geason, sought to appeal against sentences imposed by a magistrate in the Magistrates Court of Tasmania. The respondents, David Thomas Wylie and Patrick William Geason, were convicted of driving with a blood alcohol concentration above the prescribed limit under the Road Safety (Alcohol and Drugs) Act 1970 (Tas). The applicants argued that the magistrate had erred in law by not considering prior convictions of the respondents for similar offences as subsequent offences under the amended Road Safety (Alcohol and Drugs) Amendment Act 1991 (Tas). The applicants contended that this oversight resulted in the imposition of improper sentences.

The legal issues before the court were whether the magistrate erred in not treating the respondents as subsequent offenders under s17(1)(b) of the amended Act and whether the sentences imposed were in accordance with the law. The court had to determine whether the amended section 17 of the Act applied retrospectively to prior convictions occurring before the commencement of the 1991 Act.

The court held that the magistrate was incorrect in not considering the prior convictions as subsequent offences. Section 17(2) of the amended Act stated that the application of the section did not extend to an offence committed before the commencement of the 1991 Act, but this did not preclude the taking into account of prior convictions for the purpose of determining the appropriate penalty for offences committed after the commencement. The court found that the amended section did not impose retrospective liability but merely required the consideration of past offences in determining the penalty for subsequent offences. The court quashed the sentences imposed by the magistrate and remitted the complaints to the Magistrates Court for reconsideration in light of the court's findings.

Orders