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Davis v Conroy

Davis v Conroy

Case [2005] ACTSC 8 14 February 2005

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Davis v Conroy
[2005] ACTSC 8 (14 February 2005)

ORDER NISI – to review decision of Magistrate – circumstances relevant in the exercise of the discretionary power conferred by s 402 Crimes Act 1900 (NSW) – Respondent failed to provide sufficient breath sample – unable to form seal around tube – where Magistrate found no medical explanation for inability to form seal – offence under Road Transport (Alcohol and Drugs) Act 1977 (ACT) proved – information dismissed without proceeding to conviction – whether inexpedient to inflict punishment

Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 22
Crimes Act 1900 (ACT), s 402

Morris v East (1988) 83 ACTR 1
Cobiac v Liddy (1969) 119 CLR 257
Commissioner of Taxation v Baffsky (2001) 192 ALR 92
Mansfield v Evans [2003] WASCA 193

IN THE MATTER of an order nisi to review a decision of the Magistrates Court

No. SC of 48 of 2004

Judge: Moore J
Supreme Court of the ACT
Date: 14 February 2005

IN THE SUPREME COURT OF THE  )
  )  No. SC 48 of 2004
AUSTRALIAN CAPITAL TERRITORY  )

IN THE MATTER OF AN ORDER NISI TO REVIEW A DECISION OF THE MAGISTRATES COURT

BETWEEN: SHONA RAE DAVIS
Appellant

AND:PATRICK MATTHEW CONROY
Respondent

ORDER

Judge:  Moore J
Date:  14 February 2005
Place:  Canberra

THE COURT ORDERS THAT:

The decision of Magistrate Symons of 30 July 2005 dismissing under s 402 of the Crimes Act 1900 (ACT) the charge against the respondent brought by information sworn 17 December 2003 that the respondent failed to provide a breath sample in contravention of s 22 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT), be set aside.

The matter be remitted to the Magistrates Court of the Australian Capital Territory.

Introduction

This is an appeal against a decision of the Magistrates Court of the Australian Capital Territory. The Magistrate dismissed an information alleging the respondent, Mr Patrick Conroy, failed to provide a breath sample in accordance with the direction of a police officer which is an offence under s 22 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) ("the Act"). The appellant is the informant. The appeal takes the form of an application for an order to review: see s 219B of the Magistrates Court Act 1930 (ACT).

Background

The incident giving rise to the charge took place on 28 November 2003. Evidence led by the appellant in these proceedings establishes the context in which the incident occurred. The respondent came to the attention of the police because of the manner in which he was driving. He was travelling in a southerly direction on Eyre Street in Kingston. Police saw the respondent's vehicle veer to the left and strike the gutter. The police activated warning lights and followed the respondent's vehicle which parked near the Eastlakes Football Club. The respondent did not appear to notice the police until they approached him. The police saw the respondent's face was flushed and his eyes were bloodshot. He emitted…

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 Davis v Conroy

Details

AGLC: Davis v Conroy [2005] ACTSC 8
Case: [2005] ACTSC 8
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Shona Rae Davis sought to appeal a decision made by a Magistrate, where the charge against Patrick Matthew Conroy for failing to provide a breath sample was dismissed. The appeal was made in the form of an application for an order to review. The incident occurred on 28 November 2003, where Conroy was seen driving erratically and was subsequently pulled over by police. Conroy failed to provide a sufficient breath sample because he could not form a seal around the tube of the breath testing machine. The Magistrate found the offence proved but dismissed the charge on 30 July 2004, pursuant to s 402 of the Crimes Act 1900 (ACT). The legal issues in this case were whether the Magistrate erred in law in dismissing the charge and whether the penalty imposed was manifestly inadequate.

The court considered the relevant provisions of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) and the Crimes Act 1900 (ACT). It was noted that the discretion conferred by s 402 of the Crimes Act is not entirely unconstrained and can be exercised having regard to the matters specified in s 402(1)(b). The court examined the Magistrate's reasons for dismissing the charge and found that her Worship either overlooked the requirement to consider "extenuating circumstances surrounding the offence" or did not appreciate the full legal impact of the limits they imposed. The court concluded that the Magistrate erred in dismissing the charge and set aside the decision, remitting the matter to the Magistrates Court for sentencing.

Orders