DUDLEY v Police - [2022] SASC 155

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
DUDLEY v POLICE
[2022] SASC 155
Judgment of the Honourable Justice Kimber
22 December 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - EVIDENCE - ADMISSIBILITY
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PROCEDURE - PLEAS
The appellant was charged with driving a motor vehicle, namely an electric scooter, while having present in his blood the prescribed concentration of alcohol contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (RTA). It was not disputed that a breath analysis was undertaken at a police station and the reading was 0.18 grams of alcohol in 100 millilitres of blood. The Magistrate found that the police officer with whom the appellant dealt had inadvertently made misleading statements about the process of licence reinstatement pursuant to s 47IAB of the RTA. The appellant submitted the misleading statements were relevant to his refusal of a ‘blood test kit’ pursuant to s 47K(1a) of the RTA and should have given rise to the exclusion of the breath analysis. The Magistrate refused to exclude the breath analysis. The appellant appeals that interlocutory judgement.
Further, during the hearing of the appeal a doubt emerged about whether the appellant had entered a plea of guilty in the Magistrates Court or was convicted in his absence.
Held, per Kimber J, dismissing the appeal:
1.The appellant was not convicted in accordance with the relevant provisions of the Criminal Procedure Act 1921 (SA);
2.Permission is granted to appeal the interlocutory judgment of the Magistrate refusing to exclude the breath analysis; and
3.The appeal with respect to the interlocutory judgment is dismissed. The appellant refused the blood test kit before any misleading statement was made. The decision of the Magistrate to admit the breath analysis was correct.

Magistrates Court Act 1991 (SA) s 42; Criminal Procedure Act 1921 (SA) ss 5, 6A, 62B, 62BA; Road Traffic Act 1961 (SA) ss 47A, 47B(1)(a), 47IAA, 47IAB, 47K, referred to.
Bunning v Cross (1978) 141 CLR 54; Ridgeway v The Queen (1995) 184 CLR 19; R v Lobban (2000) 77 SASR 24, applied.
Rhodes v Nolan (1982) 32 SASR 207, distinguished.
Police v Hall (2006) 95 SASR 482; Police v Dunstall (2015) 256 CLR 403; Police v Jervis (1998) 70 SASR 429, considered.

DUDLEY v POLICE
[2022] SASC 155
Magistrates Appeal: Criminal
KIMBER J:

This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA) (MCA). The grounds of appeal relate to two issues. First, a ruling by the Magistrate admitting evidence establishing an essential element of the offence charged.[1] Second, the failure of the Magistrate to find the offence ‘trifling’ when sentencing the appellant.
[1] Reasons for Ruling on the Voir Dire of Magistrate Basheer, dated 24 February 2022 (Reasons for Ruling on the Voir Dire).
For reasons to be given, there is uncertainty as to the basis…

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 DUDLEY v Police

Details

AGLC: DUDLEY v Police [2022] SASC 155
Case: [2022] SASC 155
Decision Date: 22 December 2022

CaseChat Overview and Summary

The appellant, Dudley, was appealing a conviction and sentence imposed by the Magistrates Court of South Australia for driving an electric scooter while over the prescribed alcohol limit. Dudley was charged with an offence under s 47B(1)(a) of the Road Traffic Act 1961 (SA), which prohibits driving a motor vehicle while the concentration of alcohol in the blood exceeds the prescribed limit. The primary legal issue in the appeal was whether the Magistrate erred in admitting the breath analysis evidence and whether the offence was ‘trifling’ enough to warrant a specific finding by the Magistrate.

The Supreme Court of South Australia found that the plea entered by Dudley did not comply with the requirements of the Criminal Procedure Act 1921 (SA). The court held that the failure to properly record the plea was a significant procedural error, which necessitated a review of the admissibility of the breath analysis evidence. The court examined s 47K of the Road Traffic Act 1961 (SA) and determined that the breath analysis was conducted in accordance with the statutory requirements. However, because the plea was not correctly entered, the court concluded that the Magistrate should have excluded the breath analysis evidence. The court dismissed the appeal regarding the interlocutory judgment on the admissibility of the evidence, but granted permission to appeal based on special circumstances.

Ultimately, the Supreme Court found that the appellant had not pleaded guilty as required by law, leading to the conclusion that the conviction should be set aside. The court ordered the matter to be returned to the Magistrates Court for proper proceedings under the Criminal Procedure Act 1921 (SA). The court also noted that the issue of whether the offence was ‘trifling’ would need to be revisited, contingent upon the outcome of the rehearing. The final orders included the setting aside of the conviction and the return of the matter to the Magistrates Court for further proceedings.

Orders

Orders of the court

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Background

Background to the litigation

I am satisfied that a plea of guilty was not entered in the Court below in accordance with the requirements of the Criminal Procedure Act 1921 (SA) (CPA). I am also satisfied that the appellant was not convicted in his absence pursuant to the relevant provisions in the CPA. I am satisfied that it is appropriate to deal with the appeal on the basis the ruling admitting the evidence was an interlocutory judgment. As to that interlocutory judgment, I dismiss that aspect of the appeal. As to the failure of the Magistrate to find the offence ‘trifling’, that issue depends upon whether the appellant pleaded guilty. As I am satisfied a guilty plea was not entered, I will hear the parties further as to what other orders should be made. Background On an Information dated 13 August 2021 the appellant was charged with an offence contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (RTA). The particulars of that offence were: On the 26th day of May 2021 at ADELAIDE in the said State, drove a motor vehicle namely an electric scooter on a road namely North Terrace while there was present in his blood the prescribed concentration of alcohol as defined in Section 47A of the Road Traffic Act, 1961.Section 47B(1)(a) of the Road Traffic Act 1961.It is further alleged that the concentration of alcohol was 0.180 grams in a hundred millilitres of blood. This is a Summary offence. There is no dispute the alleged offence occurred in the following way. On 25 May 2021 the appellant was drinking with others at a suburban hotel. At about 11.30pm the appellant and others came into the city and continued drinking. In the early hours of 26 May 2021, the appellant was at North Terrace in the city. At about 4.00am the appellant was riding an e-scooter on the southern footpath of North Terrace. An e-scooter is a motor vehicle within the meaning of that term as provided in the RTA[2] and the footpath is a road for the purposes of the alleged offence.[3] [2] Section 5 of the RTA defines ‘motor vehicle’ as ‘a vehicle built to be propelled by a motor that forms part of the vehicle’. [3] Section 6A of the RTA provides ‘A reference in this Act to a road includes a reference to a road-related area unless it is otherwise expressly stated’. Section 5 provides an ‘road related area’ to include ‘ … any of the following: (a) an area that divides a road; (b) a footpath or nature strip adjacent to a road; (c) an area that is not a road and that is open to the public and designated for use by cyclists or animals; (d) any public place that is not a road and on which a vehicle may be driven, whether or not it is lawful to drive a vehicle there’. The only issue with respect to the alleged offence is whether the appellant had the prescribed concentration of alcohol in his blood. More particularly, whether the Magistrate should have held the breath analysis was admissible. It is not disputed that the appellant submitted to an alcotest before the appellant and a police officer then went to the police station. The relevant breath analysis (BA) was conducted at the police station. There is no dispute the BA reading was 0.18 grams of alcohol in 100 millilitres of blood.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

During the hearing of the appeal, I heard full argument with respect to the issues the appellant seeks to have determined on the appeal. If I return the matter to the Magistrates Court to be dealt with properly according to the CPA, there will be delay. The appellant and the respondent accept there are special reasons why it would be in the interests of the administration of justice for me to consider the interlocutory judgment. In the circumstances, I am satisfied special reasons do exist as required by s 42 of the MCA. I grant permission to appeal the interlocutory judgment of the Magistrate. The interlocutory judgmentSection 47K RTA There is no dispute the BA undertaken by the appellant at the police station gave a reading of 0.18 grams of alcohol in 100 millilitres of blood. Section 47K of the RTA provides for, among other things, proof of a breath analysis by certificate. For present purposes the relevant aspects of s 47K are: (1)Without affecting the admissibility of evidence that might be given otherwise than under this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis and throughout the preceding period of 2 hours. (1a)No evidence can be adduced in rebuttal of the presumption created by subsection (1) except— (a) evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I and Schedule 1 or in accordance with the procedures prescribed by regulation; and (b) evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant. (1ab) If, in any proceedings for an offence, it is proved— (a) that the defendant drove a vehicle, or attempted to put a vehicle in motion; and (b) that a concentration of alcohol was present in the defendant's blood at the time of a breath analysis performed within the period of 2 hours immediately following the conduct referred to in paragraph (a), it must be conclusively presumed that that concentration of alcohol was present in the defendant's blood at the time of the conduct referred to in paragraph (a). … (2)As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying— (a) the reading produced by the breath analysing instrument; and (b) the date and time of the analysis. (2a)If a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith— (a) give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person's blood; and (b) at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person. (3)A certificate— (a) purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments; or (b) purporting to be signed by a person authorised under subsection (1) and to certify that— (i)a breath analysing instrument used by the person was in proper order and was properly operated; and (ii)the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with, is, in the absence of proof to the contrary, proof of the matters so certified. Further background

Ratio Decidendi

Legal Principle Established

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