ELLIOTT v POLICE No. SCGRG-98-489 Judgment No. S6770
[1998] SASC 6770
•15 July 1998
ELLIOTT v SA POLICE
Magistrates Appeal
Debelle J
Appeal against a conviction and sentence.
The appellant was charged with three driving offences alleged to have occurred on 15 July 1994 at the intersection of King William Street and North Terrace, Adelaide. The alleged offences were, first, that the appellant had driven dangerously contrary to s.46 of the Road Traffic Act 1961 (“the Act”); secondly, that he had driven without due care contrary to s.45 of the Act; thirdly, that he had failed to obey traffic lights contrary to s.75 of the Act.
The appellant pleaded not guilty. He was convicted after a hearing in the Adelaide Magistrates Court when fines and other penalties were ordered. He was disqualified from holding or obtaining a driving licence for a period of six months. The appellant appeals against the conviction and the penalties which were ordered.
The hearing of the matter did not begin until 12 December 1997 about three and a half years after the offence had occurred. That delay has been explained. It appears that at the time of this alleged offence the appellant was then residing in Queensland and that mail was not forwarded to him. In the result, the summons was not served for some considerable time after the offence had occurred.
The prosecution case was that the appellant had disobeyed a traffic light while driving west along North Terrace and crossing the intersection of North Terrace and King William Street. Two police officers were called. They gave evidence that they were in a police vehicle which had been driving along North Terrace and had stopped at the stop line when the traffic light turned red. Their evidence was that they had stopped for a short time, when they noticed a vehicle to their right proceed across the intersection against the red light. They said it was a heavy truck. They followed the vehicle and stopped it on Port Road. They spoke to the driver and alleged that he had driven through the red light. The driver, who was the appellant, replied denying that he had done so and said that the light was on amber when he had entered the intersection, the light changing to red whilst he was in the course of crossing the intersection.
The case for the appellant at the hearing was not entirely consistent. Initially in evidence in chief he said that the light changed to amber as he entered the intersection. He was, however, corrected by his counsel by means of a leading question and the case then proceeded on the basis that he had entered when the light was already amber and that it had changed to red whilst he drove across the intersection. I mention this shift in the defence case, at least as it was led in chief from the appellant, because it appears to be the basis upon which the magistrate has grounded his reasons.
It is difficult to know at this stage whether the shift in the defence case was the result of a correction made by means of the leading question or whether it was the appellant's case at the hearing that the lights changed to amber whilst he crossed the intersection. I am prepared to take the view most favourable for the appellant and proceed on the footing that his case always was that, when he entered the intersection, the light was amber and changed to red as he crossed the intersection. That was the answer he gave to the police officers at the time. That conversation was related by the police officers in their evidence and was not challenged in cross-examination by counsel for the appellant. For those reasons I take the more favourable view for the appellant.
It was also part of the appellant's case that the observations made by the police officers and their recollections were deficient. A number of matters were relied on. One has a particular significance. Of all of the matters in dispute, it is the only one which is significant. There was a dispute as to whether the appellant was towing a substantial trailer behind his truck. The appellant was, on this occasion, proceeding from a construction site, driving a truck heavily loaded with rubble. It was a substantial truck. The appellant said that he was also towing a very substantial trailer also filled with rubble. It was the police officers’ recollection that the appellant was driving a truck only.
Given the substantial nature of the trailer, the appellant relies on it as a relatively important issue going to the question whether the recollection of the police officers as to whether there was a trailer or not was correct. On the other hand, the force of that contention must be weighed with the fact that the events had occurred some three years earlier. The police officers would not remember all details after that lapse of time. The police officers made no note of a trailer. It may not have been considered necessary to make the note. The police officers were, at the end of the day, concerned only with one issue, namely, whether the appellant had disobeyed the traffic light.
Given the order I propose to make I propose to comment no further on the question whether the existence or not of the trailer is an issue going to the reliability of the evidence given by the police officers.
There was one essential issue which the magistrate had to decide, namely, whether the appellant had entered this intersection against the red light. That was the prosecution case. That was the evidence given by the two police officers. By contrast, the appellant said that he entered on the amber light. Instead of determining that issue, the magistrate addressed his attention to two questions, namely, when the lights turned amber and how far the appellant was from the intersection when they did so. That simply was not the issue. If the lights had turned red, it is apparent that if one accepts the speed at which the appellant said he was driving, the appellant had ample time to stop before entering the intersection. Thus the only issue was whether the police officers were correct in their observations and whether it could have been proved beyond reasonable doubt that the appellant had entered against the red light.
In determining when the lights had turned amber and how far the appellant was from the intersection, the magistrate has made a series of calculations which are confusing, as well as being irrelevant to the issue. On the basis of the calculations which he has made, the lights had turned amber at a time which did not permit the appellant to stop. On that basis, it was open to the magistrate to acquit the appellant. But, I repeat again, the magistrate has addressed the wrong issue entirely.
In all the circumstances I do not think that there is any other course but to allow the appeal and to set aside the conviction and the penalties which have been ordered.
The question then remains as to what course should then be adopted. It was the respondent's submission that I should determine the matter having regard to the evidence which had been led. I do not think it appropriate to adopt that course given that there is, at the end of the day, an essential issue of credit between the appellant and the two police officers.
Two alternatives remain. The first is to remit the matter for trial in the Adelaide Magistrates Court. The alternative, given the delay which has occurred, is to acquit the appellant, a course which is urged upon me by Mr McGee, who appeared for the appellant. Mr McGee referred to the fact that the alleged offence occurred four years ago to this day and that memories would be defective on issues as to distances and other observations.
I do not propose to accede to the course urged by Mr McGee. As I said, there is one short simple issue, namely, whether the appellant proceeded against the red light. The evidence given by the police officers was that they had stopped themselves because of the red light and saw a vehicle, which was coming from behind them, continue on and proceed across the intersection. The issue is a relatively confined one. Matters going to distances the vehicles were from the stop line and the like are relatively unimportant in the overall picture, particularly, as on the appellant's own case as to his speed and as to the time in which it would take him to stop, there would have been ample time for him to have stopped having seen the amber light if the evidence given by the police officers is correct.
Further, the offence alleged against the appellant is a serious one and whilst I acknowledge the force of Mr McGee’s submission that vehicles of this kind are not prohibited from driving through the Central Business District, the fact that they are permitted to do so requires drivers of such vehicles to exercise all care when doing so.
For those reasons I think it appropriate that the matter proceed to a retrial notwithstanding that it is now four years after the offence is alleged to have occurred.
In all the circumstances, given that there are issues of credit and other questions, it is appropriate that the matter should be remitted for hearing before a magistrate other than the magistrate who heard and determined the matter.
The orders will be:
Appeal allowed.
The conviction and penalties ordered on 6 March 1998 in the Adelaide Magistrates Court be set aside.
Remitting the matter for hearing in the Adelaide Magistrates Court before a magistrate other than the magistrate appealed from.
That the question of the costs of the original hearing be determined by the magistrate who hears the retrial.
That the respondent pay the appellant's costs which I fix at $150 and the disbursement for the notice of appeal.
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