FREEMAN v Police - [2008] SASC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FREEMAN v POLICE
[2008] SASC 24
Judgment of The Honourable Justice David
11 February 2008
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISCELLANEOUS GROUNDS ON WHICH NEW TRIAL GRANTED OR REFUSED
Appeal against conviction - three driving offences allegedly committed on Light Square, Adelaide - incorrect legislative definition of "road" provided to the court during trial - whether appellant "drove" the vehicle - whether magistrate erred in considering wrong definition of "road" - whether magistrate's reasons were inadequate - whether matter should be remitted for re-trial if appeal successful.
Held: Appeal dismissed with respect to first charge - appeal allowed with respect to second and third charges - appellant did "drive" the motor vehicle - magistrate erred in considering the wrong definition of "road" - magistrate's reasons adequate - interest of justice requires matter to be remitted for re-trial.
Criminal Law Consolidation Act 1935 (SA) s 86A; Magistrates Court Act 1991 (SA) s 42(5); Motor Vehicles Act 1959 (SA) s 5, s 74, s 102; Road Traffic (Miscellaneous) Regulations 1999 (SA); Road Traffic Act 1961 (SA) s 5, s 5A, s 6A, s 47, referred to.
Mercorella v Page (1975) 12 SASR 431, applied.
Bassell v McGuiness (1981) 29 SASR 508; Police v Thompson (2006) 45 MVR 37, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"driving"

FREEMAN v POLICE
[2008] SASC 24
Magistrates Appeal
DAVID J.
Introduction

This is an appeal against a magistrate’s decision to convict the appellant for three offences involving the driving of a motor vehicle.
Background
The appellant was charged with the offences of:
·illegal use of a motor vehicle (contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA)) (“Count 1”);
·driving while under the influence of intoxicating liquor (contrary to s 47 of the Road Traffic Act 1961 (SA)) (“Count 2”); and
·driving without a licence (contrary to s 74 of the Motor Vehicles Act 1959 (SA)) (“Count 3”).
All three offences are alleged to have occurred on 17 September 2006. The prosecution case was that on that day there was a function held on Light Square, Adelaide. During the course of the function, a security guard’s vehicle was parked on a grassed area situated on the north-east corner of Light Square. The security guard was nearby, and had left the keys in the ignition of the vehicle, with the doors closed but not locked. The prosecution led evidence that the appellant sat in the driver’s seat of the vehicle. The ignition was then heard to “turn…

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 FREEMAN v Police

Details

AGLC: FREEMAN v Police [2008] SASC 24
Case: [2008] SASC 24
Decision Date: 11 February 2008

CaseChat Overview and Summary

The appellant appealed against his conviction for three driving offences allegedly committed on Light Square, Adelaide. The offences were illegal use of a motor vehicle, driving while under the influence of intoxicating liquor, and driving without a licence. The appeal was based on the premise that the court was provided with an incorrect legislative definition of "road" during the trial, which led to an erroneous decision. The appellant argued that the magistrate erred in considering the wrong definition of "road" and that the magistrate's reasons were inadequate. Additionally, the appellant contended that the magistrate's reasons were inadequate and that the interest of justice required the matter to be remitted for re-trial if the appeal was successful.

The court was required to determine whether the magistrate erred in considering the wrong definition of "road" and whether the magistrate's reasons were adequate. The court also had to decide whether the appellant "drove" the vehicle and whether the matter should be remitted for re-trial if the appeal was successful. Furthermore, the court had to consider whether the appeal against the conviction on Count 1 should be dismissed and whether the appeals against the convictions on Counts 2 and 3 should be allowed.

The court found that the magistrate was correct in finding that the appellant "drove" the motor vehicle. The court held that the magistrate erred in considering the wrong definition of "road" and that the verdicts on Counts 2 and 3 should be set aside. The court also found that the magistrate's reasons were adequate. The court concluded that the interest of justice required the matter to be remitted for re-trial of Counts 2 and 3. The appeal against the verdict of guilty on Count 1 was dismissed, and the appeals against the convictions on Counts 2 and 3 were allowed. The verdicts on those counts were set aside and the matter was to be remitted to another magistrate for a re-trial of those two charges.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an appeal against a magistrate’s decision to convict the appellant for three offences involving the driving of a motor vehicle.Background The appellant was charged with the offences of:·illegal use of a motor vehicle (contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA)) (“Count 1”);·driving while under the influence of intoxicating liquor (contrary to s 47 of the Road Traffic Act 1961 (SA)) (“Count 2”); and·driving without a licence (contrary to s 74 of the Motor Vehicles Act 1959 (SA)) (“Count 3”). All three offences are alleged to have occurred on 17 September 2006. The prosecution case was that on that day there was a function held on Light Square, Adelaide. During the course of the function, a security guard’s vehicle was parked on a grassed area situated on the north-east corner of Light Square. The security guard was nearby, and had left the keys in the ignition of the vehicle, with the doors closed but not locked. The prosecution led evidence that the appellant sat in the driver’s seat of the vehicle. The ignition was then heard to “turn over” and the vehicle “bunny hopped” a distance of approximately 1.5 m. The security guard gave evidence that the appellant appeared to be significantly intoxicated by liquor. He told the appellant to leave the area and then called the police. The appellant was seen by police shortly afterwards in Hindley Street, Adelaide, and when they approached him he attempted to run away. The appellant pleaded not guilty to all counts, but in evidence did not dispute that he sat in the vehicle, that he was intoxicated and that he did not hold a current driver’s licence. However, the appellant maintained that the door of the vehicle was open, his legs were outside of the vehicle at all times, he did not turn the ignition of the vehicle and he did not drive the vehicle. He said he merely got into the vehicle as a prank, having first had a friendly conversation with the security guard. The main issues at trial were whether or not the appellant “drove” the vehicle and whether Light Square was a “road”. At trial, the prosecutor tendered relevant sections of the Road Traffic Act, the Road Traffic (Miscellaneous) Regulations 1999 (SA) and the Motor Vehicles Act. One of these sections, s 5 of the Road Traffic Act, had been amended between the date of the alleged offence and the date of trial. The prosecutor tendered a copy of the amended version of this section, rather than the version in force at the time of the alleged offence. On 28 August 2007, the magistrate found the appellant guilty of all three offences. The matter was adjourned to 20 September 2007, for sentencing submissions. On 20 September 2007, the magistrate was advised that the court had been provided with an incorrect version of s 5 of the Road Traffic Act. The magistrate indicated that this provision had been relied on in determining whether the charges had been proved. It appears that the prosecution requested that the matter be re-opened and the parties were subsequently granted leave to provide written submissions with respect to the correct statutory definition of “road”. The prosecution indicated that it would provide a written submission (which it did later provide), would not tender any regulations, and asked the court to take judicial notice of Light Square, its environs, and the Road Traffic (Miscellaneous) Regulations.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

DAVID J

In exercising my discretion, I must weigh up the competing interests of the appellant and the public interest in the proper administration of justice. I have taken into account the fact that the appellant will have the expense of a second trial and that the prosecution may present additional evidence. However, these are not issues unique to this case. I am satisfied that the magistrate was correct in finding that the appellant “drove” the motor vehicle. I have had regard to the statutory definitions of “road”, relevant to Counts 2 and 3, and to the evidence presented at trial as to the location of the alleged offences. I am of the view that the question whether the offending occurred on a “road”, using the correct definition, is a matter which should be remitted to the Magistrates Court.Conclusion The appeal against the verdict of guilty on Count 1 is dismissed. I allow the appeal with respect to Counts 2 and 3, on the basis that the magistrate erred in considering the wrong definition of a “road”. The verdicts are set aside and the matter is to be remitted to another magistrate for a re-trial of those two charges.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

Full text does not contain this section.