Frunks v Police - [2016] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FRUNKS v POLICE
[2016] SASC 120
Judgment of The Honourable Justice Doyle
5 August 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
The appellant was convicted of driving while disqualified and driving with excess alcohol in his blood. The appellant contended that the Magistrate erred in finding beyond reasonable doubt that he was the driver of the vehicle. In particular, he contended that the Magistrate placed insufficient weight on two statements of a witness, Mr Noble, and that the Magistrate placed too much weight on the evidence of the police officers who gave evidence.
Held (per Doyle J), dismissing the appeal:
1. No error has been established in the Magistrate’s approach or findings.
Motor Vehicle Act 1959 (SA) s 91; Road Traffic Act 1961 (SA) s 47B(1)(a), referred to.
Taylor v Hayes (1990) 53 SASR 282; Fox v Percy (2003) 214 CLR 118, considered.

FRUNKS v POLICE
[2016] SASC 120
Magistrates Appeal.
DOYLE J:

Following a trial before a Magistrate, the appellant was convicted of two offences: driving while disqualified from holding or obtaining a driver’s licence contrary to s 91 of the Motor Vehicle Act 1959 (SA) (count 1), and driving whilst there was present in his blood the prescribed concentration of alcohol contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (count 2).
Both offences occurred on the evening of 2 June 2013. The only issue at trial was whether the appellant was the driver of the vehicle at the relevant time. The appellant’s case was that his friend, Paul Noble, was the driver.
In this appeal against conviction, the appellant relies upon two grounds of appeal. The first is that the Magistrate place insufficient weight on the two statements of Mr Noble. The second is that the Magistrate placed too much weight on the evidence of police officers Newman, Brinkley and Ellison, notwithstanding the inconsistencies between them. In essence, the appellant contends that the Magistrate erred in finding beyond reasonable doubt that he was the driver of the vehicle.
The trial
The appellant was unrepresented at trial, as he was during this appeal.
The two charges arose from an occasion when two police officers (Newman and Ellison) in a marked police car followed and then pulled over a Holden Statesman vehicle at about 10.20 pm on 2 June 2013, having kept it under observation as it drove along Penrice Road in Penrice.
There was no dispute at trial that the Statesman was registered to the appellant; that the appellant was disqualified from holding or obtaining a driver’s licence; that both the appellant and Noble were in the Statesman when it pulled over and came to a halt; and that the concentration of alcohol in the appellant’s blood at the relevant time was 0.126 grams of alcohol per 100 mL of blood.
It followed from this that the only issue at trial…

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 Frunks v Police

Details

AGLC: Frunks v Police [2016] SASC 120
Case: [2016] SASC 120
Decision Date: 5 August 2016

CaseChat Overview and Summary

The appellant was charged with the offence of driving while disqualified, contrary to section 132(1) of the Road Traffic Act 1961 (SA). The appeal was brought before the Supreme Court of South Australia, challenging the conviction and sentence handed down by a Magistrate. The key issue before the court was whether the evidence was sufficient to prove beyond reasonable doubt that the appellant was the driver of the vehicle at the time of the offence.

The court considered the evidence of Officer Newman, who observed the appellant and another male, Noble, leaving the Brauhaus Hotel and walking away. Newman noted the appellant’s intoxicated state and the fact that he was disqualified from holding a driver’s licence. She saw two males approach a vehicle parked outside the hotel and one of them enter the driver’s seat. Although she could not identify which male entered the vehicle, she followed the vehicle after it drove off. The court had to determine whether the evidence was sufficient to establish the appellant’s identity as the driver.

The court found that while there were suspicions that the appellant might attempt to drive the vehicle, the evidence did not definitively prove that he was the driver. The distance and lighting conditions prevented Officer Newman from clearly identifying who entered the vehicle. Additionally, there was no direct evidence linking the appellant to the act of driving. Consequently, the court concluded that the prosecution had not discharged the onus of proving the appellant’s guilt beyond reasonable doubt. The appeal was allowed, and the conviction was quashed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Before setting out the conclusions I have drawn from my review of the evidence and the findings below, it is appropriate that I summarise the evidence and the reasoning of the Magistrate.Evidence of Officer Newman Newman’s evidence was that on the night of 2 June 2013 she was on uniformed patrol in a marked police car. Her partner that evening was Ellison. At about 9.00 pm, as a result of a radio tasking, she and Ellison went to the Brauhaus Hotel in Angaston. She and Ellison spoke with two males near the driveway area of the hotel. One of them identified himself as Toby Frunks (the appellant). Whilst speaking with Frunks she could smell liquor on him, and observed that he had bloodshot eyes but that he was steady on his feet and able to hold a conversation and provide his details. Ellison spoke with the other male, Noble. While Newman did not speak with Noble, she observed that he was unsteady on his feet and using the wall to steady himself. She assessed him as being quite grossly intoxicated. After Newman and Ellison had finished speaking with them, the appellant and Noble walked off from the hotel. Newman and Ellison went inside the hotel for a short time and when they came outside, Newman noticed a car parked on the street outside the Hotel. It was the Statesman which was later stopped by Ellison and Newman on Penrice Road. Newman carried out a registration check, which revealed that the Statesman was registered to the appellant. She checked the status of his licence, and this revealed that he was at the time disqualified from holding or obtaining a driver’s licence. Because neither the appellant nor Noble lived in the Barossa Valley, Newman was suspicious that one of them might try and drive the vehicle. A decision was made to intermittently check on the vehicle while they were carrying out other general patrol duties. About an hour later, Newman and Ellison were in their police car, which was parked about 150 metres from where the Statesman was parked. Newman saw two males approaching from the direction which the appellant and Noble had earlier headed. When she first saw them they were about 10 to 15 metres from the Statesman. When they reached the Statesman, she saw one of them get into the driver’s side of the vehicle and one of them get into the passenger’s side of the vehicle. She was not able to make out which of the males got into which side. Nor was she able to make out whether the person who got into the passenger side of the vehicle had entered the front or back door. The distance was too great, and although there was some lighting in the area, the lighting was not that good. The Statesman soon drove off, and Newman and Ellison decided to follow it. Ellison was driving the police vehicle and Newman was the passenger. After travelling about 200 metres, the Statesman turned right onto Penrice Road. Newman had earlier been in contact with a fellow police officer, Brinkley, to see if he was in the general area. She had mentioned her suspicions that either Noble or the appellant might attempt to drive the vehicle and that assistance might be required. As they were following the Statesman, she made further contact by radio with Brinkley and asked him to drive towards them on Penrice Road.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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