Gannon v Police

Case [2005] SASC 502

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

GANNON v POLICE

Judgment of The Honourable Justice White

23 December 2005

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - OFFENCES RELATING TO INTERSECTIONS AND JUNCTIONS

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD

Appeal against convictions - appellant convicted of driving with prescribed concentration of alcohol in the blood and of failing to obey traffic lights, but acquitted on charge of exceeding speed limit - Magistrate had "considerable anxiety" about police officer's evidence concerning the speeding charge but accepted the police officer's evidence concerning the traffic light offence - whether adequate reasons for decision - held that the circumstances required an explanation for acceptance of the police officer's evidence on one ground when reservations were held concerning his evidence on another - Magistrate's reasons inadequate - whether belief of the breath analysis operator or of the apprehending officer was relevant for the purposes of s 47E(1) - held that as it was the apprehending officer who had required the appellant to submit to breath analysis it was his belief which was relevant - as conviction on traffic light offence set aside, there were no findings of fact as to the apprehending officer's state of mind - appeal allowed - convictions set aside - retrial ordered.

Australian Road Rules r 25.2, r 56(1)(a); Road Traffic Act 1961 s 47E, s 47G, referred to.
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Pettitt v Dunkley (1971) 1 NSWLR 376; T v Medical Board (SA) (1992) 58 SASR 382; Papps v Police (2000) 77 SASR 210; Rowland v Police (2001) 79 SASR 569; R v Keyte (2000) 78 SASR 68; Harwood v Police (1998) 71 SASR 300; Nash v Berton [2001] SASC 94; Hoobin v Samuels (1971) 2 SASR 238; Cotton v Ramm (1976) 16 SASR 107; Coates v McCormick (1991) 16 MVR 6; Lajos v Samuels (1980) 26 SASR 514, applied.
Brain v Froude (1992) 61 SASR 65; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; Water Board v Moustakas (1988) 180 CLR 491, considered.

GANNON v POLICE
[2005] SASC 502

Magistrates Appeal

  1. WHITE J: The appellant was charged with three offences alleged to have been committed on 21 July 2002 on Hutt Street and Hutt Road, Adelaide.  He was convicted of two of those offences.  This is an appeal against those convictions.

  2. The first charge was that the appellant drove his car on Hutt Street whilst the prescribed concentration of alcohol was present in his blood. It was alleged that the concentration of alcohol was 0.098 grams in 100 millilitres of blood. Secondly, it was alleged that the appellant had, contrary…

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Gannon v Police [2005] SASC 502
Case
[2005] SASC 502
Decision Date

CaseChat Overview and Summary

In the matter of Gannon v Police, the appellant, Gannon, appealed against his convictions for driving with a prescribed concentration of alcohol in his blood and failing to obey traffic lights, while being acquitted on the charge of exceeding the speed limit. The case was heard in the Supreme Court of South Australia. The primary legal issues were whether the Magistrate's reasons for accepting the police officer's evidence were adequate, and whether the belief of the breath analysis operator or the apprehending officer was relevant for the purposes of section 47E(1) of the Road Traffic Act 1961.

The court found that the circumstances required an explanation for the acceptance of the police officer's evidence on one ground while holding reservations about his evidence on another. The Magistrate's reasons were deemed inadequate. It was held that it was the apprehending officer's belief that was relevant for the purposes of section 47E(1). Given that the conviction for the traffic light offence was set aside, there were no findings of fact as to the apprehending officer's state of mind. The appeal was allowed, the convictions were set aside, and a retrial was ordered.

The court examined the evidence provided by Senior Constable Tellam, who testified about a conversation with Gannon following his vehicle being stopped. Gannon argued that the evidence should have been excluded due to the failure to administer a caution, delay in making notes, and not providing an opportunity to read and acknowledge the notes. However, the Magistrate did not consider these statements as admissions by Gannon and treated them as denials. As the Magistrate did not use the statements adversely to Gannon, the court did not need to conclude whether the Magistrate's refusal to exclude the evidence was in error.

Ultimately, the Magistrate's decision to convict Gannon of the traffic light offence while expressing doubt about the speeding charge led to an unsafe verdict and unsatisfactory reasoning. The conviction on Count 3 was set aside, and a retrial of that offence was ordered.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

At the hearing of the appeal, I gave the appellant leave to amend the grounds of appeal in accordance with a document entitled “Proposed Substituted Grounds Of Appeal”. At the time of granting leave, I was informed that the substituted grounds were to replace wholly the original grounds of appeal. However, as the submissions developed, it became apparent that both parties treated the “substituted grounds of appeal” as additional grounds of appeal. I will deal with them in the same way.Failure to Exclude Evidence The appellant submitted that the Magistrate should have precluded SC Tellam from giving evidence of the conversation which he had with him immediately after his vehicle had been stopped. SC Tellam’s evidence, assisted by reference to notes, was that the appellant had answered, “Didn’t think it was red”, in answer to a question as to his reason for disobeying the traffic light. Further, when told that he had been timed driving at a speed of 100 kph in a 60 kph speed zone and asked his reason for that, SC Tellam said that the appellant answered “Didn’t think it was that fast”. The appellant’s submission was that this evidence should have been excluded because SC Tellam had not given him any caution before questioning him, because SC Tellam had not made his notes as soon as practicable after the conversation, and because SC Tellam had not given him the opportunity to read the notes or to acknowledge their accuracy by signature or otherwise. This was particularly important, it was said, because of the appellant’s dispute that any allegation at all of excess speed had been made by SC Tellam when he spoke to him on 21 July 2002. Although this ground of appeal was pursued with some vigour, I do not consider that it is of any moment in the appeal. The Magistrate did not regard the statements complained of as an acknowledgement or admission by the appellant that he had disobeyed a red light or that he had been speeding. On the contrary, the Magistrate said that he would treat the responses attributed to the appellant by SC Tellam as denials of the allegations. This is evident in the following passage of the Magistrate’s reasons. Ultimately I am not critical of Tellam’s failure here to administer a caution. I am not critical of that because I think that the appropriate approach to be adopted to the remarks attributed to Mr Gannon is that, in fact these were denials being made by him of conduct being ascribed to him. The responses attributed to him should not in my opinion be categorised as confessional in nature. They should be seen as a protest about the allegations and should be seen in my opinion as denials. The failure to administer a caution here in my view should not be fatal of itself to the reception of evidence about that conversation. The Magistrate made no use of the statements of the appellant which was in any way adverse to the appellant. In these circumstances, it is not necessary to express a conclusion as to whether the Magistrate’s refusal to exclude evidence of the conversation was in error, and I refrain from doing so.Unsafe Verdict – Unsatisfactory Reasoning

Decision

Reasons for decision

The allegations of speeding and of disobeying the red light were disputed by the appellant and his wife, each of whom gave evidence at the trial.The Decision of the Magistrate The Magistrate gave an ex tempore decision. He held that he did not have sufficient confidence in the evidence of SC Tellam with respect to the allegation of speeding so as to be able to conclude, beyond all reasonable doubt, that the appellant had been travelling at the speed alleged. The Magistrate did, however, accept SC Tellam’s evidence with respect to the disobeying of the red traffic light. He accepted also that SC Gardner did, as a result of what he had been told by SC Tellam, have the requisite state of mind required by s 47E of the Road Traffic Act 1961 so as to be able to require the appellant to submit to breath analysis, viz, a belief on reasonable grounds that the appellant had committed an offence or offences under the Road Traffic Act 1961 of which the driving of a motor vehicle was an element.The Grounds of Appeal As originally expressed, the grounds of appeal comprised a complaint that the Magistrate had not considered the effect which his lack of confidence in SC Tellam’s evidence in respect of the speeding offence had in the consideration of his evidence in relation to the traffic light offence, and a complaint that the requirement that the appellant submit to breath analysis should have been found unlawful. At the hearing of the appeal, I gave the appellant leave to amend the grounds of appeal in accordance with a document entitled “Proposed Substituted Grounds Of Appeal”. At the time of granting leave, I was informed that the substituted grounds were to replace wholly the original grounds of appeal. However, as the submissions developed, it became apparent that both parties treated the “substituted grounds of appeal” as additional grounds of appeal. I will deal with them in the same way.Failure to Exclude Evidence The appellant submitted that the Magistrate should have precluded SC Tellam from giving evidence of the conversation which he had with him immediately after his vehicle had been stopped. SC Tellam’s evidence, assisted by reference to notes, was that the appellant had answered, “Didn’t think it was red”, in answer to a question as to his reason for disobeying the traffic light. Further, when told that he had been timed driving at a speed of 100 kph in a 60 kph speed zone and asked his reason for that, SC Tellam said that the appellant answered “Didn’t think it was that fast”. The appellant’s submission was that this evidence should have been excluded because SC Tellam had not given him any caution before questioning him, because SC Tellam had not made his notes as soon as practicable after the conversation, and because SC Tellam had not given him the opportunity to read the notes or to acknowledge their accuracy by signature or otherwise. This was particularly important, it was said, because of the appellant’s dispute that any allegation at all of excess speed had been made by SC Tellam when he spoke to him on 21 July 2002.

Ratio Decidendi

Legal Principle Established

In my opinion, this error of the Magistrate means that the conviction on Count 3 should be set aside. A retrial of that offence should be ordered.Exceeding the Prescribed Concentration of Alcohol The prosecution sought to prove this count by the tender of the certificate showing the concentration of alcohol was 0.098 grams in 100 millilitres of blood[8] and by adducing evidence from SC Gardner as to the obtaining of that analysis.[8] Road Traffic Act 1961 s 47G(3b). The entitlement of the police to require the appellant to submit to breath analysis arose from s 47E(1) and s 47E(3) of the Road Traffic Act. As at 20 July 2002, those subsections were as follows:(1)Where a member of the police force believes on reasonable grounds that a person, while driving a motor vehicle or attempting to put a motor vehicle in motion –(a) has committed an offence of contravening, or failing to comply with, a provision of this Part of which the driving of a motor vehicle is an element (excluding an offence of a prescribed class); or********(c) has behaved in a manner that indicates that his or her ability to drive the motor vehicle is impaired; or(d) has been involved in an accident,that member of the police force may, subject to subsection (2), require that person to submit to an alcotest or breath analysis, or both.…(3)A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a member of the police force in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a member of the police force. Before a police officer can require a person to submit to an alcotest or breath analysis, the officer must believe, on reasonable grounds, that at least one of the facts specified in sub-paragraphs (a), (c) or (d) exists. If the relevant police officer does not have that belief, he or she cannot require the person to submit to breath analysis and any analysis which is obtained by virtue of such a requirement will not have been lawfully obtained. In that event, the public policy discretion to exclude evidence of the analysis is enlivened.[9][9] Brain v Froude (1992) 61 SASR 65. In the present case, the Magistrate considered that the relevant mind to be considered was that of the breath analysis operator, SC Gardner. The Magistrate’s conclusion was as follows:I find that at the intersection of Hutt Street and Halifax Street that Mr Gannon’s vehicle proceeded contrary to an indicated red light and that that was observed by Tellam. That allegation was later put to Mr Gannon and later transmitted to Gardner who was in a position to act on the same. Gardner’s state of mind was that he believed that there had been a Part 3 offence, at least that of disobeying traffic light and that Gardner was authorised to require Mr Gannon to undergo the breath analysis.