Gray v Police

[2003] SASC 15

GRAY  v  POLICE

[2003] SASC 15

1. GRAY J                 This is a case stated by a magistrate.

2. The defendant Christina Francis Gray was charged with driving under the influence, straddling a dividing line and failing to truly answer questions at Hahndorf and refusing to submit to a breath analysis at Mt Barker[1].

   [1] The complaint was in the following terms:

3. All offences were alleged to have arisen out of the one incident.  The Crown case was based on the observations of police officers and civilian witnesses. Ms Gray pleaded not guilty.  The defence case was that Ms Gray was not the driver. Two witnesses who were said to have been seated in a motor vehicle with her when she was spoken to by the police were identified as potential defence witnesses. Everything was disputed. 

4. A trial date of 1 March 2002 was fixed.  Negotiations occurred between the parties.  A request was made by Ms Gray’s counsel for a copy of the video tape footage taken of the charging procedure at the Mt Barker police station.  The trial began as listed in the absence of the video.  An adjournment was granted partway through the trial.  On resumption on 18 April 2002 the court was told that whilst the video was being copied the police had accidentally erased the entire tape. The original videotape was overlaid with other images. The police subsequently withdrew all counts on the complaint except driving under the influence. On 24 April 2002 the magistrate granted an application that he disqualify himself and the matter was listed for retrial before a different magistrate on the remaining count.

5. On the first day of the retrial counsel for Ms Gray made an application to stay the proceedings.  The magistrate was not prepared to conclude that he had the power to grant a permanent stay:

   “It may be that the best view to take is to distinguish The Queen v O’Loughlin ex parte Ralphs on the basis that since 1992 the Magistrates Court of South Australia has been a court of record (per section 5 of the Magistrates Court Act). Whether that justifies a conclusion that a Stipendiary Magistrate is empowered temporarily or permanently to stay proceedings would seemingly be best left to a superior court to determine. I am not prepared to arrive at that conclusion.”

6. Counsel for Ms Gray further contended that proceeding in the absence of the video tape amounted to an abuse of process.  There was no voir dire hearing in regard to the alleged abuse of process.  Evidence has yet to be taken on the retrial.

7. On appeal an affidavit outlining counsel for Ms Gray’s submissions to the magistrate was filed.  It contained the following:

   -    “that every element of each charge alleged against [Ms Gray] was in dispute;

   -    that one element of the charge alleged against [Ms Gray] was that she was driving a vehicle whilst so much under the influence of alcohol as to be incapable of exercising effective control;

   -    that the only…