Green v Tongs - [2005] ACTSC 7

GREEN v TONGS [2005] ACTSC 7 (3 February 2005)

ORDER NISI – to review decision of Magistrate – respondent driving with level 4 alcohol in blood after drinking four beers – Magistrate had reasonable doubt as to respondent’s guilt – limits of judicial notice – absence of expert evidence.

Evidence Act 1995 (Cth), s 144

Road Transport (Alcohol & Drugs) Act 1977 (ACT), s 4, s 19, s 26

Perkins v Pohla–Murray (1983) 51 ACTR 3
Looper v Forbes (1992) 112 ACTR 29
Harrington v Zaal (1992) 106 FLR 175

Saxe v Kellett (1970) VR 600

R v Whitby (1957) 74 WN (NSW) 441

McKern v Burke (1986) 3 MVR 279

State Rail Authority of NSW v O’Keefe (1995) 21 MVR 63

Golding v Liddy (1983) 33 SASR 116

Evans v Benson (1987) 46 SASR 317

Dennert v Police (1998) 72 SASR 485

Alcohol, Drugs & Driving (1976) ALRC 4

NSW Road Transport Authority - “More information about 0.05 alcohol limit”

Australian Government Department of Health & Aging – “Australian Alcohol Guidelines”

IN THE MATTER of an order nisi to review a decision of the Magistrates Court

No. SCA 42 of 2004

Judge: Higgins CJ
Supreme Court of the ACT

Date: 3 February 2005

IN THE SUPREME COURT OF THE  )
  )  No. SCA 42 of 2004
AUSTRALIAN CAPITAL TERRITORY  )

IN THE MATTER OF AN ORDER NISI TO REVIEW A DECISION OF THE MAGISTRATES COURT

BETWEEN:MATTHEW GEORGE EDWARD GREEN
Appellant

AND:SIMON JAMES TONGS
Respondent

ORDER

Judge:  Higgins CJ
Date:  3 February 2005
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

On 8 October 2003, the respondent was charged by information laid by the appellant that he,

… in the Australian Capital Territory on 11 September 2003, did drive a motor vehicle, on a public street, with level 4 alcohol in his blood.

The matter was heard by Magistrate Madden on 9 July 2004. There was a plea of not guilty. Though finding a prima facie case, Magistrate Madden found he entertained a reasonable doubt as to the respondent’s guilt and dismissed the information accordingly.

The primary facts relied on by the prosecution were not in dispute.

On 11 September 2003, the respondent had been the driver of a blue coloured Ford Falcon sedan. The respondent had given a lift home from a band practice session to Mr Gerardo Penna. Mr Penna stated (his statement being admitted by consent),

On the 10 September 2003 Simmo [a reference to the respondent] picked me up from my house sometime in the evening; I remember that it was dark. We went back to his house which is in Kingston near the Kingston shops, I am not sure of the exact address. We had a practice session and recorded some music at this address. We did this for a fair few hours. As far as I can remember there was no alcohol present when I was there because I don’t drink and it does not interest me.
I am not…

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 Green v Tongs

Details

AGLC: Green v Tongs [2005] ACTSC 7
Case: [2005] ACTSC 7
Decision Date

CaseChat Overview and Summary

In the case of Green v Tongs, the Supreme Court of the Australian Capital Territory reviewed a decision made by a magistrate in relation to a charge against the respondent, Simon James Tongs, for driving with a level 4 alcohol concentration in his blood. The appeal sought to challenge the magistrate's dismissal of the charge based on reasonable doubt regarding the accuracy of the breath test result. The court was tasked with determining whether the magistrate's decision was correct, particularly in light of the absence of expert evidence and the reliance on judicial notice. The court found that the magistrate's reliance on common sense and general knowledge to question the breath test result was permissible under the Evidence Act 1995 (Cth). It concluded that the magistrate did not exceed the permissible limits of judicial notice and that the appeal should be dismissed. The court emphasized that while the legislature assumes greater culpability with higher blood alcohol levels, the final determination of accuracy in any given case requires expert evidence. In this instance, the magistrate's findings were supported by the evidence presented and the general understanding of alcohol's effects.

Orders