Grey v Police No. Scgrg-97-1410 Judgment No. S6462

[1997] SASC 6462

GREY  v  POLICE

Bollen AJ (Ex Tempore)

In this matter Mr Grey, the appellant,  drove down a one way street.  The policeman claimed to have  seen it.  The one way street had a notice, not very high  off the ground, saying, in effect, that one could go only  one way in the street.  Mr Grey says that, at the time when  it happened.  There were a number of people standing in the  way of the sign so that he could not see it.  Photographs  showed that the sign could be blocked perhaps even by one  person. The photographs don’t tell us whether the sign was  blocked by people at the relevant time.  They do tell us  that it can be blocked. 
The officer gave his evidence.  Mr Grey gave his  evidence and he called the photographer who took the  photograph which I have mentioned.  Now, as the Justices of  the Peace who heard the matter, say: 
"The facts and dispute in this case are the signs were  not visible because people were standing in front of it."
So, the issue before the court was whether or not the prosecution had proved, beyond reasonable doubt, that the sign was clearly visible. Of course, Mr Grey drove down the street when the sign was not visible. He still drove down a one way street. Perhaps that would make him guilty of the offence charged but, if that were so, I think that s.15 of the Sentencing Act would come into play. That says:
"Where a court finds a person guilty of an offence, but  finds the offence so trifling that it is inappropriate to  impose any penalty, it may, without recording a conviction,  dismiss the charge".
And some other alternatives are given.  In my opinion,  if the sign was blocked then, although an offence might  have been created by driving the wrong way, it was so  trifling that the court should, without recording a  conviction, dismiss the charge. 
There has been a lot of difficulty in the law about the  use of the word "trifling."  One thing we can say is that  trifling does not mean trifling.  But, it means, usually,  in these sort of Acts of Parliament, something that is  atypical, not typical of a breach of the obligation imposed  by the section, something to which Parliament could not be  expected to think anyone should be found guilty of, have a  conviction recorded against him or her. 
Well, the magistrates have the advantage, as pointed  out to me by Ms Williams, of seeing and hearing the  witnesses. That is a substantial advantage.  But, the  magistrates have never, as appears from the reasoning,  really faced up to the vital issue and decided and stated  clearly why they came to the conclusion that there must be  a conviction.  They spoke in terms about the police  officer, to suggest, perhaps, they accepted his evidence.  They do not say that in as many words. 
They say the defendant gave his evidence.  They do not  say what they think of the credibility or reliability of  him as a witness.  They do say, at the top of p3 of  their reasons this:
"We find the charge proved beyond reasonable doubt as  there is no other evidence presented to us that would give  us cause to have any other considered verdict.  A  conviction will be recorded."
It’s not clear what that is intended to convey.  The  reference to "no other evidence" does suggest that the  magistrates have brushed aside the evidence of the  defendant and not given  proper consideration to it. 
In these circumstances, I think the appeal should be allowed and that s.15 of the Sentencing Act should lead me to say that there should be no conviction and that the charge is dismissed without the recording of a conviction.
I go on to say that Mr Grey protests he was not given a  fair trial because he was not allowed to ask a number of  questions in cross-examination.  I think that might be  answered by the rules of evidence.  I think perhaps at  least some of his questions were not admissible.  Perhaps  it would have been wiser for the court to let that go, but  I record that argument by Mr Grey.  I do not act on it. 
I act on the circumstances I have stated, namely, that  the Justices do not appear to have given adequate proper  weight to the evidence which Mr Grey himself gave.  In  those circumstances although Mr Grey was guilty of driving  down a one way street, the offence is in the circumstances,  where he could not have known it was a one way street,  so trifling, that without recording a conviction this court  sets aside the orders of the court at Port Adelaide and  dismisses the charge.  So that the appeal is allowed and  the charge dismissed. 
That calls into question what should happen now.   Should there be a new trial?  Should there not be a new  trial? This was a very minor little incident on the road.   Perhaps one’s eyebrows rise for a man being prosecuted for  it. Mr Grey has been through the trial and the expense and  the worry of the one trial.  I do not think he should be  called upon to face another trial.  There will be no order  for a new trial. 
So you have succeeded Mr Grey.  The appeal is allowed.   You do not have the conviction the magistrates imposed upon  you. You do not have to pay any penalties and there is no  order for a new trial.