Hanckel v Police No. Scgrg-98-245 Judgment No. S6664

[1998] SASC 6664

HANCKEL  v  POLICE

Perry J  (ex tempore)

The appellant appeals against both the conviction and sentence imposed upon him in the Magistrates Court sitting at Mount Barker, following his plea of not guilty to charges that on 20 June 1996 at Hahndorf he drove while there was present in his blood the prescribed concentration of alcohol, contrary to s47a of the Road Traffic Act 1961, and that on the same occasion he drove at a greater speed than 60 kilometres an hour, contrary to s49 of the Road Traffic Act.

The blood alcohol concentration alleged was .087 grams in a hundred millilitres of blood.  The speed alleged was 80 kilometres an hour.

After convicting the appellant, the learned Magistrate imposed a single penalty on both counts, namely, a fine of $600 and licence disqualification for a period of six months.

The matter had a somewhat chequered history in the court below.  The first return date of the summons was on 28 August 1996.  On that occasion the matter was adjourned to 9 October 1996.  On that date it was further adjourned to 13 November 1996, and then further adjourned to 18 December 1996.

The matter did not come on for hearing then but was further adjourned to 15 June 1997 and again to 12 February 1997.

On that occasion the appellant was present in court and was represented by counsel.  The matter was stood over for trial to 14 April 1997.  On that date the appellant did not appear, but the matter was adjourned to 28 April 1997 to enable the prosecution and defence counsel, Mr Caldicott, to continue negotiations.

On 28 April 1997 the matter was further adjourned, presumably for the same purpose, to 21 May 1997. On that day there was yet a further adjournment, this time to 22 September 1997.  The appellant appeared on that occasion and informed the court that Mr Caldicott was no longer acting for him.  The police prosecutor then applied for an adjournment on the basis that a police witness was unable to be contacted.  The learned Magistrate granted the application and adjourned the case for trial to 6 January 1998.

On that date the defendant was not present, nor did anyone appear on his behalf.  The prosecution applied to proceed ex parte.  Leave was granted accordingly.

The police prosecutor then read out following facts.

“Your Honour, at about 12.30 am on 20 June, 1996 police were on uniform mobile patrol travelling in a westerly direction along Main Street Hahndorf.  At about this time, police saw a Ford station wagon, registered number SA UAW 341 travelling at a fast rate of speed ahead of the police vehicle.  Police took up a position approximately 200 metres to the rear of this vehicle and followed and timed it for about 300 metres at a constant speed of 80 kms per hour.  The vehicle was stopped and police had a conversation with the driver, the defendant, regarding his speed.  Police noticed a strong smell of liquor and the defendant submitted to an alcotest which proved positive.  The defendant was conveyed to Mount Barker Road, Glen Osmond, where at 1.51 am Constable Kolmer from Breath Analysis Unit analysed a sample of the defendant's breath which indicated a reading of 0.087 percent.  The defendant was reported and then conveyed to Royal Adelaide Hospital for a blood test.

The defendant stated he had consumed two schooner size glasses of port and one stubbie of beer earlier in the night and that he did not realise he was speeding.”

Following that recitation of facts, the learned Magistrate convicted the defendant on both counts.  He directed that notice be given to the appellant to attend on 4 February 1998 for the purpose of fixing the penalty.

On that date the appellant appeared unrepresented, and asked for an adjournment to enable him to seek legal advice.  The application was refused. The learned Magistrate then impose the penalty to which I have referred.

The appellant attended on the hearing of the appeal and represented himself.  He filed a short declaration stating that on 22 September 1997, which is the date from which the matter was adjourned to 6 January 1998 for trial, he “inadvertently mixed up the date of the trial”.

When questioned by me on the hearing of the appeal, the appellant said that, in fact, he had thought that the adjournment was to 16 January 1998, but before that date and after 6 January 1998 he had received the notice of the hearing for the purposes of the penalty to be held on 4 February 1998.

I directed a number of questions to the appellant in an endeavour to ascertain what his case would be if I acceded to his request for me to quash the conviction and remit the matter for further hearing in the court below.

In answer to those questions, the appellant indicated that a blood sample was taken at the Royal Adelaide Hospital soon after the breath analysis had been conducted and that this indicated a blood alcohol concentration of .08 percent.  When I pointed out to the appellant that this might create a difficulty for him in persuading the court to accept his defence to the blood alcohol charge, he put it that he would contend, if given the opportunity to do so, that the police officers who apprehended him had no authority to do so, as he was not speeding at the time.

As to the speeding count, it appears that the appellant has lived in the area for many years and was travelling alone in his vehicle at the relevant time.  He admits to having been drinking for about four hours in a hotel in the town, and says that he was on his way home from the hotel when apprehended.  He denies that he was unduly affected by the liquor which he had consumed.  Furthermore, he denies that he was travelling at 80 kilometres per hour.  He says that he was travelling at about 60 kilometres per hour.

He knows Main Street very well and has travelled on it many times, and had no particular reason to hurry on that night.

I pointed out to the appellant that legal authorities binding on me permitted this Curt to intervene only if it is clear that as a result of the course of events in the court below, there has been a miscarriage of justice.

In order to conclude that there had been a miscarriage of justice, it is necessary for this Curt to be satisfied that if the matter was to be remitted, the appellant would have a reasonable chance of successfully defending the charges.

Putting it another way, it is incumbent upon the defendant to satisfy the Court that through a miscarriage of justice he has lost an opportunity of securing a dismissal of the charges.  But where, as is the case here, this Court is satisfied that the failure to attend at the proper time was due to the appellant's own carelessness, this Court will intervene only in exceptional circumstances.

I have given every opportunity for the appellant to put all that he wished to put in favour of the appeal.  In the course of doing so he made some sweeping allegations as to the conduct of the police officers and also as to certain matters relating to his alleged experiences with the police some years beforehand.  It is unnecessary to go into the detail of those matters as they appear in the transcript.  But it is sufficient to say that the appellant's assertions in that regard raise a question in my mind as to the appellant's motives in pursuing the appeal.

Be that as it may, the question is whether or not in all the circumstances referred to by the appellant, he has demonstrated that the ex parte hearing and the consequences of it, in terms of the conviction and penalty on both counts, should be set aside.

As to the appeal against penalty, there is a further question, and that is, whether or not the Magistrate's refusal of the application for an adjournment is indicative of appealable error.

As to that aspect of the matter, I have already outlined the long history of adjournments leading down to the date upon which the penalty was imposed.  In the circumstances, it was not incumbent upon the Magistrate to grant the adjournment, and his refusal of it has not been shown to have been erroneous.

As to the appeal against conviction, there are no exceptional features which would justify setting aside the conviction.  This was a strong case from the point of view of the prosecution and I do not think that there is any reasonable prospect of the appellant successfully defending the matter, if I was to allow the appeal.

The penalty is towards the lower end of the scale and is not excessive.

The appeal against conviction and the appeal against sentence are both dismissed.

HIS HONOUR:  Any questions of costs?

MS BYERS:  $150.

HIS HONOUR:  [To the appellant]  Having failed in the appeal, you would ordinarily be ordered to pay the costs.  Do you want to say anything about the costs?

MR HANCKEL:                  I don't think I am really liable for the costs, and everything I said is true, and I would be quite prepared to say it under oath.  There were no other motives but see to see justice done.

HIS HONOUR:  I order the appellant to pay the respondent's costs of and incidental to the appeal, which I fix in a lump sum of $150, to be paid within six months of today.

Mr Hanckel, I warned you last time that the suspension operates, as do the other penalties that were imposed, now.  You remain suspended from driving for six months from 2 March 1998.  So you must not drive during that period.  To do so is a serious offence which ordinarily results in the imposition of a term of imprisonment.