Harris v POLICE

[2006] SASC 294

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

HARRIS v POLICE

[2006] SASC 294

Judgment of The Honourable Justice Gray (ex tempore)

14 September 2006

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - REMISSION FOR REHEARING

Appeal against conviction imposed in Magistrates Court - appellant pleaded not guilty to driving whilst grossly affected by liquor - appellant pleaded guilty to the offences of drive without due care and driving whilst licence expired - matter proceeded to trial on count 1 - appellant convicted in respect of all counts - respondent conceded appeal because of circumstances of procedural unfairness - appellant sought order dismissing the complaint - respondent contended that the matter should be remitted for retrial - Held - appeal allowed - matter remitted for retrial.

Road Traffic Act 1961 (SA) s 47GA, s 47F, referred to.

HARRIS v POLICE
[2006] SASC 294

GRAY J:  (ex tempore)

1. This is an appeal against a conviction imposed by a Magistrate. 

2. The appellant, Robert Dean Harris, pleaded not guilty to the offence of driving under the influence.  He pleaded guilty to the offences of driving without due care and driving whilst licence was expired.  A charge of driving with an excess blood alcohol reading was withdrawn.  The charge of driving under the influence proceeded to trial.  The appellant was convicted.  This appeal is only in respect to the conviction of driving under the influence.

3. The appellant’s case was that he had consumed alcohol subsequent to the accident.  It was his case that at the time of driving he had not consumed any alcohol.

4. The respondent conceded the appeal only on the ground that circumstances of procedural unfairness had arisen.  These concessions were appropriate.  There was a risk that a miscarriage of justice may have arisen.  The only question remaining for determination are the orders to be made consequent upon allowing the appeal.  The appellant sought an order dismissing the complaint of driving under the influence.  The respondent contended that the matter be remitted for retrial.

5. In rejecting the submission that there should be an order dismissing the complaint, I have taken the view that, on the evidence led at trial, it was possible for a magistrate, to have convicted the appellant. 

6. Further, on a retrial, it will in the ordinary course be open to the prosecution to call other evidence; in particular, to prove a blood alcohol reading and if the statutory presumptions are not available, to call expert evidence explaining the relevance of any proven blood alcohol reading to any impairment of faculties. It is also to be borne in mind that the prosecution may have the advantage of the reversal of onus contained in section 47GA of the Road Traffic Act 1961 (SA).

7. Counsel for the appellant was concerned that any alteration to the prosecution case on a retrial could cause an unfairness that would justify a stay or dismissal of the proceedings. He argued that it was possible that his client would face a different onus of proof on a retrial, particularly having regard to the statutory presumptions contained in section 47F of the Road Traffic Act and claimed that if this occurred a relevant unfairness would arise.  He invited the Court to deal with those issues today.  In my view, it is premature to do so.

8. Whatever rights the appellant has to raise issues concerning unfairness remain.  My consideration of this appeal does not preclude the advancing of any such submission.  It would not be appropriate at this time to consider whether any relevant unfairness may or may not arise.  This is a matter for a trial magistrate to consider at a later time if any such submission is advanced.

9. The appeal is allowed.  The conviction entered by the magistrate on count 1 of the complaint issued on 30 May 2005 is set aside.  The whole of the sentence imposed by the Magistrates Court is set aside.  Count 1 contained in the complaint is remitted to the Magistrates Court for retrial before another magistrate.  Counts 3 and 4 contained in the complaint are remitted to the Magistrates Court for re-sentence before another magistrate.  The respondent is to pay the appellant’s costs, agreed at $5,000.