Johnson v Police

[2017] SASC 87

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

JOHNSON v POLICE

[2017] SASC 87

Judgment of The Honourable Justice Stanley

15 June 2017

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - OFFENCES RELATING TO CONDITION OF VEHICLE

CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - EFFECTING ARREST - REASONABLE CAUSE

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - NATURE OF DISCRETION - GENERALLY

Appeal against decision of a magistrate imposing conviction and sentence for one count of driving a vehicle contrary to the terms of a defect notice pursuant to s 145(6) of the Road Traffic Act 1961 (SA) and one count of resisting police contrary to s 6(2) of the Summary Offences Act 1953 (SA).

On 14 July 2014 a police officer affixed a defect notice to the appellant’s vehicle identifying that its gas cylinder compliance plate was out of date, a boot strut was broken, the engine oil was leaking and the front left tyre was worn down to the wear bars.  The following day the appellant attended the Whyalla Police Station to attempt to have the notice removed but he was unsuccessful.  He warned police he would continue to drive notwithstanding the defect notice.

On 2 August 2014 police spotted the appellant driving with a defect notice affixed to his vehicle.  The officer activated the patrol car’s flashing lights to pull over the appellant, who pulled into a shopping centre carpark after a short distance.  The appellant left his vehicle and began walking towards the shopping centre.  When the police officer caught up to the appellant, he indicated he was going to issue an expiation notice for driving with a defect notice.  The appellant returned to his vehicle and placed his key in the ignition.  A brief struggle ensued after which the appellant was arrested.  The appellant gave evidence that the purpose of placing the keys into the ignition was to activate two cameras.  It was the officer’s evidence that he believed the appellant was attempting to avoid the scene to evade service of the expiation notice.

At issue on appeal is (a) whether the magistrate erred in receiving evidence of the examination of the vehicle on 14 July 2014 which led to the issue of the defect notice; (b) whether the police officer had reasonable cause to suspect the defects identified requiring the issue of the defect notice; (c) whether the magistrate erred in refusing the appellant’s affidavit of June 2015; and (d) whether the magistrate gave insufficient weight to the appellant’s attempt to have the defect notice removed.

Held: Appeal dismissed.

1. As to (a), the magistrate erred in concluding that a corroded boot strap was a deficiency for the purpose of s 145 of the Road Traffic Act (at [28]). The magistrate also erred in concluding that the police…