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officer affixed a defect notice to the appellant’s vehicle identifying that its gas cylinder compliance plate was out of date, a boot strut was broken, the engine oil was leaking and the front left tyre was worn down to the wear bars.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 officer had a reasonable suspicion that the vehicle had a deficiency, namely, that the gas plate was out of date (at [29]). However, the officer clearly observed at the time he examined the vehicle that the left front tyre was worn down to the wear bars. The magistrate’s finding that this was merely a suggestion is contrary to the evidence of the defect notice issued by the officer which indicated that one of the grounds upon which he was defecting the vehicle was the wheels/tyres. As such, the officer suspected on reasonable grounds that the vehicle had a deficiency for the purpose of s 145 (at [30] to [31]). Given that the officer’s examination of the vehicle on 14 July 2014 was therefore lawful, this is not an occasion for the exercise of discretion to exclude evidence on the basis of either the public policy or general unfairness discretions (at [33]) to [34]).
2. As to (b), the ground is misconceived as the offence created by s 145(6) prohibits driving contrary to the terms of a defect notice (at [37]).
3. As to (c), there was no error in the magistrate’s approach as the affidavit was refused on the basis that the appellant had given evidence and cross-examined the prosecution witnesses (at [44]).
4. As to (d), there was no error on the part of the magistrate (at [50]).
5. Further, there was no error by the magistrate finding that the appellant had committed the offence of resist police (at [54]).
6. Whilst a process error is evident in the magistrate having stated the maximum fine for a contravention of s 145(6) was $5,000 as opposed to $2,500 as is the case under s 164A(2), it is not necessary to exercise the sentencing discretion afresh (at [58] to [59]).
Road Traffic Act 1961 (SA) s 116(1)(b), s (2), s 145(1), s (1a), s (1aa), s (4a), s (5), s (5c), s (5g), s (6), s 162A, s 164A; Summary Offences Act 1953 (SA) s 6(2); Magistrates Court Act 1991 (SA) s 42; Evidence Act 1995 (Cth) s 138, referred to.
Fox v Percy (2003) 214 CLR 118; Bunning v Cross (1978) 141 CLR 54; George v Rockett (1990) 170 CLR 104; Prior v Mole [2017] HCA 10; R v Cook (2006) 95 SASR 201; Manly v Tucs (1984) 40 SASR 1; Ridgeway v R (1995) 184 CLR 19; R v Rockford (2015) 122 SASR 391; R v Lobban (2000) 77 SASR 24; Cooper v Police [2006] SASC 339; R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211, considered.

JOHNSON v POLICE
[2017] SASC 87
Magistrates Appeal: Criminal
STANLEY J.
Introduction

The appellant was found guilty by a magistrate of one count of driving a vehicle contrary to the terms of a defect notice contrary to s 145(6) of the Road Traffic Act 1961 (SA) (Road Traffic Act) and one count of resist a police officer in the execution of the officer’s duty contrary to s 6(2) of the Summary Offences Act 1953 (SA) (SO Act).
The magistrate sentenced the appellant to 28 hours community service to be undertaken within six months. The magistrate further ordered the appellant to pay court fees, levies and prosecution fees. These totalled $875.75.
The magistrate recorded convictions.
The appellant appeals both the convictions and the sentence.
In order to understand the basis of the appeal against conviction it is necessary to set out in some detail the circumstances of the offending.
Circumstances of the offending
On 14 July 2014 a police officer issued a defect notice with respect to a motor vehicle being driven by the appellant and affixed a defect label to its driver’s window screen. The defects identified by the police officer were that the gas cylinder compliance plate was out of date, a boot strut was broken, engine oil was leaking and the front left tyre was worn down to the wear bars. The defect notice was admitted into evidence before the magistrate.
The magistrate found that the defect notice was lawfully issued. The magistrate found that the vehicle had a deficiency, namely, a broken boot strut. It appears that the magistrate also found that the police officer had a reasonable suspicion that the vehicle had a deficiency, namely, that the gas plate was out of date. However, the magistrate was not prepared to find beyond reasonable doubt that the police officer had a reasonable suspicion that the vehicle being driven by the appellant had a further deficiency, namely, that the front left tyre was worn down to the wear bars.
Before the magistrate, the appellant gave evidence that subsequently he attempted to have the police remove the defect notice. This attempt was unsuccessful. He gave evidence that he warned the police that in these circumstances he was going to keep driving the vehicle notwithstanding the presence of the defect notice.
The appellant admits that on 2 August 2014 he was driving the same motor vehicle on McDouall Stuart Avenue, Whyalla. At the time another police officer was driving a police patrol car in the opposite direction. He observed a yellow defect sticker on the car driven by the appellant. The defect notice affixed to the car observed by the police officer was the defect notice that had been fixed to the vehicle’s windscreen on 14 July 2014. The police car performed a U-turn and followed the appellant’s vehicle. The appellant drove his vehicle down Flinders Avenue and into a supermarket car park. This is the conduct that resulted in the conviction for driving a vehicle contrary to the terms of a defect notice.
The police vehicle followed. The police officer gave evidence that he turned on the patrol car’s flashing lights in order to indicate to the appellant that he wished him to stop. The magistrate found that the appellant was not aware of any requirement to stop his vehicle until shortly before turning into the car park.
The magistrate found that when the appellant stopped the vehicle he was driving, in the car park, he alighted from the vehicle and walked towards the supermarket. The police officer alighted from his vehicle and pursued the appellant asking the appellant to stop so he could speak with him. A conversation ensued. The appellant gave his details to the officer. The officer indicated that he was going to issue an expiation notice for driving a vehicle with a defect notice. He returned to the patrol car for this purpose. At this time the appellant returned to his vehicle. The vehicle driven by the appellant was equipped with two cameras. The appellant gave evidence that it was his intention to activate the cameras. This required him to turn on the ignition. He entered the driver’s side seat and placed the key in the ignition.
The magistrate found, on the basis of the evidence of the police officer, that the officer believed, as a result of the appellant’s conduct, he was attempting to leave the scene to avoid service of the expiation notice.
The magistrate found that the officer approached the driver’s door of the appellant’s vehicle and removed the keys from the ignition. The appellant tried to shut the door to prevent this from occurring. The officer was able to pull the door open and remove the key. Some minor struggle ensued between the appellant and the officer with the officer indicating to the appellant that he was being arrested and he was required to remove himself from the car. The magistrate found that the appellant refused to do so for a period of time. The police called for backup and a second police officer attended. After unsuccessfully attempting to remove the appellant, a further discussion ensued after which the appellant agreed to alight from the car. Once he did so he was handcuffed and taken to the police station. This was the conduct that resulted in the conviction for resisting a police officer in the execution of the officer’s duty.
Principles on appeal
An appeal to this Court pursuant to s 42 of the Magistrates Court Act 1991 (SA) is by way of rehearing. It is not an appeal de novo, and usually proceeds on the documents, albeit with power to receive further evidence.
To the extent that the issues raised on appeal by the appellant involve issues of law or inferences to be drawn from uncontested or established facts, this Court is in as good as a position as the magistrate to determine such issues. However, an important aspect of the appeal is the challenge to the magistrate’s findings of primary fact.
The principles applicable to the approach to be taken by an appellate court by way of rehearing, when reviewing findings of fact such as in the present case, are well established. In Fox v Percy[1] Gleeson CJ, Gummow and Kirby JJ explained the position as follows:[2]
[1] [2003] HCA 22, (2003) 214 CLR 118.
[2] [2003] HCA 22 at [23], [25] – [29], (2003) 214 CLR 118 at 125 – 128.
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to ‘‘give the judgment which in its opinion ought to have been given in the first instance’’. On the other, it must, of necessity, observe the ‘‘natural limitations’’ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘‘feeling’’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
…
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’’. In Warren v Coombes, the majority of this Court reiterated the rule that:
‘‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’’
As this Court there said, that approach was ‘‘not only sound in law, but beneficial in . . . operation’’.
After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being ‘‘incontrovertible’’, an appellate conclusion may be reached that the decision at trial is ‘‘glaringly improbable’’ or ‘‘contrary to compelling inferences’’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘‘not shrink from giving effect to’’ its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
[Citations omitted.]
In this case the magistrate heard all the evidence and delivered an ex tempore judgment. There were only four witnesses. The magistrate heard and observed, while they gave evidence, each of the police officers involved in the events of 14 July 2014 and 2 August 2014 and the appellant. The magistrate had distinct and obvious advantages, as compared with this Court, when forming a view about the credit and reliability of their respective accounts. The magistrate delivered judgment at a time when the impressions made by the various witnesses must have been clear in his mind. At issue is whether the magistrate has misused the advantage he enjoyed in hearing the evidence by making findings contrary to incontrovertible facts or uncontested testimony which are glaringly improbable or contrary to compelling inferences available from other evidence.
The appeal against conviction
On the hearing of the appeal, as was the position at trial, the appellant represented himself. It was not always clear the basis upon which the appellant was propounding the grounds of appeal. However, I am satisfied those grounds of appeal can be summarised as follows:
1.The magistrate erred in failing to exclude improperly or illegally obtained evidence of the examination of the vehicle on 14 July 2014 which resulted in the issue of the defect notice.
2.The defect notice was void as there was no reasonable or probable cause for the defects identified except the minor defect concerning the boot strut which was not a safety risk requiring the issue of a defect notice having regard to the provisions of s 145(4a) of the Road Traffic Act.
3.The magistrate erred in refusing admission of the appellant’s unrebutted affidavit of June 2015.
4.The magistrate gave no or insufficient weight to the appellant’s attempt to have the defect removed or varied pursuant to s 145(5g)(a) of the Road Traffic Act when he attended at the Whyalla Police Station with the vehicle and compliance paperwork on 15 July 2014.
In deciding this appeal, I have made due allowance for the disadvantage under which the appellant operated in representing himself.
Ground 1
The appellant sought to argue that the magistrate erred in failing to exclude evidence of the examination and defecting of the vehicle he was driving on 14 July 2014 pursuant to the provisions of s 138 of the Evidence Act 1995 (Cth). As I explained to the appellant, the Commonwealth Evidence Act does not apply to this matter. The gravamen of his submission, however, was that the evidence of the defect notice should have been excluded as it was the product of an abuse of police power in conducting an unlawful examination of the vehicle after it was stopped. In effect, the appellant sought to invoke the common law principle of Bunning v Cross.[3]That submission is predicated on the proposition that the police officer acted unlawfully in stopping the motor vehicle driven by the appellant, examining it and defecting it.
[3] (1978) 141 CLR 54.

The starting point for consideration of this ground is s 145(1a) of the Road Traffic Act which provides:
An authorised officer may direct the driver of a vehicle to stop the vehicle and may examine the vehicle if the vehicle has deficiencies or the officer suspects on reasonable grounds that the vehicle has deficiencies.
What follows is set out in s 145(5) which provides:
If, on examination of a vehicle, an authorised officer is of the opinion that the vehicle has deficiencies and reasonably believes that further use of the vehicle on roads would give rise to a safety risk, the officer may issue a written notice (a defect notice) in relation to the vehicle, being—
(a)if the officer reasonably believes that further use of the vehicle on roads after the time specified in the notice would give rise to an imminent and serious safety risk—a major vehicle defect notice; or
(b)in any other case—a minor vehicle defect notice.
An offence is committed pursuant to s 145(6) if a person, inter alia, drives a vehicle contrary to the terms of a defect notice.
Pursuant to s 145(1a), a police officer is authorised to direct the driver of a vehicle to stop the vehicle and examine the vehicle upon satisfaction of one of two conditions, either that the vehicle has deficiencies or the police officer suspects, on reasonable grounds, that the vehicle has deficiencies. “Deficiencies” is defined for the purposes of s 145, in s 145(1aa), as existing if a vehicle is in a condition such that there would be a breach of a vehicle standards or maintenance requirement if the vehicle were driven on a road. Section 145(1) defines “vehicle” to mean a light vehicle for the purpose of the section.
A breach of light vehicle standards or maintenance requirement is defined in s 116 which provides:
116—Meaning of breach of light vehicle standards or maintenance requirement
(1)For the purposes of this Act, there is a breach of a light vehicle standards or maintenance requirement if—
(a)a light vehicle is driven on a road; and
(b)the vehicle—
(i)does not comply with a requirement of the light vehicle standards; or
(ii)has not been maintained in a safe condition; or
(iii)has not been maintained with an emission control system fitted to it of each kind that was fitted to it when it was built and in a condition that ensures that each emission control system fitted to it continues operating essentially in accordance with the system's original design; or
(iv)does not comply with the requirements of section 162A.
(2)For the purposes of this section, a light vehicle is not maintained in a safe condition if driving the vehicle would endanger the person driving the vehicle, anyone else in or on the vehicle or a vehicle attached to it or other road users.
(3)This section does not apply to vehicles excluded by the light vehicle standards from the application of those standards.
It can be seen that, for the purposes of s 145, “a vehicle standards or maintenance requirement” is a compound expression. Accordingly, there will be a breach of a vehicle standards or maintenance requirement, pursuant to s 116, if a light vehicle is driven on a road and the vehicle, relevantly for the purposes of this case, does not comply with the requirement of the light vehicle standards or has not been maintained in a safe condition.
Corroded boot straps could not be a breach of the light vehicle standards or maintenance requirement pursuant to s 116(1)(b). Pursuant to s 111 of the Road Traffic Act, the Light Vehicle Standards Rules have been promulgated. Those Standards do not refer to boot straps or any boot security devices, so s 116(1)(b)(i) could not apply. Section 116(2) provides, for the purposes of this section, a light vehicle is not maintained in a safe condition if driving the vehicle would endanger the person driving the vehicle, anyone else in or on the vehicle, or a vehicle attached to it or other road users. A corroded boot strap would not endanger a person driving the vehicle in that condition, or anyone else in or on the vehicle or a vehicle attached to it or other road users, so s 116(1)(b)(ii) could not apply. Section 116(1)(b)(iii) has no application because this provision is concerned with emission control systems. Section 116(1)(b)(iv) has no application because this provision is concerned with the requirements of s 162A.
It follows that the magistrate erred in concluding that a corroded boot strap was a deficiency for the purpose of s 145.
The magistrate also erred in concluding that the police officer had a reasonable suspicion that the vehicle had a deficiency, namely, that the gas plate was out of date. The relevant time for the formation of the suspicion for the purpose of s 145(1a) is either at or at some time prior to the officer directing the driver of the vehicle to stop or at some time before conducting an examination. In this case, the police officer could not have had a reasonable suspicion concerning the gas plate being out of date until after he had inspected it.
On the hearing of the appeal, however, Ms Crompton, counsel for the respondent, submits that it is open to the Court to find that the officer lawfully stopped the vehicle driven by the appellant in accordance with the requirements of s 145(1a). She submits that, contrary to the finding of the magistrate, the police officer had a reasonable suspicion that the vehicle had a deficiency, namely, that the front left tyre was worn down to the wear bars. The magistrate was not prepared to find beyond reasonable doubt that the officer had such a suspicion. In his reasons, he characterised the officer’s evidence on this topic as being merely a suggestion. Notwithstanding the advantage that the magistrate enjoyed in seeing and hearing the officer give evidence, I consider that the magistrate has misused this advantage in two ways. First, having reviewed the transcript of the officer’s evidence, I am satisfied that, at the time he examined the vehicle, his belief that the left front tyre was worn down was more than a suggestion. On the contrary, reviewing the officer’s evidence, he said he noticed that the tyre was low and devoid of tread. I am satisfied that he clearly observed that the tread on the front left tyre was down to the wear bars. The magistrate’s finding that this was merely a suggestion, presumably made at the time the officer gave evidence, is contrary to the evidence of the defect notice issued by the officer which indicated that one of the grounds upon which he was defecting the vehicle was the “wheels / tyres”. That is an objective fact which compels the drawing of an inference as to the police officer’s state of mind at the time contrary to the magistrate’s finding. The magistrate appears to have been troubled by the police officer’s failure to take a photograph of the tyre. I do not consider that is of great moment. The officer provided an explanation for failing to take a photograph of the tyre when he took photographs of other defects. He said that it was easier to explain the tyre defect than the other defects. I consider that explanation to be plausible. Second, the magistrate erred in considering he had to be satisfied about the officer’s suspicion beyond reasonable doubt. The offence with which the appellant was charged was a contravention of s 145(6). The officer’s reasonable suspicion that the appellant’s vehicle had deficiencies for the purposes of conducting an examination pursuant to s 145(1a) is not an element of the offence created by s 145(6). Suspicion means a state of conjecture or surmise where proof is lacking but it requires some factual basis.[4] Whether the officer had the relevant suspicion is a question of fact to be decided objectively, that is to say, the subjective suspicion of the officer must be a suspicion that is formed by the officer by reference to objective circumstances. The relevant objective circumstances are those known to and taken into account by the officer in forming a suspicion.[5] However, whether the fact is proved is a matter of opinion or judgment on the part of the fact finder as to the quality of the suspicion operating on the officer’s mind at the relevant time.[6] Moreover, as was observed by Jacobs J in Manley v Tucs[7] the requirement that a suspicion be reasonable does not necessarily imply that it is well founded or that the grounds for the suspicion must be factually correct.
[4]    George v Rockett (1990) 170 CLR 104 at 115.
[5]    Prior v Mole [2017] HCA 10 at [24].
[6]    R v Cook [2006] SASC 231 at [13], (2006) 95 SASR 201 at 204.
[7] (1984) 40 SASR 1 at 9.
Having conducted an independent review of the evidence, I am satisfied that the officer suspected on reasonable grounds at the time he examined the vehicle that the vehicle had a deficiency, namely, that the left front tyre was worn down to the wear bars. I am satisfied that the condition of the tyre was a breach of a vehicle standards or maintenance requirement where the vehicle was driven on the road and was not maintained in a safe condition. This satisfies the definition of deficiencies in s 145(1aa) and s 116(1)(b)(ii). A vehicle is not maintained in a safe condition pursuant to s 116(2) if driving the vehicle would endanger the driver or other road users. I am satisfied that the state of the tyre falls within that definition.
I observe that the officer formed his suspicion once the vehicle had been stopped. The officer stopped the vehicle for reasons other than a suspected deficiency. The vehicle was stopped for the purpose of conducting alcohol and drug screening. Once the vehicle had been stopped, his power to examine it for deficiencies was enlivened upon satisfaction of one or other of the two conditions prescribed by s 145(1a).
For these reasons I am satisfied that the officer’s examination of the vehicle driven by the appellant on 14 July 2014 was lawful. Accordingly, this is not an occasion for the exercise of the Bunning v Cross discretion. However, for the sake of completeness, I indicate that even if I had been satisfied that the officer’s examination of the appellant’s motor vehicle was unlawful I would not have excluded the evidence of the defect notice. Section 145 enshrines a statutory scheme for the protection of road users from the driving of motor vehicles in an unsafe condition. Having reviewed the evidence of the police officer there is no basis to conclude that if there had been a contravention of s 145(1a) that this was deliberate. On the contrary, the evidence supports a finding that the officer went about the performance of his duties in relation to defecting the vehicle in a conscientious fashion. The rationale for the Bunning v Cross discretion is the public policy of not giving the appearance of curial approval to wrongdoing on the part of those whose duty it is to enforce the law.[8] This would not be an appropriate occasion on which to exclude evidence in reliance upon the Bunning v Cross discretion. If there had been any wrongdoing in this case it was inadvertent. It was not the result of the officer cutting corners or otherwise seeking to subvert the law for the purposes of securing a conviction.
[8] Bunning v Cross [1978] HCA 22, (1978) 141 CLR 54 at 74-75; Ridgeway v The Queen (1995) 184 CLR 19 at 38, 49 and 83; R v Rockford [2015] SASCFC 51 at [29]-[36], (2015) 122 SASR 391 at 397-400.
For the same reasons I would not have excluded the evidence in reliance upon the general unfairness discretion identified in R v Lobban.[9]That general unfairness discretion permits a court to exclude probative evidence untainted by impropriety or risk of prejudice where the reception of the evidence would be unfair in the sense that it would make the trial of the accused an unfair trial.[10] The purpose served by the discretion is to ensure that the accused it not improperly convicted.[11] In my view there is no question of the appellant being improperly convicted in this case. He admits to driving the vehicle while there was a defect notice affixed and doing so knowingly.
[9] [2000] SASC 48, (2000) 77 SASR 24.
[10] [2000] SASC 48 at [60]–[77], (2000) 77 SASR 24 at 39-45.
[11] [2000] SASC 48 at [89], (2000) 77 SASR 24 at 51.
For these reasons I would dismiss ground 1.
Ground 2
Ground 2 complains that the defect was void as there was no reasonable or probable cause for the defects identified except the minor defect concerning the boot strut which was not a safety risk requiring the issue of a defect notice.
This ground is misconceived. The offence created by s 145(6) prohibits a person from driving a vehicle contrary to the terms of a defect notice.
Section 145(5c)(g) relevantly provides that a defect notice must direct that the vehicle must not, except as provided in the defect notice, be driven on a road after the issue of the defect notice until the vehicle has been produced at a place specified in the notice for examination and a clearance certificate has been issued certifying that the repairs required by the notice have been made and an authorised officer or authority has caused the defective vehicle label affixed to the vehicle to be defaced or removed.
That had not occurred when the appellant was stopped by police on 2 August 2014 driving the vehicle with the defect notice affixed. The magistrate was correct in finding that irrespective of the appellant’s views about the condition of the vehicle when the defect notice was issued on that day he committed an offence by driving the car with the notice affixed.
To the extent that the appellant complains about reasonable or probable cause for the issue of the defect notice, that complaint is without merit for the reasons addressed in respect of ground 1.
For these reasons I would dismiss ground 2.
Ground 3
Ground 3 complains that the magistrate refused to receive the appellant’s unrebutted affidavit of June 2015.
This ground is without merit.
The appellant referred to an affidavit in the course of closing submissions. The magistrate refused to receive the affidavit on the basis that the appellant had by this time given evidence and had cross-examined the prosecution’s witnesses. There was no error in the approach taken by the magistrate. This is particularly so given that the appellant admitted he was driving the vehicle with the defect notice affixed on 2 August 2014.
For these reasons I would dismiss ground 3.
Ground 4
Ground 4 complains that little or no weight was given to the appellant’s attempt to have the defect notice removed when he attended at the Whyalla police station with the vehicle and compliance paperwork on 15 July 2014.
Section 145(5g)(a) empowers an authorised officer to vary or withdraw a defect notice.
The appellant gave evidence that after the defect notice was affixed to the vehicle on 14 July 2014 he attended at the Whyalla Police Station for the purpose of having the defect notice removed. The defect notice was not removed by police. He gave evidence that he informed police on this occasion that he intended to continue driving notwithstanding that the police did not remove the defect notice.
On the evidence accepted by the magistrate and the appellant’s own admission, that is what occurred on 2 August 2014.
There was no error on the part of the magistrate. The appellant’s unsuccessful attempt to have the defect notice removed did not entitle him, simply because he disagreed with the police’s assessment of the vehicle and its deficiencies, to ignore the defect notice and drive contrary to its terms.
For these reasons I dismiss ground 4.
Resist police
The appellant in his notice of appeal complains about his conviction for the offence of resist police contrary to s 6(2) of the SO Act. However, the grounds of appeal do not address that conviction.
In Cooper v Police[12] Gray J addressed the offence of resist police contrary to s 6(2) of the SO Act. He said:[13]
[12] [2006] SASC 339.
[13] [2006] SASC 339 at [29]-[31].
It is well established that a charge of resist police may be maintained even in circumstances where the charge relating to the incident giving rise to the arrest is not proved. In Haifawi v Police, Duggan J observed:
The fact that a charge of assaulting a police officer in the execution of his duty is dismissed in a case in which the charges of assaulting police and resisting a police officer are charged in respect of the same incident does not necessarily bar a conviction on the charge of resisting arrest. (Police v Walsgott (31 March 1994, unreported) and cf Normandale v Rankine (1972) 4 SASR 205 at 209). Whether or not the charge for the alleged offence which led to the arrest can be proved or has been proved is strictly irrelevant. It is sufficient if the police officer had reasonable cause to suspect that an offence had been committed. (Summary Offences Act 1953 s75). If he did, then the arrest is lawful and the police officer is acting in the execution of his duty.
In order to establish that a police officer conducting an arrest acted in the exercise of his or her duty, it is only necessary that the officer had reasonable cause to suspect subjectively that an offence had been committed, even though this suspicion was not objectively correct. If the situation were otherwise, police would be hampered in the exercise of their duty to enforce the law and protect the public. This concern was addressed in Normandale v Rankine, where Walters J observed:
The power given to a member of the police force by s.75 of the Police Offences Act to arrest without warrant may be exercised where there is cause to suspect, on reasonable grounds, that an offence has been, or is about to be, committed by the person who is apprehended. The power to arrest for drunkenness, without any warrant other than the Act, may be justified if a constable reasonably suspects a man is drunk, even though eventually a magistrate dismisses the charge (cf Barnard v Gorman, per Lord Wright at pp.394-395). … it seems to me that if the reasoning of the Special Magistrate were correct, a constable could justify, under s.75 of the Act, his arrest of a person whom he had reasonable cause to suspect of being drunk in a public place and he could also justify, under the same section, his requirement that that person give his name and address, yet because a court of summary jurisdiction, either on fresh materials altogether or on the same materials as gave rise to the constable’s reasonable suspicion, was not satisfied that the person apprehended was drunk at the relevant time, dismissal of charges of resisting arrest and of refusing to give a full name and address would inevitably follow. If the opinion entertained by the Special Magistrate were right, I venture to suggest that a constable would hesitate to arrest a drunken person, or to require him to state his full name and address, unless he first wholly satisfied himself that the man was drunk. I therefore do not think it correct to construe s.75 of the Act in such a way as to warrant the conclusion reached by the Special Magistrate, namely, that the second and third counts fell with the dismissal of the first count.
In forming his view, Walters J had obvious regard to the following remarks of Lord Wright in Barnard v Gorman:
The power to arrest depended on the particular acts done or conduct exhibited. It was a power (inter alia) to arrest without a warrant every person found drunk while in charge of any carriage on a highway. While I do not wish to express any final opinion on a case not now before me, I am not prepared to dissent from the actual decision of the Court of Appeal that the arrest was justified if the constable reasonably believed that the man was drunk, even though eventually the magistrates dismissed the charge. As at present advised, I think that “drunk” in that context means “apparently drunk.” The constable must act on what he sees at the moment, and should be held to be justified if the man’s appearance and behaviour are those of a drunken man. Instant action is demanded by the needs of public safety which would be endangered if an intoxicated person were left in charge of a vehicle on the road. Swinfen Eady LJ said that the nature of the offences specified required the construction that the authority to apprehend applied where the circumstances were such as to enable an honest belief on reasonable grounds to exist that the offence was being committed by the person being apprehended.
[Citations omitted].

At trial the prosecution case was that on 2 August 2014 after the appellant stopped the vehicle he was driving in the supermarket carpark a discussion took place between himself and the police officer who had directed him to stop. The officer informed the appellant that he would be issuing an expiation notice for driving contrary to the defect notice. The officer then returned to the police vehicle to fill out the necessary paperwork at which point he observed the appellant get into the driver’s seat of his vehicle. The magistrate found that the officer formed the belief that the appellant was intending to drive away in order to avoid the issue of an expiation notice. The officer gave evidence that as he approached the appellant to speak to him the appellant tried to close the driver’s car door and put his keys in the ignition. The appellant gave evidence that he was merely attempting to turn on the engine to activate cameras he had installed in the car. It was not in issue that the police officer indicated to the appellant that he was being arrested and required him to leave his vehicle, but the appellant refused to do so for some time. The evidence was that the appellant gripped the car steering wheel tightly and held on firmly as the officer attempted to remove him from the vehicle. When this was unsuccessful he called for assistance. In these circumstances I am satisfied there was no error in the magistrate’s finding that the appellant had resisted a police officer in the execution of the officer’s duty contrary to s 6(2) of the SO Act.
Appeal against sentence
The magistrate sentenced the appellant to 28 hours community service to be undertaken within six months. He further ordered the appellant to pay court fees, levies and prosecution costs in an amount of $875.75.
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[14] where Doyle CJ said:[15]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[14] [2009] SASC 346, (2009) 266 LSJS 283.
[15] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288-289.
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[16] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ,[17] if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[16] (1936) 55 CLR 499.
[17] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.
The appellant’s complaints in relation to penalty seem to focus on a complaint that he was being doubly punished by being made to do community work and also fined. This submission is mistaken. The appellant was not fined. He was ordered to pay court fees, prosecution costs and the criminal injuries compensation levy. The magistrate made an order that the appellant perform 28 hours of community service. He apparently arrived at that sentence on the basis that he would have imposed a fine of $1,000 and thought that equated to 28 hours of work. However, the magistrate arrived at that calculation on the mistaken belief that the maximum penalty for a contravention of s 145(6) is an amount not exceeding $5,000. Rather, the maximum penalty pursuant to s 164A(2) was a fine not exceeding $2,500.
In this case in imposing sentence the magistrate made a process error. Of course the appellant was also to be sentenced for the offence of resist arrest. That is a separate incursion into criminal conduct for which the appellant is to be punished. However, it arose from the same incident and that must be reflected in fixing a properly proportionate sentence. In my view this is one of those occasions where notwithstanding the existence of a process error, I consider that in exercising the sentencing discretion afresh the same sentence should be passed.
For these reasons I would dismiss the appeal against sentence.
Extension of time
The notice of appeal was filed late. There was no objection by the respondent to the granting of an extension of time. I do so.
Conclusion
I would grant an extension of time within which to bring the appeal. I would dismiss the appeal.