Jones v Police No. Scgrg-00-386

[2000] SASC 217

JONES v POLICE
[2000] SASC 217

Magistrates Appeal: Criminal

1................ DEBELLE J.  (ex tempore)                 This is an appeal from a decision of a magistrate refusing to find that an offence of dangerous driving was trifling.

1. The appellant was convicted on a plea of guilty for having, on 7 November 1999, driven a motor car along the Main North East Road at Collinswood at a speed which was dangerous to the public. The speed was 105 kilometres per hour. The speed limit in this area was 60 kilometres per hour. After hearing evidence, the magistrate held that the offence was not trifling. She fined the appellant and disqualified her from holding or obtaining a driving licence for the minimum period of six months.

2. The offence had occurred at about 6.25 o’clock on a Sunday evening. Traffic was light. The sky was overcast but there was no suggestion that visibility was other than good. The appellant was taking her German Shepherd dog to a veterinary surgeon. The dog had suffered a severe injury to its leg. The injury involved an injury to the artery and the dog was bleeding seriously. The appellant is a registered nurse. She was, therefore, acutely aware of the urgency of the situation. She believed that her dog was dying. The appellant lives at Dernancourt. She could not contact a veterinary surgeon nearby. Having contacted one particular surgeon, she was referred to another veterinary surgeon on the Anzac Highway. She was driving the dog to the veterinary surgeon on Anzac Highway when this incident occurred. When she arrived the dog was unconscious. The dog fortunately survived.

3. Apart from a drink driving offence in 1990, the appellant has been driving for 10 years without any prior offending. She relies on her licence both for her employment and to drive her child to school. She described her licence as being very important to her. The appellant’s evidence was that she had not travelled any further than about 100 to 200 metres at this fast speed of 105 kilometres per hour. However, the police officer, who detected the offence, observed her travelling for about 350 metres at that speed.

4. In her reasons, the magistrate referred to the decisions of this Court in Taylor v Police (unreported, Bleby J, 4 February 1998, Judgment No. S6540); Craig v Dunsmore (1986) 128 LSJS 293; and Panozzo v Dunsmore (1982) 104 LSJS 137. She concluded:

   “In line with these authorities, in the instant case the defendant’s offending could not be categorised as ‘trifling’ in terms of s 46(3)(b).”

She then went on:

“However what in my view takes this case beyond any prospect of succeeding to satisfy the requirements that the offence was ‘trifling’ is that the defendant told me that she had in the back of her vehicle a mobile, severely injured animal, that had already moved from the far rear of the motor vehicle, onto the back seat and hence onto the back floor. Had the animal in its distress attempted to move into the front seat there was no way whatever that this defendant could have avoided a catastrophic accident. The existence of a mobile injured animal in the vehicle takes this case outside any consideration of a ‘trifling’ finding. Accordingly the application is refused.”

It was apparent from these reasons that, in reaching her conclusion, not only did the learned magistrate have regard to the particular circumstances concerning the dog but was also influenced by observations made by members of the court in the cases to which she referred. Indeed, Her Honour quoted from one of those decisions.

1. One can have every sympathy for the plight of the appellant. Mr Lang, who appeared for her, stressed that this was a family pet and, had it died, the appellant would have had to deal with children who were attached to the pet. He submitted that the magistrate had erred in the exercise of her discretion by attaching too great an importance to the presence of the dog in the vehicle. It is submitted that, if regard was had to all of the relevant factors, this was an appropriate case to certify the offence as trifling. In particular, he referred to observations of this Court to the need to have regard to compelling humanitarian or safety reasons which might surround the commission of an offence. See, for example, Hughes & Hodge v R (1996) 89 A Crim R 290 at 291; Mancini v Vallelonga (1981) 28 SASR 236; and Taylor v Police (supra).

2. This was very much a typical offence of its kind. I adapt the observations of Cox J in Craig v Dunsmore (supra). Although there was no evidence of other people being actually endangered by the appellant’s driving, the potential for danger undoubtedly existed. This was a main suburban road in a heavily built up area. There were houses and commercial premises on both sides of the road. Although, as Mr Lang properly observed, the commercial premises would have been shut on the Sunday, there were, nevertheless, two hotels, one on either side of the road. There was a risk of pedestrians or drivers coming onto the road from any of those premises or from side streets. Although prudence dictates that one must expect that some drivers might exceed the speed limit, one is entitled not to expect that it will be exceeded by as much as 45 kilometres per hour in a built up area.

3. The breach was deliberate, in the sense that the appellant knew she was driving fast. It is clear that the appellant’s concern for her dog caused her to so drastically exceed the speed limit. It is clear also from the magistrate’s reasons, that the magistrate was well aware of the concerns of the appellant and her sense of the emergency of the situation. However, the learned magistrate thought that the injury to the dog was not of such a compelling humanitarian kind that it took the offence out of the ordinary.

4. I must be satisfied that the learned magistrate erred in reaching that conclusion. It is apparent that she has had regard to all relevant factors. It has not been demonstrated that she has had regard to any irrelevant factors. It cannot be said that the likelihood of misadventure or an accident was so slight that the offence could be excused as trifling. While there was no actual danger to life or property of any person, the potential undoubtedly exists. The magistrate has obviously concluded this was not such an emergency as justified the kind of driving which rendered the offence trifling.

5. While I have every sympathy for this appellant and might have reached a different conclusion, that is not the test. I must be satisfied that the learned magistrate has erred as a matter of law or in the exercise of her discretion. I am not satisfied that she has.

6. For these reasons, I must dismiss the appeal. The order will, therefore, be:

7. Appeal dismissed.

8. No order as to costs.