Kardel v Police - [2009] SASC 214

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KARDEL v POLICE
[2009] SASC 214
Judgment of The Honourable Justice Anderson
28 July 2009
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
SENTENCING - TRIFLING OFFENCES
Appellant disqualified from driving for 12 months - failure to comply with reasonable direction of police officer to provide further sample for breath analysis - whether mistaken belief as to request made by police officer was reasonable - whether offence was trifling.
Held: Belief of appellant not reasonable - offence not trifling

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - NOTICES OF APPEAL - TIME FOR APPEAL AND EXTENSION THEREOF
Appeal lodged out of time - whether extension of time should be granted - whether appeal without merit - whether miscarriage of justice.
Held: Appeal without merit - no miscarriage of justice - no extension of time granted.
Road Traffic Act 1961 (SA) s 45, s 47B, s 47E(3), s 47E(6) and s 47IAB(2); Criminal Law (Sentencing) Act 1988 (SA) s 17, s 18A and s 20, referred to.
Police v Ludlow [2008] SASC 43; Siviour-Ashman v Police (2002) SASR 23, discussed.
Bransdon v Police Unreported, Bleby J, 4 August 1998, Judgment No S6785; Przbytniac v Police (1998) 100 A Crim R 196, considered.

KARDEL v POLICE
[2009] SASC 214
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

Mr Kardel was initially charged with four offences, but on his entering a plea of guilty to two counts the other two were withdrawn. The counts on which he pleaded guilty were:
Count 1 – drove a vehicle on a road without due care, contrary to s 45 of the Road Traffic Act 1961 (“the Act”).
Count 2 – failed to comply with all reasonable directions of a member of the police force in relation to the requirements to submit to a breath analysis, contrary to s 47E(3) of the Act.
The penalty for a first offence is a fine of not less than $700 and not more than $1,200.
Section 47E(6) of the Act provides, that for a conviction under s 47E(3), there is a mandatory disqualification of licence for not less than 12 months.
The magistrate imposed a single penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 and he fined the appellant $1,000. The magistrate also disqualified the appellant from driving for 11 months and 27 days because of 3 days disqualification already served. That licence disqualification commenced on 1 June 2009.
The grounds of appeal
The appellant appeals against the order for licence disqualification. He was represented on his guilty plea by counsel. The appellant gave evidence to support an application that the offence be characterised as trifling. The magistrate refused this application.
The appeal is out of time. The sentence was imposed by the magistrate on 4 February 2009 but the notice of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kardel v Police

Details

AGLC: Kardel v Police [2009] SASC 214
Case: [2009] SASC 214
Decision Date: 28 July 2009

CaseChat Overview and Summary

In the matter of Kardel v Police, the appellant, Kardel, appealed against the sentence imposed by the magistrate on 4 February 2009, which included a 12-month disqualification from driving. The notice of appeal was lodged on 12 May 2009, which was outside the statutory time limit for lodging an appeal. Kardel sought an extension of time on the basis of "ill health," but did not provide any supporting information. The respondent, Police, opposed the application for an extension of time, arguing that the appeal was without merit, that the magistrate imposed the minimum licence disqualification, and that there was no miscarriage of justice.

The legal issues in this case included whether the appellant's belief that he had complied with the police officer's request to provide a further sample for breath analysis was reasonable, and whether the offence was trifling. The court held that the appellant's belief was not reasonable, and that the offence was not trifling. The court also held that section 20 of the Sentencing Act did not allow section 17 to override section 47E(6)(b) of the Road Traffic Act, which prevented the reduction of the mandatory sentence of licence disqualification for 12 months for a first offence.

The court concluded that the appeal was without merit, that the licence disqualification imposed was the minimum and therefore could not be manifestly excessive, and that there was no basis for a declaration that the offence was trifling. The court held that it was not appropriate to grant an extension of time, and that even if an extension of time were granted, the appeal would be dismissed. The court did not grant an extension of time, and the appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appeal is out of time. The sentence was imposed by the magistrate on 4 February 2009 but the notice of appeal was not filed until 12 May 2009. The respondent opposes the application to extend time on the basis that there is no miscarriage of justice. The respondent argues that the appeal is without merit, that the magistrate imposed the minimum licence disqualification and therefore that there are no grounds for arguing that there was any error by the magistrate. The notice of appeal states that the ground for an extension of time is “ill health”. No supporting information is given to substantiate the ill health of the appellant as a reason for the lateness of the lodging of the appealBackground On 23 July 2007 the appellant was driving his motor vehicle at Happy Valley. His vehicle came into collision with the rear of another vehicle which was stationary at the time waiting to turn right. Following the impact between the appellant’s vehicle and the stationary vehicle, the stationary vehicle then collided with an oncoming vehicle when it was forced into the path of the oncoming vehicle. When police attended at the scene of the accident, Mr Kardel was requested to submit to an alcotest. He did that and the result was positive. The police officers then required him to submit to a breath analysis, and for that purpose he was taken to a police station. There, he was required to provide two samples of his breath for the purpose of the analysis. He provided two samples but was told that the first sample was insufficient to enable the analysis to proceed. The officer requested a further sample and Mr Kardel failed to comply with that direction. When he gave evidence before the magistrate Mr Kardel said that he mistakenly believed that he had complied with the officer’s request. It was submitted on his behalf that his belief at the time was reasonable. The magistrate rejected the argument that there was any reasonable basis for Mr Kardel’s belief. The magistrate said at [9]:[9]It is apparent from the evidence of Mr Kardel that he understood the direction in question. It is apparent that he made a deliberate decision not to comply with the direction. His explanation is that his decision not to comply was made based on a misunderstanding on his part. He said that his misunderstanding arose from beliefs which he held at the time but which he now acknowledges were mistaken.The magistrate went on to say at [10]:[10]He states that his decision not to comply was made in circumstances in which he perceived that a stand-off, of sorts, had arisen between him and the breathalyser operator and that he was not willing to comply with the direction until an explanation was forthcoming. The magistrate then proceeded to examine whether, in accordance with the principles, the offence was trifling. He concluded that it was not a trifling offence.The relevant sections of the Road Traffic Act1. Section 47E(3) This section prescribes a penalty for a first offence of a fine of not less than $700 and not more than $1,200.2. Section 47E(6)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

ANDERSON J

In this case s 20 does not allow s 17 to override s 47E(6)(b) of the Road Traffic Act, which prevents the reduction of the mandatory sentence of licence disqualification for 12 months for a first offence: see Przybytniac v Police (1998) 100 A Crim R 196 and the decisions referred to in that matter.Conclusion Because I have concluded that there is no merit in any of the matters which the appellant seeks to raise on this appeal, I agree with the respondent that it is not appropriate in those circumstances to grant an extension of time. The licence disqualification imposed was the minimum and therefore cannot be manifestly excessive. Likewise the fine is not manifestly excessive. There is no basis for a declaration that this is a trifling offence and therefore, on the merits, even if an extension of time were granted, the appeal would be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

Full text does not contain this section.