Kirsch v Police No. Scgrg-97-1702 Judgment No. S6592

[1998] SASC 6592

KIRSCH v POLICE

Magistrates Appeal
Olsson J

In this matter the appellant appeals against both a conviction recorded against her by a stipendiary magistrate on 26 November 1997,  and also the penalty imposed in respect of it.

She was charged with driving a vehicle on Sturt Highway on 21 August 1997 whilst she was so much under the influence of marijuana as to be incapable of exercising effective control of that vehicle.

The appellant appeared in person and pleaded not guilty.  The matter proceeded to trial on oral evidence and she conducted her own defence.  In the event the learned magistrate found the charge proved.  He recorded a conviction, imposed a fine of $950 and disqualified the appellant from holding and obtaining a driver’s licence for 20 months from 1 December 1997.

The principal police witness, Senior Constable Grigg, testified that, at about 2.30 pm on 21 August 1997, he was on highway patrol, east bound on Sturt Highway, Renmark.

He said that he observed the appellant driving a Cortina sedan on Sturt Highway in the opposite direction.  She was not wearing a seat belt.  For that reason he turned, pursued her vehicle and directed her to stop.

This witness further told the learned magistrate that, when he spoke to the appellant, her window was down and he detected a smell of cannabis smoke coming from the Cortina.  He directed her to alight from the car and she did so.

He testified that she then leaned back on the car.  At that point he noticed that the pupils of her eyes were unusually constricted.  She smelt strongly of cannabis smoke.

The learned magistrate was told that, in response to questions asked by him, the appellant said that she had smoked a couple of cones just before she had left her friend’s place in Renmark.  When he asked her to turn out her pockets she extracted a small metal pipe from one of them and threw it into an adjacent vineyard.  This caused her to lose her balance.  She fell back against her car.

He subsequently noted that, when the appellant walked, she was very unsteady on her feet and moved very slowly and deliberately.  He also observed that she was “rather vague and edgy ... and ... continually wiped the palms of her hands as if they were perspiring”.

The Senior Constable told the appellant that he believed that she was under the influence of marijuana or some other drug, to which, he said, she responded “I would say I was under the influence of marijuana, yeah, but I think I’m okay to drive, I wasn’t doing anything wrong really”.

Grigg searched in the vineyard adjacent to the road for the appellant’s pipe in her presence, but, due to the profusion of long grass, he was unable to find it.

He arrested her and subjected her to an alcometer test, which indicated a zero reading for alcohol.

She was examined by Dr Ross, a medical practitioner, at about 3.25 pm, at which time she insisted - contrary to what she had said to the police officer - that she had smoked two pipes of marijuana not that afternoon, but the preceding evening.

Dr Ross was called to give evidence.  He confirmed that the appellant denied having smoked any marijuana on the afternoon of his examination.

His specific observations of the appellant were:-

.        her limb co-ordination was poor
.        her fine movements were poorly formed
.        her gait was slow and deliberate
.        her pupils were constricted to an unusual degree
.        there were no abnormal neurological or physical symptoms

The doctor said that it was his view that the appellant was under the influence of a drug of some sort.  He said that he had previously examined about 40-50 persons who had been under the influence of some drug other than alcohol.

It is to be borne in mind that, in response to questions asked of him by the learned magistrate, Senior Constable Grigg said that he had spoken to the appellant on other, previous occasions.  There was, he said, a noticeable difference in her manner of speech, gait and demeanour as between those occasions and her presentation on 21 August.

The appellant elected to give evidence on oath.

The substance of what she told the learned magistrate was as under:-

.she was due to present for work packing carrots at 4.30 pm on 21 August.  She had worked the previous night until shortly after midnight.

.she denied having taken anything from her pocket and thrown it away when spoken to by Grigg.

.she admitted that Grigg had accused her of reeking of marijuana, but she denied that she had been smoking that substance.  She asserted that she had told him that she had only been smoking tobacco.

.she denied any admission to him that she had smoked a couple of cones that afternoon.

In essence, the appellant denied the accuracy of detailed notes made by Grigg a few minutes after her arrest.  These purported to be an accurate record of conversations had between the two of them related to marijuana.  She explained that, when she told Dr Ross that she had smoked marijuana the previous night, she was referring to a period between about 1.00 am and 2.00 am on the previous morning, after she had returned home from work.

In cross examination the appellant said that she only smoked marijuana “very occasionally”, using a pipe.  She conceded that Grigg had asked her to accompany him into the vineyard to look for a pipe, but she unequivocally denied having such an item in her possession or throwing it into the vineyard.  It was implicit in her evidence that Grigg had fabricated important features of his evidence bearing on the alleged incident and his initial discussion with her.  She was at a loss to explain how it came about that Grigg searched in the vineyard for a pipe in her presence, when nothing had ever been thrown there.

There is no question, having regard to the testimony given at trial, that she vacillated in her evidence as to when she last smoked marijuana and the method by which she smoked it.  She also denied ever having smoked that substance in her car.  She did agree that, when he first spoke to her, Grigg stated that she reeked of marijuana smoke.

In the course of a lengthy cross examination the appellant eventually admitted that, when spoken to by Grigg, she had, in fact, said to him that she had a couple of pipes full last night.

The appellant did not deny evidence given by Dr Ross to the effect that she refused to facilitate the conduct of a urine analysis to determine the presence of cannabis product or other drugs.

In the course of his reasons for decision the learned magistrate, inter alia, reflected on the considerable relevant experience of both Grigg and Dr Ross concerning smoking of marijuana.  He referred to inconsistencies in the appellant’s evidence as to when she had last smoked marijuana.  Eventually he concluded his reasons in these somewhat colourful terms:-

“This trial has been a complete and utter waste of time.  The defendant has come to court presumably with nothing better to do than cause the taxpayers and the community extravagant costs.  The opinion of the doctor is absolute.  It has not been shaken.  If anybody is a liar it is the defendant. I found her to be a totally unreliable witness.  Where there is conflict between the evidence given by the prosecution witnesses and that of the defendant I prefer without hesitation the evidence of the Senior Constable Grigg, in fact I take umbridge at her allegation that he was lying on his behalf.  I find the charge proved beyond reasonable doubt.”

All that need be said in that regard is that, having independently studied the whole of the transcript of evidence in detail, I would have been amazed if the learned magistrate had come to a contrary view.  The appellant’s evidence totally lacks conviction and contains internal inconsistencies.  Moreover, it is simply inconsistent, in logical terms, with the facts conceded to be common ground.  Furthermore, it does not effectively come to terms with the unequivocal evidence of Dr Ross, which the appellant did not really seek to impugn.

In her notice of appeal, the appellant refers to “personal bias by the magistrate”, “police notes suspect”, “no physical evidence of marijuana”, “possible illegal search” and “not informed about police evidence before trial”.

On the hearing of the appeal the appellant was not represented by counsel.  I therefore allowed her a great deal of latitude.  She was permitted to be represented by her de facto husband, Mr L.K. Ripia, and I allowed both her and Mr Ripia to give oral evidence as to what, they contended, had occurred when they appeared before the learned magistrate.  I also heard oral evidence from Sgt Smith, who had appeared in the lower court as prosecutor on all but one occasion.  Additionally, I requested and obtained a report from the learned magistrate concerning the allegations of bias relied on by the appellant.

Apart from presenting oral submissions via Mr Ripia, the appellant tendered a lengthy written outline of submissions.  I have carefully studied all of this material before arriving at the conclusions above expressed as to the evidence.

In deference to the earnest submissions made on behalf of the appellant it is necessary for me to direct more detailed attention to the specific grounds of appeal relied upon by her.

In essence the appellant contends that, on 30 October 1997, when she appeared before the learned magistrate and confirmed that she desired to plead not guilty to the charge against her, he so conducted himself as to give rise in her a reasonable apprehension of bias, because she had persisted in her resolve to defend the charge.  Both she and Mr Ripia gave evidence to the effect that, having heard a summary by the prosecutor of the details of the prosecution case, as contained in the police apprehension report, the learned magistrate discussed the situation with her at some length in terms which suggested that there was “pretty much no way I was going to get away with it”.  She and Mr Ripia said that, when the appellant continued to persist in her desire to defend the charge, the learned magistrate became upset, indicated that she was wasting the taxpayers’ money and, after fixing a date for trial, told her and her de facto to leave the courtroom and referred to her as a “druggie”.  The appellant also said that she had understood from the learned magistrate that he did not wish to and would not hear the case at trial.  When he in fact did so she was dismayed, but did not object at the time - because she did not know that she was entitled to do so.

The evidence of the appellant and Mr Ripia stands in somewhat strong contrast with that of the prosecutor and is at odds with the report of the learned magistrate.  The prosecutor, prior to being aware of the content of the report, swore an affidavit in which, inter alia, he had this to say:-

“6..... Mr Frederick then had a lengthy talk to Mrs Kirsch.  Although I cannot remember exactly what was said, I do recall that he spoke to her about her rights and what was involved in the trial process.  He also gave an indication of the costs associated with a trial.  He explained exactly what the police were required to prove beyond reasonable doubt.

7...... Mr Frederick gave advice to Mrs Kirsch regarding all matters associated with the trial and a detailed explanation of what to expect at trial.  I do not recall him being disrespectful and I do not recall him calling Mrs Kirsch a druggie.  I would certainly be able to recall that comment if it had been made.

8...... I remember the ‘lecture’, as I call it, to be no more or less than hundreds of a similar style that I have heard Mr Frederick give within the last three years.  I certainly do not think it was either abusive or intimidating.”

.................. Sgt Smith was an impressive witness.  He testified that he recollected the occasion both because charges of driving under the influence of a drug were relatively rare and also because the learned magistrate spent some 20 minutes explaining matters to the appellant.

.................. This witness read the report prepared by the learned magistrate for the first time when he was actually in the witness box.  He said that, insofar as it related to circumstances which occurred in his presence, it was accurate as according with his independent memory.

.................. In his report the learned magistrate incorrectly refers to a first appearance in the Renmark Court.  This was, I think, a not unnatural reading of an endorsement on the court file.

.................. Be that as it may, he expressed his memory of events aided by a perusal of his own bench book notes made at the time and a perusal of the court file and transcript.

.................. He reports that, on 30 October 1997, he ascertained that the appellant had not secured legal advice, despite an earlier remand to enable her to seek it.  He thereupon requested the prosecution to spell out the police allegations, which the prosecutor duly did, quoting from the apprehension report.

.................. He then proceeded to recount his memory of what transpired thereafter in these terms:-

“I now do not have a clear recollection, word for word, of what transpired between the defendant and me but I do know with great certainty that upon hearing the allegations which Prosecutor Smith gave to me, he quoting from the apprehension report, I then invited Miss Kirsch to comment.  It might well be that I said to her words to the effect ‘are you suggesting that the police officer might well not be telling the truth about the entirety of the incident’.  I think it was then that she made some comment about she never had a pipe in her possession.  I clearly recall, because this is one of only a handful of matters which has come before me where the allegation is drive under the influence of a drug that I asked Miss Kirsch to comment on the doctor’s evidence that in his opinion she was under the influence of a drug at the time of examination some hour or so after being apprehended by the police officer.  I think Miss Kirsch suggested, and in this regard I cannot say that she definitely said ‘yes’ but she suggested that the doctor was not telling the truth.  I have no hesitation in admitting, now that I have thoroughly searched my memory, that I became cross and might well have used words to the effect that if this matter is going to go to trial it is going to cost her a lot of money and no doubt it will cost the taxpayers a lot of money.  I am sure I then went on to say ‘you have had more than ample opportunity to consult a lawyer, I am not going to have this matter lying around in the list month after month while you decide what you think you might do, I am going to list this matter for trial at the next available trial date’.  I reject emphatically any suggestion that I coerced, intimidated, threatened or abused the defendant or that I showed any bias in any way in the conduct of the matter in the Renmark Court.  Indeed I have a recollection that notwithstanding that I had a list of in excess of 50 matters to deal with that morning, I occupied some 15 to 20 minutes discussing the matter with her, listening to the police allegations and having further discussion with her.  As to her suggestion that I referred to her as a drug addict, I have no recollection of that whatsoever but it just might well be that I might have said to her words to the effect ‘if you have an addiction to drugs then it might be to your benefit to seek some help’ or words to that effect.  I simply cannot recall exactly how that part of the conversation occurred.

As to the evidence of the defendant contained in the transcript, particularly at p.11.8, I clearly recall explaining to the defendant the decision of August v Fingleton and that one may be convicted of driving under the influence of a drug - even a Disprin in theory, and that often people may not know of the dangers of taking medication and driving.

As to the evidence of Mr Ripia and in particular p.16.4, I clearly recall whilst explaining to the defendant the general problem of people who take drugs of any description without expert medical advice then drive that I have the benefit of my father being retired psychiatrist and of the problems he has told me of people who take quite heavy doses of powerful barbiturates and the like who drive when they simply are incapable of driving. It was a very lengthy discussion I had with the defendant on the whole aspect of s.47 of the Road Traffic Act.

As to Mr Ripia’s evidence at .16.22 et seq, what he said was not quiet.  I clearly heard it and I was cross with him for suggesting that he knew what the doctor’s evidence was when I knew he was not even present when the defendant was examined by Dr Ross.

I note that both Miss Kirsch and Mr Ripia say I referred to Miss Kirsch as ‘a druggie’.  I simply reject that proposition.  I had held up lawyers and other people for some 20 minutes explaining in great detail to this defendant what she was up against and then listed the matter for trial when she insisted she was still pleading not guilty.  There was nothing else I could have done.”

At the end of the day I am not satisfied that the learned magistrate exhibited any conduct which gave rise to a reasonable apprehension of bias.

No doubt he did exhibit some ultimate impatience with the appellant in circumstances in which, prima facie, it appeared that the prosecution case was a very strong one.  However, I am by no means convinced that he referred to the appellant as a “druggie” or behaved in any inappropriate manner.  The evidence of Sgt Smith was compelling in that regard and, in any event, I must view the report of the learned magistrate in light of what was said in Martin v Hayes (1992) 163 LSJS 56. King CJ there pointed out:-

“... The learned judge obtained a report from the magistrate as to the contents of Mr Lang’s affidavit. There are differences between the magistrate’s recollection of events and what is deposed to by Mr Lang. In those circumstances, this court should act upon the principle enunciated by McHugh JA in Vakauta v Kelly (1988) 13 NSWLR 502 at pp.524-525:

‘If a dispute exists between the parties or the judge as to what was said, the version of the judge must be conclusive.  It is difficult to see how the contrary view can prevail without requiring or permitting the judge to give evidence and be cross-examined in the appellate court.  Such a course is not merely unthinkable, it is contrary to the function and status of a judge in a court of record.  It is to the judge, and not counsel or litigants, that the community has delegated the power of deciding disputed questions of fact.  That must include any dispute as to what was said by a witness or even by the judge himself.’”

.................. It is to be noted that, in the course of his judgment in this case, King CJ also directed attention to the fact that it is not only proper, but also appropriate, that magistrates should not sit mute concerning issues, problems and technical problems in a case.  On the contrary there is an expectation that he will express provisional views or impressions for the assistance of parties.  In the instant case it is plain that he was doing no more than bring home to the appellant the nature of the obviously uphill battle which she faced in endeavouring to defend herself, without the assistance of counsel, against what appeared to be a strong prosecution case.  Unfortunately the appellant has placed an incorrect construction on what he was attempting to do.

.................. It seems to me that the truth of the matter is that the appellant and Mr Ripia, as inexperienced lay persons, have placed a gloss on what transpired which is the product of a quite erroneous perception of what the learned magistrate was trying to achieve.  There are, of course, dangers in attempting to convey to lay persons some impression of the vicissitudes attendant on a trial, where the prosecution case, at first sight at least, seems very strong.  Such statements are apt to be misinterpreted, however objectively the presiding judicial officer attempts to explain the situation, including potential loss of tariff discount for a timely plea.

.................. In my assessment the material before me does not indicate even apparent bias (in the legal sense), much less actual bias.

.................. Next the appellant sought, at some length, to attack the evidence given by the police witness Grigg, with particular reference to his notes and the resort to them.  She complained of a lack of opportunity to peruse the notes prior to trial and to call a potential witness to rebut one aspect of the evidence.

.................. In this regard several points need to be made.  Grigg deposed that he made the relevant notes 15-20 minutes after the events to which they relate, whilst they were still fresh in his mind.  The original notes are on the court file and there is simply no evidence to impugn  their authenticity.  Furthermore, the learned magistrate accepted Grigg as a witness of truth.

.................. On the hearing of the appeal Mr Ripia, in effect, attempted to attack Grigg as a witness of manifest unreliability on some key issues.  He really failed to appreciate the fact that, on appeal, it is not my function to re-assess the credibility of witnesses ab initio.  I have, however, studied the whole of the evidentiary material with great care.  In the result, I see no reason to question the integrity and general reliability of Grigg.  On the contrary, as I have earlier indicated, his evidence patently has the ring of truth about it.  The evidence of the appellant does not.

.................. It has not been demonstrated that there was any impropriety in the use of the police notes, that they were inaccurate, or that the evidence of Grigg is not to be relied upon.

.................. The appellant further asserts that insufficient weight was given to the fact that there was no physical evidence found of marijuana, either in her vehicle or on her person.

.................. Whilst it is true that no marijuana was found, there was evidence, accepted by the learned magistrate, that:-

......... there was a strong smell of burnt marijuana emanating from the vehicle and person of the appellant

.she later admitted to being a marijuana user

.she was seen to throw away a metal pipe

.she was observed by an experienced police officer to be under the apparent influence of some type of drug, but blew negative for alcohol

.the doctor assessed her as being under the influence of a drug

.she refused a urine test

In combination this was compelling evidence upon which the learned magistrate was entitled to act.

......... The appellant sought to advance a ground that she titled “Possible Illegal Search”.

. There can be no doubt that, in the circumstances related by him, Grigg had ample ground for searching the appellant’s vehicle, in accordance with section 68 of the Summary Offences Act.  He undoubtedly had proper cause to suspect that there was in it an object possession of which constituted an offence.  He did not search the appellant, because she threw the metal pipe away before he could do so.

. There is simply no substance in this stated ground of appeal.

. The fifth ground of appeal relied upon by the appellant complains of not being informed of the police notes prior to trial.  The simple response to this is that there was no duty on the prosecution either to supply them to her or to advise her of their potential use.  This was a normal incident of any trial.  She did not complain of prejudice at the time and now simply seeks to attack the accuracy of both the notes and the evidence given by Grigg.  These were aspects for cross examination at the time and went to Grigg’s credibility.  That issue was resolved by the learned magistrate in his favour.  There is no basis, consistent with established principle, on which I can reject the assessment made.

. The final ground relied upon was that the appellant did not have the opportunity to call her mother as a witness to corroborate her story that she had come from her mother’s home.  Quite where this would have taken the defence case is a little difficult to see, but there is no evidence to suggest that she sought an opportunity to do so.  On the contrary, the transcript reveals that the learned magistrate asked the appellant whether she intended to call any other witnesses.  Her reply was “No.”

It must therefore be concluded that none of the grounds relied upon by the appellant has remotely been made good.  Indeed it must be said, in the clearest possible terms, that the learned magistrate went to great lengths to assist the appellant and, by questions directed by him to the witnesses, protect her interest and attempt to bring out any possible aspect which might favour her.  There is no substance in her complaints.

I consider that the finding of guilt was not only proper - it was well nigh inevitable.

The appeal against conviction must be dismissed.

I therefore turn to the appeal against penalty.

The learned magistrate noted that the appellant was not entitled to any tariff discount for a plea.  He observed that she had an antecedent record related to drug abuse going back to 1993.  However, I note that, in the course of his brief sentencing remarks, he said:-

“... This trial has been based on the defendant fabricating her evidence and besmirching the character of the medical practitioner and the police officer in the hope of trying to get out of what is inevitable just on the evidence of the medical practitioner.  She has cost the taxpayers of this State thousands of dollars.  She therefore will not receive, nor is she entitled to, any leniency whatsoever.”

Although what he said was correct, the learned magistrate expressed himself in overly strong terms, which was open to the construction that the appellant was to be penalised for exercising her legal right to plead not guilty.  True it was that she was not entitled to any tariff discount for a timely plea.  Equally, her defence of the case could not properly lead to the imposition of penalties which were not a proper reflection of the gravity of the offending.

In the event he imposed a very severe penalty for what was a first offence of its type.  The appellant was ordered to pay a total of $1,701 for fine, court fees, statutory levy and costs within eight months.  Her licence was suspended for 20 months.

Ms Murphy, of counsel for the Crown, concedes that the period of disqualification was manifestly excessive for a first offence, in relation to which the minimum prescribed period is 12 months.  She did not make the same concession concerning the monetary impost.

However, I am driven to the conclusion that it, too, was excessive in the circumstances.  It seems to me that the inevitable impression which remains is that, whether consciously or unconsciously, the learned magistrate did reflect his displeasure with the appellant in an abnormally high penalty regime.

As was stressed in Gibbons v SA Police (1993) 172 LSJS 28 there is an obligation on magistrates, based upon considerations of fairness, to enquire into the ability of unrepresented defendants, in reasonable depth, as to their capacity to pay. This is against the background of section 13 of the Criminal Law (Sentencing) Act (“CLSA”), which forbids the making of orders for payment of pecuniary sums, if the means of the defendant are such that he or she would be unable to comply with the order.

The learned magistrate did not adopt that course, although the circumstances revealed by the evidence ought to have alerted him to the fact that there might well have been a potential section 13 consideration. Had he done so he would have ascertained these facts:-

.the appellant was, at the time, living in a de facto relationship with Mr Ripia;

.both were engaged in seasonal, casual employment - she as a fruit packer three nights per week and he as a fruit picker;

.that employment returned each of them about $200 net per week.  However, it was not continuous and the hours worked were, to some extent variable.  At times the total household earnings fell substantially below $400 per week;

.when not actually working the appellant and Ripia received a net $300 per week for unemployment benefits;

.the two of them had to find $100 per week rent, about $50 per week for petrol and had to purchase food and clothing and pay incidental living costs, including electricity;

.it was necessary for them to have and operate a motor car, without which the appellant was unable to commute to her employment.  This was a considerable distance from where she lived;

.on the making of the order of disqualification the appellant was unable to continue her employment (except for some isolated days) and had to revert to unemployment benefits.  Although her disqualification has temporarily been suspended pending the outcome of this appeal, any order of disqualification will produce the immediate result that she and Mr Ripia, will, for most part, be unable to pursue the only types of work open to them;

.neither the appellant nor Mr Ripia have any assets of substance other than their basic personal effects and the car which was driven by her - which appears to be of modest value.

It is immediately obvious that, in such circumstances, the appellant had no capacity to meet the pecuniary sum ordered, even having been given 8 months grace in which to do so.  Moreover, not only would it be extremely difficult for her to find a substantial pecuniary sum even over time, but also any period of disqualification will impose great hardship on her.

Even bearing in mind that the appellant was not entitled to consideration for a timely plea it seems to me that, given the practical impact upon her and the fact that this was a first conviction of its type, the minimum period of 12 months disqualification was appropriate to the circumstances.  For her it will be a salutary lesson and a severe price to pay, bearing in mind its inevitable impact on her ability to obtain and maintain employment.

As to the pecuniary sums to be paid, it is plain that section 13 constitutes an absolute bar to the order made by the learned magistrate. That cannot stand.

The appellant simply does not have the capacity to pay a total sum of anything like $1,701, even given an extended period of time within which to pay any fine, costs and court fees.  Indeed, the imposition of the period of disqualification will have a direct, seriously adverse impact on the part of both the appellant and Mr Ripia to continue in any form of gainful employment reasonably available to them during the period of disqualification.  It is likely, for much of the time, that their net disposable income will drop to $300 per week, from which they will have to meet rent and normal living expenses.

A problem which immediately arises stems from the fact that section 47 of the Road Traffic Act stipulates a minimum fine of $700 for a first offence of driving under the influence of a drug.

There is an obvious conflict between this provision and section 13 of the CLSA (Button v Police (Lander J, 2 July 1997, S6247, unreported).  It is not resolved by resort to section 17 of that Act because it has, repeatedly, been held that inability to pay cannot amount to “extenuating circumstances” under the latter section.  (See, for example, Bevan v Rankine (1983) 36 SASR 120, Caldow and Shannon v Henning (1991) 55 A Crim R 449.)

As Ms Murphy pointed out, the problem may be overcome, in appropriate cases, by granting a very extended time to pay pursuant to section 33 of the CLSA. Whilst I note some suggested computations made by her in relation to the instant case I have the gravest doubts, on the evidence before me, whether this appellant is likely, in the foreseeable future, to be able to meet any significant pecuniary sum awarded against her. Just meeting necessary rental and living costs is going to be a considerable struggle.

Like Lander J in Button v Police (supra), I consider that the only practical solution lies in resort to section 18(c) of the CLSA.

In all of the circumstances I propose to order that the appeal against sentence be allowed and the fine and period of disqualification be set aside.  In lieu there will be orders:-

1. That the appellant perform 100 hours of community service in lieu of the minimum fine prescribed by section 47 of the Road Traffic Act, such service to be rendered within 12 months of the date of order.

1. That the order for payment of court fees, costs, witness fee and Criminal Injuries Compensation levy be confirmed, but that the appellant have 18 months within which to pay the total of those amounts.

1. That the appellant be disqualified from holding or obtaining a driver’s licence for a period of 12 months, the time already spent under disqualification, pursuant to the order appealed against, to be credited against that period.  This order is to take effect at the expiration of seven days from the date of this order.

As the appellant has obviously incurred expenses in travelling to Adelaide on two occasions for the purposes of this appeal.  I order that the respondent pay to her $100 on account of such expenses, plus any court fees paid, as expenses incurred to prosecute the appeal.