Krul v Police No. Scgrg-99-427 Judgment No. S200 - [1999] SASC 200

KRUL v POLICE
[1999] SASC 196

Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against his conviction following a hearing in the Magistrates Court sitting at Adelaide. He pleaded not guilty to charges that on 1 March 1998 at Brighton he drove a car at a speed dangerous to the public contrary to s46 of the Road Traffic Act 1961, and on the same occasion that he drove a car at a greater speed than 60 kilometres per hour km/h, namely, 110 kilometres per hour, contrary to s49 of the same Act.
As well, there was an application to enforce a bond upon which a sentence of imprisonment for four months had been suspended.
After hearing evidence from a police officer who had timed the driving of the appellant the subject of the charge, the evidence of the defendant and of a witness whom the defendant called, the learned trial magistrate convicted him of the charge of driving at a speed dangerous to the public and dismissed the second count of driving at an excessive speed.
It was some time later before she came to sentence the appellant. When she did so she imposed a fine of $450, suspended the appellant from holding or obtaining a driver's licence for three years and six months and extended the bond by a period of a further 12 months.
As I said, the appeal is against the conviction only.
The offence occurred at about 10.35 pm on the day in question, when two police officers, Constables Rawling and Pearce, were in an unmarked police vehicle on Brighton Road on the western side facing north. They became aware of the appellant who was driving a white Holden Commodore sedan in the same direction. The police officers drove off in pursuit of him, being of the view that he was exceeding the speed limit which at that stage and at all other relevant times was 60 kilometres per hour. That view was confirmed by the use of a laser gun which at that initial stage suggested that the speed of the appellant was of the order of 83 kilometres per hour.
Of the two police officers, Constable Rawling was the driver of the police car. He gave evidence to the effect that the appellant overtook two vehicles travelling in the left lane on the offside of those vehicles, and then moved into the left lane where he overtook a motor vehicle in the right hand lane. Following that, he moved back into the right lane to overtake another vehicle in the left lane. Having cleared those vehicles, the appellant accelerated at a fast rate of speed.
According to Constable Rawling's evidence, the police vehicle was then positioned about 100 metres to the rear of the appellant. He proceeded to time the appellant over a distance which he initially estimated at some 400 metres, but under cross-examination conceded was closer to 350 metres. According to Constable Rawling, the appellant was timed over that distance…

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 Krul v Police No. Scgrg-99-427 Judgment No. S200

Details

AGLC: Krul v Police No. Scgrg-99-427 Judgment No. S200 [1999] SASC 200
Case: [1999] SASC 200
Decision Date: 12 May 1999

CaseChat Overview and Summary

In Krul v Police, the appellant, Krul, challenged his conviction in the Magistrates Court for dangerous driving under s46 of the Road Traffic Act 1961 and driving at a speed greater than 60 kilometres per hour, specifically at 110 kilometres per hour, which contravened s49 of the same Act. The conviction arose from an incident on 1 March 1998 when two police officers pursued Krul, who was driving a white Holden Commodore sedan, on Brighton Road in Adelaide. The police officers used a laser gun to measure Krul's speed, finding it to be 110 kilometres per hour over a distance of approximately 350 metres. Krul denied the charges, claiming he was travelling at no more than 80 kilometres per hour. He further argued that the absence of the second police officer, Constable Pearce, who was unable to attend due to illness, weakened the prosecution's case, making Constable Rawling's uncorroborated evidence insufficient for a conviction.

The appeal court had to determine whether the learned trial magistrate was correct in relying on Constable Rawling's evidence alone to convict Krul. The court noted that the magistrate had the advantage of assessing the witnesses' credibility based on their demeanour and the consistency of their testimonies. The court acknowledged that Krul's argument had merit, as it would be difficult for Constable Rawling to accurately measure Krul's speed while driving at a high speed himself. However, the court emphasised the importance of giving due weight to the trial magistrate's assessment of witness credibility, especially considering the magistrate had seen and heard the witnesses. The court found that the magistrate had no difficulty in finding the charge proven, indicating a firm belief in the reliability of Constable Rawling's evidence over Krul's and his witness's testimonies. Furthermore, the court noted that the evidence of Krul's witness, Ms Cotleanu, did not entirely discredit the police's case, as her speed estimates varied significantly.

The appeal court concluded that the grounds of appeal, which included the claim that the magistrate wrongly accepted uncorroborated evidence and did not give sufficient weight to the defence witnesses, were not established. The appeal was dismissed, and Krul was ordered to pay the respondent's costs of the appeal, set at $150. The court's decision underscored the principle that findings of fact by a trial magistrate, especially those based on witness credibility, are generally not disturbed on appeal.

Orders