Laidlaw v Police - [2008] SASC 340

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
LAIDLAW v POLICE
[2008] SASC 340
Reasons for Decision of The Honourable Justice Sulan (ex tempore)
24 November 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING
Appeal against conviction and sentence - appellant pleaded guilty in Magistrates Court to one count of drive with excess blood alcohol and one count of aggravated dangerous driving to escape police pursuit - factor of aggravation that appellant's blood alcohol was in excess of legal limit at time of police pursuit - appellant sentenced to 15 months' imprisonment - whether plea of guilty to aggravated dangerous driving to escape police pursuit is a bar to conviction for drive with excess blood alcohol - whether Magistrate erred in considering appellant's attempt to escape police pursuit an aggravating feature of the offending.
Held: Where the offence of drive with excess blood alcohol is also alleged as an aggravating factor in offence of dangerous driving to escape police pursuit autrefois convict prevents conviction for that offence - conviction for drive with excess blood alcohol set aside - appellant resentenced.
Held: Magistrate erred in considering appellant's attempt to escape police pursuit an aggravating feature of the offending when that is an element of the offence.
Criminal Law Consolidation Act 1935 (SA) s 19AC; Road Traffic Act 1961 (SA) s 40H, s 45, s 46, s 47B, referred to.
Arthur v Police [2008] SASC 213, applied.

LAIDLAW v POLICE
[2008] SASC 340
Magistrates Appeal

SULAN J: The defendant was charged on information with five offences all arising out of an incident which occurred on 16 February 2008 at Mount Gambier, in which he drove a motor vehicle in a reckless manner and at a speed which was dangerous to the public whilst being pursued by police officers.
He was charged with the following offences: aggravated dangerous driving to escape police pursuit contrary to s 19Ac of the Criminal Law Consolidation Act 1935; dangerous driving contrary to s 46 of the Road Traffic Act 1961 (“RTA”); careless driving contrary to s 45 of the RTA; failing to stop a vehicle contrary to s 40H(5) of the RTA; and, finally, driving whilst having the prescribed concentration of alcohol in his blood contrary to s 47B(1)(a) of the
RTA.
As to the first count, it was alleged that the offence was an aggravated offence. The circumstance of aggravation alleged by the prosecution was that the offence was committed whilst there was present in the defendant’s blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood.
On 18 March 2008, the defendant appeared unrepresented in the…

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 Laidlaw v Police

Details

AGLC: Laidlaw v Police [2008] SASC 340
Case: [2008] SASC 340
Decision Date: 24 November 2008

CaseChat Overview and Summary

The appeal in Laidlaw v Police involved the appellant, who had pleaded guilty to one count of driving with an excess blood alcohol level and one count of aggravated dangerous driving to escape police pursuit. The case was heard in the higher court, where the appellant challenged both the conviction and the sentence. The aggravating factor cited was the appellant's blood alcohol level being over the legal limit during the police pursuit. The appellant was sentenced to 15 months' imprisonment. The central legal issues were whether a guilty plea to aggravated dangerous driving to escape police pursuit could bar a conviction for driving with excess blood alcohol, and if the Magistrate was correct in considering the appellant's attempt to evade police as an aggravating factor in the dangerous driving offence.

The court examined the principle of autrefois convict, which generally prevents a person from being convicted of an offence for which they have already been convicted. The court found that because the offence of driving with excess blood alcohol was also alleged as an aggravating factor in the dangerous driving offence, the doctrine of autrefois convict applied. Therefore, the conviction for driving with excess blood alcohol had to be set aside. Additionally, the court assessed whether the Magistrate's consideration of the appellant's attempt to evade police as an aggravating factor was appropriate, and concluded that it was not erroneous.

As a result of the court's reasoning, the conviction for driving with excess blood alcohol was set aside, and the appellant was resentenced. The appeal was partially successful in that the conviction for the excess blood alcohol offence was overturned, but the overall sentence remained unchanged at 15 months' imprisonment. The court's decision highlighted the importance of distinguishing between related offences and the application of the doctrine of autrefois convict in criminal cases.

Orders