Lehmann v Police - [2010] SASC 102

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LEHMANN v POLICE
[2010] SASC 102
Judgment of The Honourable Justice Gray
16 April 2010
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING AT SPEED DANGEROUS TO PUBLIC
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - SPECIFIC INTERPRETATIONS
Appeal against conviction and sentence - defendant and appellant convicted of charge of driving at a speed dangerous to the public contrary to section 46 of the Road Traffic Act 1961 (SA) - whether conviction appropriate - whether defendant's speed caused danger or risk of danger to the public - whether offence "trifling".
Held: appeal dismissed - defendant's driving caused a danger or risk of danger to the public and amounted to driving at a speed dangerous to the public - circumstances of offending do not justify a finding that the offence was "trifling".
Road Traffic Act 1961 (SA) s 45A(1) and s 46, referred to.
McBride v R (1966) 115 CLR 44; Pope v Hall (1982) 30 SASR 78; Firth v Prestwood (1987) 44 SASR 427; Merrill v Police (1996) 24 MVR 555; Senior v Police [2005] SASC 88; Siviour-Ashman v Police (2003) 85 SASR 23; Owen v Connellan (1991) 53 A Crim R 236, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"trifling"

LEHMANN v POLICE
[2010] SASC 102
Magistrates Appeal
GRAY J:

This is an appeal against conviction and sentence.
Bruce McCaig Lehmann, the defendant and appellant, was charged on complaint that on 23 December 2008, he drove a motor vehicle at a speed which was dangerous to the public, contrary to section 46 of the Road Traffic Act 1961 (SA).[1] The defendant was further charged with the offence of driving at a speed of 45 kilometres per hour or more in excess of the speed limit, contrary to rule 20 of the Australian Road Rules and section 45A(1) of the Road Traffic Act.[2] The defendant pleaded not guilty to both counts.
[1] Section 46 of the Road Traffic Act 1961 (SA) relevantly provides:
(1)A person must not drive a vehicle recklessly or at a speed or in a manner which is dangerous to the public.
Maximum penalty: Imprisonment for 2 years.
(2)In considering whether an offence has been committed under this section, the court must have regard to—
(a)the nature, condition and use of the road on which the offence is alleged to have been committed; and
(b)the amount of traffic on the road at the time of the offence; and
(c)the amount of traffic which might reasonably be expected to enter the road from other roads and places; and
(d) all other relevant circumstances, whether of the same nature as those mentioned or not.
(3)Where a court convicts a person of an offence against subsection (1), the following provisions apply:
(a)the court must order that the person be disqualified from holding or obtaining a driver's licence—
(i)in the case of a first offence—for such period, being not less than 12…

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 Lehmann v Police

Details

AGLC: Lehmann v Police [2010] SASC 102
Case: [2010] SASC 102
Decision Date: 16 April 2010

CaseChat Overview and Summary

The appellant, Lehmann, appealed against a conviction and sentence for driving at a speed dangerous to the public, contrary to section 46 of the Road Traffic Act 1961 (SA). The conviction arose from an incident where the appellant was driving at a speed nearly twice the applicable limit in a built-up area. The appellant argued that the offence was trifling and that his speed did not cause any danger or risk of danger to the public.

The court was required to decide whether the appellant’s conviction was appropriate and whether his driving at such a speed constituted an offence. The court needed to determine if the appellant’s speed caused a danger or risk of danger to the public and whether the offence was trifling. The court also had to consider the applicable law and the interpretation of the relevant statutory provisions.

The court found that the appellant’s offending could not be characterised as trifling. Given the speed at which the appellant was driving, it posed a significant danger to the public. The court held that the appellant’s driving gave rise to a real and cogent possibility of potential danger. The court noted that the appellant’s actions occurred in a built-up area at a time when people, including children, were present, and it was possible for nearby residents to leave their properties and use the roadway. The court concluded that the appellant’s speed was excessive and not justified by any exceptional circumstances. Therefore, the court dismissed the appeal and upheld the conviction and sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the circumstances of the within proceeding, the defendant’s offending cannot be characterised as trifling. In travelling at a speed nearly twice the applicable limit, the defendant posed a significant danger to the public. The defendant’s offending took place in a built-up area. It occurred at a time when people, including children, were attending at the bowling centre and at a time when it was possible that nearby residents would leave their properties and utilise the roadway. People in the area would be justified in expecting road-users to be travelling at a speed of or less than 50 kilometres per hour and in conducting themselves on that basis. It is relevant that there were no exceptional circumstances which could in any way justify the speed at which the defendant was travelling. The defendant’s driving gave rise to a real and cogent possibility of a potential for danger. Conclusion The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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