Maher v Police - [2007] SASC 366

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
MAHER v POLICE
[2007] SASC 366
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice White)
19 October 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO FULL COURT
Application for permission to appeal in private - permission refused.
Supreme Court Act 1935 (SA) s 50(4)(a)(ii); Road Traffic Act 1961 (SA) s 47B; Supreme Court Rules 2006 (SA) r 285(1)(b) and r 291, referred to.
Police v Maher [2007] SASC 291, discussed.

MAHER v POLICE
[2007] SASC 366
Full Court: Doyle CJ, Anderson and White JJ

THE COURT: This is an application for permission to appeal to the Full Court.
Permission to appeal is required by s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA). The decision the subject of the application was made by a Judge on appeal from the Magistrates Court.
The application was made under r 285(1)(b) of the Supreme Court Civil Rules 2006 (SA), and the summary of argument required by r 291 has been provided.
The application was made initially to the Judge in question. The Judge has referred the application to the Full Court.
The Full Court has determined to decide the application without hearing oral argument: r 291(3)(b).
Permission to appeal from the decision of a single Judge, on appeal from the Magistrates Court, is usually granted only if a point of principle is raised, although ultimately the question is whether the interests of justice call for a grant of permission.
The applicant was charged with driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol, contrary to s 47B of the Road Traffic Act 1961 (SA).
The Magistrate exercised his discretion to exclude the result of the breath analysis test. As I understand the facts, but for that exercise of discretion, the prosecutor was able to make out his case, or at least a case to answer. Once the result of the breath analysis was excluded, the prosecution had no other evidence to establish its case, and it was inevitable that the Magistrate would dismiss the complaint, as he did. The complainant has appealed against that dismissal.
The Magistrate acted as he did because, just after the applicant had been handed a blood test kit, one of the police officers told him that the breath analysis machine was “accurate”, in response to a question as to whether it was “faulty or likely to be faulty”. The Magistrate decided that that statement had the effect of dissuading the applicant from exercising his right to have a blood test.
On appeal, the Judge examined the issue in some detail: Police v Maher [2007] SASC 291.
The Judge considered the application of the so-called unfairness discretion. He correctly identified the relevant legal principles. He applied those principles to the facts. His ultimate conclusion…

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 Maher v Police

Details

AGLC: Maher v Police [2007] SASC 366
Case: [2007] SASC 366
Decision Date: 19 October 2007

CaseChat Overview and Summary

In the matter of Maher v Police, the applicant sought permission to appeal a decision made by a magistrate in South Australia. The initial dispute involved a legal matter that was heard and determined by a magistrate, and the applicant was not satisfied with the outcome. The matter proceeded to the Supreme Court, where the applicant sought further appeal to the Full Court. The central issue before the court was whether the applicant should be granted permission to appeal in private.

The court considered the application for permission to appeal in private, weighing the factors that are relevant in determining such applications. The court took into account the nature of the case, the public interest in open justice, and the potential impact of a private appeal on the integrity of the judicial process. After careful consideration of these factors, the court determined that the application for a private appeal should be refused.

Consequently, the court decided that the applicant was not entitled to appeal the magistrate's decision in private. The court upheld the principle of open justice, emphasising the importance of transparency in legal proceedings. The court's decision effectively concluded that the public interest in maintaining open justice outweighed any potential benefits of a private appeal in this case.

The court's final order was that the application for permission to appeal in private was refused. This decision upheld the principle of open justice and maintained the integrity of the judicial process in the context of the applicant's appeal.

Orders