Maher v Police
[2007] SASC 366
•19 October 2007
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 366Full 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 was that even if the police officer gave a wrong answer, because the breath analysing instrument was inaccurate, that answer did not in any respect qualify or diminish the written and oral advice that the applicant had received. He added that the police officer did not in fact give any advice, he did no more than answer a question.
This aspect of the decision raises no point of principle. The decision applies well known principles to the facts of the particular case.
The suggestion is that the proposed appeal raises the general issue of whether a statement about the accuracy of a breath analysing instrument is capable of dissuading a motorist from exercising the statutory right to have his blood analysed. No such general issue arises. The only issue that arises is whether the statement made by the police officer in this particular case, and in these particular circumstances, had the suggested effect.
A grant of permission to appeal would inevitably result in the Full Court simply reviewing, for a second time, a decision on the facts of the case.
It is not appropriate to grant permission to appeal for that purpose.
It is suggested that the Judge failed to deal with the so-called public policy basis for the exercise of a discretion to exclude the relevant evidence. But on the Judge’s finding of fact, that discretion did not arise because he found that there was no unlawfulness or impropriety on the part of the police officer in question.
For these reasons the Court considers that the case raises no issue of principle, and no issue of general importance. Nor is there sufficient doubt about the correctness of the decision to suggest that the interests of justice require a grant of permission to appeal.
For those reasons the Court refuses permission to appeal.
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