MAJCHRAK v Police

[2004] SASC 251

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Leave to Appeal in Private)

MAJCHRAK v POLICE

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice White)

26 August 2004

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE

Application for leave to appeal in private - whether reasonably arguable that Magistrate's findings of fact were correct - whether reasonably arguable that the Magistrate did not err in excluding evidence - leave to appeal granted

Supreme Court Rules 1987 r 94.02, r 94.03; Road Traffic Act 1961 (SA) s 46, referred to.
Bunning v Cross (1978) 141 CLR 54, considered.

MAJCHRAK v POLICE
[2004] SASC 251

Application for Leave to Appeal in Private

1. DOYLE CJ, BESANKO and WHITE JJ           This is an application to the Full Court for leave to appeal.  Leave is sought to appeal against a decision of a Judge of this Court, allowing an appeal against a decision by a Magistrate.

2. The application for leave to appeal is made under Supreme Court Rule 94.02, the Judge having refused leave to appeal. The application was made in writing under r 94.03, and has been considered by the Court comprising Doyle CJ, Besanko and White JJ.

3. The Magistrate heard charges against the applicant of driving at a speed that was dangerous to the public, driving without due care and exceeding the speed limit.

4. The prosecution case depended on the evidence of a police constable who observed the applicant driving his motor car. The Magistrate excluded the evidence of the police constable as to the speed of the applicant, because the police constable himself drove at a speed that was dangerous to the public when he followed the applicant and timed him, before stopping him. It was conceded before the Magistrate that in the particular circumstances of the case the police constable was not exempted from compliance with the law, and had offended against s 46 of the Road Traffic Act 1961 (SA) under which the applicant was charged.

5. It appears to have been common ground that the police constable knew the applicant, and could have obtained his address and dealt with the matter by speaking to him later and reporting him for the offence.  In other words, the Magistrate seems to have proceeded on the basis that it was not necessary for the police constable to follow the applicant and time him, but could have relied on observations made without the need to do that.

6. The Magistrate took the view that he had to consider the exercise of the discretion identified by the High Court in Bunning v Cross (1978) 141 CLR 54. The Magistrate said that it was not in the public interest for the Court to appear to approve of the police constable breaking the law as he did, when, on the Magistrate’s findings it was not necessary to do so to obtain proof of the applicant’s guilt.

7. The Judge held that the Magistrate had erred on the facts.  The Judge found that the police constable’s motive was to stop the applicant, not merely to obtain additional evidence of the offence.  The Judge then reconsidered the exercise of the discretion.  The Judge took the view that the evidence should not be excluded.

8. The applicant argues that the Judge erred.  The applicant argues that the Magistrate’s findings of fact were correct, and that the Magistrate rightly found that, in effect, the police constable’s reason for breaking the law was merely to obtain better evidence of the alleged offence.  In other words, it was not necessary for the police constable to break the law.

9. The applicant also argues that the Judge erred in finding that the Magistrate misunderstood the basis upon which the discretion was to be exercised.

10. Finally, the applicant argues that an issue of general importance arises, namely, the proper exercise of the discretion in circumstances like this.

11. We are unanimously of the opinion that this is not a case in which the Court could or should establish any general guidelines as to the exercise of the discretion in cases of this kind.  The relevant principles are clear.  Each case will turn on the application of those principles to the facts.  It would be unwise for this Court to attempt to establish guidelines for the exercise of the discretion.

12. Nevertheless, by a majority we are of the opinion that leave to appeal should be granted on a more limited ground.  By majority we are of the opinion that it is reasonably arguable that the Magistrate’s findings of fact were correct, and that if that is so, it is also reasonably arguable that the Magistrate did not err in excluding the evidence.

13. For those reasons, by majority, we order that leave to appeal be granted against the decision by Gray J allowing the appeal to this Court.