Martin v Police - [2015] SASCFC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
MARTIN v POLICE
[2015] SASCFC 85
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)
11 June 2015
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - WHEN NEW TRIAL REFUSED
The applicant was convicted in the Magistrates Court of driving a motor vehicle whilst a prescribed drug, methylamphetamine, was present in his blood contrary to s 47BA of the Road Traffic Act 1961 (SA). He appealed to this Court alleging errors in the reasoning of the learned Magistrate. Permission to appeal was refused by a single Judge of this Court.
The applicant now applies to this Court for permission to appeal.
Held (the Court):
1. The applicant’s complaint raises questions of fact which have been adversely decided against him.
2. It is not appropriate to grant permission to appeal on strained constructions of reasons below.
3. Permission to appeal is refused.
Road Traffic Act 1961 (SA) s 47BA, referred to.
Jones v Dunkel (1959) 101 CLR 298, considered.

MARTIN v POLICE
[2015] SASCFC 85
Full Court: Kourakis CJ, Gray and Peek JJ

THE COURT: The applicant was convicted in the Magistrates Court of driving a motor vehicle whilst a prescribed drug, methylamphetamine, was present in his blood contrary to s 47BA of the Road Traffic Act 1961 (SA) (RTA). The applicant did not contest the police evidence that the drug was present in his blood whilst he was driving. He relied on the defence provided by s 47BA(2) of the RTA which provides:
47BA – Driving with prescribed drug in oral fluid or blood
(2)Subject to subsection (3), it is a defence to a charge of an offence against subsection (1) if the defendant proves that he or she did not knowingly consume the prescribed drug present in his or her oral fluid or blood.
In addition to the evidence of the presence of the drug provided by a swipe test, a written statement of a police officer was admitted, and not disputed, to the effect that the applicant’s eyes were watery and bloodshot, his body movements were not fluid and he was speaking quickly.
The applicant testified that on Sunday 10 March 2014, he was at The Grand Bar at Glenelg from about 10.00 pm to 3.00 am with friends. There he drank mostly vodka and orange juice, and some beer. He admitted that he had become intoxicated from his drinking, but denied that he took any drugs. The following day, Monday 11 March, he went to the Golden Grove Hotel where he met two of his friends. He testified that there he played poker machines and drank only water, but that on two…

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 Martin v Police

Details

AGLC: Martin v Police [2015] SASCFC 85
Case: [2015] SASCFC 85
Decision Date: 11 June 2015

CaseChat Overview and Summary

Martin sought permission to appeal a decision of the Magistrates Court of South Australia, which had been affirmed on appeal. The dispute concerned a charge of driving under the influence of an intoxicating liquor or drug.

The primary legal issue before the Full Court of the Supreme Court of South Australia was whether permission to appeal should be granted. This involved considering whether there were sufficient grounds to doubt the Magistrate's factual findings and whether the proposed grounds of appeal relied on a reasonable interpretation of the Magistrate's reasons.

The Court observed that the applicant bore the onus of proving his case on the balance of probabilities, and that this had been decided adversely to him at both the initial hearing and on the first appeal. The Court found no sufficient reason to doubt the Magistrate's ultimate conclusion that she could not rely on the applicant's evidence. Furthermore, the Court determined that the proposed grounds of appeal involved a strained construction of the Magistrate's reasons and therefore did not warrant granting permission to appeal.

Permission to appeal was refused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The proposed appeal raises a question of fact, on which the applicant carried the onus, on the balance of probability, which has been decided adversely to him both at first instance and on appeal. There is insufficient reason to doubt the Magistrate’s ultimate conclusion that she could not rely on his evidence. Nor should permission to appeal be given on grounds which rely on a strained construction of the Magistrate’s reasons.Conclusion Permission to appeal refused.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.