SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MAXWELL v POLICE
Judgment of The Honourable Justice Gray
23 March 2005
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - FAILURE TO SUPPLY OTHER INFORMATION OR GIVING FALSE INFORMATION
Appeal against conviction - appellant convicted by magistrate of driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol and of failing to produce his driver's licence in circumstances where he was required to do so - appeal on grounds that magistrate: erred in finding that the relevant provisions of the Road Traffic Act 1961 (SA) had been complied with; and erred in finding that the elements of s 97A of the Motor Vehicles Act had been proved beyond reasonable doubt.
Discussion of Division 5 of the Road Traffic Act 1961 (SA) particularly sections 47DA, 47E and 47G - consideration of regulations 8A and 9(1) of the Road Traffic (Miscellaneous) Regulations 1999 (SA) - discussion of relevant authorities - consideration of section 45C of the Evidence Act 1929 (SA) - consideration of section 97A of the Motor Vehicles Act 1959 (SA).
Appeal dismissed.
Road Traffic Act 1961 (SA) s 47B, s 47DA, s 47E, and s 47G; Motor Vehicles Act 1959 (SA) s 97A; Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A and reg 9, Sch 1; Evidence Act 1929 (SA) s 45C, referred to.
French v Scarman (1979) 20 SASR 333; Police v Mercorella (2003) 87 SASR 218; Police v Modra (2000) 32 MVR 326; Lloyd v Police (2004) 89 SASR 383; Mercorella v Police (2004) 88 SASR 375, considered.
MAXWELL v POLICE
[2005] SASC 101Magistrates Appeal
GRAY J
This is an appeal against conviction.
On 17 November 2004 the appellant, Duncan Fergus Maxwell, was convicted of two offences:
-driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol, contrary to section 47B of the Road Traffic Act 1961 (SA), the alleged concentration of alcohol being 0.085 grams of alcohol in a hundred millilitres of blood;
-failing to produce his driver’s licence in circumstances where he was required to do so, contrary to section 97A of the Motor Vehicles Act 1959 (SA).
Trial before the Magistrate
The prosecution alleged that at about 1.20am on 7 June 2003 the police stopped the appellant at a random breath testing station on Port Road at Hindmarsh. After undergoing an alcotest, which produced a positive reading, the appellant was required to submit to a breath analysis. The appellant supplied two samples of breath. The lower of the two readings obtained on analysis of the two samples was said to have been 0.085 grams of alcohol in 210 litres of breath.
Sergeant Stephen…
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- AGLC
- Maxwell v Police [2005] SASC 101
- Case
- [2005] SASC 101
- Decision Date
CaseChat Overview and Summary
The appeal raised issues concerning the interpretation and application of Division 5 of the Road Traffic Act 1961 (SA), particularly sections 47DA, 47E, and 47G, as well as regulations 8A and 9(1) of the Road Traffic (Miscellaneous) Regulations 1999 (SA). The court considered relevant authorities and section 45C of the Evidence Act 1929 (SA). The appeal also questioned the interpretation of section 97A of the Motor Vehicles Act 1959 (SA).
The court found that the submission misconstrued section 97A. It was not an element of the offence that the appellant was a person ordinarily resident outside the State who was temporarily resident within the State. The appellant had failed to produce any appropriate licence when requested to do so and when driving. The court concluded that the appeal was dismissed, and the conviction and sentence of the magistrate were upheld.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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