Maxwell v Police - [2005] SASC 101

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 101
Magistrates 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…

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 Maxwell v Police

Details

AGLC: Maxwell v Police [2005] SASC 101
Case: [2005] SASC 101
Decision Date: 23 March 2005

CaseChat Overview and Summary

The appellant in this matter, Maxwell, appealed his conviction by a 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 when required. The appeal was based on the grounds that the magistrate had erred in finding that the relevant provisions of the Road Traffic Act 1961 (SA) had been complied with and that the elements of s 97A of the Motor Vehicles Act 1959 (SA) had been proved beyond reasonable doubt.

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This submission misconstrues section 97A. It is 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 failed to produce any appropriate licence when requested to do so and when driving.Conclusion This appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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