Moore v Police No. Scgrg-97-1414 Judgment No. S6448

[1997] SASC 6448

MOORE  v  POLICE

Perry J   (ex tempore)

The appellant appeals against the conviction recorded against him in the Magistrates Court sitting at Port Pirie on a charge that on 18 October 1996 near Crystal Brook he drove while so much under the influence of intoxicating liquor as to be incapable of exercising effective control of his vehicle, a motor car, contrary to s47 of the Road Traffic Act.

A second count on the complaint and summons alleged that on the same occasion he drove with excess concentration of blood alcohol.  That count was withdrawn upon his conviction on the driving under the influence count.
He was convicted on a third count arising out of the same incident namely that he drove without due care.
The appeal is against the conviction on count 1 only, that is to say, on the conviction for driving under the influence.
At the hearing the defendant did not give evidence and relied, through his counsel, on a submission that the evidence called by the complainant failed to establish the charge.
The prosecution evidence was that at some time during the evening of the day in question, after the appellant had finished his work at Crystal Brook, he was travelling on the road between Crystal Brook and Port Pirie.  On nearing Port Pirie, at a distance which was less than five kilometres outside of the town, his vehicle left the bitumen carriageway of the roadway.  It became stuck in loose metal or dirt at the side of the road associated with roadworks which were in progress at the time.
At about 11.45 pm a Mrs Curnow, travelling on the same road, noticed what turned out to be the appellant's car off the roadway with a cloud of dust behind it.  After seeing it she struck a metal bollard associated with the roadworks.  She stopped her car some distance beyond the point at which she had seen the appellant's car, and proceeded to ring the RAA for assistance with respect to the accident and the damage which had been occasioned to her own vehicle.
By chance, a police officer, Constable Arbon, was travelling in the other direction home to Crystal Brook after she had completed work at Port Pirie.  She noticed the appellant's vehicle off the roadway, near a damaged bollard at the side of the road.  She puts the time at about 11.50 pm.
She stopped and walked over to the vehicle driven by the appellant to see if anyone was in the vehicle and whether he or she might need assistance.  She recognised the appellant sitting in the driver's seat and had a short conversation with him.  She thought that he smelt strongly of liquor, that his eyes were bloodshot and that his speech was slurred.  He appeared to be attempting to make a phone call on a mobile telephone, at least he was pushing buttons on the phone.
She asked the appellant, "Are you a bit pissed, mate?"

He said, "Yes."

She said, "Where have you been drinking?"

He said, "Crystal Brook".

He then said, "I'm a truck driver.  I drive up this road every day".

She said, "Were you heading back to Pirie?".

He said, "Yes".

He then went on to say that he was taking some "gear" back to Port Pirie for a mate, and that he was ringing his missus up to get her to come and pick him up.

He did not say anything in the course of his conversation with Constable Arbon, as it was recalled by her, to give any indication as to the time at which he had left the roadway and driven into the position in which she came upon his car.

After her discussion with the appellant, Constable Arbon proceeded on her way.

The evidence clearly established that at 11.45 pm, just before Constable Arbon had come upon the scene, Mrs Curnow had rung the RAA in the circumstances which I have indicated.

Mrs Curnow’s evidence was.

"I was driving from Adelaide to Port Pirie and I noticed a car to my right off the side of the road and a haze of dust behind it.  That sort of took my attention for a second or two."

When asked to describe the haze of dust, she said:

"Just a haze of dust behind the vehicle as if it had just got there or was trying to be moved or something."

She went on to say that the haze of dust was just behind the vehicle, that it was in a big area of loose dirt to do with the roadworks, that it was a "fair cloud" of dust that did not extend back to the road proper.

What is important to note from that passage and the rest of her evidence is that at no time does she say that she saw the vehicle leave the roadway or that she saw it hit a bollard, although she undoubtedly came into collision with a bollard which had been knocked out of the position in which it had been.

Later, at Port Pirie a Constable Nicholson, who had been informed by Constable Arbon that an accident had occurred, travelled to the accident scene.  By the time he came across the appellant's vehicle, which he inspected, there was no-one in the vehicle.  He searched the area around it thinking somebody might have been injured and had left it, but there was no-one to be seen.

In fact from other evidence it is clear by then the appellant was in Port Pirie or was being taken there.

Another officer, Constable Pomeroy, who was on uniform patrol duties with another police officer at about 12.20 am, having been given the registration number of the appellant's car, located an address at Port Pirie said to be the address of the appellant who was shown to be the registered owner.  But on calling at that address, no-one was at home.  He went off to another address, said to be that of the appellant's girlfriend, and he was not there either.

Later, however, the police officers found the appellant in another street in Port Pirie, walking along the footpath.  Constable Pomeroy had a discussion with the appellant, who gave his name, but he gave evasive answers as to whether he owned the vehicle which had been found near the carriageway off the road.

The appellant was taken to the police station where a video record of interview took place.  He did not admit being the driver of the car that night, or throw any light on the circumstances as to how his car came to be in the position first seen by Mrs Curnow or when it got into that position.

The learned Special Magistrate, from what appears to be extempore reasons, summarised the evidence of Mrs Curnow in this way:

"Jemima Curnow told the court that she went halfway between Crystal Brook and Port Pirie, proceeding towards Port Pirie, when she saw a car collide with a road work light a few hundred metres ahead and then saw a cloud of dust behind the vehicle which was 5 or 6 metres off the road.  The car was a Ford, light in colour, and either cream or white.  She said it was about 11.45 pm when she telephoned the police on her mobile phone.  She recognised the vehicle as having over taken her south of the accident scene.  She said the headlights were on at the start but went off."

In my opinion, there are a number of findings in that passage in the learned Special Magistrate's reasons which are not supported by the evidence.  In fact, Mrs Curnow did not say that she saw the appellant's car collide with the road work light; she did not say that his vehicle had overtaken her south of the accident scene; she did not say that the headlights were on at the start, but went off; and it was the RAA who she called on her mobile phone, not the police.

The importance of these findings relate to evidence which was given, to which I have not so far referred, of a breath analysis test which was performed at 1.16 am.  After the video interview to which I have referred, Constable Pomeroy administered a breath analysis test, which indicated the reading of .230 grams per 100 millilitres of blood.

Under s47G the conclusive presumption that the concentration of alcohol revealed by the breath analysis was present in the defendant's blood applies to a period of two hours immediately preceding the analysis.

The difficulty in this case is that although I think that it was proved beyond reasonable doubt that Mrs Curnow collided with a bollard shortly before 11.45, and at that time rang the RAA, her evidence does not establish, contrary to the finding made by the learned Special Magistrate, that when she first saw the appellant's car, it was being driven, that is, that it was moving as opposed to being in a stationary position.  True it is that she saw a cloud of dust behind it, but it was then off the roadway and a cloud of dust could easily be produced in a situation where a driver, whose car has become bogged, is endeavouring to move it out and away.

Furthermore, as Mr McGee, who appeared both before the learned Special Magistrate and before me on the hearing of the appeal, argued, it is at least possible that the appellant had got into that position much earlier in the evening, outside the two hour period and had returned to his car later, at a time when endeavouring to extricate it, which might have been when Mrs Curnow saw the cloud of dust.

Taking the evidence at its highest, it falls short of proving beyond reasonable doubt that any relevant act of driving of the vehicle by the appellant took place within the two hour period.

In reaching that view, regard must be had to the particulars furnished by the prosecution before the hearing.  In those particulars, the prosecution identifies the act of driving associated with the charge of driving under the influence as follows:

"Your client (the appellant) drove his vehicle generally in a northerly direction along National Highway One near Crystal Brook when his vehicle left the road, crashing through metal bollards, becoming stuck in the dirt."

In those circumstances, the evidence of the breath analysis and the high reading which it gave did not advance the prosecution case in the sense that the presumption extending over the period of two hours could not apply, beyond reasonable doubt, to the time that the appellant might have driven his car off the road.

It seems to me that in those circumstances the complainant's case boiled down to the observations made by Constable Arbon and the fact that the appellant had apparently left the carriageway of the roadway, ending up in the position in which she came upon him.

The evidence of the subsequent breath analysis at 1.16 am remained admissible, but the statutory presumption did not, for the reason which I have indicated, assist the prosecution.  Even putting that together with the evidence of the condition in which constable Arbon found the appellant, it was not, in my opinion, sufficient to prove beyond reasonable doubt the charge that he was at the time of the relevant act of driving of the vehicle, as particularised, so affected by liquor as to be incapable of exercising effective control of his motor car.  I think it likely that he was.  If the case depended on proof on the balance of probabilities, the evidence would have sustained a conviction.  But equally, I am satisfied that it could not be taken to sustain a conviction beyond reasonable doubt.

The appeal, therefore, must be allowed as to the conviction recorded on count one.  I so order.  The conviction and penalty imposed with respect to that count are quashed.

The other orders and penalties imposed by the learned special magistrate will remain in all force and effect.

[FOLLOWING FURTHER SUBMISSIONS BY COUNSEL]

HIS HONOUR:  I order that the matter be remitted to the learned Special Magistrate to deal with the question of the costs of the hearing before him and court fees and levy, in the light of my order allowing the appeal.

I order the respondent to pay to the appellant the costs of and incidental to the appeal, which I fix at $150.