MUNN v Police

Case [2017] SASC 173

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

MUNN v POLICE

[2017] SASC 173

Judgment of The Honourable Justice Parker

23 November 2017

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - OTHER MATTERS

This is an appeal against conviction for two offences against s 47E of the Road Traffic Act 1961 (SA).

Count 1 alleged the appellant had failed to comply with a direction given by a police officer to stop her vehicle for the purpose of requiring her to submit to an alcotest or breath analysis under s 47E(2). Count 2 alleged that the appellant had refused to comply with a direction of a police officer in relation to the requirement to submit to breath analysis contrary to s 47E(3).

There are two issues in the appeal.  First, whether the magistrate gave sufficient reasons to support the finding of guilt with respect to count 1. Secondly, whether a panic attack allegedly suffered by the appellant rendered her unable to comply with police directions.

Held, per Parker J:

1. The magistrate gave sufficient reasons to support his finding that the appellant knew the police were directing her to stop her vehicle, at [93].

2. The magistrate was led into error when he considered whether the appellant had established on the balance of probabilities, that she had a good cause under s 47E(4)(b) for refusing or failing to comply with the police direction. Instead, the question was whether, in accordance with R v Falconer (1990) 171 CLR 30 and Meertens v Falkenberg (1981) 43 SASR 307, the prosecution had proved beyond reasonable doubt, that the appellant understood the police direction and had wilfully refused or failed to comply, at [75].

3.  The appeal against conviction on count 1 is dismissed. The appeal against conviction on count 2 is upheld and the matter is remitted for retrial before a different magistrate.

Road Traffic Act 1961 (SA) s 47E, referred to.
R v Falconer (1990) 171 CLR 30; Meertens v Falkenberg (1981) 43 SASR 307; (1981) 92 LSJS 202, applied.
Jasinski v Police (2004) 41 MVR 117; [2004] SASC 183, distinguished.
Police v Ghuede (2007) 99 SASR 280; Police v Barber (2010) 108 SASR 520; Czerwinski v Hayes (1987) 47 SASR 44; Police v Lester (2013) 63 MVR 67; [2013] SASC 28; Rejman v Dunsmore (1983) 32 SASR 151; Police v Pearce [2013] SASC 181; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, discussed.

MUNN v POLICE
[2017] SASC 173

Magistrates Appeal:  Criminal

  1. PARKER J:         This is an appeal against conviction for two offences against s 43E of the Road Traffic Act 1961 (SA) (‘the Act’). A central issue in the appeal is whether a panic attack allegedly suffered by the appellant rendered her unable to comply with directions given by police to submit to a breath test.

  2. Count 1 alleged that the appellant had failed to…

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MUNN v Police [2017] SASC 173
Case
[2017] SASC 173
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CaseChat Overview and Summary

In the matter of Munn v Police, the appellant was appealing against her convictions and penalties in the Magistrates Court of South Australia. The appellant was convicted of failing to stop for a police officer, and of driving while over the legal alcohol limit. The police alleged that the appellant failed to stop her vehicle when directed to do so by two police officers who were in pursuit of her vehicle due to its high speed and noise. The appellant was also alleged to have recorded a blood alcohol concentration of 0.163% following an alcotest. The legal issues before the court were whether the magistrate gave adequate reasons for his implicit conclusion that the prosecution had established that the appellant knew that the relevant vehicle was a police car and that she was being directed to stop, and whether the appellant's convictions and penalties were appropriate.

The court found that the magistrate did give sufficient reasons for rejecting the explanation given by the appellant. The court accepted that after three attempts by the police to get the appellant to stop, which involved the police car moving in behind her vehicle while flashing red and blue lights, sounding the siren and flashing its lights on high beam, the appellant must have known it was the police whom were requiring her to stop. While it would have been preferable for the magistrate to state expressly how he reached his finding of guilt on count 1, the court found that there was sufficient information contained in his ex tempore judgment to understand how he reached that conclusion. The court also found that the penalty imposed by the magistrate was appropriate.

The appeal against conviction on count 1 was dismissed, and the appeal against conviction on count 2 was upheld. The parties were to be heard as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

No penalty was imposed in respect of count 1. In respect of count 2, the appellant was disqualified from holding a driver’s licence for two years and seven months. The magistrate took into account that the appellant had previously served a disqualification of five months under the instant loss of licence provisions. There is no appeal against penalty.The evidence At about 2:00 am on 25 October 2015, the attention of two police officers, Senior Constable First Class Kym Anthony and Senior Constable Alan Flaherty, was drawn to the appellant’s vehicle which was travelling east on Wakefield Street. According to the police officers, the vehicle appeared to be travelling at high speed and making a noise. The police followed the appellant with the intention of requiring her to stop and submit to an alcotest. The appellant’s vehicle turned right from Wakefield Street into Pulteney Street and headed south with the police following her in a cage car. The police activated the flashing red and blue emergency lights on their vehicle, sounded the siren and flashed the high beam lights. The appellant travelled along Pulteney Street into Unley Road. While the appellant was driving along Pulteney Street and Unley Road the police made three attempts to cause the appellant to stop her vehicle. She commenced to pull over on each occasion while the police vehicle stayed behind her car and slightly to the outside of it. However, each time after slowing down she proceeded to drive on. Ultimately, she turned left into Clyde Street, Parkside. This is a dead end street and the only option is to turn into the car park of a hotel. The police allege that the appellant did not stop her vehicle immediately but circled in the car park (which she denies). The police officers approached the appellant’s vehicle. The appellant complied with a request to get out of her car and to produce her driver’s licence. Senior Constable Anthony directed her to submit to an alcotest. He stated that the appellant appeared to be a little confused, had slow speech, sounded sleepy and smelled of alcohol. Senior Constable Flaherty stated that she appeared intoxicated, smelled of alcohol and was unsteady in her movements. Nevertheless, the appellant had no difficulty in complying with the directions given by Senior Constable Anthony relating to the alcotest. She recorded a blood alcohol concentration of 0.163%. That is merely an indicative reading. Following the positive alcotest reading, and as directed by the police, the appellant accompanied them in the police vehicle to the Grenfell Street police station so as to enable the administration of a breath analysis test. The dealings between the police officers and the appellant from soon after her arrival at the police station were recorded and filmed. A copy of the sound and visual recording (‘the Recording’) was submitted in evidence to the Magistrates Court and viewed by the magistrate. A transcript of the Recording was also provided. The appellant accepted the accuracy of the Recording. As requested by the respondent, I have viewed and listened to the Recording. It is on two discs and runs for a total of 52 minutes and 54 seconds.

Decision

Reasons for decision

The issue is whether or not the magistrate gave adequate reasons for his implicit conclusion that the prosecution had established that the appellant knew that the relevant vehicle was a police car and that she was being directed to stop. I consider that the magistrate did give sufficient reasons for rejecting the explanation given by the appellant. To the extent that her defence relied upon a panic attack, his Honour expressly rejected that explanation. It is also apparent in the magistrate’s reasons that after three attempts by the police to get the appellant to stop, which involved the police car moving in behind her vehicle while flashing red and blue lights, sounding the siren and flashing its lights on high beam, his Honour accepted that she must have known it was the police whom were requiring her to stop. While it would have been preferable for the magistrate to state expressly how he reached his finding of guilt on count 1, I consider that there is sufficient information contained in his ex tempore judgment to understand how he reached that conclusion. I dismiss the appeal against conviction on count 1.Conclusion I dismiss the appeal against conviction on count 1 and uphold the appeal against conviction on count 2. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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