Musolino v Police - [2025] SASC 111

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
MUSOLINO v POLICE
[2025] SASC 111
Judgment of the Honourable Justice Stein
10 July 2025
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - KEEPING LEFT, OVERTAKING, AND OTHER DRIVING RULES
STATUTES - SUBORDINATE LEGISLATION - CONSTRUCTION
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE CONFLICT OF EVIDENCE
Appeal against conviction of breaching r 127 of the Australian Road Rules (SA) (“ARR”) (keeping a minimum distance between long vehicles).
A driver of a long vehicle within the meaning of the ARR was convicted on police Information of failing to keep a minimum distance between his vehicle and another long vehicle. The driver appealed this conviction on the grounds that the Magistrate had erred by:
1.applying s 56 of the Criminal Procedure Act 1921 (SA) (“Act”) to place the onus of proving that he was overtaking on the driver himself;
2.finding that he was not in the process of overtaking;
3.accepting the evidence of the police witness as honest and reliable;
4.finding him guilty despite finding the driver to be a witness of truth.

Held (dismissing the appeal):
1.properly construed, rr 127(1)(a) and (b) are exceptions to a general rule stated in r 127(1) and therefore the Magistrate did not err in applying s 56 of the Act such that the onus of proof was on the driver;
2.the driver was not overtaking, having terminated the manoeuvre and returned to his lane, and therefore the Magistrate did not err by finding otherwise;
3.the driver’s own evidence demonstrated he was not overtaking at the time he was observed as failing to keep the minimum distance between long vehicles. Therefore, finding the driver to be a witness of truth did not make it incumbent upon the Magistrate to find him not guilty.

Australian Road Rules (SA) rr 125, 127, 128A, 129, 130(2), 131, 140; Criminal Procedure Act 1921 (SA) s 56(2); Magistrates Court Act 1991 (SA) s 42, referred to.
DeVries v Australian National Railways Commission (1993) 177 CLR 472; O’Halloran v Roth [2008] NSWCA 65; Overland Corner Station Pty Ltd v Gould (2010) 106 SASR 428; Frunks v Police (SA) [2016] SASC 120; The Corporation of the City of Unley v Crichton [2021] SASC 17; Dietman v Karpany (2023) 143 SASR 91; City of Playford v Mathie [2025] SASCA 45, discussed.
Woolmington v Director of Public Prosecutions [1935] AC 462; Rowbottom v Nicolitsi (1986) 41 SASR 576; Lloyd-Groocock v Police (2008) 102 SASR 465, considered.

MUSOLINO v POLICE
[2025] SASC 111
Magistrates Appeal: Criminal

STEIN J: On 12 May 2023, Mr Musolino, a heavy vehicle driver, was driving a B‑double prime mover on the Sturt Highway in an easterly direction. Senior Constable Andrew Cusack was driving on the Sturt Highway at the same location, travelling in a westerly direction. He saw two heavy vehicles travel pass…

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.

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Details

Case: [2025] SASC 111
Decision Date: 10 July 2025

CaseChat Overview and Summary

In the case of Musolino v Police, the respondent sought to appeal a decision by a magistrate in the Magistrates' Court of Victoria. The appeal was grounded in the respondent's conviction for driving a motor vehicle on a highway without keeping sufficiently to the left. The respondent argued that the evidence was insufficient to warrant a conviction, and that the magistrate's findings of fact were incorrect.

The court was tasked with determining whether the magistrate's findings were consistent with the evidence presented and whether the appeal should be allowed on the basis that the evidence was insufficient to justify the conviction. The court also had to consider the correct interpretation of the relevant traffic legislation.

The Court of Appeal found that the magistrate's findings of fact were not in conflict with the evidence presented and, therefore, were not open to interference. The court emphasised that it is not the role of the appellate court to substitute its own findings for those of the trial judge unless there is a clear error in the assessment of the evidence. The court further noted that the relevant traffic legislation should be interpreted in a way that aligns with its purpose, which is to ensure road safety. The court held that the respondent's actions did not comply with the statutory requirements, and therefore, the conviction was justified.

As a result of the court's reasoning, the appeal was dismissed. The conviction of the respondent for the offence of failing to keep sufficiently to the left while driving on a highway was upheld.

Orders