1 OLSSON J I have had the benefit of reading, in draft, the reasons expressed by Gray J. I agree with the substance of them and the orders which he proposes.
2 WICKS J I agree.
3 GRAY J The defendant was charged with offences against the Road Traffic Act1961 (as amended) of speeding and driving with more than the prescribed concentration of alcohol in his blood[1]. He pleaded not guilty and the trial proceeded before a stipendiary Magistrate. He was convicted on both charges. Prior J dismissed an appeal against the convictions. The defendant has appealed with leave to this Court.
[1] The complaint was in the following terms:-
(1) On the 10th day of June 1998 at near Inkerman in the said State drove a motor vehicle on a road namely Port Wakefield Road while there was present in his blood the prescribed concentration of alcohol as defined in Section 47a of the Road Traffic Act, 1961. It is further alleged that the concentration of alcohol was .101 grams in a hundred millilitres of blood.
(2) On the 10th day of June 1998 at near Inkerman in the said State drove a
vehicle on a road namely Port Wakefield Road within a speed zone at a greater
speed than the speed fixed for that zone and indicted by a sign erected under and which
complied with the requirements of this Act Section 50 of the Road Traffic Act, 1961. And the
complainant alleges that the sign erected indicated a speed of 110 kilometres an hour and that
the speed of the said vehicle was about 160 kilometres an hour.
4 The appeal raises three principal issues. First, the Magistrate misconstrued the nature and effect of the evidence, erred in his findings of fact, and in his process of reasoning. Second, the Magistrate failed to give adequate reasons for his rejection of the evidence of the defendant and his witness and his acceptance of the police witnesses. The defendant has given notice that the correctness of the decision of this Court in Lawson v Lee[2] is challenged. Finally, it is said that the Magistrate failed to exercise a discretion to exclude evidence of the breath analysis test, by reason of the unlawful and improper conduct of the police.
5 The prosecution case was that Senior Constable Thomson was on duty as the driver of an unmarked police vehicle with Constable Hall. Whilst travelling south on the Port Wakefield to Adelaide highway, Senior Constable Thomson observed a vehicle travelling well in excess of the speed limit of 110 kph, north towards Port Wakefield. He observed the vehicle to be a high speed variant VT Commodore, either a SS or a Holden Special Vehicle. He made a U-turn as soon as practicable and pursued the vehicle at speeds of up to 190 kph. He took up a position to the…
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
AGLC
Papps v Police [2000] SASC 183
Case
[2000] SASC 183
Decision Date
CaseChat Overview and Summary
The defendant, Papps, was charged with speeding and driving with a prescribed concentration of alcohol in his blood under the Road Traffic Act 1961. He pleaded not guilty and was convicted by a stipendiary Magistrate, but Prior J dismissed the appeal against those convictions. Papps appealed to the South Australian Supreme Court, raising three main issues: the Magistrate misconstrued the evidence and made incorrect findings of fact, the Magistrate failed to give adequate reasons for rejecting the defendant's evidence and accepting the police witnesses, and the Magistrate failed to exercise a discretion to exclude evidence of the breath analysis test due to unlawful police conduct. The police alleged that Senior Constable Thomson observed Papps driving at 160 km/h in a 110 km/h zone, and that a breath test showed Papps had 0.101 grams of alcohol in 100 ml of blood. Papps claimed he was not speeding and that he was not the driver observed by the police. The Court found that the Magistrate erred in failing to properly consider the issue of credit and in not giving adequate reasons for rejecting the defendant's evidence. This amounted to an error of law, as established by Australian case law, and frustrated the appellate court's ability to perform its functions. As both errors went to the issue of credit, the appeal was allowed and the matter was remitted for a further trial.