Patrick John Sikorski v Peter Gritsch - [2002] ACTSC 55

PATRICK JOHN SIKORSKI v PETER GRITSCH
[2002] ACTSC 55 (6 June 2002)

CATCHWORDS

APPEAL – “driving with prescribed content of liquor” - whether information under s 19(1) of the Road Transport Alcohol and Drugs Act 1977 was correctly so laid.
APPEAL – conflicting evidence before Magistrate – Magistrate found all witnesses reliable – whether conflict between witnesses could be resolved only by hypothesis of guilt.

Road Transport (Alcohol and Drugs) Act 1977, s 19

Magistrates Court Act 1930, Pt 11, s 28

Supreme Court Act 1930, s 20

State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; [1999] HCA 3

Kelly v Apps (2000) 98 FCR 101; [2000] FCA 687

McLachlan v Mackey (1994) 124 ACTR 1; 119 FLR 332

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 85 of 2001

Judge: Miles CJ
Supreme Court of the ACT
Date: 6 June 2002

IN THE SUPREME COURT OF THE  )
  )  No. SCA 85 of 2001
AUSTRALIAN CAPITAL TERRITORY  )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:PATRICK JOHN SIKORSKI
Appellant

AND:PETER GRITSCH
Respondent

ORDER

Judge:  Miles CJ
Date:  6 June 2002
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be allowed, the conviction set aside and the information be dismissed.

The respondent pay the appellant’s costs of the appeal and in the Magistrates Court.

This is an appeal against a conviction in the Magistrates Court on 23 October 2001 in which the appellant was charged on an information in the following terms.

“That he in the Australian Capital Territory on 14 June, 2001, did drive a motor vehicle, in a public place, with level 4 or more alcohol in his blood.”

The information identified s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (the Act) as the Act and section under which the proceedings were taken or the charge was laid. For reasons which will appear, the whole of the section is relevant. It provides:

“19 Prescribed blood alcohol concentration exceeded
(1)A person who-
(a)has been the driver of a motor vehicle on a public street or in a public place; and
(b)has, within the relevant period, a concentration of alcohol in his or her blood equal to or more than the prescribed concentration;

commits an offence punishable, on conviction, by a penalty ascertained in accordance with section 26.
(2)In proceedings for an offence against subsection (1), evidence may be given of the concentration of alcohol in the person’s blood as determined by-
(a)an analysis of a sample of the person’s breath or blood carried out in accordance with this Act; or
(b)any other analysis.

(3)In subsection (1)(b):
relevant period means the period commencing when the person ceased to be the driver of the vehicle and ending at the latest time at which-
(a)a breath analysis of the person may be carried out in accordance with this Act; or
(b)where section 15 or 15AA applies –…

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 Patrick John Sikorski v Peter Gritsch

Details

AGLC: Patrick John Sikorski v Peter Gritsch [2002] ACTSC 55
Case: [2002] ACTSC 55
Decision Date

CaseChat Overview and Summary

The appeal in Patrick John Sikorski v Peter Gritsch was heard in the Supreme Court of the Australian Capital Territory. The appellant, Patrick Sikorski, appealed against his conviction in the Magistrates Court, where he was found guilty of driving with a blood alcohol level exceeding the prescribed limit. The conviction was based on an information that Sikorski drove a motor vehicle in a public place with a blood alcohol concentration of 4 or more on 14 June 2001. The only issue argued in the appeal was whether the Magistrate should have found that Sikorski was the driver of the vehicle at the relevant time. The appeal was brought pursuant to Part 11 of the Magistrates Court Act 1930, which allows for a re-hearing on the evidence before the Magistrate.

The court considered the conflicting evidence presented by the witnesses, including the accounts of Belinda Rogers, Lindsay Murphy, and Alan Muggridge. The court found that the Magistrate had accepted the evidence of all three witnesses and attempted to reconcile the differences by a hypothesis that Muggridge drove the appellant to the camping area at an earlier stage during the afternoon, leaving sufficient time for someone to drive the vehicle back to a position outside Rogers' caravan, without her or Murphy noticing either the absence of the vehicle or its return. However, the court found this hypothesis to be substantially more unlikely than the hypothesis that neither Rogers nor Murphy noticed all that went on outside the caravan that afternoon and failed to see Muggridge get into the car and drive off towards the camping area, by which stage the appellant was inside the vehicle, possibly lying on the passenger seat unseen.

Furthermore, the court found another difficulty in relation to the time in which Sikorski is alleged to have driven the car and the time at which it was established that his blood sample contained an excessive quantity of alcohol. The court found that it was incumbent on the prosecution to establish beyond reasonable doubt that Sikorski had been the driver of the vehicle in a public place and the time at which he ceased to be the driver of the vehicle. However, the evidence was not clear enough for it to be found established beyond reasonable doubt that the test was administered during the "relevant period."

For these reasons, the appeal was allowed, the conviction set aside, and the information dismissed. The respondent was ordered to pay the appellant's costs of the appeal and in the Magistrates Court.

Orders