Police v Berry - [2014] SASC 33

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BERRY
[2014] SASC 33
Judgment of The Honourable Justice Blue
13 March 2014
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN BLOOD - SENTENCE AND PENALTY
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal by the Police against order for disqualification of drivers licence.
The defendant pleaded guilty in the Magistrates Court to driving a motor vehicle while there was present in his blood 0.104 milligrams of alcohol in 100 millilitres of blood. The defendant had consumed around ten alcoholic drinks over the course of the night. Immediately before driving, he blew into a personal hand held breathalyser which returned a reading of 0.04. He had been told that the instrument had a margin of error of 0.01.
The Magistrate found that the offence was trifling within the meaning of section 47B(3)(b) of the Road Traffic Act 1961 (SA) and reduced the prescribed minimum period of disqualification from six to two months.
The Police appeal against the order for disqualification on the ground that the Magistrate erred in finding that the offence was “trifling”.
Held (allowing the appeal):
1. In assessing whether a contravention of section 47B is “trifling”, the decision of the Full Court in Siviour-Ashman v Police requires that relatively little weight be given to the defendant’s state of mind compared to the weight given to the objective circumstances of the offence (at [21]).
2. The Magistrate erred in concluding that in the circumstances the offence was “trifling” (at [22]-[23]).
3. Appeal allowed. Order of disqualification set aside. Defendant to be re-sentenced to disqualification for at least six months (at [24]).
Road Traffic Act 1961 (SA) ss 30, 47B(1), 47B(3)(b), referred to.
Siviour-Ashman v Police [2003] SASC 29; (2003) 85 SASR 23, applied.
August v Fingleton [1964] SASR 22; Dayman v Proudman [1941] SASR 87; Proudman v Dayman (1941) 67 CLR 536, discussed.
CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440; He Kaw Teh v R (1985) 157 CLR 523, considered.

POLICE v BERRY
[2014] SASC 33
Magistrates Appeal: Criminal
BLUE J:

This is an appeal against an order for disqualification of a drivers licence by a Magistrate.
The appellant/complainant Police appeal against an order by a Magistrate that the respondent/defendant Adam Berry be disqualified from holding or obtaining a drivers licence for two months, being less than the prescribed minimum of six months, because the offence was trifling.[1]
[1] Road Traffic Act 1961 (SA) s 47B(3)(b).
The defendant pleaded guilty in the Magistrates Court to driving a motor vehicle on 24 August 2013 while there was present in his blood the prescribed concentration of alcohol, namely 0.104 milligrams of alcohol in 100 millilitres of blood.[2] The defendant gave evidence that, immediately before driving, he blew into a personal handheld breathalyser which returned a reading of 0.04…

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: [2014] SASC 33
Decision Date

CaseChat Overview and Summary

The Police appealed against the order for disqualification on the ground that the Magistrate erred in finding that the offence was “trifling” within the meaning of section 47B(3)(b) of the Road Traffic Act 1961 (SA). The issue before the court was whether the Magistrate erred in concluding that the offence was trifling. The court considered the meaning of “trifling” in section 47B(3)(b) of the Act and held that the Magistrate had erred in concluding that the offence was trifling. The court found that the offending conduct must be given very substantial weight and the defendant’s state of mind and belief is of very limited significance and is to be given little weight. Therefore, the Magistrate’s conclusion that the offence was trifling was incorrect.

The court found that the Magistrate had erred in his conclusion that the offence was trifling. The court found that the defendant had an honest and conscientious belief that he was under 0.05 based upon the reading given by his personal breath testing device. However, the court found that the defendant’s belief was of very limited significance and should be given little weight. The court found that the offending conduct must be given very substantial weight and the defendant’s state of mind and belief is of very limited significance and is to be given little weight. Therefore, the Magistrate’s conclusion that the offence was trifling was incorrect. The appeal was allowed, and the order of disqualification by the Magistrate was set aside. A fresh period of disqualification for at least six months will need to be imposed.

Orders

Orders of the court

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Background

Background to the litigation

The Police appeal against the order for disqualification on the ground that the Magistrate erred in finding that the offence was “trifling” within the meaning of section 47B(3)(b) of the Road Traffic Act 1961 (SA) (“the Act”).Background On Friday 23 August 2013 at 9.00 pm, the defendant went to a friend’s residence and then to a hotel. He drank beer followed by mixed spirits. He did not recall how many drinks he consumed but estimated that it was two drinks of beer followed by eight to ten scotch and dry drinks. At about 4.30 am, he stopped drinking alcohol and started drinking water.[3][3] There was some confusion on the evidence before the Magistrate as to when the defendant stopped drinking alcohol. However, it is common ground on appeal that this was about half an hour before he left the hotel. At about 5.00 am, the defendant got into his vehicle and blew into his personal breath testing device. He gave evidence that it showed a reading of 0.04 and that he believed that he was below the limit. He gave evidence that the instructions which came with the device said it had a margin of error of 0.01 and it should only be used as a guide. At about 5.10 am, the defendant was stopped by a mobile random breath testing patrol in Victoria Square, Adelaide. He was subjected to a breath analysis test which returned a reading 0.104.The reasoning of the Magistrate In his remarks on penalty, the Magistrate said that the defendant had an honest and conscientious belief that he was under 0.05 based upon the reading given by his personal breath testing device. The Magistrate concluded that in all the circumstances it was a trifling matter, not so trifling as to reduce the disqualification to one month, but the disqualification period should be reduced to two months.The meaning of trifling In Siviour-Ashman v Police,[4] the Full Court considered the meaning of the word “trifling” in section 47B(3)(b) of the Act. Doyle CJ (Besanko J agreeing) said:I agree with the Judge that one should begin by bearing in mind the ordinary meaning of “trifling”. That meaning in this context is trifling in the sense of being of slight importance, insignificant or of little moment.[5]Siviour-Ashman arrived at a hotel at 11.00 pm and left at about 3.30 am. Over that period, she consumed three standard drinks of mixed spirits. Shortly before she left, she asked the barman for a glass of water. He offered her instead a fruit drink which she consumed. Unbeknown to her, the drink contained alcohol. She would not have accepted the drink if she had known that it contained alcohol. If she had not consumed the fruit drink, her blood alcohol reading at the relevant time would have been less than 0.05. She drove home and was stopped by police at a random breath testing station at about 4.10 am. Her blood alcohol reading was 0.12. The Full Court (Mulligan J dissenting) held that, where an offence is one of strict liability, in assessing whether the offence is trivial, the offending conduct must be given very substantial weight and the defendant’s state of mind and belief is of very limited significance and is to be given little weight.[6][4] [2003] SASC 29; (2003) 85 SASR 23.[5] Ibid at [24].[6] Ibid at [43] per Doyle CJ (Besanko J agreeing).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In these circumstances, the Magistrate erred in his conclusion that the offence was trifling.Conclusion I allow the appeal. I set aside the order of disqualification by the Magistrate. A fresh period of disqualification for at least six months will need to be imposed. I will hear the parties as to what order should be made in lieu of the Magistrate’s order.

Ratio Decidendi

Legal Principle Established

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