Police v Cargill No. Scgrg-00-795 - [2000] SASC 336

[2000] SASC 336

POLICE V CARGILL

Magistrates Appeal: Criminal (Ex Tempore)

1................ LANDER J...... The respondent was charged on complaint with four offences, all of which were said to have been committed at the same time, on 28 January 2000. First, that he drove a motor vehicle whilst he was under the influence of intoxicating liquor, contrary to s 47 of the Road Traffic Act 1961; secondly, that he drove a motor vehicle whilst there was present in his blood, the prescribed concentration of alcohol; thirdly, that he drove a motor vehicle in contravention of a condition endorsed upon his licence pursuant to s 81A of the Motor Vehicles Act 1959; namely that whilst driving the said motor vehicle there was present in his blood, the prescribed concentration of alcohol as defined in s 81A(1)(a) of the Motor Vehicles Act; fourthly, that he drove the motor vehicle without due care.

The respondent appeared in the Magistrates Court unrepresented. He has also appeared on this appeal unrepresented.
In the Magistrates Court the Prosecutor asked the Magistrate for the first and third charges to be read, intending on the respondent pleading guilty to those charges, to withdraw counts two and four. The learned Magistrate said at that stage that count three should not be read, because it was duplicitous. Count one was read and the respondent pleaded guilty. The Magistrate then convicted the defendant on that count and fined him $1,200 and disqualified him from holding or obtaining a driver’s licence for a period of three years, the licence disqualification to commence forthwith. The Prosecutor then withdrew counts two and four, but informed the Magistrate that she did not seek leave to withdraw count three on the complaint. The Magistrate then dismissed count three.
The appellant appeals against the Magistrate’s dismissal of count three on the complaint.
At the time that the respondent committed the offence to which he pleaded guilty, namely driving a vehicle on a road whilst under the influence of intoxicating liquor, the respondent was the holder of a provisional licence. It was a condition of that licence that he not drive a motor vehicle, or attempt to put a motor vehicle in motion whilst the prescribed concentration of alcohol was present in his blood, s 81A(1)(ca). The prescribed concentration of alcohol was defined in s 81A(1)(a) of the Motor Vehicles Act, which means any concentration of alcohol in the blood.
The clear intention of the legislation is that the holder of a provisional licence should drive with no blood alcohol in his system and if tested, record a zero blood alcohol reading, otherwise be in contravention of a condition of the licence.
Section 81A(5) of the Motor Vehicles Act makes it an offence to contravene a condition of a provisional licence and provides for a maximum penalty of $1,250.
Section 81B(2) of the Motor Vehicles Act requires the Registrar of Motor Vehicles, on becoming aware of a provisional licence holder contravening a prescribed condition of…

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: [2000] SASC 336
Decision Date: 10 October 2000

CaseChat Overview and Summary

The case of Police v Cargill No. Scgrg-00-795 involves the respondent, who was charged with four offences stemming from an incident on 28 January 2000. The charges included driving under the influence of intoxicating liquor, driving with the prescribed concentration of alcohol in his blood, driving in contravention of a condition endorsed on his licence, and driving without due care. The respondent appeared unrepresented before the Magistrates Court and subsequently on appeal. The Magistrate dismissed the third charge due to perceived duplicity, and the Prosecutor withdrew the second and fourth charges after the respondent pleaded guilty to the first charge. The Prosecutor appealed against the dismissal of the third charge.

The central legal issue before the court was whether the third charge of driving in contravention of a condition endorsed on the respondent's licence, specifically the prohibition on driving with alcohol in his blood, should have been allowed to proceed. The court examined whether the third charge was a separate offence from the first charge of driving under the influence of intoxicating liquor. Additionally, the court needed to determine whether allowing the third charge to proceed would constitute double punishment for the same conduct.

The court found that the third charge constituted a separate and distinct offence from the first charge. The legislation clearly intended provisional licence holders to drive without any alcohol in their system. Contravening this condition results in specific penalties under the Motor Vehicles Act, such as disqualification from holding or obtaining a licence and the requirement to attend a lecture. The court reasoned that Parliament intended provisional licence holders to be treated differently, with additional penalties under the Motor Vehicles Act for contravening licence conditions. The court held that allowing the third charge to proceed did not amount to double punishment, as the offences had different gravamen and were based on different statutory provisions. Consequently, the appeal was allowed, and the order dismissing the third count was set aside. Since the Prosecutor agreed not to tender evidence, the third count was dismissed.

The final orders of the court were: the appeal was allowed, the order dismissing count 3 was set aside, upon the appellant tendering no evidence, the third count was dismissed, and there was no order as to costs.

Orders