Police v Ghuede

Case [2007] SASC 351

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v GHUEDE

[2007] SASC 351

Judgment of The Honourable Justice Vanstone

27 September 2007

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA

Appeal by police against acquittal by reason of mental incompetence of refusing to submit to an alcotest under s 47E Road Traffic Act - appellant argues s 47E impliedly excludes application of Part 8A Criminal Law Consolidation Act such that mental incompetence defence not available - whether Parliament's intention to exclude Part 8A is evinced by the language or content of s 47E. Held: mental incompetence defence available in defence of charge of refusing to submit to an alcotest - appeal dismissed.

Criminal Law Consolidation Act 1935 Part 8A; Road Traffic Act 1961 s 47E, s 47EAA, referred to.
Meertens v Falkenberg (1981) 92 LSJS 202, applied.
Bottomley v Symons (1982) 31 SASR 18; Daire v Rollins (1982) 30 SASR 156; Bormann v Coldwell (1986) 43 SASR 297; Czerwinski v Hayes (1987) 47 SASR 44, discussed.
Police v Wilkey (2004) 89 SASR 460, considered.

POLICE v GHUEDE
[2007] SASC 351

Magistrates Appeal

Criminal

VANSTONE J:

Introduction

  1. A magistrate found that the respondent was not guilty of refusing to submit to an alcotest by reason of mental incompetence.  The appellant argues that the mental incompetence provisions of the Criminal Law Consolidation Act 1935 (“CLCA”) have no work to do in respect of this offence, as the section creating the offence provides what is effectively a code, stipulating the only criteria upon which a refusal to submit to an alcotest on the basis of a medical condition can be excused.

    Background

  2. The respondent was charged on complaint with a number of offences including speeding and driving without due care. These followed his arrest after a high speed pursuit by police. Upon apprehension the police required him to submit to an alcotest. The respondent refused and was charged with an offence against s 47E(3) Road Traffic Act 1961 (“RTA”) in these terms:

    Count 6.On the second day of April 2002 at Bordertown in the said state being a person who was required under section 47E of the Road Traffic Act 1961 to submit to an alcotest refused to comply with all reasonable directions of a member of the Police Force in relation to the requirement.

  3. Before the magistrate the objective elements of the offences were not in dispute. Psychiatric evidence was provided to the effect that at the time of all the charged conduct the respondent was in a psychotic state consequent upon the condition of schizophrenia. In respect of all the charges, bar count 6, the prosecution accepted that the respondent was not mentally competent at the time of the conduct and should be dealt with in accordance with Part 8A CLCA, being the mental impairment provisions.

Continue reading Police v Ghuede

Sign in free to access the full text

Details
AGLC
Police v Ghuede [2007] SASC 351
Case
[2007] SASC 351
Decision Date

CaseChat Overview and Summary

The appeal by the police against the acquittal of the respondent on the basis of mental incompetence in a refusal to submit to an alcotest was heard in the Supreme Court of South Australia. The respondent, who was charged with multiple offences including speeding and driving without due care, was found to be not guilty of the charge related to refusing to submit to an alcotest due to mental incompetence. The police contested this acquittal, arguing that the mental incompetence provisions of the Criminal Law Consolidation Act 1935 should not apply to the offence under section 47E of the Road Traffic Act 1961, and that the respondent should not be able to raise a defence of mental incompetence.

The legal issue before the court was whether the Parliament intended to exclude the application of Part 8A of the Criminal Law Consolidation Act 1935 when it enacted section 47E of the Road Traffic Act 1961, and if so, whether this intention could be inferred from the language or content of section 47E. The police argued that the language of section 47E, which outlines specific conditions under which a refusal to submit to an alcotest can be excused, effectively excluded the application of the mental incompetence provisions. However, the court held that the Parliament did not intend to exclude the application of Part 8A and that the mental incompetence defence was available in the context of a charge under section 47E.

In reaching its decision, the court considered the broader policy objectives of the Road Traffic Act, which aim to control risks to public safety presented by drug-affected drivers, and noted that these policy reasons applied equally to all offences under the Act, including the offence of refusing to submit to an alcotest. The court found that there was no valid reason to deny the respondent the benefit of a mental incompetence defence when such a defence was available for other related offences. Consequently, the appeal was dismissed, and the magistrate's decision to acquit the respondent on the basis of mental incompetence was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

A magistrate found that the respondent was not guilty of refusing to submit to an alcotest by reason of mental incompetence. The appellant argues that the mental incompetence provisions of the Criminal Law Consolidation Act 1935 (“CLCA”) have no work to do in respect of this offence, as the section creating the offence provides what is effectively a code, stipulating the only criteria upon which a refusal to submit to an alcotest on the basis of a medical condition can be excused.Background The respondent was charged on complaint with a number of offences including speeding and driving without due care. These followed his arrest after a high speed pursuit by police. Upon apprehension the police required him to submit to an alcotest. The respondent refused and was charged with an offence against s 47E(3) Road Traffic Act 1961 (“RTA”) in these terms:Count 6.On the second day of April 2002 at Bordertown in the said state being a person who was required under section 47E of the Road Traffic Act 1961 to submit to an alcotest refused to comply with all reasonable directions of a member of the Police Force in relation to the requirement. Before the magistrate the objective elements of the offences were not in dispute. Psychiatric evidence was provided to the effect that at the time of all the charged conduct the respondent was in a psychotic state consequent upon the condition of schizophrenia. In respect of all the charges, bar count 6, the prosecution accepted that the respondent was not mentally competent at the time of the conduct and should be dealt with in accordance with Part 8A CLCA, being the mental impairment provisions. The submission on behalf of the police that count 6 stood differently rested on the terms of s 47E(4), (5) and (5a) of the RTA. It was argued that subsections (4) and (5a) operate to exclude the mental competence provisions of the CLCA, because together they provide the only means by which a refusal or failure to comply with a requirement or direction to submit to a test could be excused on the basis of a medical condition. Those subsections were, at the relevant time, as follows:47E. (4) It is a defence to a prosecution under subsection (3) that— (a)the requirement or direction to which the prosecution relates was not lawfully made; or (ab)the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to— (i)the consequences of refusing or failing to comply with the requirement or direction; and (ii)the person's right to request the taking of a blood sample under section 47F; or (b)there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction. (5) No person is entitled to refuse or fail to comply with a requirement or direction under this section on the ground that— (a)the person would, or might, by complying with that requirement or direction, furnish evidence that could be used against himself or herself; or (b)the person consumed alcohol after the person last drove a motor vehicle or attempted to put a motor vehicle in motion and before the requirement was made or the direction given. (5a) A person may not raise a defence that the person had good cause for a refusal or failure to comply with a requirement or direction under this section by reason of some physical or medical condition of the person unless— (a)a sample of the person's blood was taken in accordance with section 47F; or (b) the person made a request as referred to in section 47F(2), but— (i)a member of the police force failed to facilitate the taking of a sample of the person's blood as required by that section; or (ii)a medical practitioner was not reasonably available for the purpose of taking such a sample; or (c)the taking of a sample of the person's blood in accordance with section 47F was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person. (emphasis added)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Counsel for the appellant, Mr Jacobi, suggested that policy reasons were a factor favouring a conclusion which denied to a person such as the appellant the benefit of a mental incompetence defence. It is true that the object of sections such as this is to control risks to public safety presented by drug affected drivers. There is a need to regulate persons suffering from psychiatric conditions by requiring them to submit to analysis, just as there is in relation to other road users. But such policy reasons apply without discrimination to the offence under consideration and to other offences provided by the RTA. If it is accepted that a defence of mental incompetence is available for persons charged with such offences as speeding, or driving whilst affected by alcohol, then why should it be denied to a person charged with refusing to submit to an alcotest? The policy reasons mentioned do not seem to me to advance the appellant’s argument.Conclusion In my view it was open to the respondent to raise a Part 8A CLCA defence to the s 47E(3) charge of refusing to submit to an alcotest. I would uphold the magistrate’s decision. The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.