Police v Grozev

Case [2006] SASC 353

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v GROZEV

[2006] SASC 353

Judgment of The Honourable Chief Justice Doyle

27 November 2006

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNCERTAIN EXERCISE OF POWER

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD

TRAFFIC LAW - REGULATION OF TRAFFIC - TRAFFIC SIGNS AND NOTICES

The respondent was charged with one count of driving while there was present in his blood the prescribed concentration of alcohol contrary to s 47B of the Road Traffic Act 1961 (SA) and one count of driving a vehicle in a bicycle lane contrary to r 153(1) of the Australian Road Rules - the Magistrate found the police officers who detained Mr Grozev did not have a reasonable belief that he had committed an offence - evidence of the concentration of alcohol present in his blood, conducted after Mr Grozez was detained, was excluded - whether the evidence of the alcotest was properly excluded - whether the alcotest could have been supported under a provision of the Australian Road Rules to which the relevant member of the Police Force did not turn his mind at the time - whether the Magistrate erred in holding that Mr Grozev did not breach r 153 of the Australian Road Rules - it cannot be concluded that the Magistrate was wrong to dismiss count one on the basis that the Police Officer had no reasonable belief that an offence against s 47 of the Road Traffic Act had been committed - a prescribed period for the random detention of drivers of vehicles for the the purposes of breath analysis was in force - the police officer who detained the respondent did not know of the prescribed period - in the circumstances of the case and having regard to the relevant legislation it is of no consequence that a police officer did not know the source of power he was exercising - it is enough that as a matter of law the power existed - the police officer who detained Mr Grozev issued an expiation notice which was later cancelled and reissued under a different section of the Australian Road Rules - it is of no consequence that the police officer elected to reissue an expiation notice under a section which he later considered to be a more accurate reflection of the offence of driving in a bicycle lane - it is enough that the Police Officer had the power to issue an expiation notice notwithstanding the fact that he did not have regard to that section at the time of issuing the first expiation notice - appeal allowed - count 1 remitted to the Magistrates Court for further hearing - count 2 remitted to the Magistrates Court for the recording of a conviction and for sentencing.

Road Traffic Act 1961 (SA) s 47B, s 47E(1), s 47E(1)(a), s 47E(2a)(b),…

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Police v Grozev [2006] SASC 353
Case
[2006] SASC 353
Decision Date

CaseChat Overview and Summary

In Police v Grozev, the respondent was charged with driving with a prescribed concentration of alcohol in his blood and with driving a vehicle in a bicycle lane. The Magistrates Court dismissed the charges. The police appealed to the higher court. The key legal issues before the court were whether the evidence of the alcotest was properly excluded and whether the Magistrate erred in holding that the respondent did not breach the Australian Road Rules by driving in a bicycle lane. The court held that the evidence of the alcotest was properly excluded because the police officers who detained the respondent did not have a reasonable belief that he had committed an offence against the Road Traffic Act. The court found that it was of no consequence that the police officers did not know the source of the power they were exercising, as long as the power existed as a matter of law. The court also held that the Magistrate did not err in holding that the respondent did not breach the Australian Road Rules by driving in a bicycle lane, as the deviation of his motor vehicle into the lane was a minor deviation which did not cause any danger or embarrassment. The appeal was allowed, and the charges were remitted to the Magistrates Court for further hearing and sentencing.

The court's reasoning was that the power to require an alcotest or breath analysis was authorised by statute and regulation. The power was exercised by the police officers who detained the respondent. However, the officers did not have a reasonable belief that the respondent had committed an offence against the Road Traffic Act. Therefore, the evidence of the alcotest was properly excluded. The court held that it was of no consequence that the police officers did not know the source of the power they were exercising, as long as the power existed as a matter of law. The court also held that the Magistrate did not err in holding that the respondent did not breach the Australian Road Rules by driving in a bicycle lane, as the deviation of his motor vehicle into the lane was a minor deviation which did not cause any danger or embarrassment. The appeal was allowed, and the charges were remitted to the Magistrates Court for further hearing and sentencing. The court's decision highlights the importance of ensuring that police officers have a reasonable belief that an offence has been committed before exercising their powers to require an alcotest or breath analysis. The court's decision also highlights the need for police officers to be aware of the relevant legislation and regulations when exercising their powers.

Orders

Orders of the court

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Background

Background to the litigation

The third issue is whether the Magistrate erred in holding that Mr Grozev did not breach ARR 153(1) by driving in a bicycle lane, because the deviation of his motor vehicle into the lane was “a minor deviation” which did not cause any “danger or embarrassment”.Facts The first charge was that Mr Grozev drove a motor vehicle while there was present in his blood the prescribed concentration of alcohol, contrary to s 47B of the RTA. The alleged concentration of alcohol was 0.154 grams of alcohol in 100 millilitres of blood. The second charge was that on the same day and at the same place he drove a vehicle on a road in a bicycle lane, contrary to r 153(1) of the ARR. The prosecution evidence was that Constable Lord and Constable Wendt were on duty on the day in question. They saw a Subaru station wagon travelling in front of them. They saw it drift to the left side of the road and cross a continuous white painted line which was parallel to and about two metres from the kerb at the left side of the road. As I understand it there is no dispute that this line marked the edge of a bicycle lane as defined by r 153(4). The area between the painted white line and the kerb comprised the bicycle lane. There were signs painted on the surface of the road and adjacent to the road indicating that the lane was a bicycle lane. The Subaru travelled for about ten metres in the bicycle lane, and then moved to the right and out of the lane. A little further down the road the same thing happened. The police officers stopped Mr Grozev. Constable Lord required him to submit to an alcotest. The Magistrate found that he did so, relying on a belief that Mr Grozev had committed an offence against r 150(1) of the ARR, which, subject to exceptions that are not material, provides that “A driver must not drive on or over a continuous white edge line on a road …”. Mr Grozev was subsequently required to submit to a breath analysis, the result of which indicated that the prescribed concentration of alcohol was present in his blood. At the time, s 47E(1) of the RTA provided:47E Police may require alcotest or breath analysis(1) Where a member of the police force believes on reasonable grounds that a person, while driving a motor vehicle or attempting to put a motor vehicle in motion—(a)has committed an offence of a prescribed class of which the driving of a vehicle is an element; or**********************(c)has behaved in a manner that indicates that his or her ability to drive the motor vehicle is impaired; or(d) has been involved in an accident,that member of the police force may, subject to subsection (2), require that person to submit to an alcotest or breath analysis, or both.By reg 8 of the Road Traffic (Miscellaneous) Regulations 1999 (SA) offences against the ARR were offences of a prescribed class for the purposes of s 47E(1)(a). Accordingly, if Constable Lord believed on reasonable grounds that Mr Grozev had committed a breach of r 150(1), he was authorised to require Mr Grozev to submit to an alcotest.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The reason for cancelling the expiation notice, and charging a different offence, is not clear. Constable Lord said that he began to wonder if he had “made the right choice”. He “researched” the ARR. He then decided that the “correct offence” was an offence against r 153. In cross-examination he was asked about the decision to cancel or withdraw the expiation notice in respect of an offence against r 150(1), and then he gave the following evidence:QThat was because in your mind there was at that stage no reasonable grounds for believing he committed that offence.AAfter researching, I believe the bicycle lane was the correct offence.QIs the answer to my question, yes.AYes.When Constable Wendt gave evidence he gave the following answers:QYour evidence is that there was further investigation and research, such that there was a direction to Constable Lord, as you understood it, to cancel the traffic infringement notice.AThat’s correct.QAnd that was because the offence for which the infringement notice had been issued was in fact the wrong offence.AThat’s correct.QAnd that there was no reasonable grounds for believing that he had committed that offence so therefore the traffic infringement notice would be withdrawn.AThat’s right.QAnd that was done, as you understood it, on the direction from a senior Sergeant, yes.AA Sergeant I, believe.The Magistrate’s Decision The Magistrate rejected an argument that Constable Lord formed the required belief in relation to an offence against r 150(1) and an offence against r 153(1). He concluded that when the requirement was made under s 47E, the only belief held by Constable Lord related to an offence against r 150(1). That finding of fact is not challenged. The Magistrate found that an offence against r 150(1) had not been committed. He said at [17]:There is no doubt that from the evidence before the court the defendant’s motor vehicle had not driven on or over the continuous white line at the edge of the road and therefore could not have committed that offence. Both officers conceded that, and in fact, the infringement notice issued for that offence was subsequently cancelled.A little later, referring to evidence given by Constable Lord, he said at [21]:To me that indicated he did not at the time have a genuine belief that the defendant had committed the offence of driving in a bicycle lane to bring him within the criteria which justified the requirement of a test. That is why he decided to go with the other offence of crossing over a continuous white line. However, as it turned out, no such offence had in fact been committed because the defendant had not crossed over the continuous white edged line on a road. There is no doubt from the evidence that the defendant did not and could not have committed that offence. The officers considered that after receiving advice from a superior officer and the infringement notice issued for that offence was subsequently cancelled. The Magistrate’s reasons in this respect are not clear.

Ratio Decidendi

Legal Principle Established

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