Police v Head - [2013] SASC 185

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v HEAD
[2013] SASC 185
Judgment of The Honourable Justice Kelly
28 November 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN BLOOD - SENTENCE AND PENALTY
Police appeal against Magistrate’s finding that the respondent’s offending was trifling – the respondent drove home from his friend’s neighbouring farm with a blood alcohol reading of 0.086 – distance to be travelled was three and a half kilometres on a dirt road little used by other traffic – respondent pleaded guilty to one count of driving with a prescribed concentration of alcohol – respondent made an application that the offending be declared trifling – Magistrate found offence to be trifling and imposed a fine of $900 with a period of one month licence disqualification.
Whether Magistrate’s conclusion that the offending was trifling was wrong.
Held: appeal allowed – Magistrate erred in finding that the offending was trifling – offending conduct was not atypical - the licence disqualification period of 6 months prescribed by the Road Traffic Act 1961 (SA) must be applied.
Road Traffic Act 1961 (SA) s 47B(1)(a), s 47B(3)(b), s 47B(3)(a)(i)(A), referred to.
Police v Malycha [2013] SASC 169; Police v Ludlow (2008) 181 A Crim R 235; Police v Mutton (2006) 246 LSJS 153; Siviour-Ashman v Police (2003) 85 SASR 23, applied.
Campbell v Fuss (1991) 55 SASR 355; Draoui v Police [2010] SASC 94; House v The King (1936) 55 CLR 499; Police v Jozinovic [2004] SASC 64, discussed.

POLICE v HEAD
[2013] SASC 185
Magistrates Appeal: Criminal
KELLY J.
Introduction

On a winter evening in July 2013 the respondent, Phillip David Head, a 55 year old farmer who lives near Crystal Brook, decided to have a few drinks with an old friend of his who lives on a neighbouring farm. Between about 4.00pm and 7.40pm he drank “two stubbies of beer and some red wine”. On his way home at about 8.30pm that night he was stopped by police on the Top Track road near its intersection with Head Road via Crystal Brook and required to submit to a breath analysis which later provided a reading of 0.086. At this point he had only driven part of the three and a half kilometre distance between his home and his friend’s place.
On 11 September 2013 the respondent pleaded guilty to one count of driving with a prescribed concentration of alcohol contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (“the Act”). That offence attracts a minimum period of six months driver’s licence disqualification.[1] The respondent’s solicitor made an application that the offending be declared trifling under the provisions of s 47B(3)(b) of the Act and the respondent gave…

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 Police v Head

Details

AGLC: Police v Head [2013] SASC 185
Case: [2013] SASC 185
Decision Date: 28 November 2013

CaseChat Overview and Summary

In Police v Head, the police appealed against a Magistrate's decision to find the respondent's offence of driving with a prescribed concentration of alcohol in blood to be trifling. The respondent drove home from a friend's neighbouring farm with a blood alcohol reading of 0.086 over a distance of three and a half kilometres on a little-used dirt road. He pleaded guilty to one count of the offence and applied for the offence to be declared trifling. The Magistrate found the offence to be trifling and imposed a fine of $900 with a one-month licence disqualification. The police argued that the Magistrate erred in finding the offence to be trifling.

The legal issues in this case centred on the interpretation and application of Section 47B(3)(b) of the Act, which allows for a reduction in the disqualification period if the offence is considered trifling. The court had to determine whether the Magistrate's decision to find the offence trifling was correct, considering the nature of the road, the respondent's blood alcohol reading, and the lack of readily available alternative transportation. The court also had to consider whether the offence was atypical and if the Magistrate took into account all relevant considerations in making his decision.

The court examined the Magistrate's decision and found that he had considered the unique factual circumstances of the offence, particularly the nature of the road and its location. The court noted that the road was little-used, with no traffic present or likely to be present, and that the respondent's blood alcohol reading was low. The court also acknowledged that a three and a half kilometre walk would not be something the respondent would likely undertake. The court held that the Magistrate had correctly applied the principles set out in Siviour-Ashman v Police and subsequent cases, which require the court to consider the purpose of Section 47B, the nature of the offence, and whether the offence was a normal or typical example of its type. The court concluded that the offence was atypical and found no error of fact or law in the Magistrate's decision.

The court dismissed the appeal and affirmed the Magistrate's decision that the offence was trifling. The court found that the Magistrate had appropriately considered the unique factual circumstances of the case and had not erred in finding the offence trifling. The final orders of the court were that the appeal be dismissed, and the original decision of the Magistrate be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

The road provides access to at least three properties in the area: the respondent’s, the respondent’s friend and another farmer, as well as to a small portion of Crown land. The dirt road on which the respondent was travelling intersects with a number of other dirt roads at different points along the way, including with a road known as Pipeline Road for the obvious reason perhaps that it runs parallel to a pipeline which travels through that area. The Magistrate’s decision The Magistrate found that the offending was atypical in that the location at which the respondent was stopped by the police was “a little used portion of road, there was no traffic on it and there was no likelihood of any traffic being on the road”. He noted that the respondent’s blood alcohol reading was very low and that that was important although by no means decisive. He found that the respondent did not have a readily available option of catching a taxi and considered that a three and a half kilometre walk would not be something which the respondent would “likely undertake”. In the end it was the nature of the road and its location which seems to have influenced the Magistrate the most in reaching the conclusion which he did that the offending was trifling. He returned to that topic a number of times during his reasons which were delivered ex tempore:It is certainly unlikely, as is submitted, that your driving on that road with such a blood alcohol level would lead to an accident or cause injury or damage to other road users and that is the mischief at which the legislation is addressed. Nevertheless, the legislation attracts strict liability for an act of driving with blood alcohol greater than the prescribed concentration.…The nature of the road, quite clearly, is that it receives little use. You were visiting your neighbour and, in the circumstances in which you live, it is analogous to a couple of neighbours who live in the same street in a suburban area. In the absence of any traffic on the little used road between your houses, your driving created little actual risk.…I ask myself whether this offence is a normal or typical example of its type. It is submitted that it is, but in the end, after careful consideration, I have concluded that it is atypical. It is atypical in that this was a little used portion of road, there was no traffic on it and there was no likelihood of any traffic being on the road. If there was to be any traffic on it, you would have been well aware of it because of any other vehicles’ lights. Also, your alcohol reading was very low and that is important, although by no means decisive. You did not have a readily available option of catching a taxi and a three and half kilometre walk would not be something which you would likely undertake.The law Section 47(B)(3)(b) of the Act provides:47B—Driving while having prescribed concentration of alcohol in blood…(3)Where a court convicts a person of an offence against subsection (1), the following provisions apply:...(b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month;…

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

Section 47(B)(3)(b) of the Act provides:47B—Driving while having prescribed concentration of alcohol in blood…(3)Where a court convicts a person of an offence against subsection (1), the following provisions apply:...(b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month;… In Police v Malycha[2] I recently reviewed a number of authorities which deal with the issue of whether an offence may be considered trifling within the meaning of s 47B(3)(b) of the Act. As I noted in Malycha, Siviour-Ashman v Police[3] remains the leading authority as to the nature of offending which may be considered trifling. I do not propose to repeat everything which I said in Malycha or to traverse again all of the authorities I referred to in Malycha, except to remind myself of the useful summary by White J in Police v Ludlow[4] of the relevant considerations identified in Siviour-Ashman and the cases which followed Siviour-Ashman on this topic:[5][2] [2013] SASC 169.[3] (2003) 85 SASR 23.[4] (2008) 181 A Crim R 235.[5] Police v Ludlow (2008) 181 A Crim R 235 at [13].…(a)the word “trifling” in s 47B of the RTA is used to mean of slight importance, insignificant or of little moment; (b)the focus of the Court’s consideration must be on the conduct constituting the offence but regard may also be had to the circumstances which explain how the offence came to be committed; (c)regard should be had to the purpose of s 47B, ie, the promotion of safe driving conditions; (d)an offence which is a normal or typical example of its type will not be trifling. Section 47B(3)(b) must be understood as intended to deal with the unusual or exceptional case, the circumstances of which call for the usual minimum to be put to one side. Campbell v Fuss was such a case as the defendant, who had not earlier been driving the vehicle, was intending only to adjust the position in which it was parked;(e)a lack of realisation by the defendant that he/she had or might have the prescribed concentration of alcohol is generally not relevant, but a soundly based belief falsified by events over which the defendant had no control may be relevant; (f)a belief that circumstances exist justifying the conduct engaged in might make an offence trifling, eg, driving in necessitous circumstances to fulfil some humanitarian purpose; (g)it has been said that when the breach is deliberate it can rarely be described as trifling but this proposition may not be applicable when the driving is for some humanitarian or other urgent purpose.[footnotes omitted] With those considerations in mind I turn now to the issues which arise on this appeal. The respondent contended that the Court should not interfere with the Magistrate’s finding that the offence was trifling. Counsel for the respondent submitted that the Magistrate took into account all of the correct principles, the unique factual circumstances in which the offence was committed, particularly the location of the offending, and as no error of fact or law was made this Court should not intervene.