Police v Heintze - [2019] SASC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
POLICE v HEINTZE
[2019] SASC 2
Judgment of The Honourable Justice Hinton
15 January 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA
Mr Heintze was charged on complaint that on 9 June 2017 he drove on a road whilst his licence was disqualified contrary to s 91 of the Motor Vehicles Act 1959 (SA), and, on that same occasion, drove a vehicle whilst he was so much under the influence of alcohol as to be incapable of exercising effective control over the vehicle he was driving contrary to s 47(1)(a) of the Road Traffic Act 1961 (SA).
Following a trial in the Magistrates Court, Mr Heintze was convicted of the first charge but acquitted of the second. Mr Heintze appealed his conviction for driving whilst disqualified, contending that the evidence adduced at trial was not capable of proving beyond reasonable doubt that he was the driver of the vehicle at the material time. The prosecution appealed against his acquittal for driving under the influence submitting that the evidence proved beyond reasonable doubt that owing to the effect of alcohol Mr Heintze was incapable of exercising effective control of the vehicle he was driving.
Held:
1. Allowing the prosecution appeal; evidence of periods of effective control of a vehicle is not an obstacle to finding a defendant guilty of driving under the influence of intoxicating liquor or a drug if the evidence establishes beyond reasonable doubt that the defendant’s use of any mental or physical faculty was lost or appreciably impaired due to the effect of intoxicating liquor or a drug. The evidence in the present case established beyond reasonable doubt that the defendant’s physical faculties were appreciably impaired at the material time.
2. Dismissing Mr Heintze's appeal; it was open to the Magistrate to reject all hypotheses consistent with innocence and conclude that Mr Heintze was the driver of the vehicle at the material. The Magistrate’s reasons were adequate in this regard.
Motor Vehicles Act 1959 (SA) s 91, s 140; Road Traffic Act Amendment Act 1948 (SA) s 8; Road Traffic Act 1961 (SA) s 47(1), s 47(2), s 48, s 175(1)(i); Road Traffic Act, 1934-1947 (SA) s 48(4), referred to.
Doney v The Queen (1990) 171 CLR 207; Fox v Percy (2003) 214 CLR 118; GLCS Group Incorporated v Dzundza [2018] SASC 31; Hunter v Fitzgerald [1951] SASR 126; Police v Thompson [2006] SASC 20; Pulleine v Button [1948] SASC 1; R v Hillier (2007) 228 CLR 126; Shepherd v The Queen (1990) 170 CLR 573; Sims v O’Sullivan [1952] SASR 179, considered.

POLICE v HEINTZE
[2019] SASC 2
HINTON J:
Introduction

Adam Heintze was charged on complaint that on 9 June 2017 he drove on a road whilst he was disqualified,[1] and, on that same occasion, drove a vehicle whilst he was so much under the influence of alcohol as to be incapable of exercising effective control over the vehicle.[2] After a trial in the Magistrates Court he was convicted of the first charge but acquitted of the second. Both Mr Heintze and the prosecution now appeal, Mr Heintze against his conviction for driving whilst disqualified, and the prosecution, against his acquittal for driving under the influence. Mr Heintze contends that the evidence adduced at trial was not capable of proving beyond reasonable doubt that he was driving at the material time. The prosecution contends that the evidence proved beyond reasonable doubt that owing to alcohol Mr Heintze was incapable of exercising effective control of the vehicle he was driving.
[1] Contrary to s 91 of the Motor Vehicles Act 1959 (SA).
[2] Contrary to s 47(1)(a) of the Road Traffic Act 1961 (SA).
I would dismiss Mr Heintze’s appeal and allow the prosecution appeal. My reasons follow.
The prosecution case
On 9 June 2017 at around 1:00 am Constables Renko and Price were driving north on Main North Road in an unmarked police car. As they approached the intersection of Main North Road and Montague Road, Constable Price’s attention was drawn to a white Holden utility (the Holden) as it made its way out of the carpark of a McDonald’s restaurant and onto Main North Road. Constable Price, who was driving the police vehicle, had noticed the Holden driving quickly through the carpark. She alerted Constable Renko. Constable Price gave evidence that as the Holden turned into Main North Road to travel north, “it appeared to make the turn quite roughly”. She described the driving as “[f]ast and careless”. In the course of turning out of the carpark it “ended up in the left lane however on making the turn the vehicle appeared to lose control and go into the right lane”. Constable Renko said:
The backend was swinging out so the driver had obviously put his foot down on the accelerator too much causing the back wheels to spin. The backend of the vehicle had passed over two lanes and into the furtherest right lane from us and it had swung back and then it took a little while to correct.
At this time the police vehicle was about 50 metres behind the Holden and travelling at 80 kmh. Both officers gave evidence of the Holden speeding away. Both described the Holden as having a canopy. Constable Renko also said that it had a broken tail light. Constable Price did not notice any defects.
In cross-examination, Constable Renko conceded that he did not relay to police communications the reckless driving he witnessed, merely that the Holden was being driven at speed. It was not put to him, however, that his evidence as to the nature of the driving he had observed was false or mistaken. He rejected the suggestion that he had not really had the chance to assess the speed at which the Holden was travelling.
Constable Price said that the Holden was travelling at speed, was travelling between lanes and was not following road rules. She estimated that the Holden was travelling at about 120 kmh. The speed limit for Main North Road in the area in which the Holden and the police car were travelling was 80 kmh. Constable Price accelerated to catch up to the Holden but was unsuccessful. After 30 seconds she slowed down, noticing as she did so that the police vehicle was travelling in excess of 100 kmh.
Constable Renko contacted police communications to alert other patrols in the area.
Constables Renko and Price lost sight of the Holden a short time later at around the intersection of Main North Road and Kings Road. By this time, Constable Price estimated they were 500 metres behind the Holden. They continued to travel north along Main North Road. Constable Renko estimated that a couple of minutes passed before he became aware of the Holden travelling on a service road to the left of the police vehicle and in the same direction. Constable Price thought about 30 seconds to a minute would have passed. In cross-examination Constable Renko agreed that the period during which he did not have the Holden under observation could have been around two and a half minutes.
By now the vehicles were approximately 6.7 kilometres from the McDonald’s restaurant where the Holden was first observed.
When he saw the Holden on the service road Constable Renko observed:
… it’s manner of driving … still continued to be what I would say is erratic, the driver kept accelerating very harshly and slowing down very quickly for speedbumps.
Constable Renko saw that the Holden had only one occupant — the driver. He could not get a description of the driver but gave evidence that the driver “was of a similar silhouette to a male”.
The Holden turned left to travel west along Ruby Street. Constable Price stopped the police vehicle on Main North Road in a position that allowed her and Constable Renko to look down Ruby Street. Constable Renko was able to obtain the registration number which he relayed to police communications. The officers observed the Holden turn into premises a distance down Ruby Street and disappear from view.
In the meantime, a police cage car had travelled to the area in response to Constable Renko’s alert over the police communication system. The cage car entered Ruby Street from the opposite end to that where Constable Renko and Price were positioned. Constables Renko and Price watched the cage car approach the position where the Holden had been seen to turn into premises. The officers in the cage car, Constables Gaulke and Hazel, were joined by a second patrol. They soon located the Holden in the driveway of number 7 Ruby Street.
It was actually Constable Hazel who located the Holden. He and Constable Gaulke had parked the cage car in front of number 11 Ruby Street. Whilst Constable Gaulke headed toward number 13, Constable Hazel went in the opposite direction. When he reached number 7 he saw “a white Holden utility vehicle with a white canopy on the back and a male who I identify now as the defendant standing next to the vehicle in close proximity at the front of it”. Constable Hazel said the man was bending over looking under some large rocks. When asked what he was doing at the address the man said he lived there. Constable Hazel said no-one else was in the street or in the front yard of the premises.
Constable Hazel said he could hear the rattle of keys coming from the man’s pants. The man was asked to empty his pockets onto the bonnet of the Holden. A set of keys was produced in addition to a wallet containing a driver’s licence. Constable Hazel said another officer tested the keys on the Holden and found the keys to be for that vehicle.
Constable Renko said that a couple of minutes passed between him losing sight of the Holden and seeing it on the service road. He said a couple more minutes then passed as he and Constable Price waited on Main North Road for the cage car to arrive in Ruby Street. In cross-examination he agreed that police were at the house in Ruby Street about six minutes after he saw the Holden turn into premises on Ruby Street. Constable Price thought a short period of time elapsed. Constable Renko did not see anyone cross Ruby Street whilst they had the street under observation. Neither officer could see the house into which the Holden turned. Constables Renko and Price were advised by radio that other officers had located an intoxicated male. They proceeded to the premises in Ruby Street.
When Constables Renko and Price arrived at the Ruby Street address Constable Renko saw a male standing beside a white Holden utility. Other than police, no-one else was present. Constable Renko said:
He appeared intoxicated, as I’ve walked up I could hear him talking with patrols he was slurring his words, swaying side to side I believe he had some McDonalds with him as well which was on the ground.
It is not disputed that the man was Mr Heintze. Constable Renko said that the McDonald’s packaging was on the ground outside the Holden. A police officer asked Mr Heintze if he was the driver of the Holden. Mr Heintze said he was not. Constable Price overheard him saying this.
Constable Price also saw the McDonald’s packaging on the ground next to Mr Heintze. She added that she saw Mr Heintze holding a McDonald’s drink. Neither she nor Constable Renko checked the packaging.
Constable Price was provided with Mr Heintze’s driver’s licence and, using it, verified his identity. As to Mr Heintze’s presentation she said:
AHe was stumbling, when I was speaking to him I had to put my hand on his shoulder to stop him from falling over.
QWas there anything else you observed about him.
AWhen I was speaking to him I smelt liquor.
QAnything else.
AHe didn’t appear to be listening to what I was saying, he appeared intoxicated.
HIS HONOUR
QAre you aware of the levels of intoxication the police use, mildly, moderately, grossly affected.
AYes your honour.
QWhere did he fit into those.
AGrossly intoxicated your Honour.
Constable Gaulke described Mr Heintze as “staggering on his feet and he also smelt of liquor on his breath”. Probationary Constable Marks said Mr Heintze “appeared to be visibly intoxicated due to being unstable on his feet and slurring his words”. She also stated that “the engine was warm when I touched the bonnet [of the Holden]”. Constable Hazel said:
He was able to stand however he did seem to sway but I didn’t take any note of that but he was slurring his words while speaking to me.
One of the police officers present handed Constable Renko a set of keys taken from Mr Heintze. Constable Renko searched the vehicle with the assistance of Constable Gaulke. They found some documents in it addressed to Mr Heintze. Constable Renko tried the keys provided in the ignition. Whilst he did not start the Holden, the keys disarmed the steering lock. He said he saw the McDonald’s packaging prior to searching the Holden.
A certificate tendered under s 140 of the Motor Vehicles Act 1959 (SA) proved that the Holden utility S432 BPT was registered to Hydraworld Pty Ltd of Evanston.
In cross-examination Constable Renko agreed that he thought he saw movement inside number 7 Ruby Street. He said he saw “movement through a yellow lead sort of glass window which is hard to see through”. Constable Gaulke described seeing something similar — “I just saw a quick change of light”. She and Constable Renko entered the house. Prior to doing so they had knocked loudly on the front door and adjacent window and announced that they were police officers. The officers did not see or hear anybody in the house. Whilst she went inside Constable Gaulke said she did not look through the house. Constable Renko conceded that no officer was sent into the backyard before they entered the premises.
Constable Price said that she was responsible for arresting Mr Heintze. She escorted him to the cage car with Constable Hazel and put him inside. Once inside he began to vomit. The police took Mr Heintze to hospital to be checked.
The defence case
Mr Heintze did not give evidence. However, without objection, counsel for Mr Heintze tendered the affidavit of Ms E M H Whish-Wilson, affirmed 12 January 2018. Exhibited to the affidavit was a table setting out the details of communications made by the police officers who attended at 7 Ruby Street on 9 June 2017. The table was prepared by Ms Whish-Wilson from a recording of the police communications made and retained by the police in the ordinary course of business. The exhibit to the affidavit establishes that:
i.At 00:56:44 Constable Renko first advised that he had seen a white ute speeding in the distance “near Main North Road … heading towards Kings”.
ii.At 00:57:13 Constable Renko advised any Salisbury or Elizabeth patrols that the white ute with a white canopy on the back would have “passed over Kings by now” heading north.
iii.At 00:58:01 Constable Renko stated that he and Constable Price have lost sight of the utility.
iv.At 00:59:35 Constable Renko advised police communications that he and Constable Price were alongside the utility as they travelled along Main North Road and the utility proceeded on a service road. He reported the registration as S432 BPT. This message concluded with Constable Renko saying the vehicle had turned west.
v.At 1:00:27 Constable Renko advised that the vehicle had pulled into a house on Ruby Street. He asked that any patrols in the area “come give a hand”.
vi.At 1:01:02 Constable Renko advised that the vehicle pulled into a house at about number 9 or 11 Ruby Street.
vii.At 1:02:04 Constable Renko advised that he and Constable Price were still on Main North Road “keeping obs on the street to see if the vehicle leaves”.
viii.At 1:03:18 communications indicate that the cage car had arrived in Ruby Street and sought further directions from Constables Renko and Price as to the location of the house into which the utility had turned.
ix.At 1:04:44 Constables Renko and Price were advised “you’re right to come round”.
x.At 1:06:21 Elizabeth 20, being Constables Blundell and Marks, advised that “we’re safe on scene with a male appears 102 just trying to get some more details now”. 102 is the police code for a person being affected by drugs.
From the above it is plain that Constables Renko and Price lost sight of the Holden as they made their way north on Main North Road for a period of around one and a half minutes (i.e. before 00:58:01 and up to re-sighting the Holden at 00:59:35). Further, upon re-sighting the Holden they again lost sight of it at around 1:00:27 until it was located by Constable Hazel sometime shortly before 1:04:44, a period of around four to four and a half minutes.
It was an agreed fact that as at 9 June 2017 Mr Heintze was disqualified from driving.
The Magistrate’s reasons
In his reasons the Magistrate identified the two issues in dispute at trial as being whether the prosecution had proved beyond reasonable doubt that Mr Heintze was the driver of the Holden that Constables Renko and Price saw exit the McDonald’s carpark, and, if he was the driver, whether he drove that vehicle whilst he was so much under the influence of alcohol as to be incapable of exercising effective control of it. The Magistrate was alive to the fact that antecedent to the first issue was the question of whether the Holden located at 7 Ruby Street was the same Holden as that seen by Constables Renko and Price exiting the McDonald’s carpark.
The Magistrate gave himself the following instruction:
I will deal with the relevant elements of the charges in due course, as well as relevance and use of section 175(1) (i) of the Road Traffic Act 1961, as amended for the DUI charge. It is not applicable to the DWD charge. I have decided it is appropriate to focus on whether the defendant is the driver of the utility by not referring to the Section 175 RTA presumption. Therefore I am treating him as having no onus of proof for either charge when evaluating the evidence.
[footnote omitted]
Section 175(1)(i) of the Road Traffic Act 1961 (SA) (RTA) is a statutory aid to proof. It provides that in proceedings for an offence against the RTA, an allegation in a complaint that a specified person was the owner, operator, person in charge or driver of a specified vehicle is proof of the matters so alleged in the absence of proof to the contrary. In the present case only the charge of driving under the influence was an offence against the RTA. Consequently, it is only in relation to that charge that the prosecution could invoke the prosecutorial aid contained in s 175(1)(i) RTA. The relevant count did aver that Mr Heintze “drove a vehicle, namely, a White Holden Utility, SA Reg S432BPT on a road namely Main North Road whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the said vehicle”. Thus, the first of the issues in dispute identified by the Magistrate did not arise in relation to the driving under the influence charge. That is to say, on the driving under the influence charge the question was not whether the prosecution had proved beyond reasonable doubt that Mr Heintze was driving the Holden at the relevant time. That fact could be taken as proved unless Mr Heintze proved the contrary on the balance of probabilities.
It is not clear to me why the Magistrate determined that he would consider the capacity of the prosecution evidence to establish who was driving the utility for the purposes of the driving under the influence charge. In any event, as to the first issue in dispute the Magistrate considered that it had two parts. First, the question of whether or not the Holden located at 7 Ruby Street was the same one seen by Constables Price and Renko leaving the McDonald’s carpark and speeding up Main North Road. Second, whether Mr Heintze was the driver of that Holden.

With respect to the first question the Magistrate reasoned as follows:
The circumstantial evidence relied upon by the prosecution in this case to prove the defendant was the driver of the utility for 6.7 km from MNR to 7 Ruby Street is as follows:
A) UTILITY
(i)Renko and Price both describe the vehicle they saw on MNR that ultimately turned into Ruby Street and then into premises on the southern side of Ruby Street as a white utility with a canopy. Price described the canopy as white. Renko saw the registration of the white utility and it matched the utility.
(ii)The utility is consistent with that description.
(iii)The utility’s bonnet was warm to touch upon police arrival at 7 Ruby Street therefore indicating very recent use.
(iv)The unlikelihood of two white utilities being involved in the same narrow scope of events and time.
(v)The McDonalds restaurant bag being in the close vicinity of the defendant is significant given the observation of Renko and Price began with a white utility leaving a McDonalds restaurant carpark an turning into MNR.
The defendant highlights differences in description between Renko and Price of the vehicle they followed, in particular the absence of Price noting an inoperable passenger side taillight.
The Magistrate concluded:
I have considered those submissions carefully and find, despite the defendant’s criticism of the prosecution case on this very important topic, that the utility followed by Renko and Price on MNR and seen turning into Ruby Street was the utility found at 7 Ruby Street.
The Magistrate then stated that he was satisfied of this conclusion beyond reasonable doubt.
Next the Magistrate turned to consider the second part of the first of the issues in dispute that he had identified. He noted that the prosecution case was circumstantial in relation to this issue, as it was in relation to the first part, and that the prosecution had to “negate the evidence that the defendant twice denied to police at 7 Ruby Street that he was the driver of the utility”, and the possibility arising on the evidence of Constables Renko and Gaulke of another person being in the house who was the driver. The Magistrate said:
The prosecution submit the following evidence of circumstances prove beyond reasonable doubt the defendant was the driver namely:
(i)The defendant was in possession of keys in his pants pocket that operated the utility.
(ii)The defendant was next to a McDonalds Bag at 7 Ruby Street and was holding a McDonald’s drink container.
(iii)The defendant had personal documents within the utility at 7 Ruby Street.
(iv)The utility is registered to the defendant’s address named on the information. There is no evidence of that. I refuse to use the address in the information as evidence to link it to the registered address of the utility in Exhibit P1. The owner of the utility named in Exhibit P1 is not linked to the defendant in evidence in the trial. I specifically reject this contention and ignore it for the purpose of deciding the charges.
(v)The defendant was next to the utility and no-one else was prominent when police saw him in that position.
The Magistrate said he had carefully considered the submissions made by the defence. Despite those submissions he said that he was satisfied beyond reasonable doubt that Mr Heintze was the driver of the utility. Bearing in mind that it was agreed that Mr Heintze was disqualified from driving at the material time, it followed, and the Magistrate held, that he was satisfied that the drive disqualified charge had been proved beyond reasonable doubt.
Turning to the driving under the influence charge the Magistrate concluded:
For the DUI charge, I find that although the defendant was affected by alcohol to the degree observed, it has not been proved beyond reasonable doubt he was under the influence of alcohol as to be incapable of exercising effective control of the utility. I note the driving was described at times as erratic and with a loss of control as well as travelling well above the speed limit. However the length of the driving and the manner of driving for a large portion of it provides a reasonable doubt as to the DUI charge.
The prosecution appeal
The prosecution appeal attacks the Magistrate’s conclusion as set out in the passage from the judgment quoted immediately above. Before addressing the argument it is necessary to return to the Magistrate’s reasons.
The Magistrate noted the evidence of Mr Heintze’s “demeanour and appearance” as given by the officers who attended at 7 Ruby Street — “[h]e was “staggering” and had “liquor on his breath”; “grossly intoxicated” and “stumbling”; “appeared intoxicated” and “slurring words” and “swaying””. He considered this evidence to show a loss of balance and a loss of the ability to speak normally. He added that the evidence of Mr Heintze’s driving showed “a capability of coping with a number of driving situations as set out in paragraph 105 of the defendant’s submissions”, and then concluded:
The faculties of the defendant as seen by police were impaired.
In his written submissions filed in the Magistrates Court, Mr Heintze contended that there was no evidence that the driver of the Holden was incapable of exercising effective control of that vehicle. “To the contrary, … the observations of Renko and Price are consistent with a vehicle executing manoeuvres with control of that vehicle, eg: a “fishtail” turn from McDonald’s onto Main North Road with immediate correction, travelling between vehicles at speed, slowing down for speed bumps, indicating to turn right (sic) onto Ruby Street.” Whilst it cannot be said that the Magistrate’s reasons indicate an acceptance of this submission in its entirety, the Magistrate did find that the length of the driving and the manner of driving for a large portion gave rise to a reasonable doubt as to the capacity of Mr Heintze to exercise effective control over the vehicle. In this Court the prosecution submitted that, given the evidence of the police officers as to Mr Heintze’s demeanour and appearance was not disputed, then, having regard to s 47(2) RTA, it was not open to the Magistrate to acquit.
Sections 47(1) and (2) RTA provide:
(1) A person must not—
(a)drive a vehicle; or
(b)attempt to put a vehicle in motion,
while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle.
…
(2) For the purposes of subsection (1), a person is incapable of exercising effective control of a vehicle if, owing to the influence of intoxicating liquor or a drug, the use of any mental or physical faculty of that person is lost or appreciably impaired.
This subsection does not restrict the meaning of the words “incapable of exercising effective control of a vehicle”.
Counsel submitted that s 47(2) RTA was in the nature of a deeming provision which prohibited a defendant from adducing evidence rebutting “what is deemed to be the fact established”.
The predecessor to s 47(2) RTA was s 48(4) of the Road Traffic Act, 1934-1947 (SA). Section 48(4) was inserted into the Road Traffic Act, 1934-1947 (SA) by s 8 of the Road Traffic Act Amendment Act 1948 (SA). In its original form it was expressed as a deeming provision. It provided:
(4) For the purposes of subsection (1) of this section a person shall be deemed to be incapable of exercising effective control of a vehicle if at the relevant time owing to the influence of intoxicating liquor or a drug the use of any mental or physical faculty of that person was lost or appreciably impaired. This subsection shall not be deemed to restrict the meaning of the words “incapable of exercising effective control of a vehicle”.
In the speech on the motion that the related bill be read a second time the Chief Secretary said:[3]
This amendment was recommended by the Traffic Committee at the instigation of the Commissioner of Police. The Commissioner maintains that the present law creates difficulties for members of the police force. He says that if a police officer sees a man attempting to drive a vehicle while under the influence of liquor the officer may not feel justified in taking any action until the driver shows by his conduct that he cannot drive properly. Thus an accident may occur before a police officer has sufficient evidence on which to arrest the driver. The Commissioner suggested that the law should be altered so that a man would be regarded as guilty of an offence if he attempted to drive a vehicle while his faculties were appreciably impaired by liquor even though it was not shown that he was unable to drive. The State Traffic Committee was sympathetic to the Commissioner’s point of view and, after consulting a number of medical and legal experts, including the magistrate who sits in the Traffic Court, has recommended the present amendment. By the amendment the present wording of the Act is retained in full, and a new provision is added to the effect that if a person’s mental or physical faculties are lost or appreciably impaired through alcohol or drugs he shall be deemed to be incapable of driving. In effect the amendment, if passed, will lay down for drivers the following rule: You must not drive a vehicle while your mental or physical faculties are lost or appreciably impaired by alcohol or drugs even if you can show that you are able to drive when in that condition.
[3] Parliament of South Australia, Parliamentary Debates, Legislative Council, 8 December 1948 at 1760-1761.
Section 48(4) of the Road Traffic Act, 1934-1947 became s 47(2) RTA. In 1988, pursuant to ss 7(1) and (2) of the Acts Republication Act 1967 (SA), the Commissioner of Statute Revision altered s 47(2) by deleting the words “shall be deemed to be” and substituting in their place the word “is”. A consequential amendment was made to the last sentence of the provision with the overall consequence that it ceased to be a deeming provision.
The physical elements of the offence created by s 47(1) are comprised of an act and a circumstance. First, it must be proved beyond reasonable doubt that the defendant was either driving a vehicle or attempting to put a vehicle in motion (the act). Second, it must be proved beyond reasonable doubt that the defendant was doing either of those acts while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle (the circumstance). In my view s 47(2) RTA in its current form expands the meaning to be attributed to the composite phrase “incapable of exercising effective control of the vehicle” as used in s 47(1) RTA. It provides that the prosecution will prove the necessary circumstance if it is proved beyond reasonable doubt that, at the time of driving or attempting to put a vehicle in motion, owing to the influence of intoxicating liquor or a drug, any mental or physical faculty of the defendant was lost or was appreciably impaired. Proof of the fact that owing to the influence of intoxicating liquor or a drug, any mental or physical faculty of the defendant was lost or was appreciably impaired is one way that the prosecution may prove the required circumstance, but it is not the only way.
If this is correct, then it may not be enough to avoid a finding of guilt to point to evidence of the defendant’s actual driving as demonstrating that he or she was capable of exercising effective control of the vehicle driven. If the prosecution proves beyond reasonable doubt that owing to the influence of intoxicating liquor or a drug, any mental or physical faculty of the defendant was lost or was appreciably impaired at the time the defendant was driving, the offence is still made out irrespective of how well the defendant actually drove. Moreover, even if a defendant under the influence of intoxicating liquor or a drug were observed to drive in a manner no different to a sober person, that does not necessarily mean that the defendant was not so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of a vehicle. In Pulleine v Button Abbott J explained:[4]
The case of Chuck v. West is the only other case to which I was referred. That case was also decided before the Road Traffic Act Amendment Act 1938 was passed by Parliament, and therefore before the present s. 48 had come into operation. In his judgment, Angas Parsons J. said, “It is, I suppose, possible for a man who is drunk to effectively control the car which he is driving; for example, if he drives straight and with the necessary degree of caution in the circumstances he is doing all a sober man would do, and therefore has, in spite of his condition, effective control. It would seem that drink affects persons in different ways, such as to make one driver cautious to retain control and another reckless as to the need for control.” Here again with the utmost respect, I take leave to differ from the learned Judge when he says “he is doing all that a sober man would do, and therefore has, in spite of his condition, effective control.” The fact that he is “doing all that a sober man would do” may constitute cogent evidence that he is not in fact drunk, as but for his driving he would otherwise appear to be; but his driving is no answer to the charge, if the Court is satisfied on other more cogent evidence that he is in fact drunk, and so drunk as to be incapable of exercising effective control over his vehicle. In my opinion, to find that a defendant is so much under the influence of intoxicating liquor as to be incapable of exercising effective control over his vehicle, means no more than to find beyond reasonable doubt that the defendant is so much affected by liquor as to be to a material degree incapable of exercising the same complete control in all respects over his vehicle—not merely in the driving of it—as a normal and reasonably competent driver would be able to exercise if he were entirely sober. In saying this, I will not, I hope, be understood to suggest that a defendant can be found guilty upon mere medical evidence that he has consumed some liquor and is therefore, from a medical point of view, not strictly sober. The theories of some medical men about the effect in the blood-stream of a minute quantity of alcohol have not yet attained to that degree of moral certainty upon which courts of law can act in the administration of the criminal law. It must always be a question of fact on all the evidence, upon which the Court must be satisfied beyond reasonable doubt that the defendant is so much affected by liquor or drug that he is to a material degree not able to exercise the same complete control in all respects over his vehicle as a normal and reasonably competent driver would be able to exercise if he were sober.
[footnotes omitted] [emphasis in original]
[4] [1948] SASR 1 at 7-8.
And in Hunter v Fitzgerald Napier CJ said:[5]
It seems to me that the driving of a motor vehicle upon the public highway is an occupation that calls for a high degree of concentration. Unless the driver is able to give his undivided attention to his driving and to exercise the requisite degree of care and skill, he is a menace to the public safety. That, I take it, is what the Legislature has in mind when it refers to “exercising effective control.” For that purpose the driver requires to be in the full possession of all his faculties. He has to keep alert, and look out. He has to judge speed and distance, and to react promptly or instinctively to any threat of danger.
[5] [1951] SASR 126 at 128.
The approach I take to s 47(2) RTA has the consequence that it imposes no constraint on the evidence that a defendant may adduce relevant to the question of whether he or she was under the influence of intoxicating liquor or drugs or was incapable of exercising effective control of the vehicle he or she was driving or attempting to put in motion. However, as I have said, merely pointing to evidence of effective driving may not be sufficient to avoid conviction if it is proved beyond reasonable doubt that, despite this, owing to the influence of intoxicating liquor or a drug, the defendant was nonetheless incapable of exercising effective control of the vehicle, or, any mental or physical faculty of the defendant was lost or was appreciably impaired. In the latter instance “appreciably” means no more than “capable of being appreciated, valued or recognized by the mind”.[6]
[6] Sims v O’Sullivan [1952] SASR 179 at 182 (Napier CJ).
In the present case the Magistrate has, with respect, misunderstood the effect of ss 47(1) and (2) RTA. In the penultimate paragraph of the Magistrate’s reasons reproduced above[7] he concludes that whilst Mr Heintze was affected as observed it had not been proved that he was under the influence of alcohol as to be incapable of exercising effective control of the utility. The reasons then given focus upon the evidence of Mr Heintze’s actual driving. The conclusion reached is that it was reasonably possibly that Mr Heintze was not incapable of exercising effective control of his vehicle because he drove for a distance in a manner that displayed effective control. However, his doing so is not inconsistent with the prosecution case, particularly when one has regard to what it means to be exercising effective control. If I am wrong in this, nowhere does the Magistrate address the question of whether, the observations made of Mr Heintze’s driving aside, the prosecution had proved beyond reasonable doubt that owing to the influence of intoxicating liquor or a drug, any mental or physical faculty of the defendant was lost or was appreciably impaired at the time the defendant was driving the Holden.
[7] At [38].
Accordingly, I would allow the prosecution appeal and quash the order acquitting Mr Heintze of the driving under the influence charge. The next question is whether I should substitute a conviction for the acquittal.
This is an appeal pursuant to s 42(1) of the Magistrates Court Act 1991 (SA) (MCA). Section 42(5) MCA provides:
(5) On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a)it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b)it may remit the case for hearing or further hearing before the Magistrates Court;
(c)it may make any other order (including, subject to subsection (5a), an order for costs) that may be necessary or desirable in the circumstances.
It has not been uncommon for this Court to substitute an acquittal for a conviction pursuant to this power.[8] Accepting this, the power must equally be broad enough to permit the substitution of a conviction. In Police v Thompson Vanstone J did so.[9] A literal reading of s 42(5)(c) would support the existence of the power to substitute a conviction. No argument was advanced to suggest that this Court did not have the power to substitute a conviction if it was satisfied, bearing in mind the advantage that the Magistrate had in seeing and hearing the witnesses, that Mr Heintze’s guilt had been proved beyond reasonable doubt.
[8] See, eg, Collie v Police (2013) 115 SASR 281.
[9] [2006] SASC 20.
In Fox v Percy Gleeson CJ, Gummow and Kirby JJ said:[10]
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
As this Court there said, that approach was “not only sound in law, but beneficial in … operation”.
[footnotes omitted]
[10] (2003) 214 CLR 118 at [25].

I remind myself of the prosecutorial aid contained in s 175(1)(i) RTA. Once the charge in the complaint averred to Mr Heintze as being the driver of the Holden at the material time, s 175(1)(i) RTA burdened Mr Heintze with having to prove the contrary on the balance of probabilities. Putting the question of admissibility to one side,[11] the evidence of his denials was untested self-serving statements that could not amount to “proof to the contrary” either taken in isolation or considered with the circumstantial evidence to which the Magistrate had regard and which has been referred to above.[12]
[11] See R v Helps (2016) 126 SASR 486.
[12] At [33], [36].
None of the police officers who attended at 7 Ruby Street and who gave evidence were challenged as to their observations of Mr Heintze’s presentation. The Magistrate set out the gist of that evidence.[13] No reason arises not to act on it. Constable Price had to take hold of Mr Heintze to prevent him falling. All of the observations the officers made of Mr Heintze’s presentation were made within a very short time of him having driven the Holden. I infer that his presentation as the police officers observed and, in particular, the obvious impairment of his physical faculties, were no different to that when he was driving the Holden. Constable Price said Mr Heintze smelt of liquor and, applying the police intoxication classification system, assessed him as grossly intoxicated. Constables Renko and Marks said Mr Heintze appeared intoxicated. Constable Gaulke said he “smelt of liquor on his breath”. Again this evidence was not challenged. The fact that he vomited is also relevant here. It is stating the obvious to say that alcohol can make a person vomit. I infer that Mr Heintze’s physical faculties were impaired owing to intoxicating liquor. Further, I do not doubt that his physical faculties were appreciably impaired. The evidence of the officers demonstrates as much.
[13] At [40] above.
I am satisfied beyond reasonable doubt that Mr Heintze did drive the Holden on 9 June 2017 whilst his physical faculties were appreciably impaired owing to the influence of intoxicating liquor. Accordingly, I am satisfied beyond reasonable doubt that he did drive his Holden on 9 June 2017 whilst so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle. For these reasons I conclude that the elements of the offence of driving whilst under the influence were proved beyond reasonable doubt. I substitute an order convicting Mr Heintze of that charge.
Mr Heintze’s appeal
Mr Heintze submits that with respect to the charge of drive disqualified the evidence was not capable of excluding the possibility that the vehicle first observed by Constables Renko and Price leaving McDonald’s and travelling north on Main North Road was a different vehicle to that located at 7 Ruby Street, and, if it were the same vehicle, was not capable of excluding the possibility that someone other than Mr Heintze was the driver. It was submitted that it was reasonably possible that another person had driven the Holden to the Ruby Street address, parked it in the driveway, got out and gone inside leaving the food and drink purchased at McDonald’s in the vehicle for Mr Heintze to retrieve. The movement in the house that Constables Renko and Gaulke said they saw could have been that other person who was not located by police when they went inside because he or she left the premises from the backyard.
The prosecution relied upon circumstantial evidence to prove that both the vehicle located at 7 Ruby Street was the Holden that Constables Renko and Price saw exit McDonald’s and that Mr Heintze was the driver of that vehicle. In those circumstances:[14]
… neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2]:
“At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness ‘separately in, so to speak, a hermetically sealed compartment’; they should consider the accumulation of the evidence: cf Weeder v The Queen.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider ‘the weight which is to be given to the united force of all the circumstances put together’: per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelen; and see Thomas v The Queenand cases there cited.”
And as Dixon CJ said in Plomp:
“All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.”
[footnotes omitted] [emphasis in original]
[14] R v Hillier (2007) 228 CLR 618 at [48] (Gummow, Hayne and Crennan JJ).
The Magistrate listed the intermediate facts upon which the prosecution relied to establish that the Holden located at 7 Ruby Street was the same Holden as seen by Constables Renko and Price exiting McDonald’s. That list is set out above in a passage taken from the Magistrate’s reasons.[15]
[15] At [33].
In my view it was open to the Magistrate to conclude that the combined force of the circumstances to which he referred satisfied him beyond reasonable doubt that the Holden at 7 Ruby Street was the same vehicle as that seen by Constables Renko and Price to exit McDonald’s not long before 00:56:44 and proceeding at speed north along Main North Road. The compelling inference is that the McDonald’s packaging and the McDonald’s drink were recently obtained from McDonald’s for Mr Heintze. The bonnet of the Holden was warm indicating recent use. In the circumstances, bearing in mind the time of night, the absence of any suggestion that another McDonald’s restaurant was within walking distance, and no-one else being in the street during the time that Constables Renko and Price maintained observations, it may be inferred that the vehicle was used to purchase the McDonald’s. That inference gains strength when there is added the matching description of the Holden seen exiting the McDonald’s on the corner of Main North Road and Montague Road, a distance of about 6.7 kilometres, around five minutes earlier that proceeded in a northerly direction being the direction that one would take to get to Ruby Street. Here it must be borne in mind that the description of the Holden is not simply that of a white Holden utility. The probability of the Holden at Ruby Street being the same as that at McDonald’s is increased by the fact that in each instance the Holden seen is a white utility with a canopy. The fact that Constable Price did not observe that the Holden had any defect does not detract from the combined force of the other intermediate facts.
The Magistrate also listed the intermediate facts upon which the prosecution relied to establish that Mr Heintze was the driver of the Holden located at 7 Ruby Street that was seen by Constables Renko and Price exiting McDonald’s. That list is also set out above in a passage taken from the Magistrate’s reasons.[16]
[16] At [36].
It was around 1:04 am when Mr Heintze was located by police in Ruby Street adjacent the Holden looking under rocks. He had a McDonald’s drink in his hand and McDonald’s packaging was on the ground nearby, as if it had been put down so that he had a free hand. The keys to the Holden were in his pocket. The Holden contained documents that bore his name. The bonnet was warm. No-one else was to be seen. Bearing in mind that the description of the Holden leaving McDonald’s matched that of the Holden at Ruby Street, and the fact that it was not simply a white Holden utility as I have remarked, the inference that Mr Heintze had driven the utility not long before the police arrived is inescapable.
The hypothesis that another person could have been the driver was dependent upon the movement that Constables Renko and Gaulke said they saw. Neither constable said that they saw a person. Constable Renko saw a shadow and Constable Gaulke saw a quick change of light. The police entered the house and found no-one present. For the hypothesis that another person might have been the driver of the Holden to amount to a reasonable possibility, it must be considered reasonably possible that what Constables Renko and Gaulke saw was another person and that that person left the premises through the backyard or hid somewhere in the premises. In considering whether this was a reasonable possibility the fact that Constable Renko only saw one person in the Holden must be taken into account, as must the fact that keys to the utility were found in the possession of Mr Heintze, that the utility contained documents bearing his name, that there was no evidence of anyone being in the backyard or any noise coming from the backyard or rear of the house, that the vehicle had come from McDonald’s, that Mr Heintze had a McDonald’s drink and had likely put down the McDonald’s packaging as he moved rocks. It is also important to note that the door to the premises was shut. If Mr Heintze came from within the house, why was the door not left open as he quickly retrieved that for which he went outside? If he were with the driver, why was the door not left open for him by the driver?
In my view, it was open to the Magistrate to reject all hypotheses consistent with innocence and conclude that it had been proved beyond reasonable doubt that Mr Heintze drove the Holden on Main North Road on 9 June 2017 whilst disqualified.
Counsel for Mr Heintze criticised the Magistrate’s reasons on the grounds that they did not disclose the basis upon which he excluded the hypotheses consistent with innocence that arose on the evidence. In GLCS Group Incorporated v Dzundza I said:[17]
[17] [2018] SASC 31 at [41]-[44].
In Carlson v King Jordan CJ said:
... It has long been established that it is the duty of a Court of first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. The duty is incumbent, not only upon magistrates, Ex parte Powter; Re Powter, and District Courts, but also upon this Court, from which an appeal lies to the High Court and the Privy Council: Ex parte Reid; Re Lynch.
[citations omitted.]
The failure to give adequate reasons is an error of law. In Soulemezis v Dudley (Holdings) Pty Ltd, McHugh JA (as he then was) identified three primary purposes for the requirement that a court provide adequate reasons:
The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment “is not only to do but to seem to do justice”: The Writing of Judgments (1948) 26 Can Bar Rev at 491. Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability. As Professor Shapiro has recently said (In Defence of Judicial Candor (1987) 100 Harv L Rev 731 at 737):
“... A requirement that judges give reasons for their decisions — grounds of decision that can be debated, attacked, and defended — serves a vital function in constraining the judiciary’s exercise of power.”
Thirdly, under the common law system of adjudication, courts not only resolve disputes — they formulate rules for application in future cases: Taggart “Should Canadian Judges Be Legally Required to Give Reasoned Decisions In Civil Cases” (1983) 33 University of Toronto Law Journal 1 at 3-4. Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.
The applicable principles were more recently summarised by the Full Court of this Court in Resi Corporation v Munzer:
Of more recent times there have been many decisions on the question of the adequacy of judicial reasons. Many cases turn upon the facts in issue in the particular case. However, a number of general principles relating to the duty to give adequate or proper reasons may be extracted from the cases:
1.“The extent and content of reasons will depend upon the particular case under consideration and the matters in issue”. While a judge is not obliged to spell out every detail of the process of reasoning to a finding it is essential to expose the reasons for resolving a point critical to the contest between the parties.
2.A court when considering the decision under appeal should not be left to speculate from collateral observations as to the basis of a particular finding.
3.A trial judge has a duty to refer to material evidence and make findings about material issues in the case. It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another and assert that having seen and heard the witnesses he or she prefers or believes the evidence of one and not the other. In other words, a bald statement of an ultimate conclusion may not be sufficient. A trial judge is required to engage with the issues canvassed and to explain why one expert is accepted over the other.
4.It will ordinarily be sufficient if by his or her reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he or her has acted.
5.Reasons for decision are to be read fairly and in the context of the manner in which the trial was conducted. Reasons may appear by necessary inference from what is stated expressly.
6.It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. The function of the appellate court is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of the judicial power.
It is important in this case to read the Judge’s reasons in their entirety and in the context of the manner in which the cases were presented at trial.
[footnotes omitted.]
Reasons answer the question “why?”. Adequate reasons expose the path taken by the decision-maker that lead to the ultimate conclusion. They expose all necessary intermediate or foundational conclusions of fact or law reached, and why such conclusions have been reached. Importantly:
The requirement for reasons was affirmed by the Court of Appeal of the Supreme Court of New South Wales in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. Although there was some divergence of views as to the extent of the obligation, all members of the Court agreed that there was an obligation to give adequate reasons for a decision that was subject to appeal. The extent of the obligation depended upon the scope of the appellate review. I agree with what Kirby P said (at 259):
“This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done.”
I also agree, without setting it out, with the approach taken by Mahoney JA and his adoption of the approach of McHugh JA when he said (at 280):
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons ... But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given ... the extent of the duty to give reasons is related ‘to the function to be served by the giving of reasons’. Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies.”
[footnotes omitted]
I consider the Magistrate’s reasons were adequate.
Early in his reasons the Magistrate identified the two key trial issues the first of which was as follows:
1) Has it been established beyond reasonable doubt that the defendant drove the utility on the relevant occasion alleged? This includes establishing that the vehicle observed initially by police officers Renko and Price was the utility as discovered at 7 Ruby Street.
Later under the heading, “Was the defendant the driver of the utility”, the Magistrate said:
This relies on circumstantial evidence and also must negate the evidence that the defendant twice denied to police at 7 Ruby Street that he was the driver of the utility.
The defendant also submits that evidence of what was observed in the house at 7 Ruby Street raises the issue of another person being present at the time of police arrival and therefore raising a reasonable inference consistent with innocence, namely that the unknown person inside the house was the driver. Therefore it is submitted the prosecution cannot prove beyond reasonable doubt the defendant was the driver of the utility. I bear that submission in mind in deciding this issue as well his written submissions on those issues.
Thereafter the Magistrate set out the circumstantial evidence that the prosecution relied upon (as reproduced above)[18] before again referring to the written submissions filed on behalf of Mr Heintze. He said:
The defendant deals with argument (sic) at paragraphs 91-100 and 105.2 suggesting the state of evidence allows the reasonable inference he was not the driver of the utility and his state of intoxication as observed is inconsistent with the driving observed.
[18] At [36].
He then concluded:
I have carefully considered the defendant’s arguments. After that scrutiny and consideration of the prosecution’s submissions on this topic together with directing myself in accordance with the law on circumstantial evidence, I am satisfied it has been established beyond reasonable doubt that the defendant did drive the utility as alleged.

Prior to undertaking his analysis of the evidence the Magistrate did refer to R v Hillier (2007) 228 CLR 618 at 637, Shepherd v The Queen (1990) 170 CLR 573 at 579-580 and Doney v The Queen (1990) 171 CLR 207 at 211 including providing the page references here stipulated. As a convenient means of self-direction this was adequate. The references contain the important direction that guilt can only be proved by circumstantial evidence if all other reasonable hypotheses consistent with innocence arising on the evidence are excluded beyond reasonable doubt. The Magistrate’s conclusion as set out in the last passage from his reasons and quoted above must be viewed in the light of his having given himself this self-direction. He has given careful consideration to the arguments advanced on behalf of Mr Heintze which he identified by reference to the written submissions filed. I have had regard to the written submissions. As is to be expected, those arguments provided reasons why the hypotheses consistent with innocence could not be excluded beyond reasonable doubt. The Magistrate has determined to the contrary. It could be said that he could have stepped out his reasoning better explaining why he rejected the hypotheses consistent with innocence as not amounting to reasonable possibilities. However, it is difficult, at times impossible, to articulate why some facts do not cause a trier of fact to doubt the strength of an inference to be drawn from other facts or why the probability of a possible outcome pales to insignificance in the light of the combined force of evidence suggesting the probability of a competing outcome having occurred to approach the certain.
In my view the Magistrate’s reasons are sufficient to satisfy me that he has, in relation to the drive disqualified charge, properly considered the evidence and correctly applied the law to the facts as he found them to be in the course of determining whether Mr Heintze’s guilty has been proved beyond reasonable doubt.
I would dismiss Mr Heintze’s appeal.
Orders
I allow the appeal against Mr Heintze’s acquittal on the charge of driving whilst under the influence, quash the acquittal and substitute a conviction. I dismiss Mr Heintze’s appeal against his conviction on the charge of driving whilst disqualified. I remit the matter to the Magistrates Court for sentence.