SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v JACHMANN
[2009] SASC 392
Judgment of The Honourable Justice Layton
18 December 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - FAILURE TO KEEP PROPER LOOK-OUT
Prosecution appeal - respondent truck driver involved in collision with cyclist - cyclist killed - charge of Aggravated Driving Without Due Care dismissed by Magistrate - Magistrate found reasonable possibility that respsondent would not have been able to avoid collision - whether Magistrate erred in not focussing on issue of respondent's proper look-out - whether Magistrate placed appropriate weight on respondent's admission that he did not see cyclist - whether part of expert evidence beyond area of expertise - whether expert's reasoning as accepted by Magistrate flawed - whether inappropriate reference to certain factors.
Held: Appeal allowed - Magistrate's failure to focus on respondent's look-out was an error - Magistrate did not give proper treatment to respondent's admission - part of expert's evidence beyond area of expertise and inadmissible - reasoning based on unsound assumption leading to erroneous findings of fact - reference to hypotheticals or suppositions - decision of Magistrate quashed - matter remitted to Magistrates Court for rehearing.
Road Traffic Act 1961 (SA) s 45; Magistrates Court Act 1991 (SA) s 42; s 42(5)(b), referred to.
Police v Jachmann (ex tempore judgment of Ms O'Connor SM, Magistrates Court of South Australia, 26 August 2009), discussed.
SA Police v Murphy (unreported judgment of the Supreme Court of South Australia, Debelle J, 9 January 1996); Warren v Coombes (1979) 142 CLR 531; Thorogood v Warren (1979) 20 SASR 156, considered.
POLICE v JACHMANN
[2009] SASC 392Magistrates Appeal
LAYTON J:
This is a Crown appeal against the dismissal of a complaint against the respondent on a charge of Aggravated Driving Without Due Care, a summary offence under s 45 of the Road Traffic Act 1961 (SA) (“the Act”). The charge arose from a collision which occurred on 22 January 2009 on the Sturt Highway near Yamba between the respondent driving his B-double vehicle and a cyclist. The fact that, tragically, the cyclist was killed, constituted the aggravated circumstance of the charge.
Agreed facts
At trial, the parties agreed certain facts which are summarised by the Magistrate.[1] The collision occurred not long after the respondent had begun the first leg of an expected return journey from Renmark to Goulburn in the performance of his occupation as a truck driver. He had left Renmark at or about 6.45pm and the collision occurred some time between 7.00pm and 7.15pm. It was not dark at that time, with sunset expected at 8.30pm that evening.[2] The respondent was travelling at between 90 and 100 kilometres per hour. Immediately after the collision, the respondent stopped and rendered all possible assistance, although given the nature of the cyclist’s injuries, there was nothing the respondent or anyone else could have done to save…
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CaseChat Overview and Summary
The Supreme Court of South Australia considered whether the Magistrate had erred in not focusing on the issue of the respondent's proper look-out, and whether she had appropriately weighed the respondent's admission that he did not see the cyclist. The Court found that the Magistrate's failure to focus on the issue of the respondent's look-out was indeed an error. Furthermore, the Court found that the Magistrate did not give the respondent's admission the proper treatment it deserved. Additionally, the Court found that part of the expert evidence was beyond the expert's area of expertise and therefore inadmissible. The Court also found that the Magistrate's reasoning was based on an unsound assumption, leading to erroneous findings of fact. The Court concluded that the Magistrate's reference to hypotheticals or suppositions was inappropriate and that her decision was therefore flawed.
The Supreme Court of South Australia allowed the appeal, quashed the decision of the Magistrate, and remitted the matter to the Magistrates Court for rehearing. The Court found that the Magistrate's failure to focus on the respondent's look-out was an error, and that the Magistrate did not give the respondent's admission the proper treatment it deserved. The Court also found that part of the expert's evidence was beyond their area of expertise and inadmissible, and that the Magistrate's reasoning was based on an unsound assumption, leading to erroneous findings of fact. The Court concluded that the Magistrate's reference to hypotheticals or suppositions was inappropriate and that her decision was therefore flawed. The Court quashed the decision of the Magistrate and remitted the matter to the Magistrates Court for rehearing.
Orders
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Background
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Evidence
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