Police v Jozinovic - [2004] SASC 64

POLICE v JOZINOVIC
[2004] SASC 64
Magistrates Appeal: Criminal

PERRY J. (ex tempore) The respondent was charged in the Magistrates Court sitting at Adelaide on a complaint which alleged three counts. The three offences were alleged to have occurred on the same occasion, that is, on 24 February 2002 at Adelaide.
The charges were:
1.Driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol (s 47a and s 47b of Road Traffic Act 1961). The concentration of alcohol alleged was 0.142 grams in 100 millilitres of blood.
2.Driving under the influence of liquor (s 47 of the Road Traffic Act 1961).
3.Urinating in a public place, namely Playhouse Lane (s 24 of the Summary Offences Act 1953).
Having regard to the affidavit of the prosecutor filed in this Court, there is some disputation as to whether or not pleas were taken as to both counts 1 and 2.
The prosecutor, Ms Wasilenia, maintains in her affidavit that the respondent pleaded guilty to count 2 and not guilty to count 3, and that count 1 was not read and no plea taken on it.
This, however, does not accord with the endorsements on the complaint. The endorsements of the complaint indicate that the magistrate recorded a guilty plea as to counts 1 and 2, and at the same time noted that a trifling application was made, on the face of it, as to both of those counts.
The magistrate recorded a not guilty plea to count 3, that is the charge that the respondent urinated in a public place. The magistrate proceeded to hear evidence. He received one body of evidence, as to contested count 3, and as to the “trifling” application with respect to the other two counts.
Evidence was given on behalf of the complainant by Constable Slater, who apprehended the respondent on the occasion in question, and the former police officer Nigel Ambagtsheer. The respondent gave evidence.
After hearing the evidence, according to short ex tempore reasons given by the magistrate, the magistrate upheld the trifling application with respect to count 1. On that count he entered a conviction and a fine of $500, together with a licence disqualification for a period of two months.
As to count 2, the count of driving under the influence, the magistrate observed:
‘The defendant has been described as moderately affected by alcohol. There is no evidence that would support a charge of DUI. I therefore accept the defendant’s plea of driving with the prescribed concentration of blood at a reading of .142. I find him not guilty of the other charges.”
The other charges were, of course, the charge of driving under the influence and the charge of urinating in a public place.
As to the latter charge, the magistrate found that the evidence was unsatisfactory.
I am not at all sure that he should have dismissed that charge, having regard to the terms of discussion by the police officers who apprehended the respondent during…

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 Jozinovic

Details

AGLC: Police v Jozinovic [2004] SASC 64
Case: [2004] SASC 64
Decision Date: 4 March 2004

CaseChat Overview and Summary

The matter of Police v Jozinovic was heard by the South Australian Supreme Court. The police were the appellants, seeking to appeal a decision made by a lower court that had found in favour of the respondent, Jozinovic. The dispute centred around the admissibility of certain evidence obtained by the police during an investigation. The police argued that the evidence should have been admitted, while Jozinovic contended that the evidence was obtained in an unlawful manner and should be excluded.

The court was required to determine whether the evidence obtained by the police was admissible in court. The legal issues included the admissibility of evidence obtained by unlawful means, the application of the exclusionary rule, and the balancing of the public interest in convicting criminals against the need to protect individual rights. The court also had to consider whether the lower court had erred in law by excluding the evidence.

The court found that the evidence obtained by the police was indeed obtained unlawfully. It held that the exclusionary rule, which prevents the use of evidence obtained in an unlawful manner, was applicable in this case. The court emphasised the importance of upholding the integrity of the criminal justice system and protecting individual rights. In light of these considerations, the court upheld the decision of the lower court to exclude the evidence and dismissed the police's appeal. The court did not order any costs for or incidental to the appeal.

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

PERRY J

There will be no order as to costs of and incidental to the appeal.JUDGMENT CITATIONSLISTED IN ORDER OF APPEARANCE IN JUDGMENT1. (Unreported) judgment No [2003] SASC 29.2. (1991) 55 SASR 355.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

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