Police v Jozinovic

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 the course of which, on one construction of what he said, he might be taken to have admitted that charge.
Be that as it may, in the circumstances, Mr Ahern, who appeared for the appellant, very properly did not pursue the appeal insofar as it relates to the dismissal of the charge of urinating in a public place.
So far as the other two charges are concerned, in my view, the manner in which the magistrate proceeded was irregular. Where there is a charge of driving with a prescribed concentration of alcohol, together with a charge of driving under the influence of intoxicating liquor both relating to the same incident and the same factual situation, the proper course for a magistrate to take is to inquire of the prosecution whether it proposes to proceed with the charge of driving under the influence.
If the prosecution wishes to do so, and there is a guilty plea to that charge, as was the case here, the hearing of that charge should proceed. After that has been dealt with, the complainant should be invited to indicate whether he or she proposes to proceed with the first count. One would think that in those circumstances, the complainant will not proceed with it. If the complainant did not follow that course, the proper course for the magistrate would be to dismiss the charge of driving with a prescribed concentration of alcohol without proceeding to a conviction or penalty.
The magistrate in this case conflated the process and accepted a plea of guilty from an unrepresented defendant to both driving with the prescribed concentration of alcohol and driving under the influence of intoxicating liquor.
It would have been better, as I have explained, particularly given that the respondent was unrepresented, to have accepted the plea on the charge of driving under the influence and intoxicating liquor and to have suggested to the defendant that he should withdraw his plea of guilty to the other charge, so that the magistrate could then proceed to dismiss it in the way that I have indicated.
I do not think that it was right for the magistrate to address the question whether the evidence could sustain the charge of driving under the influence, given that there had been a plea of guilty to it; that there was a blood alcohol concentration of 0.142; and given the observations of the arresting police officers who noted that the respondent was staggering, was argumentative and agitated, that there was a strong smell of liquor on his breath, and that he was continually “begging” and constantly repeating himself. The plea of guilty to driving under the influence should have been accepted and the respondent should have been dealt with for that offence.
Instead, in his reasons the magistrate said in the passage to which I have referred that the evidence would not support a charge of DUI. In my view, he was mistaken as to that, and for the reasons which I have given he should have sustained the plea of guilty to that charge and dealt with the appellant accordingly.
However, in all the circumstances, I do not think that it would be right for this Court to attempt to turn the clock back.
The outcome of the hearing, unsatisfactory as it might have been from the point of view of procedure, was that the respondent was convicted of driving with the prescribed concentration of alcohol, an offence of which he was no doubt guilty, and had the benefit of dismissal of the other charge. Quite properly, in those circumstances, Mr Ahern accepted that the proper course for this Court to follow on the appeal was to leave matters as they stand, so long as what I have identified as an error on the magistrate’s part was identified, and to address the only remaining question, which is whether or not the circumstances in which the offence of driving with a prescribed concentration of alcohol was committed properly justified a finding that it was trifling.
In my view, as to the “trifling” application, this was a borderline case.
Mr Ahern referred to the decisions of the Full Court in Siviour-Ashman v Police.[1]
[1] (Unreported) judgment No [2003] SASC 29.
In that case, Doyle CJ confirms the line of authority which is to the effect that a normal or typical offence of its kind should not be treated as trifling.
The court Siviour-Ashman also addressed the question of the extent to which the preliminaries to the passage of driving, which might throw light on the circumstances in which the defendant came to drink so as to reach the prescribed concentration of alcohol, were relevant.
It is clear from that case that while those circumstances may be relevant, the principal focus of the court in determining whether the offence is trifling must be the objective evidence as to the passage of driving and the blood alcohol concentration.
There are some cases such as Campbell v Fuss,[2] where the distance driven is very short and where the circumstances are otherwise atypical, where the court has been prompted to hold that the offence in those circumstances is trifling.
[2] (1991) 55 SASR 355.
In Siviour-Ashman (supra), however, the passage of driving was substantial and the blood alcohol concentration relatively high at 0.120. The court held in that case that despite the fact that the blood alcohol level was reached only as a result of the fact that unbeknown to the defendant her last drink may have been spiked, the offence was not trifling.
In this case the passage of driving was 70 metres or less. The respondent maintains that it was very much less than that, but I am not sure where the truth lies as to that.
The respondent did, however, drive out of a position in which his car was parked which, on his account of the matter, was a course he took as he thought he was parked illegally, so as to drive around a corner into Currie Street. He parked in Currie Street in an authorised area.
As I have said, his driving was over a relatively short distance, and it could not be said that the evidence established that he intended to drive any further than that.
In my view, this is a borderline case. It may well be that another magistrate might have held that the offence was not trifling. In the particular circumstances, however, it has not been demonstrated that the finding by the magistrate that it was trifling was a finding which lay outside a proper exercise of the discretion.
Not without some hesitation, I would dismiss the appeal against the finding that that offence was trifling.
In the end result the appeal, as a whole, is dismissed.
There will be no order as to costs of and incidental to the appeal.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. (Unreported) judgment No [2003] SASC 29.
2. (1991) 55 SASR 355.

[2004] SASC 64

4 March 2004