Police v M

Case [2004] SASC 281

SUPREME COURT OF SOUTH AUSTRALIA

(Youth Court Appeal: Criminal)

POLICE v M

Judgment of The Honourable Justice Perry

16 September 2004

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER

TRAFFIC OFFENCE - TRIVIALITY

The police appealed against the finding by a magistrate following the respondent's plea of guilty to driving under the influence of alcohol, that the offence was trivial - the respondent left a hotel in the early hours of the morning after a long drinking session and sat in his car in the car park, but not intending to drive it - a gang of youths attacked him and the car, smashing the back window - in panic, he drove off and was apprehended by the police after they had followed him through nearby streets - the magistrate accepted that the respondent only drove in response to the threats and attack from the gang of youths - consideration of the relevance of circumstances providing an explanation for the driving, to the question whether it might properly be characterised as trivial - appeal dismissed.

Road Traffic Act 1961 s 47a, s 47b and s 47(3)(b), referred to.
Siviour-Ashman v Police (2003) 85 SASR 23; Walden v Hensler (1987) 163 CLR 561; Police v Bainbridge (unreported) Martin J, 3 November 2003; Police v Cadd and Ors (1997) 69 SASR 150; Everett v The Queen (1994) 181 CLR 295; Hemming v Droulias (2000) 206 LSJS 389, considered.

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE

The appellant by cross-appeal was convicted of driving under the influence of alcohol - he had entered his vehicle, not intending to drive it, in the early hours of the morning, but drove off in panic when he and the vehicle were attacked by a gang of youths - his plea of self-defence was rejected by the trial magistrate - discussion of the question whether a plea of self-defence can be raised in circumstances other than those where the defendant commits what would otherwise constitute an assault - discussion of the expression "defensive purpose" and of the reformulated statutory codification of self-defence in s 15 of the Criminal Law Consolidation Act 1935 - consideration of the question whether the terms of the amendments to s 15 of the Act, which post-dated the offence, could be used as an aid to its interpretation - held that the defence necessarily involved the concept of the lawful use of force by a defendant and accorrdingly was not open in the circumstances - appeal dismissed.

Criminal Law Consolidation Act 1935 s 15, s 15A and s 15B, referred to.
Zecevic v DPP (1987) 162 CLR 645; R v Lawson and Anor [1986] VR 515; Russell on Crime 12th edition, Vol 1, page 680; Stephen's Digest of the Criminal Law 9th edition (1950)…

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Details
AGLC
Police v M [2004] SASC 281
Case
[2004] SASC 281
Decision Date

CaseChat Overview and Summary

The appeal by the police against the magistrate's finding that the offence of driving under the influence of alcohol was trivial hinged on the respondent's actions and the circumstances surrounding his driving. The respondent had been sitting in his car in a hotel car park after a night of drinking, when a group of youths attacked him and his car. In response to this attack, the respondent drove off and was subsequently apprehended by police. The magistrate accepted that the respondent's driving was in direct response to the threats and the attack, characterising the offence as trivial. The central legal issue was whether the circumstances surrounding the respondent's driving could justify the characterisation of the offence as trivial. The police argued that the offence was not trivial given the presence of alcohol in the respondent's system and the dangerous nature of his driving.

The court considered the relevance of the respondent's explanation for his driving, particularly in the context of self-defence as per section 15 of the Criminal Law Consolidation Act 1935 (SA). The respondent argued that the magistrate erred in not applying the defence of self-defence. The court had to determine whether the respondent's driving in response to the attack could be considered trivial. In dismissing the appeal, the court upheld the magistrate's finding that the offence was trivial, emphasising the respondent's immediate response to the attack and his lack of intent to drive under the influence. The court found that the circumstances provided a sufficient explanation for the driving to be characterised as trivial.

In the cross appeal, the respondent contended that the magistrate erred in not applying the defence of self-defence. The court considered the evidence of the attack and the respondent's immediate reaction but ultimately upheld the magistrate's decision that the defence of self-defence did not apply to the offence. The court concluded that while the respondent's driving was in response to the attack, it did not negate the fact that he was driving under the influence of alcohol.

The appeal was dismissed, and the cross appeal was also dismissed. The court's decision affirmed the magistrate's assessment that the offence was trivial, taking into account the respondent's immediate response to the attack and his lack of intent to drive under the influence. The court did not find error in the magistrate's consideration of the defence of self-defence, upholding the conviction and sentence as originally determined.

Orders

Orders of the court

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Background

Background to the litigation

In his cross appeal, the respondent advances one ground:“1.That the learned Magistrate erred in finding that self-defence per s 15 of the Criminal Law Consolidation Act 1935 (SA) did not apply to the offences before the trial Court.”Facts Three police officers gave evidence on behalf of the complainant. In addition, as part of the prosecution case, several certificates were tendered which operated as presumptive proof of the concentration of alcohol present in the respondent’s blood. The respondent gave evidence and called two other witnesses. Constable Zuromski’s evidence was that at about 3.10 am on the morning in question, together with Constable McLean, he drove to the rear of the Tasman Hotel. They made their way through the car park and drove out onto a street called Washington Street. They then encountered a group of people standing in the middle of the road. A young woman who was in the group told the police officers that a car window had been smashed. There was smashed glass on the road. She pointed down the road to indicate the direction in which the car had driven off. The police officers made off in their vehicle and pursued, what they assumed to have been the vehicle which was pointed out to them, which was still visible some distance down the road. Both vehicles were driven through several streets. The course of the car appeared normal, except for one incident when it swerved from the centre lane, or the centre line to the far left of the road and nearly collided with the gutter, following which it performed a large, sweeping right hand turn, running over some rumble strips in the course of doing so. Eventually the police officers caught up with it, and signalled the driver to stop. The driver, who turned out to be the respondent, got out of his car and started to walk towards the police officers. He was observed to be unsteady on his feet and stumbled. His breath smelt of alcohol. His speech was slurred, his clothing dishevelled and his eyes slightly bloodshot. Constable Zuromski formed the view that he was grossly affected by alcohol. After a brief conversation at the scene, the respondent was taken to Port Lincoln police station where a breath analysis test was administered. This indicated that the respondent’s blood alcohol level was 0.171 grams per 100 millilitres of blood. While at the police station, the respondent vomited on two occasions. Constable McLean’s evidence was to much the same effect as that given by Constable Zuromski. His evidence was that the respondent appeared to be “at the lowest end of grossly intoxicated”. Constable McLean recalled that he noticed that the back window of the respondent’s car was smashed. He asked the respondent and his two passengers about it. His evidence was:“They weren’t too concerned. They didn’t offer any explanation as to how it happened and they were more concerned how they were going to get home.” According to Constable McLean, they said that it had just before then been smashed in the Coles car park, which apparently was the car park behind the hotel, but they did not know by whom.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J

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Ratio Decidendi

Legal Principle Established

Established by: PERRY J

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