SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MELISI
[2010] SASC 21
Judgment of The Honourable Justice White
15 February 2010
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
Appeal against acquittal of a charge of aggravated driving without due care - whether Magistrate failed to apply an objective test to the assessment of the respondent's driving - whether Magistrate made an error of principle in focussing on the ability of the respondent to avoid the collision - whether Magistrate should have found the charge proved on the evidence at trial.
Held: Magistrate appropriately applied an objective test to the assessment of the respondent's driving - not an appropriate case for appellate intervention with the Magistrate's findings of fact - appeal dismissed.
Road Traffic Act 1961 (SA) s 45; Justices Act 1921 (SA) s 177; Magistrates Court Act 1991 (SA) s 42, referred to.
Dunsmore v Dawson (1981) 94 LSJS 1; Crispin v Rhodes (1986) 40 SASR 202; Ladlow v Hayes (1983) A Crim R 377; Vairy v Wyong Shire Council (2005) 223 CLR 442, applied.
Taylor v Hayes (1990) 53 SASR 282; Rowland v Police (2001) 79 SASR 569; Thorogood v Warren (1979) 20 SASR 156; Semple v Williams (1991) 156 LSJS 40; DPP (Cth) v Brown (1994) 72 A Crim R 527; Police v Jachmann [2009] SASC 392; Arthur v Police (2008) 101 SASR 529, considered.
POLICE v MELISI
[2010] SASC 21Magistrates Appeal
WHITE J: On 8 October 2007, a van driven by the respondent struck a pedestrian, causing him fatal injuries. The respondent was charged with driving without due care, with the prosecution alleging that the death of the pedestrian made it an aggravated offence.[1] A Magistrate acquitted the respondent of that charge. The Police now appeal against the order of acquittal.
[1] Contrary to s 45(3) of the Road Traffic Act 1961 (SA) (RTA).
The appeal is by way of rehearing. This Court is required to reconsider all of the evidence before the Magistrate and to make up its own mind, after giving due weight to the advantage of the Magistrate in seeing and hearing the witnesses, and after giving appropriate weight to the Magistrate’s findings on credibility which depended wholly or partly upon the witness’ demeanour.[2]
[2] Taylor v Hayes (1990) 53 SASR 282. Although Taylor v Hayes was decided in relation s 177 of the Justices Act 1921 (SA), the approach discussed by Perry J is equally applicable to appeals under s 42 of the Magistrates Court Act 1991 (SA): Rowland v Police [2001] SASC 179; (2001) 79 SASR 569.
In the case of a prosecution appeal against an acquittal based upon a Magistrate’s…
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- Police v Melisi [2010] SASC 21
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- [2010] SASC 21
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CaseChat Overview and Summary
The court found that the Magistrate had not erred in law. The court held that the Magistrate had correctly applied the objective test in assessing Melisi's driving. The court found that the Magistrate had not erred in principle by focusing on Melisi's ability to avoid the collision, as this was a relevant factor in determining whether Melisi had driven without due care and attention. The court also found that the Magistrate's assessment of the evidence was not flawed and that there was no basis to conclude that the charge should have been found proved. The court held that the Magistrate's decision to acquit Melisi was not unreasonable and that there was no error of law that would warrant a retrial or conviction.
The Supreme Court of South Australia dismissed the appeal by the Police against the acquittal of Melisi on the charge of aggravated driving without due care and attention. The court held that the Magistrate had correctly applied the relevant legal principles and that there was no basis to interfere with his decision. The court found that the evidence did not support a finding that Melisi had driven without due care and attention to the extent required by law. The court held that the acquittal was justified and that there was no error of law that would warrant a retrial or conviction.
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