Police v Melisi

Case [2010] SASC 21

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 21

Magistrates Appeal

  1. 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).

  2. 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.

  3. 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
Case
[2010] SASC 21
Decision Date

CaseChat Overview and Summary

The case of Police v Melisi involves an appeal by the Police against the acquittal of Melisi on a charge of aggravated driving without due care and attention. The case was heard in the Supreme Court of South Australia, which was asked to determine whether the Magistrate had erred in his application of the law when acquitting Melisi. The key issues before the court were whether the Magistrate had failed to apply an objective test in assessing Melisi's driving and whether the Magistrate had erred in principle by focusing on Melisi's ability to avoid the collision instead of the required standard of care. The court was also asked to consider whether, based on the evidence presented, the Magistrate should have found the charge proved.

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.

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

For these reasons, I do not consider that the Magistrate made the errors of law imputed to him by the appellant.Challenge to the Magistrate’s Factual Conclusions The appellant submitted, in the alternative, that on the evidence which was largely undisputed the Magistrate should have found the charge proved. In essence, there were two aspects to this submission. The first was that the respondent’s admission that he did not see the deceased until a split second before impact was sufficient to indicate that his lookout had been inadequate. The second was that there were enough “cues” in the surrounding circumstances to indicate that the a reasonably prudent driver would have driven more defensively. Mr Hall gave evidence that the deceased was likely to have been walking at a speed of between 1 metre and 1.5 metres per second. He used a speed of 1.2 metres per second for his own analysis. The width of the left west-bound lane on Greenhill Road was 3.4 metres. This meant that it would have taken the deceased approximately three seconds to walk the distance between the southern kerb and the point of impact. The appellant’s submission in short was that the deceased was visible to be seen by the respondent for the whole of that period of approximately three seconds. Although three seconds is a short time in absolute terms, it provided a more than adequate opportunity for him to be seen. Hence it was said that the respondent’s admission that he had not seen the deceased was evidence by itself of an inadequate lookout. There is force in that submission. Another way of assessing the position is to consider the respondent’s position during the period of three seconds before impact. If he had been travelling at a constant speed of 60 kph, he would have been approximately 50 metres from the point of impact when the deceased first stepped on to the roadway. If he was travelling at a constant speed of 55 kph, he would have been approximately 45 metres from the point of impact when the deceased first stepped on to the road surface. In other words, it could be said that the respondent travelled some 45-50 metres without seeing the deceased at all and without appreciating the risk which his presence presented. Although the Magistrate did not make an analysis in these exact terms, he did not overlook the prosecution’s submission along these lines. He observed that statements by drivers that they had not seen another road user are often effectively admissions that the driver was not keeping a proper lookout. However, the Magistrate considered in the present case that the deceased was not visible to the respondent for the whole of the period during which he crossed the left lane. He made a specific finding that “the true situation was effectively concealed from him by the presence of the two vehicles on the left”. On my review of the evidence, I think it unlikely that the deceased would have been completely obscured by the two vehicles, but accept that the respondent’s ability to see the deceased’s body (other than his head and shoulders) would have been obstructed by one or both of the vehicles for at least some part of the three second period. That is because the respondent’s vehicle was to the rear, and to the right, of those two vehicles. Accordingly, for at least some period, those two vehicles would have been between the deceased and the respondent. Of course, as both the respondent and the deceased neared the point of impact, that obstruction would have been removed. It is not possible on the evidence to determine when that may have been, but it is likely that it would have been for at least part of the 45-50 metres travelled by the respondent immediately before impact.

Ratio Decidendi

Legal Principle Established

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