Police v Noble - [2014] SASC 63

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v NOBLE
[2014] SASC 63
Judgment of The Honourable Justice Sulan
22 May 2014
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - EVIDENCE - SUFFICIENCY
Appeal against Magistrate's decision to dismiss the charge of driving under the influence of intoxicating liquor, contrary to s 47 of the Road Traffic Act 1961 (SA).
Held: The Magistrate did not err in his assessment of the evidence as unconvincing and weak.
Appeal dismissed.
Road Traffic Act 1961 (SA) s 47, referred to.
R v Prasad (1979) 23 SASR 161; Taylor v Hayes (1990) 53 SASR 282; Brebner v Hersey (1963) SASR 1, applied.

POLICE v NOBLE
[2014] SASC 63
Magistrates Appeal: Criminal

SULAN J: The defendant and respondent, Jonathon Robert Noble, pleaded not guilty to driving under the influence of intoxicating liquor as to be incapable of exercising effective control over his vehicle, contrary to s 47 of the Road Traffic Act 1961 (SA) (“the Act”). The Magistrate concluded that the prosecution evidence was so weak and unconvincing that it could not establish the elements of the offence. He acquitted the defendant of the charge. The Police have appealed against that decision.
The Act
Section 47 of the Act relevantly provides:[1]
[1]    Road Traffic Act 1961 (SA), s 47.
47—Driving under the influence
(1)     A person must not—
(a)     drive a vehicle; or
(b)     attempt to put a vehicle in motion,
while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle.
Penalty:
(a)     if the vehicle concerned was a motor vehicle—
(i)    for a first offence—
(A)a fine of not less than $1 100 and not more than $1 600; or
(B)     imprisonment for not more than 3 months; and
(ii)    for a subsequent offence—
(A)a fine of not less than $1 900 and not more than $2 900; or
(B)     imprisonment for not more than 6 months;
(b)     if the vehicle concerned was not a motor vehicle—$500.
(2)     For the purposes of subsection (1), a person is incapable of exercising effective control of a vehicle if, owing to the influence of intoxicating liquor or a drug, the use of any mental or physical faculty of that person is lost or appreciably impaired.
This subsection does not restrict the meaning of the words "incapable of exercising effective control of a vehicle".
...
The Police advance three grounds of appeal:
1The Magistrate wrongly categorised the prosecution evidence of the defendant’s intoxication and faculty impairment as unconvincing and weak.
2The Magistrate was wrong in finding that, because there was no evidence of any erratic driving by the defendant, this was glaringly inconsistent with other evidence led to demonstrate the defendant’s intoxication and faculty impairment.
3The Magistrate failed to properly assess and evaluate the prosecution evidence which, if properly assessed and evaluated, would have led to the conclusion that the defendant was intoxicated and thereby incapable of exercising effective control of a motor vehicle when apprehended by the police.
Background
On 28 April 2013, Brevet Sergeant Churchett was called to attend a residence in Cleve following a complaint about a noisy party. At the party, he observed the defendant consuming alcohol. He made no observations of the defendant’s state of sobriety. Approximately ten minutes later, he observed a vehicle travelling along Third Street. He decided to stop the vehicle for the purpose of subjecting the driver to an alcotest. Brevet Sergeant Churchett operated his flashing lights. The driver continued for approximately 500 metres before pulling into a driveway and parking his car in a driveway near a shed. The driver alighted and walked toward the rear entrance of the house.
Brevet Sergeant Churchett recognised the defendant as the driver of the car. Brevet Sergeant Churchett decided not to administer an alcotest. He observed the defendant swaying back and forth, his breath strongly smelled of alcohol, and his speech was slurred. He concluded that the defendant was incapable of exercising effective control of the vehicle.
Brevet Sergeant Churchett required the defendant to accompany him to the police station to submit to a breath analysis. Upon arrival, Brevet Sergeant Churchett discovered that the breath analysis equipment was not calibrated. He reported the defendant for the offence of driving under the influence of alcohol, contrary to s 47 of the Act.
Brevet Sergeant Churchett drove the defendant to the Cleve Hospital. No evidence was given about the reason for driving the defendant to the hospital. No evidence was called from hospital staff who may have observed the defendant.
Magistrate’s decision
At the conclusion of the prosecution case, counsel for the defendant submitted that the Magistrate should find no case to answer or, in the alternative, should dismiss the charge, as the evidence was so lacking in weight that he could not safely convict the defendant.
In R v Prasad, King CJ stated:[2]
I have no doubt that a tribunal which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.
[2] (1979) 23 SASR 161 at 163.
The Magistrate referred to the evidence of Brevet Sergeant Churchett that he had followed the defendant’s vehicle for 500 metres and had observed nothing untoward about the defendant’s driving. The defendant was able to turn into the driveway of his house without apparent difficulty. The defendant stopped the vehicle in an appropriate position, alighted from it and was walking to the door of his house when approached by the police officer. It was at that time that the police officer observed the defendant swaying from side to side, slurring his speech, and his breath smelling of alcohol. Brevet Sergeant Churchett had spoken to the defendant at the party, but gave no evidence that the defendant had exhibited signs of intoxication at the party. No evidence was given of observations of the defendant at the police station.
The Magistrate concluded that there was a case to answer, but proceeded to acquit the defendant on the basis that the evidence was so weak that no magistrate acting reasonably could convict.
The Magistrate said:
I remind myself that at this point of time I am not making any final determination of the evidence as to whether it is accepted or not. I am simply assessing the evidence to determine, first, whether there is a case to answer and second, whether I should give myself a Prasad direction. In my view there is, but only by the barest of margins, a case to answer. For that purpose I will accept APP Bellamy’s submission, that the evidence of Brevet Sergeant Churchett may be evidence that the faculty of speech and the ability to stand relatively still was impaired in the case of Mr Noble.
However, having said that, it is also my view that the evidence is significantly weak in its character, and unconvincing. Even taken at his highest, evidence from a police officer, albeit an experienced police officer such as Brevet Sergeant Churchett, that the driver was swaying back and forth, moving an inch or so either side from the perpendicular and had a slurred voice, would rarely if ever, be a sufficient basis for a finding that that driver had lost or had an appreciably impaired mental or physical faculty. That point I think is even stronger when it is realised or appreciated or remembered that these observations of the Brevet Sergeant were made within a short space of time, limited to what he says he saw whilst first speaking to Mr Noble on or near the driveway of Mr Noble’s residence and after Brevet Sergeant Churchett had observed Mr Noble driving a vehicle for 500 metres without any indication of any impairment.
...
In my view this is a case where a Prasad direction is entirely appropriate. There are so many oddities and at least one glaring inconsistency (being no evidence of impairment during the 500 metre drive along Third Avenue) that I have mentioned, so as to render it unfair for Mr Noble to have to further defend the case or to further be subject to the charge.
Further oddities in the Police case identified by the Magistrate included the Brevet Sergeant’s intention to conduct a breath analysis test at the police station without first administering an alcotest, as required by the legislation,[3] and the release of the defendant while still intoxicated, notwithstanding that police would not usually release a person who was intoxicated until they are satisfied that the person was sufficiently sober to be able to safely return to their house.
[3] Road Traffic Act 1961 (SA), s 47E(2ab).
The appeal
Counsel for the Police contends that the Magistrate erred in concluding that the police evidence was unconvincing and weak, thereby dismissing the complaint.
Counsel submits that the appeal is confined to the findings of fact of the Magistrate. Counsel submits that the evidence was sufficient to support a finding of guilt, and the Magistrate was in error in concluding that the evidence was so weak that it could not support a conviction.
The role of this Court in considering appeal against a decision of a magistrate was discussed in Taylor v Hayes. Perry J said:[4]
Grounds of appeal under the Justices Act, when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the magistrate’s findings. While it must give due weight to the advantage held by the magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for rehearing before the same or another court of summary jurisdiction.
Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the magistrate upon which it was open for him to reach the decision the subject of the appeal.
The comments which I have made as to the nature of appeals under the Justices Act do not, of course, apply to appeals against sentence or against any other exercise of a discretion, as to which entirely different considerations apply.
[4] (1990) 53 SASR 282 at 291-292.
In considering the grounds of appeal, I have reviewed the evidence and given due regard to the fact that the Magistrate, in arriving at his conclusion, saw and heard the evidence of Brevet Sergeant Churchett.
Brevet Sergeant Churchett’s observations of the defendant were limited to the brief exchange on the respondent’s driveway and at the police station. Brevet Sergeant Churchett gave evidence that, at the police station, the defendant said, “You must be happy, you got me, Churchy”. The police officer asked the defendant why his voice was slurred. The defendant replied, “Because I am pissed and you must be happy”. No adverse inference can be drawn from that comment without more evidence of the circumstances in which it was made. The comment appears to have been made in jest. Brevet Sergeant Churchett gave no further evidence of observations of the defendant at the police station. The decision to report the defendant for driving under the influence was made largely upon Brevet Sergeant Churchett’s observations of the defendant on or near the driveway of his home. The witness made no observations of the defendant’s demeanour as he walked with the defendant to the police car. He made no observations of the defendant whilst driving him to the police station, and made no further observations of the defendant at the police station. Brevet Sergeant Churchett said that, after he had concluded whilst observing the defendant on the driveway that the defendant was too intoxicated to be able to exercise effective control of his vehicle, he did not regard it as necessary to further observe the defendant.
In cross-examination, Brevet Sergeant Churchett was asked whether the defendant walked to the police car unaided, after being requested to do so. The police officer said he took no real notice of the defendant’s gait. The defendant was walking alongside the police officer. He said he took no real notice at that time, because he had already formed the opinion that the defendant was so intoxicated as to be incapable of exercising effective control over his vehicle. He gave no evidence of any further observations made at the police station, or later when he drove the defendant to the hospital.
Counsel for the Police submits the fact that the defendant was able to drive his vehicle without any observation of him being impaired is not a basis for concluding that the defendant was not so intoxicated as to not be able to exercise effective control over his vehicle. Conclusions can be drawn about the defendant’s ability to drive from observations other than observations of the defendant’s driving. Nevertheless, the manner of driving can provide cogent evidence of whether the driver is so affected as to be incapable of exercising effective control.[5]
[5] See Brebner v Hersey (1963) SASR 1.
In Brebner v Hersey,[6] the defendant was found guilty of driving under the influence of liquor. The Magistrate found the breach trifling. In considering whether the Magistrate erred, the Court (Napier CJ, Chamberlain and Hogath JJ) observed:[7]
It is true enough that the mere fact that a man drives badly does not prove that he is affected by liquor, but it is another thing to deny that where there is evidence that a man is so affected, the fact that he has recently driven a vehicle dangerously is a relevant circumstance in deciding whether he was at that time “so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle”. In fact, on a charge under the section the manner of driving is of first importance from two points of view. In the first place, the charge is not of being in charge of a vehicle while affected by liquor, but of driving it while in that condition. From this point of view, the extent and manner of the driving is an important element in the charge. It is no part of the prosecution’s task to prove that the vehicle was driven badly because the driver was under the influence of liquor, it is sufficient to prove that he drove while in that condition. If, at the same time, he drove dangerously, then the offence is so much the more serious. In the second place, the manner of driving may have an important bearing, as an ordinary matter of evidence and of common sense, on the question of the driver’s condition. If there is some other evidence of intoxication or of a substantial consumption of alcohol, the manner of driving may well provide the decisive answer to the question whether the driver is so affected as to be incapable of effective control.
[6] (1963) SASR 1.
[7] (1963) SASR 1 at 10.
I consider that the manner of driving in this case was an important factor in deciding whether the evidence was sufficient to establish the charge. The defendant drove for 500 metres without any observable defect in his driving. He turned into his driveway, stopped his vehicle and alighted from it without any observable factors which would cause an observer to conclude that he was so intoxicated as to be unable to exercise effective control over his vehicle. The fact that he smelled of alcohol is unsurprising, as it is conceded that he had consumed alcohol at the party. The observations about him swaying and slurring his words were made in the moment, and there were no observations of subsequent conduct to confirm the initial opinion formed by the police officer.
It was open to the Magistrate to conclude that the defendant’s manner of driving was to be contrasted with the observations of Brevet Sergeant Churchett, which observations lacked any specific detail, other than general statements about the defendant swaying and slurring his words. The observations of Brevet Sergeant Churchett were, to a large extent, bare assertions without any detail.
The evidence presented by Brevet Sergeant Churchett becomes even more unconvincing when considered alongside his observation of the defendant’s driving without any sign of impairment. While not being strictly inconsistent, Brevet Sergeant Churchett’s conclusion that the respondent was unable to exercise effective control of his vehicle immediately after following the defendant for a distance of around 500 metres without incident cannot be sustained without further and more detailed evidence.
Conclusion
I consider no error has been demonstrated in the Magistrate’s observations and conclusions. The Magistrate was correct in concluding that the evidence of the defendant’s faculties being impaired was unconvincing and weak. The Magistrate carefully considered and evaluated the evidence. He was justified in concluding, as he did, that the evidence was weak. The Magistrate had the advantage of hearing and seeing Brevet Sergeant’s Churchett’s evidence. That evidence did not satisfy the Magistrate that the charge had been proved. There is no reason to interfere with the Magistrate’s conclusions.
I would dismiss the appeal.