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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Noble

Details

AGLC: Police v Noble [2014] SASC 63
Case: [2014] SASC 63
Decision Date

CaseChat Overview and Summary

The Police appealed against a decision of a Magistrate who acquitted the defendant of the offence of driving under the influence of alcohol. The defendant, Mr Noble, was observed by Brevet Sergeant Churchett at a noisy party where he was consuming alcohol. The Brevet Sergeant later observed Mr Noble driving a vehicle and stopped him to administer an alcotest. However, the equipment was not calibrated. The Brevet Sergeant observed Mr Noble swaying, with slurred speech and a strong smell of alcohol on his breath. Mr Noble was taken to the police station for a breath analysis but was instead taken to hospital because the equipment was not working. The Magistrate acquitted Mr Noble, finding that the evidence was too weak to convict.

The appeal centred on whether the Magistrate erred in assessing the prosecution evidence of Mr Noble's intoxication and faculty impairment. The Police argued that the Magistrate wrongly found the evidence unconvincing and weak, overlooked the lack of evidence of erratic driving, and failed to properly assess the evidence. They contended that if the evidence was correctly assessed, it would have demonstrated that Mr Noble was intoxicated and incapable of exercising effective control of the vehicle.

The court considered whether the Magistrate had correctly applied the legal principles in evaluating the evidence. The court noted that the Magistrate had acknowledged the evidence of impairment but found it significantly weak and unconvincing, particularly in light of the lack of evidence of erratic driving. The court found that the Magistrate had properly assessed the evidence and concluded that it was too weak to support a conviction. The court held that the Magistrate had correctly exercised his discretion in acquitting Mr Noble.

The appeal was dismissed. The court upheld the Magistrate's decision to acquit Mr Noble, finding that the evidence was too weak to support a conviction. The court found that the Magistrate had correctly assessed the evidence and exercised his discretion appropriately in acquitting Mr Noble.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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