Police v OWENS

Case [2007] SASC 118

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v OWENS

[2007] SASC 118

Judgment of The Honourable Justice Layton

3 April 2007

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - GENERALLY

EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - PROOF OF PARTICULAR MATTERS AND RELATIONSHIPS - BREATH ANALYSIS TESTS

Magistrates Appeal – appeal by the police against the decision of a magistrate to dismiss one count of driving with a prescribed concentration of alcohol in the blood (“drink driving”), contrary to s 47B of the Road Traffic Act 1961 (SA) (“the Act”) – the Magistrate after trial convicted the respondent of driving without a licence, but dismissed the other charges of driving without headlights and drink driving – the charge of driving without headlights was dismissed because the Magistrate was unable to say where the truth lay – the Magistrate dismissed the drink driving charge on the basis that the request for the breath analysis test under s 47E of the Act was unlawfully made - the respondent on a notice of alternative contention challenged the validity of a certificate tendered pursuant to s 47G(3) of the Act – whether the Magistrate erred in finding that the certificate was valid and that there was a case to answer – consideration on appeal of the onus and standard of proof under s 47B and s 47E(1)(a) of the Act - whether the power of the police officer to request a breath analysis test was enlivened – whether the police believed on reasonable grounds that the offence of driving without lights had been committed – whether the discretion to exclude otherwise admissible evidence should be exercised.

Held: notwithstanding a typographical error and the use of the past tense, the certificate complied with s 47G(3) of the Act – the Magistrate was correct in admitting the certificate into evidence and finding a case to answer – as the prosecution successfully invoked s 47G(1) of the Act the onus lies on the defendant to prove the unlawfulness of the request on the balance of probabilities and to persuade the Magistrate to exercise a discretion to exclude the otherwise admissible evidence – the Magistrate failed to properly address the onus and standard of proof – the Magistrate failed to consider whether the police believed on reasonable grounds that the respondent was driving without headlights - the Magistrate erred in finding that the dismissal of the driving without headlights charge was determinative of the legality of the request for the breath analysis test – the request was not unlawful – the Bunning v Cross discretion was not required to…

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AGLC
Police v OWENS [2007] SASC 118
Case
[2007] SASC 118
Decision Date

CaseChat Overview and Summary

The Magistrates Appeal Court was asked to consider an appeal by the police against a magistrate's decision to dismiss a count of driving with a prescribed concentration of alcohol in the blood. The respondent was found not guilty of driving without headlights, but guilty of driving without a licence. The magistrate dismissed the charge of drink driving, ruling that the request for a breath analysis test was unlawfully made. The respondent had challenged the validity of a certificate tendered under the Road Traffic Act 1961 (SA), and the appeal considered whether the magistrate erred in finding the certificate valid and in dismissing the drink driving charge. The appeal also examined the onus and standard of proof under the Act and whether the discretion to exclude otherwise admissible evidence should be exercised.

The court held that the magistrate was correct in admitting the certificate into evidence and finding a case to answer. The court found that the magistrate failed to properly address the onus and standard of proof and did not consider whether the police believed on reasonable grounds that the respondent was driving without headlights. The court found that the magistrate's decision to dismiss the charge of driving without headlights was not determinative of the legality of the request for the breath analysis test. The request was lawful, and the discretion to exclude otherwise admissible evidence was not required to be exercised. The appeal was allowed, and the dismissal of the drink driving charge was set aside.

The court concluded that the respondent had failed to discharge the onus of proving the unlawfulness of the police officer's request on the balance of probabilities. The court found that there was no unlawful request, and the results of the breath analysis should not be excluded in the exercise of discretion. The matter was remitted back to the same magistrate for penalty to be imposed, and the court heard the parties as to penalty.

Orders

Orders of the court

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Background

Background to the litigation

The respondent also filed a notice of alterative contention, which challenges the validity of the certificate tendered pursuant to s 47G(3)(a) of the Act.The facts On the evening of Friday, 5 September 2003, the respondent drove to the Seacliff Hotel to meet a group of friends for some drinks. There he consumed a ‘fair bit’ of alcohol and did not leave until closing time, which was approximately midnight. The respondent decided not to drive home, but rather to sleep in his car, which contained some items of value, including wetsuits and surfboards. The respondent got into his car, put the radio on and went to sleep. The police said lights were switched off. At approximately 5:30am on Saturday, 6 September 2003, police responded to complaints about noise coming from the respondent’s car on Wheatland Street, Seacliff. Constables O’Connor and Roe attended the scene. They observed the respondent sitting asleep in the driver’s seat of his car. The police said the lights were on. Constable O’Connor had a brief conversation with the respondent, and told him he could not sleep in his car. In evidence, Constable O’Connor said that the respondent appeared to be affected by alcohol – he was disorientated, he was incoherent in relation to questions put to him, his speech was slurred, and his “…eyes were a bit glazed.” Constable O’Connor noted that the respondent “appeared 102”, which he said was a term used to describe someone affected by alcohol. Constable O’Connor told the respondent to call a taxi to get home. The respondent then walked up to a public telephone box, and rang his home phone number, but no one answered. He was living with his parents at the time. He then walked back to his car, by which time the police had left. The respondent then got back into his car, because it was drizzly and cold at the time, started his car, and then travelled east up Wheatland Street. It was the prosecution case that at this stage the headlights were not on. This was strongly denied by the respondent. The respondent drove for approximately 20 to 30 metres before the police followed, and pulled him over. Following, a conversation between Constable O’Connor and the respondent, the respondent was requested to undergo an alcotest. An alcotest was then conducted and it returned a positive result. The respondent was then taken to the Netley Police Station where a breath analysis test was undertaken. This test, conducted by Constable Borgas, returned a reading of 0.108.The charges On 25 February 2004, the respondent was charged with drink driving; driving a motor vehicle on a road without an appropriate licence;[1] and driving a motor vehicle on a road while the headlights were not operating effectively and clearly visible (‘driving without headlights’).[2] [1] Contrary to s 74 of the Motor Vehicles Act 1959 (SA).[2] Contrary to r 215(1) of the Australian Road Rules 1999 (Cth). The trial The respondent pleaded not guilty in the Adelaide Magistrates Court to all charges and the matter proceeded to trial. At trial the appellant tendered a series of certificates in reliance upon the presumptions pursuant to s 47G of the Act. Witnesses were also called. Constable O’Connor gave evidence about his observations and conversations with the respondent. Constable Roe was called to give corroborative evidence of Constable O’Connor’s observations and conversations with the respondent. Senior Constable Borgas gave evidence that he was ‘an authorised person’ to use a breath analysis instrument, and also gave evidence about the conduct and results of a breath analysis test on the respondent. The respondent also gave evidence.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

LAYTON J
In the course of the trial, the respondent explicitly challenged the veracity and good faith of the police and accused them of deliberately manipulating the circumstances so that the respondent would drive so that they could then charge him with drink driving. It was suggested that the charge of driving without headlights was the means to achieve that end. The Magistrate’s finding that the police officers may have been “mistaken” strongly suggests that he rejected these allegations. This finding of mistake, in conjunction with his doubt as to where the truth lay, instead suggests that the Magistrate was of the view that the police honestly, albeit mistakenly, believed that the respondent’s headlights were off. A conclusion that the police officers may have been mistaken is insufficient to sustain a finding that that the police officers probably did not believe on reasonable grounds that the respondent had driven without headlights. I consider that the Magistrate’s finding as to mistake was open to him on the evidence.On this basis, the respondent failed to discharge its onus regarding the alleged unlawfulness of the police officer’s request. As a consequence it is not necessary for me to consider the possible application of the Bunning v Cross discretion. It follows that there was no unlawful request and that there was no adequate foundation for the results of the breath analysis to be excluded in the exercise of discretion.Conclusion For those reasons I allow the appeal. I set aside the dismissal of Count 1. I find Count 1 proved. The next issue is whether I should remit the matter back to the same Magistrate for penalty to be imposed or whether I should do so. The appellant suggested that I should proceed with the penalty and I heard no contrary submission from the respondent on that point. In my view, this has attraction as it would be one less process required and I have been apprised of the relevant factual matters by reason of the appeal. I will therefore hear the parties as to penalty.

Ratio Decidendi

Legal Principle Established

Established by: LAYTON J

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