Police v OWENS

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.