Police v Pearce
[2013] SASC 181
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v PEARCE
[2013] SASC 181
Judgment of The Honourable Justice Peek
21 November 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE - BREATH TEST AND ANALYSIS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - REFERENCE TO CONTEXT
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - LEGISLATIVE HISTORY OF ACT
The respondent was charged with four offences, including failing to stop his vehicle as directed by a police officer for the purpose of making a requirement under s 47E, Road Traffic Act 1961 that the respondent submit to an alcotest, contrary to ss 47E(2) and 47E(2a) (count 1). At trial, Sergeant Steinbeck gave evidence that he attempted to stop a black Commondore in order to administer a random breath test to the driver by activating the flashing lights on his unmarked police vehicle. After initially pulling over to the side of the road, the black Commodore reversed into a driveway and accelerated in the opposite direction. A pursuit then ensued and ended with the black Commodore driving into the respondent's driveway. Steinbeck gave evidence that he observed the driver exit the vehicle with two children and move towards the garage; he then noticed that the garage roller door had been shut. Upon opening the roller door he observed the respondent, another man, and two children inside the garage. He arrested the respondent. Steinbeck gave evidence that immediately prior to the pursuit he had made clear observations of aspects of the appearance of the driver of the black Commodore.
At the close of the prosecution case, the defence made a no case to answer submission on count 1. The Magistrate accepted that submission and dimissed count 1 on the basis that there was no evidence capable of proving that the driver of the black Commodore had been aware that Steinbeck had directed him or her to stop for the purpose of making a requirement that he or she submit to an alcotest.
The prosecution appealed and submitted that as long as a driver realises that he or she is being directed to stop by a police officer, there is no requirement to demonstrate that the driver knew the purpose of the police officer. The respondent contended that the Magistrate's reasoning was correct, and that an offence against s 47E(2a) cannot be constituted simply by the act of failing to stop when directed by a police officer as that is the exact content of an offence under s 40H(5).
Held (Peek J, allowing the appeal and setting aside the dismissal of count 1):
(1) While it is always necessary that the prosecution prove beyond reasonable doubt that the driver knew that he or she was being directed by a police officer to stop to make out a charge under s 47E(2a), Road Traffic Act 1961, the prosecution is not required to establish that the driver knew the purpose for which that direction was issued. [23]-[24]
(i) Section 47E(2) is not confined in its application to the issuance of directions that a driver stop at a driver testing station. When ss 47E(1) and 47E(2) are read together, it is clear that they both apply whether or not the direction to stop is given while the police officer is performing duties at, or in connection with, a driver testing station. [21]
(ii) Section 47EA(1) placita (a) to (ca) enact specific mandatory conditions which must be satisfied before a direction to stop pursuant to s 47E(2) may be given. Provided these are complied with, the direction will be valid regardless of whether the driver knows the purpose of the direction. [20]
(iii) While the content of the offence under s 47E(2a) is the same for present purposes as that under s 40H(5), given the history of prolific amendments to the Road Traffic Act 1961 a certain amount of overlap and illogicality in its provisions is virtually inevitable and cannot alter the proper construction of s 47E(2a). The respondent was not disadvantaged given the lower maximum penalty prescribed for the s 47E(2a) offence. [22]
(2) Allowing of the appeal cannot lead to this Court making the order sought by the appellant that the respondent be convicted of count 1. The evidence, including that given by the respondent and by his friend, Mr Roessel, suggests that the reliability of Steinbeck and the substantial positive defence of the respondent that he was not the driver of the black Commodore warrant close consideration by the Magistrate. [25]-[30]
Road Traffic Act 1961 ss 47E, 47E(1), 47E(2), 47E(2a), 47E(3), 47EA(1), 40H, 40H(5), referred to.
Lester v Police [2013] SASCFC 123, discussed.
Elias v The Queen (2013) 87 ALJR 895, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"direction to stop""
POLICE v PEARCE
[2013] SASC 181Magistrates Appeal
PEEK J. Appeal against dismissal of a charge by a Magistrate.
Introduction
The respondent was charged on Information with four offences as follows:
1.On the 22nd day of September 2012 at WINDSOR GARDENS in the said State, being the driver of a motor vehicle you failed to forthwith stop the vehicle as directed by a police officer for the purpose of making a requirement under Section 47E of the Road Traffic Act 1961 that a person submit to an ALCOTEST. Sections 47E(2) and 47E(2a) of the Road Traffic Act 1961.
This is a summary offence.
2.On the 22nd day of September 2012 at WINDSOR GARDENS in the said State, with the intention of causing a police officer to engage in a pursuit, drove a motor vehicle in a culpably negligent manner, or recklessly, or at a speed or in a manner which was dangerous to the public.
Section 19AC(1) of the Criminal Law Consolidation Act 1935.
This is a basic offence.
This is a minor indictable offence.
3.On the 22nd day of September 2012 at WINDSOR GARDENS in the said State, drove a motor vehicle of a particular class on a road namely Pitman Road when not authorised to drive such motor vehicle.
Section 74(1) of the Motor Vehicles Act 1959.
This is a summary offence.
It is further alleged that the said driver had previously been authorised under the Motor Vehicles Act, 1959 or the law of another State or Territory of the Commonwealth.
4.On the 22nd day of September 2012 at WINDSOR GARDENS in the said State, hindered Matthew STEINBECK a member of the Police Force in the execution of his duty.
Section 6(2) of the Summary Offences Act 1953.
This is a summary offence.
At the close of the prosecution case, the Magistrate dismissed count 1 after finding that there was no case to answer on the basis that there was no evidence capable of proving that the driver of the motor vehicle had been aware that the police officer had directed him or her to stop for the purpose of making a requirement that he or she submit to an alcotest.
The prosecution appeals and contends that as long as a driver realises that he or she is being directed to stop by a police officer, there is no requirement to demonstrate that the driver knew the purpose of being directed to stop.
The prosecution evidence
The whole of the present evidence (prosecution and defence) was heard on 25 June 2013.[1] A brief summary of the evidence sufficient for present purposes is as follows.
[1] This is subject to the caveat that the transcript does not record that the defence has closed its case.
Sergeant Steinbeck was the only witness called by the prosecution. He gave evidence that at about 5:00pm on Saturday, 22 September 2012, he was in uniform performing general patrol duties in an unmarked police vehicle. While travelling north along Pitman Road, Windsor Gardens, between 50 and 100 metres south of the Brecon Street intersection, he observed a black Holden Commodore station wagon (the black Commodore) turn right from Brecon Street on to Pitman Road and travel north. He decided to stop the black Commodore randomly for the purpose of “driver testing”[2] and activated his “white light”, which flashes alternately red and blue and is mounted just below the rear vision mirror on the front windscreen, and two lights fitted on the parcel shelf near the rear windscreen. The black Commodore initially pulled over to the left hand side of Pitman Road and Sergeant Steinbeck stopped and prepared to exit his vehicle. He then noticed the reverse lights on the black Commodore come on and it reversed into a driveway with its tyres screeching and then rapidly turned right entering Pitman Road and travelling south, back towards Brecon Street.
[2] T5. It is not suggested that Sergeant Steinbeck observed the commission of any offence.
Sergeant Steinbeck testified that, as the black Commodore passed him, he made “clear” observations of the driver, describing him as a man having scraggly sandy brown or blonde hair and a full beard, aged between 45 and 50 years and wearing a black shirt with a coloured motif.[3] He also saw two other people in the car, one in the front passenger’s seat and one in the rear; he assumed that they were children as they looked a lot younger than the driver.
[3] T6.
Sergeant Steinbeck testified that he also executed a turn by using the same driveway used by the black Commodore and then pursued it south along Pitman Road, observing it turn left into Brecon Street. Between 10 and 15 metres down Brecon Street, he pulled in behind the black Commodore and followed at about two car lengths until it turned right into a driveway at number 13. He then executed a sharp U-turn into the driveway and pulled in behind it in order to prevent it from leaving. He estimated that during the pursuit, the black Commodore had reached up to 70 kilometres per hour (albeit for a period of only one to two seconds), the speed limit there being 50 kilometres per hour.
Sergeant Steinbeck testified that, having entered the driveway at number 13 Brecon Street, he observed the driver of the black Commodore exit via the driver’s side door and move towards a garage, the door of which was open. He also observed two children exit the vehicle at the same time. He then exited the police vehicle and spoke to Police Communications by radio. Sergeant Steinbeck testified that he then noticed the garage roller door being closed. He yelled out, “Open the door”, approached the garage and raised the roller door. He observed inside the respondent, another taller male with shorter hair who was around 45 to 50 years of age, and two children. Sergeant Steinbeck then arrested the respondent, handcuffed him and placed him in the police vehicle.
The prosecution case on count 1
It was the prosecution case on count 1 that the respondent was driving the black Commodore and had deliberately refused to comply with Sergeant Steinbeck’s direction to stop. The direction was said to have been communicated to the respondent by the activation of the flashing lights on the police vehicle[4] and the respondent’s refusal to comply was said to have been manifested by his manner of driving thereafter, as described above. It was further the prosecution case that the direction to stop had been made for the purpose of making a requirement that the respondent submit to an alcotest but that it was not necessary to establish that the driver was aware of that purpose.
[4] The requirements in s 47EA(1), Road Traffic Act 1961 were complied with.
The Magistrate’s ruling
Upon completion of the re-examination of Sergeant Steinbeck, the prosecutor closed her case. The Magistrate at once raised a number of matters with the prosecutor, one being as to the ability of the evidence to prove that the driver of the black Commodore knew the purpose of Sergeant Steinbeck in directing the driver to stop. The following discussion about the elements of a charge under ss 47E(2) and (2a) of the Road Traffic Act 1961 (the Act) ensued:[5]
[5] T66-68.
HER HONOUR: Ms Goode how possibly can I find this defendant guilty of – well let’s start with count 1?
…
APP GOODE: In relation to count 1 part 2 states that a police officer may direct a person driving a motor vehicle to stop the vehicle, may give other reasonable directions etc.
HER HONOUR: How does Mr Pearce know that that’s the purpose for which he is being asked to stop? Doesn’t he have to know that?
APP GOODE: With respect, the test is in the mind of the police officer, not in the mind of the authority used.
HER HONOUR: Is that right?
APP GOODE: Not in the mind of the person being pulled over. So the test is in relation to the police officer, their intention to use that authority and not the test of –
[s 47E, Road Traffic Act 1961 was read from]
HER HONOUR: So where is the mind of a police officer that I am being referred to? Does the legislation refer to that? I am not sure I understand the submission.
…
APP GOODE: Whether or not performing their duties in connection with driver testing and believing on reasonable grounds that a person is driving, or has driven, it is relevant in relation to that.
HER HONOUR: But doesn’t Mr Pearce have to know that that’s why he is being stopped? Isn’t that an essential element of all of this. Otherwise, shouldn’t the charge be ‘Fail to Stop’?
…
APP GOODE: That is the authority that he must use to stop for this purpose. In his mind he wants to stop for a random breath test.
HER HONOUR: So he’s allowed to do that and the driver of the vehicle is just automatically to know that and therefore he is guilty of s 47(e)(2).
APP GOODE: I am not sure that – I fail to see where the actual requisite is that the driver must know.
Upon being asked if there was anything he wanted to say, Mr Richards (the solicitor for the respondent) unsurprisingly submitted that there was no case to answer on the first count, adopting the position of the Magistrate. Her Honour, over the objection of the prosecutor, so ruled. It is against the above background that one must read the very brief remarks that her Honour made after when dismissing count 1:[6]
In relation to count 1 there is simply no evidence that could amount to a satisfaction, beyond reasonable doubt, that there is an offence committed by Mr Pearce in that regard. There is no evidence that Mr Pearce failed to comply with any direction in relation to submitting to an alcotest. Accordingly, count 1 is dismissed.
[6] T72.
Mr Richards also submitted that there was no case to answer on the second count. The prosecutor conceded that to be correct and her Honour so ruled and dismissed count 2.[7] Her Honour found a case to answer on counts 3 and 4.[8]
[7] T72. There is no appeal against that ruling or the dismissal of count 2.
[8] T72.
The relevant legislation
Sections 47E and 47EA of Act relevantly provide:
47E—Police may require alcotest or breath analysis
(1) Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person—
(a) is driving, or has driven, a motor vehicle; or
(b) is attempting, or has attempted, to put a motor vehicle in motion; or
(c)is acting, or has acted, as a qualified supervising driver for the holder of a permit or licence,
the police officer may require the person to submit to an alcotest or a breath analysis, or both.
(2) A police officer may direct a person driving a motor vehicle to stop the vehicle and may give other reasonable directions for the purpose of making a requirement under this section that a person submit to an alcotest or a breath analysis.
(2a) A person must forthwith comply with a direction under subsection (2).
Maximum penalty: $2 900.
…
(3) A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a police officer.
Penalty:
(a)for a first offence—a fine of not less than $1 100 and not more than $1 600;
(b)for a subsequent offence—a fine of not less than $1 900 and not more than $2 900.
…
47EA—Exercise of random testing powers
(1) The following provisions apply in relation to the exercise of random testing powers consisting of the giving of a direction to stop a motor vehicle or the making of a requirement to submit to an alcotest or drug screening test:
(a)a police officer must not give such a direction or make such a requirement unless the police officer is in uniform;
(b)if the police officer is driving or riding in or on a vehicle at the time of giving such a direction—the vehicle must be marked as a police vehicle or must be displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm;
(c)a police officer must not make such a requirement relating to an alcotest unless he or she has in his or her possession, or a police officer in the immediate vicinity of the place at which the requirement is made has in his or her possession, an apparatus of a kind approved by the Governor for the conduct of alcotests;
(ca)a police officer must not make such a requirement relating to a drug screening test unless he or she has in his or her possession, or a police officer in the immediate vicinity of the place at which the requirement is made has in his or her possession, an apparatus of a kind approved by the Governor for the conduct of drug screening tests;
(d)the Commissioner of Police must establish procedures to be followed by police officers in the exercise of such powers, being procedures designed to prevent as far as reasonably practicable any undue delay or inconvenience to persons being subjected to the powers.
(2) Despite any other provision of this Act, if a motor vehicle has stopped in response to a direction given by a police officer in the exercise of random testing powers, a police officer may delay the driver of the vehicle for as long as may be necessary to enable the police officer to ascertain whether the driver holds a current driver's licence or other authority to drive the vehicle.
It is to be noted that there is a more general repository of police power in s 40H of the Act to direct a person to stop a vehicle for the purpose of, or in connection with, exercising other powers under a “road law”, it being an offence to fail to comply with such a direction. Section 40H relevantly provides:
40H—Direction to stop vehicle to enable exercise of other powers
(1) An authorised officer or police officer may, for the purpose of or in connection with exercising other powers under a road law, direct—
(a)the driver of a vehicle to stop the vehicle; or
(b)the driver of a vehicle or any other person not to do one or more of the following:
(i)move the vehicle;
(ii)interfere with it or any equipment in or on it;
(iii)interfere with its load.
(2) A direction to stop a vehicle may require that it be stopped without delay, or that it be stopped at the nearest place for it to be safely stopped as indicated by the officer.
(3) A direction to stop the vehicle, or not to move it, or not to interfere with it or any equipment in or on it or with its load, does not prevent an authorised officer or police officer from giving the driver or another person any later inconsistent directions under a road law or any other law.
(4) A direction ceases to be operative to the extent that an authorised officer or police officer—
(a)gives the driver or other person a later inconsistent direction; or
(b)indicates to the driver or other person that the direction is no longer operative.
(5) A person commits an offence if—
(a)the person is subject to a direction under subsection (1); and
(b)the person engages in conduct that results in a contravention of the direction.
Maximum penalty: $5,000.
(6) In this section—
stop a vehicle means to stop the vehicle and keep it stationary.
The grounds of appeal
The sole ground of appeal is in the following terms:
The learned Magistrate erred in law in dismissing count 1 of the Information on the basis that all elements of the offence charged had not been proven.
The submissions on appeal
The appellant submits that it will often be quite impossible for a police officer to do more than make known to a driver that he or she is being directed to stop and that the substance of the charge under ss 47E(2) and (2a) is the respondent’s wilful failure to obey a police direction to stop per se. Thus, provided that the Magistrate accepts first, the veracity of the police officer’s evidence that his or her intention in giving that direction to stop was to require the driver to submit to an alcotest, and second, that the driver was aware that a direction to stop was being made by a police officer, then the driver commits an offence against ss 47E(2) and (2a) at the time that he or she wilfully fails to obey that direction; this will be so quite irrespective of whether the driver knows the purpose of the police officer in directing him to stop. The appellant accepted that, upon the driver stopping the vehicle, the police must immediately make known to the driver the reason why he or she has been required to stop and that the making of further police directions without first giving that advice would be unreasonable and would invalidate those further directions.
The respondent submits that the Magistrate did not err in finding no case to answer and that a s 47E(2a) offence requires that drivers know that they are being directed to stop for the purpose of being directed to submit to an alcotest. The respondent’s central contention is that a s 47E(2a) offence cannot be constituted simply by the act of failing to stop when directed by a police officer, as this is the exact content of a s 40H(5) offence. Thus, the respondent submits:[9]
10.It is submitted that the intended purpose of s 47E(2a) is not to provide for the situation of a driver who deliberately fails to stop generally, as this is covered by s 40H, but rather, to a driver who fails to stop in order to avoid being required to submit to a breath analysis or alcotest. Such driver must necessarily have knowledge that the purpose for which they were required to stop, was in order to facilitate a breath analysis or alcotest; for example a driver who pulls away from a random breath testing station after being motioned to stop.
…
15.The status of the requirement to stop as being a reasonable direction for the purpose of making a requirement to submit to an alcotest or breath analysis test under s 47E(2) implies that the person who is directed to stop must at least be aware of the purpose for which this is required of them. That direction may be a preliminary step, but this does not alter the required state of awareness of the driver that what is in effect going on is a preliminary step for an alcotest or breath analysis.
[9] Respondent’s Summary of Argument.
Conclusion as to the success of the appeal
I have some sympathy for the views of the Magistrate. However, the legislation is intractable when its structure is properly viewed as follows. First, s 47E(2) provides for an initial direction by a police officer to a driver to stop as a preliminary step to the making of a requirement that the driver submit to an alcotest. Second, s 47E(1) provides for the subsequent making of a requirement to the driver that he or she submit to an alcotest. Third, s 47E(3) provides for the subsequent giving of directions that the driver submit to an alcotest. These matters are discussed at some length in Lester v Police[10] and I will not dwell upon them further.
[10] [2013] SASCFC 123.
It is to be noted that the respondent in his written submissions gives an example of the limited area of operation of ss 47E(2) and 47E(2a) for which he contends as that of “a driver who pulls away from a random breath testing station after being motioned to stop”. However, that example is actually self destructive when it is remembered that s 47E(2) enables police to direct a driver to stop “for the purpose of making a requirement under this section that a person submit to an alcotest or a breath analysis” and that the “requirement” there referred to is, of course, that referred to in s 47E(1) which specifically provides that “a police officer (whether or not performing duties at or in connection with a driver testing station) … may require the person to submit to an alcotest or a breath analysis, or both”. Thus, when ss 47E(1) and 47E(2) are read together, it is very plain that they both apply whether or not the police officer is performing duties at, or in connection with, a driver testing station.
I note that s 47EA(1) placita (a) to (ca) enact specific mandatory conditions which must be satisfied before such a direction to stop a vehicle may be given; these are consistent with the prosecution submission that, provided the conditions are complied with, the driver does not need to know the purpose of the direction.
As to the availability of an equivalent offence under s 40H(5), I agree that the content of that offence is for present purposes the same as the offence presently charged but I do not think that the respondent can turn this to his advantage. The Road Traffic Act 1961 is a patched and repatched quilt and a certain amount of overlap and illogicality in its provisions is virtually inevitable. As a matter of fact, a driver charged under s 47E(2a) rather than s 40H(5) is not disadvantaged because the maximum penalty of $2,900 is in fact lower than the maximum penalty under s 40H(5). But even if the disparity in maximum penalty flowed the other way, that would still not alter the proper construction of s 47E(2a).[11]
[11] See generally Elias v The Queen (2013) 87 ALJR 895.
For completeness, I add what is obvious: the prosecution must always prove beyond reasonable doubt that the driver knew that he was being directed by a police officer to stop. While compliance by the police officer with ss 47EA(1)(a) and (b) will usually be effective in communicating that information, it will be necessary for the prosecution to negate beyond reasonable doubt an assertion by a driver that he was unaware that he was being directed by a police officer to stop.[12]
[12] To take an obvious example, if a police officer attempts to direct a driver to stop at night during a bad storm, the driver may assert that he was simply unaware of the attempt; if that is a reasonable possibility, the driver must be acquitted.
However, I conclude that the prosecution contention that it is unnecessary to go further than that and to also prove that the driver knew the purpose of the direction to stop is correct. There was a case to answer on count 1 and the Magistrate erred in dismissing that count at the stage in the trial that she did.
Further procedural matters
Turning to the question as to the appropriate orders to be made, I note that the Notice of Appeal states that:
The appellant seeks the following orders:
1. The order imposed by the Magistrate be set aside.
2. The respondent be convicted of the offence.
3. Any other orders the Court thinks fit.
I make the following brief observations in relation to the second order that is sought in the Notice of Appeal.
Sergeant Steinbeck was cross-examined at length by Mr Richards and the defence case that the respondent was not driving the black Commodore and that he had been dropped home by a third party driving a four wheel drive vehicle was squarely put. (This defence had been disclosed by the respondent in pre-trial proceedings). Sergeant Steinbeck purported to give a description of the driver as observed in Pitman Road,[13] but cross-examination disclosed that he made those observations over a very short period of time, through the closed driver’s window of the black Commodore, which was apparently tinted. Importantly, Sergeant Steinbeck did not make any note of the description of the driver at a time before seeing the respondent at his home; it was in effect suggested that there was a risk of the image of the respondent as later seen at his home displacing whatever memory Sergeant Steinbeck had of the appearance of the driver of the black Commodore deriving from his observation on Pitman Road (with an attendant possibility of innocent error by Sergeant Steinbeck). It was also ascertained in cross-examination that although the police searched the respondent and impounded the black Commodore, the keys to that vehicle were not present on the person of the respondent or in the vehicle itself. Further, there was no evidence led to the contrary of the respondent’s evidence that he was not the owner of the black Commodore.
[13] A man having scraggly sandy brown or blonde hair and a full beard, aged between 45 and 50 years and wearing a black shirt with a coloured motif: T6.
Immediately following the above rulings by the Magistrate, Mr Richards called the respondent to give evidence. Briefly stated, he testified that he lived at 13 Brecon Street with his partner, Ms Inge, and their three children aged ten, nine and turning three; there are also three older male children aged 19, 18 and 16 of Ms Inge from a previous relationship who “come and go all the time”. The respondent testified that on 22 September 2012, he had been playing darts at the Hope Inn all day and had had a large amount of alcohol to drink. He had been given a lift home by Mr Matt Roessel in his Mitsubishi Pajero four wheel drive, being dropped off on the opposite side of the road to his house at about 5:00pm. He described in detail the interaction between himself and Sergeant Steinbeck that then occurred. He gave evidence that the black Commodore was not his vehicle and firmly denied driving it that day. He was vigorously cross-examined but not shaken.
Following the re-examination of the respondent, Mr Richards called the witness Mr Roessel. Again, briefly stated, Mr Roessel testified that on 22 September 2012, the respondent was playing darts at the Hope Inn, that he had given the respondent a lift home in his Pajero four wheel drive, and that he had seen from the opposite side of the street the interaction between the respondent and police and had seen the respondent handcuffed and placed in a police vehicle. There was no possibility that Mr Roessel was honestly mistaken. He too was vigorously cross-examined but unshaken. It was not put to him that he had dishonesty convictions or was of bad character or that he had any strong motive to commit perjury to support the respondent.[14]
[14] Following the completion of the evidence of Mr Roessel on 25 June 2013, the case was adjourned to 24 September 2013. It is not recorded on the transcript that the defence case has been closed.
The above is sufficient to show that the reliability of the evidence of Sergeant Steinbeck and the substantial positive defence of the respondent need to be closely considered by the Magistrate. The mere allowing of this appeal could not possibly lead to the making of the order sought that “[t]he respondent be convicted of the offence” and I decline to make any such order.
Orders
1The appeal is allowed;
2The dismissal of count 1 is set aside;
3The Magistrate is to continue to hear and determine the case on counts 1, 3 and 4 according to law.
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