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…

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 Pearce

Details

AGLC: Police v Pearce [2013] SASC 181
Case: [2013] SASC 181
Decision Date

CaseChat Overview and Summary

The case of Police v Pearce involves a prosecution appeal against a decision that found no case to answer regarding an alleged s 47E(2a) offence. The respondent argues that a driver must be aware that they are being directed to stop for the purpose of being required to submit to an alcotest. The prosecution contends that awareness of being directed to stop by a police officer is sufficient, regardless of the purpose. The case was heard by the court, which needed to determine whether the driver's awareness of the purpose for being directed to stop is a necessary element of the s 47E(2a) offence.

The key legal issue before the court was whether a driver must be aware of the purpose for which they are being directed to stop by a police officer, specifically to submit to an alcotest, for the offence under s 47E(2a) to be constituted. The respondent argued that such awareness is essential, while the prosecution maintained that awareness of the direction to stop, irrespective of the purpose, is sufficient. The court had to interpret the relevant sections of the Road Traffic Act and consider whether the respondent's interpretation limiting the offence to situations where the driver knows the purpose for being stopped is consistent with the statutory language and legislative intent.

The court found that the respondent's interpretation was too narrow and that the statutory provisions, when read together, indicate that the requirement to stop applies broadly, whether or not the police officer is performing duties at a driver testing station. The court held that the offence under s 47E(2a) is constituted by the act of failing to stop when directed by a police officer, without the need for the driver to be aware of the specific purpose for the direction. The court's reasoning was that the statutory language and legislative intent support a broader application of the offence, encompassing any situation where a driver fails to comply with a police direction to stop, irrespective of the purpose behind the direction.

The court's decision affirmed the prosecution's appeal, finding that the respondent's argument limiting the offence to situations where the driver knows the purpose for being stopped was inconsistent with the statutory language and legislative intent. The court concluded that the offence under s 47E(2a) is constituted by the failure to comply with a police direction to stop, without the need for the driver to be aware of the specific purpose for the direction. This interpretation aligns with the broader application of the requirement to stop, as outlined in the statutory provisions. The court's decision ensures that the offence under s 47E(2a) can be effectively enforced in various situations where a driver fails to comply with a police direction to stop.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

PEEK J

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.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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