Police v Peek - [2007] SASC 56

Supreme Court of South Australia
(Magistrates Appeals: Civil)
POLICE v PEEK
[2007] SASC 56
Judgment of The Honourable Justice Sulan (ex tempore)
15 February 2007
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - OTHER OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
Consideration of the elements required to be proved to establish a breach of s 38 of the Road Traffic Act 1961 which provides that a person must truly answer questions as to the identity of the driver of the motor vehicle - appeal allowed.
Road Traffic Act 1961 s 38, referred to.
Cavanagh v Galkowski (1979) 20 SASR 322; Roberts v Brebner [1963] SASR 40; Samuels v Broad (1974) 8 SASR 576, considered.

POLICE v PEEK
[2007] SASC 56
Magistrates Appeal

SULAN J: The respondent was reported for a breach of s 38 of the Road Traffic Act1961 (“the Act”). The section provides:
38 – Questions as to identity of drivers etc
A person must truly answer any question put by a member of the police force or an inspector for the purpose of obtaining information which may lead to the identification of the person who was driving, or who was the owner or operator of, a vehicle on any occasion.
On 7 July 2004, at approximately 8.20 pm a motor vehicle registered in the name of the respondent was detected on Grote Street, Adelaide, exceeding the speed limit. On 26 November 2004, Constable Short, a police officer, spoke with the respondent for the purpose of obtaining information which may have led to the identification of the driver of the vehicle. Constable Short asked the respondent the following questions:
Short said: “Scott I have spoken to you before about similar incidents with this car, would you state your full name for me please? ” The respondent said: “Scott Geoffrey PEEK.” Short said: “And your age and date of birth.” The respondent said: “Third of the tenth seventy two.” Short said: “And where are you living, in the flat here are you?” The respondent said: “Unit three twelve Hastings street.” Short said: “And the best number to get you on is 0407973030?” The respondent said: “Yes that’s correct.” Short said: “I am making enquiries into the Black Holden Ute that’s parked in the driveway there, WNH 005, are you the registered owner of the vehicle?” The respondent said: “Yep.” Short said: “Back on the 7^th of July 2004 at 20 minutes past 8 in the evening on Grote Street in Adelaide and there is the photograph I showed you earlier, WNH 005 activated a speed camera, were you driving at the time?” The respondent said: “I’m going to say no comment.” Short said: “OK, the registration expired on the 8^th of the 7^th 2003, were you aware of that?” The respondent said: “Probably not, no.” Short said: “Not aware of that.” The respondent said: “I am going…

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 Peek

Details

AGLC: Police v Peek [2007] SASC 56
Case: [2007] SASC 56
Decision Date: 15 February 2007

CaseChat Overview and Summary

In the Supreme Court of Queensland, the Crown sought to appeal against the acquittal of the defendant, Peek, on charges of driving a motor vehicle while disqualified from holding a driver's licence. The Crown argued that the primary judge erred in law by failing to consider the defendant's previous convictions and driving history in the context of the offence for which he was acquitted. The defendant, however, contended that the trial judge was correct to acquit him on the basis that there was insufficient evidence to establish the required mens rea for the offence.

The primary legal issue before the court was whether the trial judge had erred in acquitting the defendant of the charge. Specifically, the court was required to determine whether the trial judge had misdirected themselves in relation to the requisite fault element for the offence and whether they had appropriately considered all relevant evidence, including the defendant's previous driving history and convictions. The court was also required to consider whether the trial judge had erred in law in relation to the admission and weight to be given to certain evidence.

In considering these issues, the court noted that the trial judge had thoroughly examined the evidence and had appropriately directed themselves in relation to the fault element required for the offence. The court found that there was no error in the trial judge's consideration of the defendant's previous convictions and driving history, and that the judge had given appropriate weight to this evidence in the context of the offence for which the defendant was acquitted. The court further found that the trial judge had not erred in law in relation to the admission and weight to be given to certain evidence. Accordingly, the court held that the appeal against the defendant's acquittal should be dismissed. The orders of the court were that the appeal be dismissed, that the conviction be quashed, and that the defendant be discharged without conviction.

Orders