Police v SELVAKULALINGAM - [2007] SASC 424

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v SELVAKULALINGAM
[2007] SASC 424
Judgment of The Honourable Justice Nyland
5 December 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 - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
Respondent pleaded guilty in Magistrates Court to charges of driving with prescribed concentration of alcohol in the blood and driving at night while headlights not operating - whether magistrate erred in finding that the offending was "trifling" - typical example of its type - whether principle of double jeopardy applies - appeal allowed.
Road Traffic Act 1961 ss 47A and 47B(3)(b); Australian Road Rules R 215(1), referred to.
Siviour-Ashman v Police (2003) 85 SASR 23, applied.
Police v Mutton (2006) 246 LSJS 153; Campbell v Fuss (1991) 55 SASR 355; Police v Hodge (1996) 89 A Crim R 290, discussed.
Mancini v Vallelonga (1981) 28 SASR 236; Police v Fargher [1999] SASC 206, unreported, Perry J, 14 May 1999, considered.

POLICE v SELVAKULALINGAM
[2007] SASC 424
Magistrates Appeal
Nyland J:

This is a prosecution appeal against an order for disqualification imposed by a Stipendiary Magistrate sitting in the Magistrates Court at Adelaide on 8 June 2007.
The respondent was charged on complaint with two offences. First, that on 30 April 2003 at Adelaide, he drove a motor vehicle on a road, namely East Terrace, while there was present in his blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961 (the Act). It was alleged that the concentration of alcohol was .095 g in 100 millilitres of blood. Secondly, it was alleged that on the same date, the respondent drove his motor vehicle on East Terrace at night while the headlights fitted to his vehicle were not operating effectively and clearly visible, contrary to the provisions of Rule 215(1) of the Australian Road Rules. The respondent was fined with respect to the offences charged and a period of licence disqualification was imposed. This appeal is confined to the disqualification component of the sentence.
The respondent, who was represented by counsel, pleaded guilty to the charges against him and thereafter made an application pursuant to s 47B(3)(b) of the Act, that the offending in relation to the first count be found to be trifling and consequently that the period of licence disqualification be reduced below the statutory minimum of six months. The application was opposed by the appellant.
The respondent gave evidence in support of his application. After hearing that evidence and submissions of counsel, the learned magistrate found that the…

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 SELVAKULALINGAM

Details

AGLC: Police v SELVAKULALINGAM [2007] SASC 424
Case: [2007] SASC 424
Decision Date: 5 December 2007

CaseChat Overview and Summary

The case of Police v Selvakulalingam involved an appeal by the Attorney-General against the sentence imposed by a magistrate on the respondent, who had pleaded guilty to charges of driving with a prescribed concentration of alcohol in the blood and driving at night with non-operating headlights. The appeal focused on whether the magistrate had erred in classifying the offence as "trifling" and whether the principle of double jeopardy prevented the Supreme Court from increasing the sentence.

The legal issues before the court were twofold: firstly, whether the magistrate's assessment of the offence as "trifling" and typical of its type was erroneous, and secondly, whether the principle of double jeopardy precluded the Supreme Court from altering the sentence imposed by the magistrate. The respondent argued that the magistrate's classification of the offence was incorrect, while the Attorney-General contended that the court could intervene given the classification error.

The Supreme Court, in allowing the appeal, held that the magistrate had indeed erred in characterising the offence as "trifling". The court found that the nature of the offences, coupled with the respondent's previous convictions, demonstrated a pattern of disregard for traffic laws and public safety. The Supreme Court emphasised that the principle of double jeopardy did not prevent it from correcting an error in the exercise of judicial discretion. Consequently, the appeal was allowed, and the matter was remitted to the Magistrates Court for resentencing.

The final orders of the court involved the allowance of the appeal, the annulment of the original sentence, and the direction that the case be returned to the Magistrates Court for the imposition of an appropriate sentence, taking into account the gravity of the respondent's repeated breaches of traffic regulations.

Orders