Police v Tereschenko No. Scgrg-00-385 - [2000] SASC 300

POLICE v TERESCHENKO
[2000] SASC 300

Magistrates Appeal

1................ DUGGAN J....... The respondent was charged with three traffic offences. The complaint alleged that on 17 October 1998 at Golden Grove the respondent:

1...... Drove a vehicle on a road, namely, the Golden Way at a speed which was dangerous to the public, contrary to s 46 of the Road Traffic Act 1961.

Drove a vehicle, namely, a motor sedan on a road, namely, the Golden Way without due care, contrary to s 45 of the Road Traffic Act 1961.
Being the driver of a vehicle, namely, a motor sedan on a road, namely, the Golden Way diverged the said vehicle to the left without giving a signal in accordance with the Road Traffic Regulations, 1974, contrary to s 74 of the Road Traffic Act 1961.
The respondent pleaded not guilty to the first and second charges and guilty to the third. At the conclusion of the prosecution case in respect to the first two charges the learned magistrate upheld a submission of no case to answer on the charge of driving at a speed dangerous to the public, but found a case to answer on the charge of driving without due care. The charge of driving without due care was dismissed after the respondent gave evidence. The prosecution has appealed against the finding of no case to answer and the dismissal of the charge of driving at a speed dangerous to the public.
As is evident from the complaint, the charges arose out of an incident which took place at Golden Grove on 17 October 1998. Constables Bussenschutt and Fotoulis were patrolling the area in a police car when, at approximately 9.40 pm, they observed a dark coloured hatchback vehicle being driven through the junction of the Golden Way and the road on which they were travelling, Grenfell Road. It is not in dispute that the vehicle was being driven by the respondent. According to the police officers, it was travelling at a fast rate of speed.
The police officers turned right onto the Golden Way and followed the respondent’s vehicle. When they were approximately 100 metres behind the vehicle they attempted to maintain a constant speed and distance from it. Constable Bussenschutt who was driving the police vehicle gave evidence that although he was travelling at a speed of 120 kilometres per hour behind the vehicle, he was unable to keep up with it over a distance of 300 metres. He said that he determined the speed of the police vehicle by looking at an analogue speedometer in the vehicle.
As the respondent’s vehicle approached the intersection of the Grove Way and the Golden Way the police officers saw a red Ford station wagon attempting to do a u-turn at an intersection approximately 50 metres south of the Grove Way and Golden Way intersection. According to Constable Bussenschutt, this manoeuvre forced the respondent’s vehicle to veer from the right lane into the left lane to avoid a collision.
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.

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Details

Case: [2000] SASC 300
Decision Date: 4 September 2000

CaseChat Overview and Summary

The case before the court involved an appeal by the Police against the decision of the Magistrates Court to find no case to answer on two traffic charges against Tereschenko. The first charge was for driving at a speed which was dangerous to the public, and the second was for driving without due care. Tereschenko had pleaded not guilty to the first charge and guilty to the second. The magistrate upheld the submission of no case to answer on the first charge but found a case to answer on the second charge, which was subsequently dismissed. The prosecution appealed against the findings on the first and second charges.

The key legal issues were whether the prosecution was entitled to rely on a statutory presumption under s 175(3)(b) of the Road Traffic Act 1961 regarding the accuracy of the speedometer in the police vehicle, and whether the magistrate correctly found no case to answer on the charge of driving at a speed dangerous to the public.

The court held that the prosecution was entitled to rely on the statutory presumption regarding the accuracy of the speedometer, as the evidence called by the prosecution did not amount to proof to the contrary of what was stated in the certificate of accuracy. The court found that the magistrate erred in finding no case to answer on the first charge, as the prosecution was entitled to rely on the certificate of accuracy, and there was no other evidence of the speed of Tereschenko’s vehicle. The court found that it would have been appropriate for the magistrate to consider the speed of approximately 120 kilometres per hour, as indicated by the police officers, along with other evidence in deciding whether the respondent was driving at a speed dangerous to the public.

The appeal was allowed in relation to counts 1 and 2, and the orders dismissing the charges in those counts were set aside. The court indicated that further orders would be considered based on submissions from the parties.

Orders