Police v THOMPSON - [2006] SASC 20

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v THOMPSON
Judgment of The Honourable Justice Vanstone
31 January 2006
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
Police appeal against acquittal of driving with prescribed concentration of alcohol - facts of matter not in dispute - mechanical defect causing accelerator to "stick" - whether motion of vehicle caused by respondent's voluntary acts - whether respondent "driving" vehicle. Held: appeal allowed.
Road Traffic Act 1961, s 5(1), 5A, 47B; Magistrates Court Act 1991, s 42(5), referred to.
Bassell v McGuiness (1981) 29 SASR 508; Kroon v The Queen (1990) 55 SASR 476; Jiminez v The Queen (1992) 173 CLR 572; R v Spurge [1961] 2 QB 205; Hill v Baxter [1958] 1 QB 277, considered.

POLICE v THOMPSON
[2006] SASC 20
Magistrates Appeal
VANSTONE J:
Introduction

The respondent pleaded not guilty to driving while having the prescribed concentration of alcohol in his blood. The central issue at trial was whether he had been deprived of control of the vehicle by reason of the accelerator “sticking” and was therefore not driving at the relevant time. The magistrate acquitted, and this is an appeal from that decision.
Background
The offence was alleged to have occurred on 7 May 2005 in the late afternoon, just outside the appellant’s home at Borlase Street, Ceduna. The respondent said in evidence that on that day he had been watching football and had consumed three “stubbies” of light beer. He decided to wash his car, a Commodore sedan with automatic transmission. He determined to move it from its position in the driveway to the front lawn for that purpose. That involved reversing a short distance without leaving his property, then turning on to the adjacent lawn. (Since the Road Traffic Act 1961, by s 5A, applies only to “roads”, such action would not have amounted to an offence.)
The respondent said in evidence that when he started reversing and was still in the driveway, the car “took off on me, full revs.” He said the accelerator stuck and “away it went.” He said he did not really have control of the car and he did not have time to apply the brakes. The car left his property, crossed the road and hit a stump on the other side. He said he had not, earlier, known of any problem with the accelerator. He said he hit his head in the collision and afterwards took some neat brandy for the shock. He reported the matter to police who attended and required him to undergo a breath analysis. His reading was 0.207 grams in 100 millilitres of blood.
The vehicle was towed away two days later to a compound at Ceduna Machinery. In August it was examined by a diesel mechanic who gave evidence that he found that after it was depressed, the accelerator was slow…

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 THOMPSON

Details

AGLC: Police v THOMPSON [2006] SASC 20
Case: [2006] SASC 20
Decision Date: 31 January 2006

CaseChat Overview and Summary

In the case of Police v Thompson, the appellant, the Police, sought to appeal the acquittal of the respondent, Thompson, on a charge of driving while having the prescribed concentration of alcohol in his blood. The central issue at trial was whether Thompson had been deprived of control of the vehicle by reason of the accelerator "sticking" and was therefore not driving at the relevant time. The respondent claimed that the vehicle took off on him unexpectedly, and he did not have time to apply the brakes before it left his property and crossed the road. The magistrate acquitted Thompson, and this is an appeal from that decision.

The legal issues that the court was required to decide were whether Thompson had been driving the vehicle when it moved, and if so, whether he had control over the vehicle despite the mechanical defect. The court needed to determine whether the motion of the vehicle was caused by Thompson's voluntary acts, despite the mechanical issue. The court also needed to consider the meaning of "driving" as used in s 47B Road Traffic Act, including voluntariness in the context of driving, and the relevance of a mechanical defect in the car.

The court, in allowing the appeal, held that the magistrate must have misapplied the correct principle in reaching the conclusion that Thompson did not have control of the vehicle. The court considered that the discussion of voluntariness obscured the real issue. The court held that had the magistrate applied the true principle, they would have found that Thompson was sufficiently in control of the operation of the vehicle, throughout its short journey, to be driving it, both as the Road Traffic Act employs that word and as a matter of common usage. The court considered it appropriate to quash the magistrate's order dismissing the complaint and, in its place, to record a conviction. The court remitted the matter to the magistrate for further hearing as to penalty.

The final orders were: (1) allow the appeal; (2) set aside the judgment of acquittal, the order dismissing the complaint, and the order as to costs; (3) substitute for the order dismissing the complaint an order that a conviction be recorded; and (4) remit the matter to the magistrate for further hearing in respect of penalty. The court shall hear the parties as to costs.

Orders

Orders of the court

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Background

Background to the litigation

The respondent pleaded not guilty to driving while having the prescribed concentration of alcohol in his blood. The central issue at trial was whether he had been deprived of control of the vehicle by reason of the accelerator “sticking” and was therefore not driving at the relevant time. The magistrate acquitted, and this is an appeal from that decision. Background The offence was alleged to have occurred on 7 May 2005 in the late afternoon, just outside the appellant’s home at Borlase Street, Ceduna. The respondent said in evidence that on that day he had been watching football and had consumed three “stubbies” of light beer. He decided to wash his car, a Commodore sedan with automatic transmission. He determined to move it from its position in the driveway to the front lawn for that purpose. That involved reversing a short distance without leaving his property, then turning on to the adjacent lawn. (Since the Road Traffic Act 1961, by s 5A, applies only to “roads”, such action would not have amounted to an offence.) The respondent said in evidence that when he started reversing and was still in the driveway, the car “took off on me, full revs.” He said the accelerator stuck and “away it went.” He said he did not really have control of the car and he did not have time to apply the brakes. The car left his property, crossed the road and hit a stump on the other side. He said he had not, earlier, known of any problem with the accelerator. He said he hit his head in the collision and afterwards took some neat brandy for the shock. He reported the matter to police who attended and required him to undergo a breath analysis. His reading was 0.207 grams in 100 millilitres of blood. The vehicle was towed away two days later to a compound at Ceduna Machinery. In August it was examined by a diesel mechanic who gave evidence that he found that after it was depressed, the accelerator was slow to return to its normal position. He inspected and replaced the cable, which he found to be in a dirty condition, as was the inside of the carburettor. In closing submissions the prosecutor conceded that the accelerator had stuck “at some point”. The magistrate gave comprehensive reasons for his decision. He referred to authorities regarding the meaning of “drive” as used in s 47B Road Traffic Act, including Bassell v McGuiness (1981) 29 SASR 508; as to voluntariness in the context of driving: Kroon v The Queen (1990) 55 SASR 476; Jiminez v The Queen (1992) 173 CLR 572; and as to the relevance of a mechanical defect in the car: R v Spurge [1961] 2 QB 205. He found that as a result of the mechanical failure the respondent was not “driving” the vehicle at the relevant time. Upon appeal the principal argument put by the appellant was that, having regard to the basic facts of the matter – which were in almost all respects uncontested – the magistrate reached a decision which was simply not open to him. It was submitted that the magistrate must have confused the issues of voluntariness and intention. Alternatively it was said that the Magistrate should have found that at all times the respondent retained a sufficient measure of control over the vehicle to mean that he was driving it and was therefore liable to be convicted.Analysis

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Indeed if, as the respondent claimed, the vehicle travelled extremely quickly across the roadway to its resting place, then that indicates that the accelerator was depressed by him to an extent far greater than demanded by the simple manoeuvre he claimed to be undertaking. Conclusion I consider that to reach the conclusion that he did, the learned magistrate must have misapplied the correct principle. In all probability the discussion of voluntariness obscured the real issue. In my view, had he applied the true principle, then the Magistrate inevitably would have found that the respondent was sufficiently in control of the operation of the vehicle, throughout its short journey, to be driving it, both as the Road Traffic Act employs that word and as a matter of common usage. The other factual matters going to prove the charge were not in issue. The magistrate was satisfied of each. I consider it appropriate to utilise the power given me in s 42(5) Magistrates Court Act 1991 to quash the magistrate’s order dismissing the complaint and in its place to record a conviction. In relation to the matter of penalty, there is an area of fairly wide discretion. Moreover, counsel for the appellant was inclined to make certain concessions. In those circumstances I consider that it is appropriate to remit the matter to the magistrate for further hearing, as to penalty. Orders I make the following orders:1. allow the appeal;2.set aside the judgment of acquittal, the order dismissing the complaint and the order as to costs;3.substitute for the order dismissing the complaint an order that a conviction be recorded;4.remit the matter to the magistrate for further hearing in respect of penalty.I shall hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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