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Police v Warren

Police v Warren

Case [2000] SASC 285 9 August 2000

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POLICE v WARREN
[2000] SASC 285
Magistrates Appeal
Civil ex tempore
1................ Gray J ............. The respondent, Barry Glen Warren was charged on complaint that on 1 March 1999 at Elizabeth South he assaulted Anthony Colin Starr contrary to section 39 of the Criminal Consolidation Act 1935 (SA). He was further charged that on the same day he failed to comply with a domestic violence restraining order, contrary to section 15 of the Domestic Violence Act 1994 (SA). He was further charged that on 1 March 1999 at Elizabeth South he drove a motor vehicle in a manner which was dangerous to the public, contrary to section 46 of the Road Traffic Act 1961 (SA). The driving charge matter came on for hearing on Tuesday 1 February 2000, before Ms McInnes SM. The respondent was present in court and was represented by Mr Petraccaro.
2      The respondent had been convicted on 11 July, 1997 of the offence of driving at a speed which was dangerous to the public. On that occasion, he was fined $300.00 and his licence was disqualified for six months as of 19 July 1997.
3      The learned magistrate conducted a pre-trial conference. She indicated that if a plea of guilty were entered, then she would impose a suspended sentence of imprisonment for the breach of restraint of the domestic violence order. She considered that the penalty to be imposed on the driving charge should have "limited effect" on the respondent's driver's licence. The learned magistrate urged the withdrawal of the driving charge but the prosecutor informed her that she was instructed to proceed.
4      Mr Petraccaro advised the respondent that as a result of the earlier driving offence, he faced a licence disqualification of up to three years for the offence of driving in a manner dangerous to the public. Given that advice, the respondent instructed Mr Petraccaro that he would plead guilty to the driving charge and requested that Mr Petraccaro do what he could to charge keep his licence disqualification under three years.
5      The matters were then called on and the respondent pleaded guilty to the charge of failing to comply with the domestic violence restraining order and the driving charge. The complaint of assault was withdrawn.
6      During the course of submissions on penalty, Mr Petracarro became aware that the advice that he had given to the respondent was incorrect. When informed, the respondent said that he wished to withdraw his plea of guilty to the driving charge. The learned magistrate then intimated that in the unusual circumstances of the matter, as she considered the offence to be trifling, she would impose a licence disqualification for 12 months. Once that intimation was given, the respondent instructed Mr Petraccaro to proceed with the plea of guilty to the driving charge.
7      The prosecutor did not agree to the course that the learned magistrate was taking but was given no opportunity to make submissions. She says that had she been given the opportunity, she…

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 Warren

Details

AGLC: Police v Warren [2000] SASC 285
Case: [2000] SASC 285
Decision Date: 9 August 2000

CaseChat Overview and Summary

The case before the court involved the respondent, Barry Glen Warren, who was charged with assault, failing to comply with a domestic violence restraining order, and driving a motor vehicle in a manner which was dangerous to the public. The police appealed against the sentence imposed by the learned magistrate, who had found the offence of driving in a manner dangerous to the public to be trifling and imposed a licence disqualification of 12 months. The respondent sought an extension of time to appeal against the conviction for driving in a manner dangerous to the public, claiming that his plea of guilty was unfairly induced and that the conviction should be set aside. The police did not oppose the application for an extension of time.

The court considered the rules that guide it in deciding whether to extend the time for an appeal. These include the discretion existing solely for the purpose of doing justice between the parties, the obligation to explain with frankness and candour the reason for delay, and the court's consideration of whether any substantial grounds exist for apprehending a miscarriage of justice. The court must grant an extension of time to avoid a miscarriage of justice.

In this case, the serious injury sustained by the respondent provided a satisfactory explanation for delay. The respondent had raised a point of substance, as he was unfairly induced to plead guilty. The prosecution was not given an opportunity to address the magistrate's finding that the offence was trifling or that the disqualification was for a period less than the statutory minimum. Both parties accepted that the suspended sentence imposed with respect to the domestic violence charge was appropriate and did not wish to have the matter re-opened.

The court granted an extension of time for the respondent to lodge an appeal against the conviction for driving in a manner dangerous to the public. The appeal against conviction was allowed, and the conviction was set aside. The matter was remitted for hearing of the charge of driving in a manner dangerous to the public before another magistrate. The appeal by the police against sentence was dismissed.

Orders