Police v Wimshurst - [2008] SASC 215

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WIMSHURST
[2008] SASC 215
Reasons for Decision of The Honourable Justice David
6 August 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - GENERALLY
EVIDENCE - DOCUMENTARY EVIDENCE - PRESUMPTIONS AS TO DOCUMENTS
Appeal against dismissal of charge by magistrate - respondent charged with driving when not, and never having been, authorised to drive a vehicle pursuant to s 74(2) of the Motor Vehicles Act 1959 (SA) - respondent contested the allegation she never held a licence - respondent gave oral evidence and tendered documents indicating her licence number - prosecution tendered extract from the register of licences pursuant to s 140 of the Motor Vehicles Act 1959 (SA) and certificate pursuant to s 141 of the Motor Vehicles Act 1959 (SA) - magistrate found respondent's evidence combined with documents, sufficient to rebut presumption pursuant to s 141 of the Motor Vehicles Act 1959 (SA) that document established the proof of its contents - whether finding was against the weight of the evidence - held, finding not against the weight of the evidence.
Held: Appeal dismissed.
Magistrates Court Act 1991 (SA) s 42; Motor Vehicles Act 1959 (SA) s 74, s 140, s 141; Motor Vehicles Amendment Act 1980 (SA) s 4, referred to.
Evans v Benson (1986) 46 SASR 317, considered.

POLICE v WIMSHURST
[2008] SASC 215
Magistrates Appeal
DAVID J
Introduction

This is a prosecution appeal, pursuant to s 42 of the Magistrates Court Act 1991 (SA), against the decision of a magistrate dismissing a charge. At the hearing of this matter on 22 July 2008 I dismissed the appeal.
These are my reasons.
Background
It was alleged that, on 21 December 2006, the respondent drove a vehicle on Stone Street, Blair Athol, when not authorised to drive the vehicle and having never been authorised to drive a vehicle of that class on a road, which is an offence pursuant to s 74(2) of the Motor Vehicles Act 1959 (SA) (“the MVA”).
The respondent did not dispute that she was driving the vehicle at the time and place alleged. She disputed the allegation that she had never held a driver’s licence and argued that she had been charged with the incorrect offence.
Section 74 of the MVA provides:
74—Duty to hold licence or learners permit
(1)Subject to this Act, a person who—
(a)drives a motor vehicle of a particular class on a road; and
(b)is not authorised to drive a motor vehicle of that class on a road but has previously been so authorised under this Act or the law of another State or a Territory of the Commonwealth,
is guilty of an offence.
Maximum penalty: $1,250.
(2)Subject to this Act, a person who—
(a)drives a motor vehicle of a particular class on a road; and
(b)is not and has never been authorised, under this Act or the law of another State or a Territory of the Commonwealth, to drive a motor vehicle of that class on a road,
is guilty of an offence.
Maximum penalty:
For a first offence—$2,500.
For a subsequent offence—$5,000 or imprisonment for 1 year.
In relation to subsequent offences, the section provides:
(5)Where a court convicts a person of an offence against subsection (2) that is a subsequent offence, the following provisions apply:
(a)the court must order that the person be disqualified from holding or obtaining a driver's licence for such period, being not less than 3 years, as the court thinks fit;
(b)the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence;
…
(6)In determining whether an offence is a first or subsequent offence for the purposes of subsection (2), any previous offence against this section or section 91(5) for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the period of 3 years immediately preceding the date on which the offence under consideration was committed.
If the respondent were convicted of the offence the subject of this appeal, the prosecution alleged it would have been a subsequent offence, thereby attracting the higher penalty as well as the mandatory period of licence disqualification.
A hearing with respect to the charge commenced in the Holden Hill Magistrates Court on 8 May 2008. The respondent appeared in person.
The prosecution tendered affidavits of Senior Constables David Mothersole and Jared John Karran, an “Extract from Entry in the Register of Licences” pursuant to s 140 of the MVA and a “Certificate” pursuant to s 141 of the MVA.
The magistrate found a case to answer and the respondent then proceeded to give evidence in chief and was cross‑examined. She gave evidence that she held a licence when she was about 21 years of age, that being 17 years before the conduct the subject of the present charge. She said that after having been convicted of driving under the influence three times, and having her licence disqualified for over two years as a consequence, she simply allowed her licence to expire and never renewed it.
The respondent tendered a “Notice of Disqualification” bearing her name, dated 11 September 2008. In the top left hand corner of the document, appeared the reference “DRIVERS LICENCE NO. T45148”. She also tendered a copy of a “Revocation of Order” which similarly referred to “SA Drivers Licence No T45148”. She gave evidence that she had appeared in the Port Adelaide Magistrates Court on an earlier occasion to face the same charge and that the presiding magistrate informed the parties she had been charged with the incorrect offence on account of her having once held a licence. The respondent tendered a copy of a Complaint dated 11 May 2007, with a notation from the magistrate, amending it to a charge pursuant to s 74(1) of the MVA.
The prosecutor cross‑examined the respondent as to an alias she had previously used, the dates of her appearances in relation to the same charge prosecuted in the Port Adelaide Magistrates Court, warrants that were issued for her arrest due to non‑appearance in court and the fact that she was charged with having driven without a licence in 1995. The magistrate then delivered an ex tempore judgment.
The Appeal
The prosecution appealed against the decision of the magistrate to dismiss the charge on the basis that it was against the weight of the evidence. The prosecution argued that the respondent’s evidence was insufficient to rebut the prima facie presumption that the documents establish the proof of their contents.
The Oral Evidence
The prosecution argued that evidence beyond a mere unsupported assertion to the contrary is required in order to rebut the presumption on the balance of probabilities; otherwise such statutory provisions would be too easily defeated.
The prosecution points to confusion in the respondent’s evidence. First, in examination in chief, the respondent said that she moved from a learner’s permit to a full licence without the need for a provisional licence. However, in later cross‑examination she was unsure whether she had held a provisional licence. The prosecution noted that the MVA has provided for provisional licences since 1980 when s 81A was first inserted into the MVA by amending legislation.[1]
[1] Motor Vehicles Amendment Act 1980 (SA) s 4.
Secondly, though the respondent said in examination in chief that she surrendered her licence as a result of convictions for driving under the influence, in cross‑examination she agreed she had simultaneously been convicted for driving without a licence. The prosecution argued she could not therefore have allowed it to lapse. When the respondent was convicted for driving without a licence in 1995, the MVA did not provide for the offence of driving, having never held a licence. Her antecedent report is therefore of no assistance.
The prosecution argued that these alleged weaknesses in the respondent’s evidence should have affected the weight attached to it. Apart from the respondent’s assertion that she once held a licence, the prosecution argued that there was no other persuasive evidence before the magistrate to rebut the presumption that the documents establish the proof of their contents.
In respect to the respondent’s evidence, the magistrate stated:
I also have sworn evidence from Ms Wimshurst. She was quite obviously flustered at times under cross-examination from Mr Pfeiffer but the critical issue is for me to decide on the balance of probabilities whether or not I am prepared to reject her sworn evidence. She is a very simple and basic individual. She was adamant that she obtained a licence, that during the term of that licence that she had she got dealt with [sic] for some drink driving offences and, as a result of that, there was a disqualification. She was adamant that police came to collect that licence and that they also came to give her a Demerit Points notice which she could not subsequently produce. There were instances put to her in cross-examination that in 1995 and 1996 she drove without a licence. That was not disputed but at that time I take simple judicial notice that it was simply charged as driving when not authorised.
Having noted similar concerns to those expressed by the prosecution on appeal, the magistrate proceeded, as he could, to accept the respondent’s evidence.
The Exhibits
As to the documents tendered by the prosecution, ss 140 and 141 of the MVA both provide that documents produced pursuant to either section are “in all legal proceedings and arbitrations proof of the matters so stated in the absence of proof to the contrary”.[2] As to the documents tendered by the respondent, s 45A(e) of the Evidence Act 1929 (SA) would apply, which similarly provides that such a document is “admissible … without further proof…and [is] evidence of any fact stated … or that may be inferred from the record”.[3]
[2] Motor Vehicles Act 1959 (SA) s 141.
[3] Evidence Act 1929 (SA) s 45A.
The prosecution cited the case of Evans v Benson,[4] in which this Court held a statutory provision creating a presumption that breath analysis results were taken to be accurate in the absence of proof to the contrary, had “the effect of reversing the onus of proof thereby casting a persuasive onus on the defendant to prove, on the balance of probabilities, the contrary of what is presumed”.[5] Because there was provision for the presumption to be rebutted by blood analysis results, the Court sought to clarify that the presumption would stand unless there was evidence, which co‑related the results of the respective tests, indicating the breath analysis result was erroneous as at the time it was taken. This explains the reference in that case to a “persuasive” and not merely an evidentiary onus.
[4] Evans v Benson (1986) 46 SASR 317.
[5] Ibid 319, per King CJ.
In his reasons, the magistrate considered the documents tendered by the prosecution pursuant to the MVA, and then considered, while acknowledging he must prima facie accept their contents, whether there was any evidence to the contrary. He stated:
The first of the documents tendered under section 140 shows at the top of the document a licence number T45148 but down further in the document it asserts that the client is not the holder of any specified class of driver’s licence. Mr Pfeiffer asserts that I can conclude from that document in conjunction with the certificate under 141 that Ms Wimshurst is not the holder of any specified class of driver’s licence, and that T45148 is a client number rather than a licence number..
…
I indicate firstly that I am both surprised and concerned at the use of a licence number in the body of P3. Secondly, there is [evidence] tendered by the defendant, which indicates … that another Judicial Officer and another prosecutor dealt with this issue differently, … by consent, a charge under S.74(2) of the [MVA] was amended to one under S.74(1).
The last document mentioned by the magistrate establishes no more than that the respondent was once before another magistrate facing the same charge and that charge was amended to one pursuant to s 74(1) of the MVA. It does not itself establish that the respondent was once the holder of a licence.
The other document, to which the magistrate referred, namely that tendered by the prosecution pursuant to s 140 of the MVA, established that the respondent was not the holder of any licence, but that she had a designated licence number. The other documents tendered by the respondent similarly established that she had a licence number, thereby allowing for the inference that she must have had a licence. The magistrate expressed the correct test in his reasons, that is; whether there was any proof to contrary on the balance of probabilities. He was entitled to find that the inference he could draw from the documents, together with the respondent’s own sworn evidence, constituted sufficient proof to the contrary.
Conclusion
For the above reasons, I dismissed the appeal.