Police v Zammitt - [2007] SASC 37

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v ZAMMITT & ANOR
[2007] SASC 37
Judgment of The Honourable Justice David
9 February 2007
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - EVIDENCE AND COURSE OF TRIAL - GENERAL PRINCIPLES - NO CASE TO ANSWER
Respondents provided paramedic service - jointly charged with 20 counts, namely one count of providing an ambulance service without a licence, one count of holding out as providing an ambulance service, five counts of providing a record that is misleading, two counts of attempting to pervert the course of justice, three counts of driving a vehicle fitted with a siren and three counts of driving a vehicle that is fitted with flashing lights – offences arose from respondents offering a paramedic service to client companies – magistrate dismissed all counts upon application that there was no case to answer – whether magistrate correctly dismissed counts on the basis that there was no case to answer – whether there was evidence with respect to every element of the offence charged which could prove element beyond reasonable doubt.
Ambulance Services Act 1992 s 4, s 5, s 18; Criminal Law Consolidation Act 1935 s 256(1); Expiation of Offences Act 1996 s 5, s 8; Motor Vehicles Act 1959 s 25, s 135; Road Traffic Act 1961 s 122(1); Ambulance Service Regulations 1993 reg 4; Motor Vehicle Regulations 1996 Sch 1; Australian Road Rules r 306; Road Traffic (Vehicle Standards) Rules 1999 r 34(2), r 118(3), referred to.
R v Bilick & Starke (1984) 36 SASR 321; Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1; R v Rogerson, Nowytarger & Paltos (1992) 174 CLR 268, applied.

POLICE v ZAMMITT & ANOR
[2007] SASC 37
Magistrates Appeal

DAVID J. At all material times the first respondent, David Zammitt, was the sole director of the second respondent, Workcare South Australia Pty Ltd (“Workcare”), a company incorporated in the State of South Australia.
The respondents were jointly charged on Information with two counts alleging breaches of s 5 and s 18 of the Ambulance Services Act 1992, six counts alleging breaches of s 135 of the Motor Vehicles Act 1959, ten counts alleging breaches of s 112(1) of the Road Traffic Act 1961, and two counts of attempting to pervert the course of justice, contrary to s 256(1) of the Criminal Law Consolidation Act 1935.
This is an appeal against the decision of a magistrate to dismiss the 20 charges. At the end of the prosecution case the magistrate ruled that the prosecution had failed to provide sufficient evidence to prove any of the charges against either of the respondents. As a result, the magistrate dismissed the Information. The appellant, SA Police, now appeals against the magistrate’s decision on all counts except two (counts 9 and 10 on the Information).
In her reasons for dismissing the charges the magistrate did not refer to, or…

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 Zammitt

Details

AGLC: Police v Zammitt [2007] SASC 37
Case: [2007] SASC 37
Decision Date: 9 February 2007

CaseChat Overview and Summary

The case of Police v Zammitt involved the respondents, Workcare, and its employees, who provided paramedic services to client companies. They were charged with 20 counts, including providing an ambulance service without a licence, holding out as providing an ambulance service, providing misleading records, attempting to pervert the course of justice, and driving vehicles fitted with sirens and flashing lights. The magistrate dismissed all counts upon an application that there was no case to answer. The appellant argued that there was sufficient evidence to prove each element of the offence charged beyond reasonable doubt, and thus a case to answer existed.

The legal issues that the court was required to decide were whether the magistrate correctly dismissed the counts on the basis that there was no case to answer and whether there was evidence with respect to every element of the offence charged that could prove the element beyond reasonable doubt. The court considered the evidence presented at trial and whether it was sufficient to establish a case to answer for each count.

The court found that the magistrate correctly dismissed counts 1, 6, 8, 11 and 14 on the basis that there was no case to answer. However, the court found that there was sufficient evidence to prove a case to answer for the remaining counts. Therefore, the appeal was dismissed in relation to those counts, but allowed in relation to the remaining counts, which will be remitted to the Magistrates Court for hearing.

The final orders of the court were to dismiss the appeal in relation to counts 1, 6, 8, 11 and 14, and to allow the appeal in relation to the remaining counts, which will be remitted to the Magistrates Court for hearing.

Orders

Orders of the court

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Background

Background to the litigation

The appellant argues that on a proper application of the law to the facts that were presented in relation to each count on the Information there is clearly a case to answer.Background Facts The second respondent, Workcare, contracted with client companies to provide services that included a call-out service, whereby if employees of the client company were injured or became ill at work the client company would telephone Workcare for assistance. Workcare would then dispatch a vehicle to the worksite. The vehicle was driven by one of its employees who was a trained paramedic. The level of service provided by the paramedic was determined by the degree of illness or injury. In cases of serious or life-threatening illness or injury, termed “priority 1”, client companies were instructed to contact the South Australian Ambulance Service (“SAAS”). In priority 1 situations the paramedic provided care and treatment until the SAAS paramedics arrived, at which point there was a handover and if necessary, SAAS would transport the patient to hospital. In cases of less serious illness or injury, termed “priority 2”, the client companies only contacted Workcare. Workcare’s paramedic would provide care and treatment and then, if necessary, offer to transport the patient to a hospital or other medical facility. Contracts between Workcare and client companies were on an ongoing, medium to long-term basis. Workcare’s services were not advertised or available to the general public. There was no charge in addition to the contract fee for the call-out service.The Charges The respondents were jointly charged with 20 offences arising from the provision of the service and certain representations allegedly made to Transport SA and the Expiation Notice Branch. These charges can be conveniently divided into four categories.1.Counts one and two alleged that the respondents were providing an ambulance service, contrary to s 5 of the Ambulance Services Act, and holding themselves out as carrying on the business of providing an ambulance service in circumstances where they did not hold an appropriate licence, nor were they permitted by regulation to do so, contrary to s 18 of the Ambulance Services Act.2.Counts 3‑8 alleged that the respondents had compiled records that were false or misleading in a material particular, contrary to s 135 of the Motor Vehicles Act. These charges related to alleged applications by the respondents to register vehicles owned by Workcare with Transport SA. The respondents allegedly sought conditional registration, a classification of registration with reduced registration fees which is available to certain classes of vehicles, including ambulances and emergency rescue vehicles.3.Counts 11 and 14 alleged that the respondents attempted to obstruct or pervert the course of justice or the due administration of the law, contrary to s 256(1) of the Criminal Law Consolidation Act. These charges related to incidents where vehicles owned by Workcare were detected driving over the speed limit. The appellant alleged that the first respondent, David Zammitt, wrote to the Expiation Notice Branch seeking the withdrawal of expiation notices relating to the speeding on the basis that the vehicles were ambulances and the speeding offences were received while responding to emergencies. The appellant alleged that these claims were false and amounted to the offences charged. Unlike the other offences, which are summary offences, these counts are minor indictable offences and are clearly the most serious of those with which the respondents were charged.4.Counts 9, 10, 12, 13 and 15‑20 each related to motor vehicles allegedly owned by Workcare which were driven on roads and fitted with sirens, contrary to r 34(2) of the Road Traffic (Vehicle Standards) Rules 1999 (“the Rules”), or blue or red flashing lights, contrary to r 118(3) of the Rules, each being an offence pursuant to s 112(1) of the Road Traffic Act.Amendment of Information

Evidence

Evidence Before The Court

On appeal, counsel for the appellant raised the fact that the date ranges particularised in counts 1 and 2 on the Information were partly out of time. There is a two year time limit between the alleged committing of an offence and the laying of an Information for a summary offence. Counts 1 and 2 were particularised as commencing on 1 July 2001 through to 5 May 2004. The earliest date within the time limit is 5 August 2002. It appears that this obstacle was not noticed by either party until the morning of the appeal hearing, and was not raised before the magistrate. Counsel for the appellant applied to amend the Information to substitute the date 5 August 2002 for the previous commencement date of 1 July 2001. Counsel for the respondents opposed this application. I have however ruled to allow the amendment. The conduct that was the subject of the counts allegedly extended across the whole period particularised. The fact that the date period was partly out of time was not raised by either party during the trial, and had it been raised, an amendment to narrow the alleged time‑frame would no doubt have been allowed. Such an amendment would not, in my opinion, have substantially altered the positions of the parties or the presentation of their cases. In this case there can be no prejudice caused to the respondents in amending the Information in the manner requested by the appellant.Evidence at Trial – Overview At trial, the prosecution called a number of witnesses and tendered many documents. The documents tendered were presented in a form which could only be described as unsatisfactory. Those documents basically went to matters of proof in relation to applications which were the subject of charges 3‑8, and also provided evidence in relation to charges 12, 13 and 15‑20. A number of photographs were also tendered which sought to prove that lights and sirens were fitted to the appropriate vehicles on the dates as alleged in the Information. Unfortunately these documents were tendered by consent in bundles, without reference to any aid pursuant to the Evidence Act 1929, and were not dealt with specifically and individually by the magistrate by relating a particular document to particular charges. Although a Mr Sutton from the Department of Transport was called to explain the documents, he did not relate all of the documents to specific charges. A number of witnesses were called:·Mr Birch from the Department of Health gave evidence in relation to negotiations with the respondents leading up to the formation of Workcare;·Mr Sutton, an official from the Department of Transport, gave evidence as to the process of conditional registration which is the subject of counts 3‑8;·two former employees of Workcare, Mr Pegoli and Mr Turner, gave evidence about the typical use of the vehicles;·three former clients of Workcare gave evidence about the service provided by the respondents;·Mr Marsh, who was a police officer from the Expiation Notice Branch, was called in relation to counts 11 and 14; and·Mr Thompson, the investigating police officer, also gave evidence.There were also a number of affidavits tendered by consent.Appeal

Decision

Reasons for decision

DAVID J

Counts 19 and 20 related to driving on 19 April 2004. Mr Thompson testified that he saw a vehicle with plate number EMR 008 drive along Grote Street in Adelaide. A red and blue light bar was fitted on its roof. Again the MR25C form lodged with Transport SA was evidence that Workcare owned the vehicle and that it was fitted with lights and a siren. Counsel for the appellant reports that this vehicle was also present when Mr Thompson and Mr Wells visited Workcare’s premises, however, I can find no evidence to support this submission. Nevertheless, I find that there is sufficient evidence that there is a case to answer on counts 19 and 20.Conclusion The appeal is dismissed in relation to counts 1, 6, 8, 11 and 14. In relation to the remainder of the counts the appeal is allowed and those matters will be remitted to the Magistrates Court for hearing.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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