Prinse v Police No. Scgrg-98-1257 Judgment No. S6981

[1998] SASC 6981

PRINSE v POLICE

[1998] SASC 6981

Magistrates Appeal

1 WICKS J This is an appeal against the conviction of the appellant in the Magistrates’ Court sitting at Holden Hill of a charge that he did on 20 October 1995 at Vale Park drive a motor vehicle on a road when there was present in his blood a prescribed concentration of alcohol as defined in s47A of the Road Traffic Act 1961, contrary to s47B of that Act. It was further alleged that the concentration of alcohol was 0.113 grams in 100 ml of blood.
2 There were two other charges made against the appellant arising from the same incident but these were both ultimately dismissed.
3 At the close of the prosecution case, after hearing argument on the question, the learned Magistrate accepted a submission from counsel for the appellant that there was no case to answer.  That ruling was given on 5 December 1997.  The learned Magistrate dismissed the charge and ordered payment in the sum of $1180 by way of costs to the appellant. 
4 The following is the background to the events giving rise to the dismissal of the charges taken from the judgment of Bleby J on appeal in Police v Prinse delivered on 26 February 1998.  I should add that Bleby J relied heavily upon the reasons for judgment given by the learned Magistrate when compiling the following background:
"On the 20th October 1995 at approximately 1.15 am., Constable Baker was on mobile patrol with Constable Schild when he determined to stop a Chrysler station wagon, registration number SMH-676, being driven by the defendant.

Constable Baker stated that he was travelling in a westerly direction along North East Road when he observed the defendant’s vehicle which was travelling in the same direction.  By use of a KDT terminal, a computer in the police car, he conducted a motor vehicle check.  He explained that patrol officers conduct random motor vehicle checks to assist in the detection of traffic offences.  Constable Baker explained the technology enables patrol officers to ascertain particulars as to vehicle’s (sic) registration and the current status of the registered owner’s drivers licence.  By keying in the registration number of the vehicle, within 3 to 5 seconds these details together with the registered owner, advice as to whether the vehicle was stolen can be obtained.

After conducting a computer check on the vehicle being driven by the defendant, he ascertained that it was registered to a female who resided at Glandore.  He ascertained there was a previous notification that the vehicle was stolen, although it was now recorded as a ‘closed stolen vehicle’ meaning it was no longer recorded as stolen.

Constable Baker stated that after receiving this information, he observed that the driver was male although the registered owner was female.  He considered the vehicle’s location was a long way away from the address of the registered owner.  Given the time of night he thought it was suspicious that the vehicle was on North East Road and when the vehicle turned left into Ascot Avenue, he determined to stop the vehicle.

Constable Baker was not aware nor did he suspect, from observation of the vehicle, that the driver had committed or was committing any offence, and he was not concerned about the manner in which the vehicle was being driven.  As the learned magistrate said:

‘He explained that the vehicle was stopped because of the suspicion he held given the vehicle was being driven by a male but registered to a female, and the registered owner lived a long way away from the vehicle location, the time of night and he stated he stopped it because he had power pursuant to the Road Traffic Act. He noted that there was a female passenger in the vehicle being driven by the defendant.’

At the time of stopping the vehicle Constable Baker had no reason to believe that any of the pre-conditions had been met for him to require that the driver of the vehicle submit to an alcotest or breath analysis in accordance with the provisions of s47E of the Road Traffic Act 1961.

After the vehicle had stopped, Constable Baker approached the driver’s window, which was wound down, and noticed a strong smell of liquor from within the vehicle. Constable Baker asked the driver to step out of the car and noticed that he was unsteady on his feet and unbalanced, "to the point where he was almost falling over". He described the swaying and stumbling as very obvious. The driver moved from the driver’s door to the rear of the vehicle and onto the footpath just behind the vehicle. A conversation then ensued between the appellant and Constable Baker, during which Constable Baker noticed that there was still a strong smell of liquor from the defendant’s breath, that he had glassy eyes and that his speech was slurred. Constable Baker formed the opinion that he was affected by liquor. He said he believed that the appellant had committed an offence against a provision of Part III of the Road Traffic Act of which the driving of a motor vehicle is an element, namely driving under the influence of alcohol, and he required the appellant to undertake a breath analysis.

In due course a breath analysis unit arrived, and the analysis was undertaken by Senior Constable Thomson, resulting in the reading alleged in Count 2.  The appellant was then arrested and charged with the three offences, one of which is the subject of the present appeal."

5 The trial of the matter before the learned Magistrate proceeded on 19 August, 23 September and 25 November 1997.  Judgment was delivered on 5 December 1997, the Magistrate holding that there was no case to answer.
6 The principal reason for the Magistrate’s decision was that there was no justifiable reason for Constable Baker to stop the respondent’s car. She considered that it was not "the lawful execution of police duty to randomly select motorists and stop them in circumstances described by Constable Baker". She found that Constable Baker’s direction for the defendant’s vehicle to stop was unlawful and that that action tainted his investigation thereafter. Her Honour then proceeded to exercise her discretion to exclude Constable Baker’s evidence of his observations and conversation with the respondent and any evidence relating to the analysis of the respondent’s breath and the result of that analysis. In exercising her discretion to reject the evidence Her Honour relied on the principles established in Bunning v Cross (1978) 141 CLR 54. She said:

"I consider the public interest in ensuring police powers are used within the framework as authorised by the legislation is fundamental to our system of justice.  In these circumstances fairness to the defendant outweighs the public interest in the enforcement of drink driving laws or the detection of driving in contempt of an order of disqualification."

7 Once the evidence referred to above was excluded, there was no evidence in support of the charge under consideration and therefore no case to answer in respect of that charge.  The charge was dismissed by the Magistrate.
8 The complainant was dissatisfied with the order of dismissal and appealed to this court.  The appeal was heard by Bleby J.  The grounds of appeal included the following:

1. The learned Magistrate erred in finding no case to answer.

1. The learned Magistrate erred in finding that Constable Baker’s direction for the defendant to stop was unlawful and that his action tainted the investigation thereafter.

1. The learned Magistrate erred in the exercise of her discretion to exclude the evidence of Constable Baker.

1. The learned Magistrate erred in her rulings at pp12 and 13 of her judgment as to admissibility of the evidence of the breath analysis.

9 These matters were considered by Bleby J on the appeal.
10 Section 42 of the Road Traffic Act 1961 provides as follows:
"42. (1) A member of the police force or an inspector may -

(a)     request the driver of a vehicle on a road to stop that vehicle;

(b)     ask the driver or the person apparently in charge of a vehicle (whether on a road or elsewhere) questions for the purpose of ascertaining the name and place of residence or place of business of that driver or person, or of the owner of the vehicle, or the nature or constituents of the load on the vehicle, or for the purpose of estimating the mass of the vehicle.

(2) A person must forthwith -

(a)     comply with a request made under subsection (1) to stop a vehicle;
(b)     truthfully answer any questions put under subsection (1)."

11 On the appeal, reviewing the authorities, Bleby J observed:
" In my view there was nothing in the evidence which suggested that the exercise by Constable Baker of his powers under s42 of the Road Traffic Act was outside the course of his duty or that it was an improper exercise of his power. Of course, at the time when the request was made, there was no justification for the requirement to submit to a breath analysis, but from the events which followed, it was apparent that justification for such requirement under s47E of the Road Traffic Act then emerged. There was nothing to prevent the nature of Constable Baker’s inquiry from changing, once he was alerted to the possibility of the respondent being affected by alcohol.

In my opinion the evidence was wrongly excluded by the learned magistrate, and the occasion for the exercise of a discretion under the principles stated in Bunning v Cross (supra) did not arise."

12 Bleby J then quashed the order of dismissal made by the learned Magistrate and ordered that the matter be referred back to her to continue with the hearing.
13 The hearing resumed on 2 July 1998.  The charge in question was found proved and a fine of $600 with court fees of $69, levy of $28 and prosecution fees of $550 totalling $1247 were ordered.  The appellant was given one month within which to pay these amounts.  The appellant was also disqualified from holding or obtaining a driver’s licence for a period of seven months commencing forthwith.
14 The appellant appealed against this conviction by notice dated 4 September 1998.  The grounds of appeal were as follows:

1. The learned Magistrate erred in finding that in the circumstances of this case, s42(1)(a) of the Road Traffic Act 1961 empowered the police to stop the vehicle being driven by the appellant.

1. The learned Magistrate erred in finding that the power in s42(1)(a) of the Road Traffic Act 1961 to stop a vehicle on a road and question a driver can be exercised for any other purpose than those listed in s42(1)(b), all of which purposes related to insuring that laws governing the carriage of goods on public roads are complied with.

15 On the face of it, these grounds of appeal require this court at the level of a single judge to revisit matters which have already been decided by Bleby J between the same litigants.
16 If the proceedings were civil proceedings, this would be a case of issue estoppel. However, "[t]he doctrine of issue estoppel as it has developed in civil proceedings is not applicable in criminal proceedings": Rogers v The Queen (1994) 181 CLR 251 at p255 per Mason CJ. The learned Chief Justice went on to say:
"The availability of res judicata, the defences of autrefois acquit and autrefois convict and the rule against double jeopardy and the doctrine of abuse of process make it unnecessary to introduce the doctrine of issue estoppel into the criminal law.  Moreover, the introduction of issue estoppel and all its complexities would serve only to make the criminal law more convoluted."

17 As Rogers v The Queen (supra) demonstrates, the categories of conduct amounting to an abuse of process of the court are not closed.  In my opinion to re-litigate an issue in the criminal law where that issue has already been decided as between the same litigants must amount to an abuse of process of the court.  If such a procedure were possible, it would have the effect of generating conflicting decisions in the same court and at the same level.
18 Mason CJ held in Rogers v The Queen at p256 as follows:
"Re-litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue.  These considerations necessarily prevail over any competing public interest in the securing of convictions against the appellant."

19 In my view, that statement is directly on point in the present case.  It leads inevitably to the conclusion that to proceed with this appeal on the grounds of appeal proposed would be an abuse of process.  In the circumstances, the appeal should be dismissed.