Sekubumba v Sims - [2009] NTSC 64

Sekubumba v Sims [2009] NTSC 64

PARTIES: ANTOINE SEKUBUMBA
v
ERICA ANN SIMS
TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE
NORTHERN TERRITORY
EXERCISING APPELLATE
JURISDICTION
FILE NO: JA 37 of 2009 (20911594)
DELIVERED: 27 November 2009
HEARING DATES: 27 November 2009
JUDGMENT OF: RILEY J
CATCHWORDS:
REPRESENTATION:
Counsel:

Appellant: S Lee
Respondent: G McMaster
Solicitors:

Appellant: Robert Welfare Barristers & Solicitors
Respondent: Office of the Director of Public
Prosecutions
Judgment category classification: B

Judgment ID Number: Ril0916
Number of pages: 6
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

[1]

Sekubumba v Sims [2009] NTSC 64
No. JA 37 of 2009 (20911594)
BETWEEN:
ANTOINE SEKUBUMBA
Appellant:

AND:
ERICA ANN SIMS
Respondent:

CORAM: RILEY J

EX TEMPORE

REASONS FOR JUDGMENT (Delivered 27 November 2009)

On 2 April 2009 a police officer, Sergeant Kay Pemberton, was driving vehicle was stationary at traffic lights on Trower Road she saw a motor scooter “bouncing all over the road” and collide with the curb. The scooter then fell over. The driver of the motor scooter and his pillion passenger fell to the ground. Sergeant Pemberton observed the driver and described him as having blood shot eyes and being unsteady on his feet. She formed the opinion that he was intoxicated. Sergeant Pemberton thought she recognized the driver of the scooter and she asked his name. She believed the driver gave her a false name. After some effort the driver managed to put his scooter on a stand and then walked away. Sergeant Pemberton told him that he was under arrest and was not free to go but he ignored her. The pillion passenger also walked away. In the course of events Sergeant Pemberton called police communications for assistance. In so doing she gave a description of the driver including a description of the clothing being worn by him at the scene. Sergeant Pemberton remained with the scooter until the police arrived and she then went home.

[2]	description of the rider and his clothing from Sergeant Pemberton and then took the scooter back to Casuarina Police Station. The motor scooter was registered to the appellant and they went to his address. As they approached

Constables Vivien and Tomaskenski attended the scene. They received a Sergeant Pemberton and they drove towards him. As they approached they called out to the man and he ran off down an alleyway. They pursued him and located him hiding in some bushes. They called for him to come out from the bushes and when he did so they found that he had removed his shirt. When they inspected the area they found a motorbike helmet and a shirt. They called upon the appellant to submit to a random breath test and he refused. He was then arrested.

The appellant was charged with three offences namely: failing to submit to a breath analysis[1]; being a prisoner in lawful custody following arrest, escaped from such custody[2]; and driving a motor scooter…

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 Sekubumba v Sims

Details

AGLC: Sekubumba v Sims [2009] NTSC 64
Case: [2009] NTSC 64
Decision Date: 27/11/2009

CaseChat Overview and Summary

Antoine Sekubumba appealed against his conviction for failing to submit to a breath analysis under the Traffic Act. The appeal was heard by the Supreme Court of the Northern Territory, exercising appellate jurisdiction. The case arose from an incident where a police officer witnessed a motor scooter crash and suspected the driver of being intoxicated. The appellant was later arrested and charged with failing to submit to a breath test, escaping lawful custody, and driving without due care. The Magistrate found the appellant guilty of the first and third charges but not guilty of the second charge. The appellant contested the conviction for failing to submit to a breath analysis, arguing that the identification evidence was insufficient and that the incident did not qualify as a "crash" under the Act.

The court examined the legal issues, including whether the police had reasonable cause to suspect the appellant was the driver involved in the crash, and whether the appellant had other reasonable grounds for not submitting to a breath analysis. The court found that the officers had reasonable cause to suspect the appellant was the driver based on the description given by the police officer and the circumstances of the incident. The court also noted that the requirement for a breath analysis is based on the officer's reasonable suspicion of a crash, not the actual occurrence of a crash. Regarding the defence of other reasonable grounds, the court held that this issue was not raised before the Magistrate and thus could not be considered on appeal.

The appeal was dismissed, and the conviction for failing to submit to a breath analysis was upheld. The court found no error in the Magistrate's decision, and the conviction stood as determined by the lower court.

Orders