Senior v Police - [2005] SASC 88

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SENIOR v POLICE
Judgment of The Honourable Justice Sulan
11 March 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - SPECIFIC INTERPRETATIONS
The appellant was convicted of driving a motor vehicle at a speed which was dangerous to the public contrary to s.46(1) of the Road Traffic Act 1961 (SA) – the magistrate imposed a $300 fine and licence disqualification of six months – the appellant was driving at 156 kilometres per hour along the Southern Expressway – the speed limit was 100 kilometres per hour – the road was damp, but not slippery – visibility was good – whether the speed constituted a risk which created a wholly unreasonable and unwarranted danger – whether the driver of a motor vehicle himself could constitute a member of the public – the risk created by the speed of the appellant’s vehicle was such that it is sufficient to constitute the driving as dangerous.
Road Traffic Act 1961 (SA), s.46, referred to.
Firth v Prestwood (1986) 44 SASR 427; Tidswell v Police [1998] SASC 6822, applied.
Merrill v Police (1996) 24 MVR 555; Pope v Hall (1982) 30 SASR 78; Siviour-Ashman v Police (2003) 85 SASR 23, considered.

SENIOR v POLICE
[2005] SASC 88
Magistrates Appeal

SULAN J This is an appeal against conviction and sentence imposed by a magistrate on 16 November 2004. The appellant was convicted of driving a motor vehicle at a speed which was dangerous to the public, contrary to s 46(1) of the Road Traffic Act 1961 (SA) (“the Act”). The magistrate imposed the minimum fine of $300 and the minimum licence disqualification of six months.
The appellant, who is unrepresented, has appealed against both the conviction and the penalty.
There is little dispute about the facts. At about 9.45 a.m. on Sunday, 20 June 2004, the appellant was observed riding a Ducati motorcycle travelling along the Southern Expressway at Morphett Vale by a police officer, who was operating a hand-held radar laser speed detection device. The Southern Expressway was open to motor vehicles travelling only in a southerly direction. It consisted of two lanes of bitumen in good condition. The appellant’s motorcycle was in the western lane. The road is approximately eight metres wide, and there is a three to four metre verge on each side, with permapine retaining walls four to five metres high on either side. There is a telegraph pole on the western side of the road in the vicinity where the appellant was observed travelling on his motorcycle. The speed limit at the point at which the appellant was clocked at 156 kilometres per hour was 100 kilometres per hour. The road was damp, but not slippery. There were no points of exit or entry on…

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 Senior v Police

Details

AGLC: Senior v Police [2005] SASC 88
Case: [2005] SASC 88
Decision Date: 11 March 2005

CaseChat Overview and Summary

In the case of Senior v Police, the appellant contested their conviction for driving at a speed deemed dangerous to the public under section 46(1) of the Road Traffic Act 1961 (SA). The appellant was caught driving at 156 kilometres per hour along the Southern Expressway, where the speed limit was 100 kilometres per hour. The magistrate's decision to fine the appellant $300 and disqualify their licence for six months was the subject of appeal. The appellant argued that the speed did not constitute a wholly unreasonable and unwarranted danger, and they questioned whether the driver of a motor vehicle could be considered part of the public for the purposes of the statute.

The primary legal issues before the court were the interpretation of the term "dangerous" in the context of driving at an excessive speed and whether the driver themselves could be included within the definition of "the public" for the purposes of the statute. The court needed to determine if the speed at which the appellant was driving constituted a risk that was wholly unreasonable and unwarranted, thereby falling under the prohibition of dangerous driving.

The court found that the appellant's speed of 156 kilometres per hour on a damp but not slippery road, with good visibility, was indeed excessive and created a risk that constituted a wholly unreasonable and unwarranted danger. The court clarified that the term "the public" includes the driver of a motor vehicle themselves, thereby affirming that the appellant's actions were indeed dangerous to the public. This reasoning led the court to uphold the magistrate's decision, dismissing the appeal.

As a result, the appeal was dismissed, and the original conviction and penalty of a $300 fine and six-month licence disqualification stood. The court's decision reinforced the statutory interpretation that excessive speed can constitute dangerous driving, even when considering the driver as part of the public.

Orders