Shmandiy v Police (No 2)

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

SHMANDIY v POLICE (No 2)

[2024] SASCA 90

Judgment of the Court of Appeal  (ex tempore)

(The Honourable Acting Chief Justice Livesey and the Honourable Justice David)

26 July 2024

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - REPORT OF TRIAL JUDGE, APPEAL BOOK, TRANSCRIPT ETC

The applicant seeks leave to appeal the decision of a single judge (the appeal judge), which dismissed her appeal for want of prosecution, against a conviction by a magistrate for driving a motor vehicle whilst there was a prescribed concentration of alcohol in her blood, contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA).

On 30 January 2021 the applicant was stopped by police whilst driving a motor vehicle and subjected to an alcotest and then breath analysis test which yielded a positive reading of 0.51 grams of alcohol per 100ml of blood. The applicant requested a blood test kit and the blood sample taken contained not less than 0.027 grams of alcohol per 100ml of blood. The applicant maintained that where the only analysis of her blood gave a reading beneath the prescribed concentration, proof of the blood test result was, without more, sufficient to see her acquitted. The magistrate rejected this approach as misapprehended.

The applicant failed to appear or explain her non-appearance before the appeal judge. As a result, her appeal was dismissed for want of prosecution.

The applicant is not legally represented and raised six grounds of appeal. Each ground complained of error by the magistrate. Although the applicant was given the opportunity to identify grounds which related to the decision of the appeal judge, she did not do so.

Separately, the applicant applied for the audio recordings of the hearings before the appeal judge which she did not attend. The applicant was provided with the transcript of these hearings and invited to explain why the audio recordings were sought, as they are not routinely supplied, and where the transcripts were not accurate. The applicant refused to do so.

HELD (the Court) dismissing the application for the audio recordings, and refusing permission to appeal with costs:

1.There is nothing in the correspondence or other matters relied on by the applicant which demonstrates that there is any tenable basis to go behind the transcript of the hearings requested by the applicant.

2.Audio recordings are typically made so as to assist in the preparation of a transcript. They remain the property of the Court. It should not be assumed that there will be any material difference between an audio recording and the transcript of a hearing. Audio recordings do not come within s 131(1) of the Supreme Court Act 1935 (SA) and are not to be supplied to enable an applicant to discover whether there is a point to be made. The applicant has failed to demonstrate…