Simmonette v Police - [2010] SASC 130

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SIMMONETTE v POLICE
[2010] SASC 130
Judgment of The Honourable Justice Gray
7 May 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY
Appeal against conviction - defendant found guilty at trial by Magistrate of breaching rule 62(c) of the Australia Road Rules: failure to give way to an oncoming vehicle - mistake made in original complaint as to which roads the offence occurred on - whether the form of the original complaint gave rise to any unfairness or misunderstanding - notice of appeal filed out of time.
Held: refuse extension of time to appeal - no substance to the complaint advanced on the appeal - no unfairness or misunderstanding disclosed - the evidence supports the conviction recorded by the Magistrate.
Australian Road Rules r 62(c) and r 10(1); Supreme Court Civil Rules 2006 (SA) r 290(1)(a); Road Traffic Act 1961 (SA) s 176(1); Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 (SA) reg 50(1), referred to.
R v O’Neill (2002) 81 SASR 359; R v Jones (1998) 72 SASR 281; R v Rigney (1998) 48 SASR 72; Fox v Percy (2003) 214 CLR 118; Police v Cadd (1997) 69 SASR 150; Police v Eiffe (2007) 98 SASR 79; Tims v Police [2008] SASC 141; Tazroo v Police [2002] SASC 155; Police v A, TG [2006] SASC 299; Rucioch v Police (2004) 88 SASR 326; Osman v Police [2007] SASC 317, considered.

SIMMONETTE v POLICE
[2010] SASC 130
Magistrates Appeal
GRAY J
Introduction

This is an appeal against conviction.
On 7 December 2009, following a trial by a Magistrate, the defendant and appellant, Diane Simmonette, was convicted of breaching rule 62(c) of the Australian Road Rules. The Magistrate recorded a conviction for that offence, but imposed no fine. The defendant was required to pay costs and levies.
The defendant appeared unrepresented before the Magistrate. The complaint on which the trial proceeded alleged that:
On the 31^stday of March, 2009 at Salisbury Downs in the said State [the defendant] being the driver of a vehicle namely a motor vehicle on a road namely Kings Road, who was turning right into Salisbury Highway at the intersection of Salisbury Highway and Kings Road with traffic lights, [the defendant] did not give way to an oncoming vehicle that was going straight ahead at the intersection.
Rule 62(c) of the Australian Road Rules.
This is a summary offence.
The complaint had been amended at trial with the consent of the defendant. The amendment altered the names of the roads on the charge such that Kings Road and Salisbury Highway were substituted each in the place of the other. The defendant entered a plea of not guilty to the amended charge.
At trial,…

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 Simmonette v Police

Details

AGLC: Simmonette v Police [2010] SASC 130
Case: [2010] SASC 130
Decision Date: 7 May 2010

CaseChat Overview and Summary

The case of Simmonette v Police involves an appeal against the conviction of the defendant for breaching rule 62(c) of the Australia Road Rules, specifically for failing to give way to an oncoming vehicle. The appeal was lodged with the Supreme Court of South Australia. The primary issue for the court was whether the form of the original complaint, which incorrectly identified the roads on which the offence occurred, gave rise to any unfairness or misunderstanding that could have affected the outcome of the trial. Additionally, the court had to consider whether the notice of appeal was filed out of time.

The court found that there was ample evidence for the Magistrate to find beyond reasonable doubt that the defendant failed to give way and to convict the defendant accordingly. The court noted that where there were inconsistencies between the evidence of the witnesses, it was open to the Magistrate to accept the evidence of one witness over that of another. The court concluded that the Magistrate's approach was entirely appropriate and that the evidence supported the conviction recorded. The court also noted that the appeal was without any substantive merit, and no explanation was provided for the delay in lodging the appeal. Consequently, the court refused an extension of time to appeal.

The court emphasised that the error in the original complaint did not result in any unfairness or misunderstanding that could have affected the outcome of the trial. The court further found that the evidence presented was sufficient to support the conviction, and the inconsistencies in the witnesses' evidence did not undermine the decision. In light of the lack of substantive merit in the appeal, the court decided not to grant an extension of time for the appeal.

In summary, the appeal was dismissed as it lacked substantive merit. The court found that the evidence was sufficient to support the conviction, and the error in the original complaint did not affect the outcome. The court also refused to extend the time for lodging the appeal as no explanation was provided for the delay.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There was ample evidence for the Magistrate to find beyond reasonable doubt that the defendant failed to give way and to convict the defendant accordingly. Where there were inconsistencies between the evidence of the witnesses it was open to the Magistrate to accept the evidence of one witness over that of another. The approach of the Magistrate in this regard, as set out earlier in these reasons, was entirely appropriate. The evidence as outlined supports the conviction recorded by the Magistrate. Conclusion In my view there is no substance to the complaint advanced on the appeal. No explanation has been advanced to explain the delay in lodging the appeal. In these circumstances, as the appeal was without any substantive merit, I would refuse an extension of time to appeal.

Ratio Decidendi

Legal Principle Established

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