Siviour-Ashmann v Police No. Scciv-02-163

[2002] SASC 115

SIVIOUR-ASHMANN v POLICE

[2002] SASC 115

Magistrates Appeal

1. WICKS J

   Background

2. This is an appeal against the refusal of a Magistrate to treat an offence against s 47B of the Road Traffic Act 1961 as trifling.

3. On 14 January 2002 the appellant was convicted and penalised for driving a motor vehicle with a prescribed concentration of alcohol in her blood contrary to s 47B of the Road Traffic Act 1961.

4. The appellant pleaded guilty before the learned Magistrate to driving with a blood alcohol content in excess of the legal limit.  The reading alleged and agreed by the appellant was 0.120 grams of alcohol in 100 mls of blood.

   Facts

5. On 24 February 2001 the appellant and her male companion for the evening attended at the Mars Bar in Gouger Street, Adelaide.  The appellant’s companion had finished his shift at the Chifley Hotel at 11.45 pm which indicates that they arrived at the Mars Bar at approximately midnight.  The appellant gave evidence before the learned Magistrate that upon arrival she and her companion both ordered a Southern Comfort and Coke alcoholic drink.  She said that later in the night a second round of Southern Comfort and Coke was purchased and consumed and that water was being consumed between each round of drinks.  Later in the evening (at approximately 2.45 am or 3.00 am) a third round of Southern Comfort and Coke was purchased and consumed.  The appellant gave evidence that just prior to leaving the Mars Bar she asked for a glass of water.  Instead, the barman gave her a fruit drink which she assumed did not contain alcohol.  The appellant did not ask and was not told the contents of the drink.

6. The appellant gave evidence that she commenced to consume the drink handed to her at approximately 3.30 am and that she left the Mars Bar to drive home at approximately 3.40 am.  Her car was some distance away at the Chiefley Hotel at South Terrace, Adelaide.

7. The appellant was stopped at 4.10 to 4.15 am at a Random Breath Testing Station situated on Anzac Highway.  Her blood alcohol content was taken at 4.50 am and was found to be 0.120 grams in 100 mls of blood.

8. The appellant was surprised by the reading and two weeks later she made enquiries of the barman at the Mars Bar.  The barman told her that he put alcohol in the last drink which she consumed.  He subsequently made a statutory declaration admitting that he had done so.  The statutory declaration was admitted by consent in evidence in the proceedings before the learned Magistrate.

9. A Statement of Agreed Facts was put in evidence before the learned Magistrate.  It was agreed in the statement that the drink supplied to the appellant by the barman was an alcoholic drink known as a Citric Rush.  This drink included 40 mls of Vodka and 25  mls of Cointreau for a standard size glass.

10. It was also agreed in the Statement of Agreed Facts, based on a report from the State Forensic Science Centre, that the consumption of three glasses of Southern Comfort and Coke by the appellant between 11.30 pm or midnight and 3.00 am would have produced a blood alcohol level of less that 0.05 per cent at the time of driving.

    The relevant legislation

11. Section 47 A of the Road Traffic Act 1961 defines a “category 2 offence” as an offence against s 47B(1), where the concentration of alcohol in the blood of the convicted person was less than 0.15 grams, but not less that 0.08 grams in 100 mls of blood. The appellant therefore committed a category 2 offence.

12. Pursuant to s 47B(1) the penalty for a first offence being a category 2 offence is a fine of not less than $500 and not more than $900.

13. In addition, s 47B(3) provides that for a first offence, being a category 2 offence, the Court must order that the person be disqualified from holding or obtaining a driver’s licence for such period, being not less than six months, as the Court thinks fit.

14. The learned Magistrate convicted the appellant, fined her $500 with costs and disqualified her from holding or obtaining a driver’s licence for a period of six months.  This was the minimum penalty that could have been awarded, except in circumstances where the offence is found to be trifling.

15. The period of disqualification cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless in the case of a first offence the court is satisfied by evidence given on oath that the offence is trifling.  Where that occurs, the period of six months can be reduced to a period of not less than one month.

    Was the offence trifling?

16. The expression “trifling” is defined in the Macquarie Dictionary as being of slight importance, trivial or insignificant; frivolous, shallow or light.  There is no definition of “trifling” in the Road Traffic Act 1961 so that this word must have its natural meaning although its meaning in particular cases may be affected by the context in which it is used.

17. The Court is entitled to take into account all surrounding circumstances in deciding whether an offence is trifling: Brown v Samuel (1980) 90 LSJS 97. It has been said that the responsibility and culpability in relation to drink driving, including any special circumstances related to the reason for the drinking may also be relevant Gagliardi v Medwell (1983-1984) 35 SASR 124, per Legoe J at p 133.

18. An offence is trifling where it is merely technical.  The offence will be considered trifling where there are compelling humanitarian or safety reasons for doing what was done: Mancini v Vallelonga (1981) 28 SASR 236, per Mitchell J at 239.

19. The immediate circumstances should be taken into account as opposed to circumstances personal to the offender: Police v Fargher [1999] SASC 206.

20. Another example is where, although the blood alcohol was high the movement of the motor vehicle in question was minimal as in Campbell v Fuss (1990) 55 SASR 355.

21. The question of an offence which is trifling was further considered in Brain v Bentley (1991-92) 15 MVR 537. This was an appeal by a complainant against a decision of a Magistrate which found that an offence committed by the respondent was trifling.

22. The respondent in Brain v Bentley attended at the Waymouth Hotel one evening and between 5.30 pm and 7.00 pm consumed three or four drinks of Scotch Whisky.  On his drive home, the respondent was stopped at a Random Breath Testing Station and was found to have a concentration of alcohol in his blood of 0.124 per cent.  The respondent put uncontested evidence before the Magistrate that unbeknown to him he had been given double Scotches by the Manager of the hotel instead of single Scotches and that this impaired his ability to make a self assessment as to whether he should drive.  The Magistrate (an extract of whose reasons for judgment appears on p 539 of the reasons for judgment of Matheson J on appeal) said:

    "In any event it seems to me to be unfair to penalise a person who has possibly been given a ‘mickey finn’ and who has thus been put in a situation where he is not able to make a rational judgment about his own ability to drive."

23. Although he had some reservations about the way in which the matter had proceeded before the Magistrate, (namely that the evidence had not been tested by cross-examination and the fact that no medical evidence was called) Matheson J concluded that he should not interfere with the Magistrate’s decision.

24. I have given some thought to Brain v Bentley but have concluded that I should not follow it.  Whatever may have been the position in Brain v Bentley, in the present case there was a period of 30 minutes or so from the time of leaving the Mars Bar until the appellant was apprehended by the police on Anzac Highway.  During that time the appellant would have become aware of a considerable rise in her blood alcohol caused by the heavily laced drink. 

25. On her way home, the appellant picked up her car in the car park of the Chiefley Hotel on South Terrace, Adelaide.  On arrival at the car park she would have had the choice of driving home and risking having her breath tested with serious consequences or calling a taxi.

26. The present case can be distinguished from cases such as Hills v Warner (1990) 115 LSJS 397 and Daniels v Cleland (1991) 55 SASR 350 where the offenders had been consuming alcohol but believed that their blood alcohol level would be below that of the prescribed limit. This type of case was considered by Bleby J in Przybytniak v Police (1998) 100 A Crim R 196 at 201:

    "… many offenders, I am sure, may genuinely believe that they are not committing an offence, believing that their blood alcohol level is below the prescribed limit, but they know that they have been drinking and they know or ought to know that ingestion of alcoholic drinks will raise concentration of alcohol in their blood …  They nevertheless, take a risk in driving a motor vehicle.  Questions of intention and inadvertence will therefore assume a far less significant role for this type of offence than they might for some other types of offence when considering whether that offence is trifling."

27. The appellant in this case clearly does not come within that group of cases where the blood alcohol reading is close to the minimum prescribed by statute.  The fact that her blood alcohol content was so high is of concern.  Unlike the circumstances in Campbell v Fuss, the appellant was not driving in an area where danger to the public was minimal.  She was apprehended on Anzac Highway.  Although it was at 4.50  am and there was unlikely to be much traffic on the road, she was still driving along a major highway with potential danger to the public.

28. Having regard to the meaning ascribed to the word “trifling” in the Macquarie Dictionary, I am not persuaded that the breach in this case was trifling. It was not of slight importance, trivial or insignificant. It was not frivolous, shallow or light. In my opinion, the breach by the appellant of s 47B of the Road Traffic Act was not trifling.

29. For these reasons, the appeal is dismissed.