Smith v Police - [2007] SASC 271

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SMITH v POLICE
[2007] SASC 271
Judgment of The Honourable Justice Kelly
23 July 2007
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES
Appeal against conviction – appellant convicted of offence of failing to comply with reasonable directions of a member of the police force to submit to breath analysis as required by s47E(3) of Road Traffic Act 1961 (SA) – basis of allegation that appellant on three occasions failed to comply with a direction to provide sufficient sample of breath for analysis – whether Magistrate ought to have found no case to answer as defence to the charge provided by s47E(4)(ab) of the Act was established by prosecution evidence – whether Magistrate ought to have excluded evidence of appellant’s failure to comply with directions because of police failure to comply with provisions of s47(E)(4a) of the Act.
Appellant did not put forward evidence to rebut the prosecution case at trial before Magistrate – Magistrate ruled that there was a case to answer and found the charge proved – conviction recorded – whether Magistrate failed to reconsider the prosecution evidence in light of requirement of proof beyond reasonable doubt of the elements of the offence before convicting the appellant – no reasons given for conviction.
Held: Magistrate was correct to find there was a case to answer - failure to provide any reasons for convicting the appellant was an error of law –appeal allowed on this ground.
Road Traffic Act 1961 (SA) s47E(3), s47E(4)(ab), s47E(4a), s47K(3), s47K(18)(b); Road Traffic (Miscellaneous) Regulations 1999 Reg 8A, 8B, Sch1AA, referred to.
Rowland v Police (2001) 79 SASR 569, applied.
Ehmann v Police [2006] SASC 235, considered.

SMITH v POLICE
[2007] SASC 271
Magistrates Appeal

KELLY J: This is an appeal against conviction.
On 2 August 2006, Mark Thomas Smith, the appellant, was charged with failing to comply with all reasonable directions of a member of the police force to submit to breath analysis as required by section 47E(3) of the Road Traffic Act1961 (SA) (the Act). The appellant pleaded not guilty and the trial proceeded before a magistrate. He did not put forward any evidence to rebut the prosecution case. Having ruled that there was a case to answer the Magistrate found the charge proved. The appellant was convicted, fined and disqualified from holding or obtaining a drivers licence for a period of 2 years, 7 months and 17 days.
Circumstances
At about 8.00pm on 2 August 2006, two police officers on uniform patrol, Constable Trenaman and Constable Firth, observed a Holden utility driven by the appellant leaving the Sundowner Hotel, Whyalla. They stopped the vehicle. Following a short conversation, the appellant was taken by the officers to the police station so that a breath analysis could be carried out.
The basis of the allegation against the appellant is that on three separate occasions he failed…

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 Smith v Police

Details

AGLC: Smith v Police [2007] SASC 271
Case: [2007] SASC 271
Decision Date: 23 July 2007

CaseChat Overview and Summary

The case of Smith v Police involved an appeal against a conviction for the offence of failing to comply with reasonable directions of a police officer to submit to a breath analysis under section 47E(3) of the Road Traffic Act 1961 (SA). The appellant, Mr Smith, was alleged to have failed on three separate occasions to provide a sufficient sample of breath for analysis as directed by the police. The appeal centred on whether the Magistrate was correct to find that there was a case to answer, and if the Magistrate erred in convicting the appellant without providing reasons.

The central legal issues in this appeal were whether the Magistrate should have found no case to answer based on the defence provisions outlined in section 47E(4)(ab) of the Act, and whether the Magistrate should have excluded evidence of the appellant's failure to comply due to the police's failure to adhere to section 47(E)(4a) of the Act. The appellant did not present any evidence at trial to counter the prosecution's case. The Magistrate determined that there was a case to answer and subsequently found the charge proven, leading to the conviction of the appellant.

The court found that while the Magistrate was correct in determining that there was a case to answer, the failure to provide any reasons for convicting the appellant constituted an error of law. This error was significant enough to warrant the allowance of the appeal on this specific ground. The appeal was allowed because of the procedural misstep, even though the conviction was upheld based on the evidence presented. The decision highlights the importance of providing reasons for conviction to ensure transparency and adherence to legal standards.

Orders