Tsakonakos v Police - [2007] SASC 149

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TSAKONAKOS v POLICE
[2007] SASC 149
Judgment of The Honourable Justice Gray
4 May 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - CONDUCT OF TRIAL JUDGE
Appeal against conviction - appellant convicted of the offence of driving at a speed exceeding the default speed limit of 50 kilometres per hour, contrary to Rule 20 of the Australian Road Rules - whether the Magistrate failed to explain the nature of the proceedings or the allegations the subject of the charge - whether the Magistrate failed to explain the evidence tendered and its legal implications - whether the Magistrate displayed bias in assisting the prosecution - whether the police were involved in corruption in doctoring photographic evidence - Held:appeal dismissed.
Australian Road Rules rr20, 25; Road Traffic Act 1961 (SA) s 53A, 79B, 80, 175; Road Traffic (Miscellaneous) Regulations 1999 r 15(b)(i), referred to.
R v White; R v Piggin (2003) 7 VR 442; McPherson v The Queen (1981) 147 CLR 512; R v Gidley [1984] 3 NSWLR 168; Cooling v Steele (1971) 2 SASR 249; Moore-McQuillan v Police (1998) 196 LSJS 488; Hittmann v Police (1999) 202 LSJS 132; Gould v Police [2005] SASC 297; Pezos v Police [2005] SASC 500, considered.

TSAKONAKOS v POLICE
[2007] SASC 149
Magistrates Appeal
GRAY J

This is an appeal against conviction.
On 2 June 2006, a Magistrate following a trial convicted Lewey Tsakonakos, the defendant and appellant, of the offence of driving at a speed exceeding the default speed limit of 50 kilometres per hour, contrary to Rule 20 of the Australian Road Rules.[1]
[1] Applying Rule 25 of the Australian Road Rules.
The substance of the prosecution case was that the appellant’s vehicle was detected on 27 April 2005 being driven on Fowles Street, Barmera at a speed of 65 kilometres per hour in a 50 kilometre per hour zone. Following his conviction, the appellant was ordered to serve 50 hours community service and pay costs and levies of $655.00.
Before coming to discuss the prosecution and defence cases and the reasons of the Magistrate, it is convenient to first discuss the statutory offence and the evidentiary aids available to the prosecution.
Rule 20 of the Australian Road Rule:
A driver must not drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving.
Offence provision.
Note 1—
The rules about speed-limits are as follows:
•      rule 21—speed-limit where a speed-limit sign applies
•      rule 22—speed-limit in a speed-limited area
•      rule 23—speed-limit in a school zone
•      rule 24—speed-limit in a shared zone
• rule 25—speed-limit elsewhere.
Rule 25 of the Australian Road Rules provides:
(1)If a speed-limit sign does not apply to a length of road and the length of road is not in a speed-limited area, school zone or shared zone,…

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.

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Details

Case: [2007] SASC 149
Decision Date: 4 May 2007

CaseChat Overview and Summary

In the case of Tsakonakos v Police, the appellant was convicted of driving at a speed exceeding the default speed limit of 50 kilometres per hour. The appeal was lodged against this conviction, and the primary issue was whether the trial judge failed to properly explain the nature of the proceedings and the allegations against the appellant. Additionally, it was questioned whether the trial judge correctly explained the evidence presented and its legal implications. The appellant also claimed that the trial judge showed bias in assisting the prosecution and that the police were involved in corruption by doctoring photographic evidence. The matter was heard and determined by the relevant court.

The court was required to decide whether the trial judge's conduct during the trial was appropriate and whether there was any bias displayed. Furthermore, the court had to consider if there was any evidence of police corruption in the form of doctoring photographic evidence. The court also needed to determine whether the trial judge properly explained the proceedings, allegations, and evidence to the appellant.

The court examined the record of the trial and found that the trial judge had adequately explained the nature of the proceedings and the allegations against the appellant. The court found no evidence of bias in the trial judge's conduct, nor any indication of police corruption in doctoring photographic evidence. The court held that the trial judge had correctly explained the evidence and its legal implications. Consequently, the appeal was dismissed, and the conviction was upheld.

The court dismissed the appeal and confirmed the conviction of the appellant for driving at a speed exceeding the default speed limit of 50 kilometres per hour. The court found no grounds for the appeal, as it was satisfied that the trial judge had conducted the trial properly and without bias, and that there was no evidence of police corruption in the form of doctoring photographic evidence.

Orders