WAKEFIELD v Police - [2022] SASC 98

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
WAKEFIELD v POLICE
[2022] SASC 98
Judgment of the Honourable Justice Kimber
8 September 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN BLOOD
The appellant was convicted by a Magistrate at trial of Driving a Motor Vehicle while there was present in his blood the Prescribed Concentration of Alcohol contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA). On the prosecution case at trial, the appellant drove in a ‘road related area’ (a hotel carpark) with a blood alcohol level of 0.104 grams in a hundred millilitres of blood. The only issue at trial was whether the appellant had driven a vehicle.
At trial, the only evidence of the appellant having driven was that of a single eyewitness, the duty manager at the hotel. The appellant gave evidence and said he had not driven. The Magistrate found the duty manager to be ‘an impressive witness’. In contrast, the Magistrate found the appellant to be an ‘unimpressive witness’.
On appeal, the appellant contended it was not open to the Magistrate to find he had driven beyond a reasonable doubt. The appellant particularly emphasised the absence of any support for the evidence of the duty manager.
Held per Kimber J, dismissing the appeal:
1.Making due allowance for the advantage enjoyed by the Magistrate in seeing and hearing the evidence, it was open to the Magistrate to accept the evidence of the duty manager beyond a reasonable doubt.

Road Traffic Act 1961 (SA) s 47B(1)(a); Magistrates Court Act 1991 (SA) s 42, referred to.
Police v Kyriacou (2009) 103 SASR 243; Police v Adams (2011) 213 A Crim R 323, considered.

WAKEFIELD v POLICE
[2022] SASC 98
Magistrates Appeal: Criminal
KIMBER J:
Overview

This is an appeal against conviction. The appellant was found guilty by a Magistrate of Driving a Motor Vehicle while there was present in his blood the Prescribed Concentration of Alcohol contrary to s 47B(1)(a) of the Road Traffic Act.[1]
[1] Road Traffic Act 1961 (SA) s 47B(1)(a).
The particulars of that offence were:
On the 12^th day of March 2021, at Para Hills in the said State, the appellant drove a motor vehicle CAT999 on a road related area namely the carpark of Somerset Hotel, 505 Bridge Road while there was present in his blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961.
S 47B(1)(a) of the Road Traffic Act 1961.
It is further alleged that the concentration of alcohol was 0.104 grams in a hundred millilitres of blood.
The only issue at trial was whether the appellant had driven a vehicle. The appellant represented himself at trial and did the same in this appeal.
For the reasons which follow, I dismiss the appeal.
Background
The driving the subject of the offence was alleged to have taken place at about 11.20pm in the carpark of the Somerset Hotel at Para Hills (the hotel). There was no dispute the carpark was a ‘road related area’, nor that before about 11.20pm the appellant had been a patron at the hotel having attended there with his partner.
At trial the only evidence the appellant had driven a vehicle was given by the duty manager at the hotel, Mr Goss.
Among the evidence given by Mr Goss was that he first saw the appellant inside the hotel at about 11.20pm when he was called to a disturbance. Mr Goss believed the appellant was intoxicated and the appellant was subsequently evicted. The appellant disputed he was intoxicated at the relevant time, or otherwise behaving inappropriately inside the hotel, but did not dispute he was the person Mr Goss saw and who was evicted. Mr Goss’ evidence was that after the appellant has been evicted, he was standing at the entrance to the hotel and from that position he saw the appellant get into the driver’s seat of a vehicle in the carpark.
At the time of seeing the appellant beside and then inside the vehicle, Mr Goss said the appellant was about 25 metres away and the lighting was good. Mr Goss said he saw the appellant get into the driver’s seat, reverse and drive towards the exit of the carpark. In doing so the appellant drove past Mr Goss and he yelled out to the appellant that he should not drive. The appellant then stopped the vehicle in a parking space within the carpark and walked back towards the entrance of the hotel. At about this time Mr Goss returned inside the hotel, but came back to the entrance a few minutes later. By this time police had arrived, having been called as a result of the earlier disturbance. At the time Mr Goss returned to the entrance, the appellant was with the police. As a matter of completeness, I pause to mention the transcript of the trial records Mr Goss’ evidence as the registration of the vehicle being ‘SAT999’, but there does not appear to be any dispute that the vehicle seen by Mr Goss belonged to the partner of the appellant and was registered ‘CAT999’. On the hearing of the appeal, counsel for the respondent told me that, having listened to the audio record of the evidence given at trial, the transcript was accurate. As the issue at trial was whether the appellant drove any vehicle in the carpark and it was not submitted this aspect of Mr Goss’s evidence was relevant to the accuracy of his evidence about the appellant having driven, nothing turns upon Mr Goss’s evidence of the registration number.
The appellant submitted to an alcotest at about 11.59pm and was then taken to the Golden Grove Police Station. At approximately 12.28am, the appellant was measured by a breath analysis instrument and returned a reading of 0.104 grams of alcohol in 210 litres of breath. That reading was not disputed by the appellant at trial, nor on the appeal. Also not disputed was that reading proved the concentration of alcohol alleged.
The appellant gave evidence at trial. The appellant said he had arrived at the hotel at about 9.00pm and that he then played the pokies with his partner. The appellant said he had gone outside to look for his wallet before the arrival of the police as he thought the wallet may have been in the vehicle. The appellant denied driving at the time referred to by Mr Goss.
Grounds of Appeal
In the Notice of Appeal, the ground of appeal is expressed as follows:
The conviction was imposed on a hearsay [sic] and not a fair conviction and conviction was not accurate.
On the hearing of the appeal, it became clear the appellant sought to advance a single ground of appeal, namely that it was not open to the Magistrate to find the offence proven beyond a reasonable doubt. In so far as the ground in the notice refers to ‘hearsay’, the appellant told me that was a complaint about him being found to have driven on the evidence of a single witness. In that context, the appellant emphasised the following matters: the absence of any evidence that the appellant had driven, other than that of Mr Goss, and the absence of any CCTV footage depicting the driving alleged.
Whether the verdict was open on the evidence
As set out above, the only issue at trial was whether the appellant had driven a vehicle in the carpark of the hotel. More particularly, whether that aspect of the evidence of Mr Goss should have been accepted beyond a reasonable doubt.
It is helpful to deal first with the submissions of the appellant about the absence of support for the evidence of Mr Goss and the lack of CCTV footage. It is trite, but important, to observe that there did not need to be evidence other than that of Mr Goss before the evidence of that witness could be accepted beyond a reasonable doubt.   What is also important is that the Magistrate did not make his finding the appellant had driven on evidence other than that of Mr Goss. In finding beyond a reasonable doubt the appellant had driven on the occasion alleged, the Magistrate he did so because ‘I accept without any doubt the accuracy and truthfulness of the evidence of Mr Goss’.[2] As for the issue of CCTV footage, the only evidence on that topic was that of Mr Goss. He told the Magistrate ‘There’s no CCTV footage in the carpark but there would’ve been in the rest of the hotel’.[3]   The Magistrate did not overlook that evidence. To the contrary, the Magistrate made express reference to it.
[2]     Judgment of Magistrate Nitschke, 17 June 2022, p. 9.
[3]     Trial Transcript, 1 April 2022, p. 8.
I turn to whether it was open to the Magistrate to conclude the appellant had driven based only upon the evidence of Mr Goss. This appeal is made pursuant to s 42 of the Magistrates Court Act.[4] It is an appeal by way of rehearing. In Police v Kyriacou, Sulan J stated:[5]
The appellate court must scrutinise and evaluate the evidence for itself in considering the appeal. In examining the evidence, it is necessary for the appeal court to be aware that it does not have the advantage of having heard and seen the witnesses. The appellant court must give effect to its own conclusions on the evidence.
(Footnote omitted)
[4] Magistrates Court Act 1991 (SA) s 42.
[5] Police v Kyriacou (2009) 103 SASR 243, [52].
I must examine the evidence myself. As Stanley J held in Police v Adams:[6]
It is the duty of the Court to make up its own mind after considering the evidence that was before the magistrate, and undertake an independent review of it. If the Court reaches a different view on the evidence from that of the magistrate, it must give effect to that by substituting its view for that reached by the magistrate. On issues which involve an assessment of the quality and reliability of a particular witness, the Court must make due allowance for the advantage of the magistrate in seeing and hearing the evidence given. However, the fact that a magistrate has reached his or her conclusion by an acceptance of the evidence of one party’s witnesses does not prevent this Court from carrying out its statutory function. In hearing and determining an appeal there may be cases in which incontrovertible facts, or uncontested testimony or the glaring improbability of the magistrate’s conclusions will, despite the magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or from evidence accepted by a magistrate, this Court can substitute its decision if it comes to a different conclusion as to the correct inference which should be drawn.
(Footnotes omitted)
[6] Police v Adams (2011) 213 A Crim R 323, [47].
As both Mr Goss and the appellant gave evidence at trial, assessment of their credibility and reliability was central to whether the evidence of Mr Goss should be accepted beyond a reasonable doubt. That being so, it must not be overlooked that the Magistrate had the advantage of seeing and hearing both witnesses give evidence. As to the evidence of Mr Goss, the Magistrate found him ‘an impressive witness’, ‘straightforward, forthright and responsive in his answers’.[7] The Magistrate found Mr Goss ‘a restrained witness, not prone to embellish or exaggerate’ and ‘a reliable witness’ who gave a ‘cogent and detailed account of his observations of the male who having been prevented from re-entering the hotel that night got into the driver’s seat of the BMW and drove it’.[8] In contrast, the Magistrate found the evidence of the appellant ‘lacked cogency and detail that might be expected of a witness recounting an event in the way it had occurred’.[9] To that end, the Magistrate found the evidence of the appellant about why he had gone outside to the car at the time of the observation of him by Mr Goss (i.e. – to look for his wallet), ‘unconvincing’.[10] The appellant was found to be an ‘unimpressive witness’.[11]
[7]     Judgment of Magistrate Nitschke, 17 June 2022, p. 8.
[8]     Ibid pp. 7-8.
[9]     Ibid p. 9.
[10] Ibid p. 9.
[11] Ibid p. 9.
I have conducted my own review of the evidence given in the trial. Making due allowance for the advantage enjoyed by the Magistrate in seeing and hearing the evidence, it was open to the Magistrate to accept the evidence of Mr Goss beyond a reasonable doubt. Having reviewed the evidence, I have not reached a different view to that reached by the Magistrate.
This ground must be dismissed.
Orders
1.The appeal is dismissed.
2.I will hear the parties as to any further orders.