Watson v Police

Case [2011] SASC 240

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

WATSON v POLICE

[2011] SASC 240

Judgment of The Honourable Justice Kelly

22 December 2011

MAGISTRATES - APPEALS 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 THE BLOOD

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - IGNORANCE AND MISTAKE OF FACT - AVAILABILITY OF DEFENCE OF HONEST AND REASONABLE MISTAKE

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - TRIVIAL OFFENCES OR EXTENUATING CIRCUMSTANCES

Appeal against conviction and sentence - appellant was convicted of driving while having prescribed concentration of alcohol in blood pursuant to s 47B(1)(a) of the Road Traffic Act 1961 (SA) - the appellant after the conviction made an application that the offending was trifling which was dismissed by the Magistrate - appellant applies for an extension of time for the appeal on the grounds of not being able to obtain the reasons of the Magistrate within the required time to appeal and personal illness suffered - appellant appeals on the grounds that the Magistrate should have found that the defence of honest and reasonable mistake applied to the appellant and in the alternative that the Magistrate should have found the appellant's conduct was trifling - whether an extension of time should be granted - whether the defence of honest and reasonable mistake of fact was open to the defendant - whether the Magistrate should have regarded the appellant's conduct as trifling.

Held: appeal dismissed - extension of time is granted - the defence of honest and reasonable mistake is not available – appellant’s belief regarding effect of her alcohol consumption not reasonable in all of the circumstances – Magistrate correctly found the appellant’s offending was not trifling.

Road Traffic Act 1961 (SA) s 47, s 47A, s 47B, s 47BA, referred to.
Davis v Bates (1986) 43 SASR 149; R v Sault Ste. Marie (1978) 2 SCR 1299; He Kaw Teh v The Queen (1985) 157 CLR 523; Cameron v Holt (1980) 142 CLR 342; Lim Chin Aik v The Queen [1963] AC 160; Sherras v De Rutzen [1895] 1 QB 918; Warner v Metropolitan Police Commissioner [1969] 2 AC 256; Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1984] 3 WLR 437; CTM v The Queen (2008) 236 CLR 440; Jasinski v Police (2004) 234 LSJS 262; Siviour-Ashman v Police (2003) 85 SASR 23; Cooper Brookes (Wollongong) Pty Ltd v Commission of Taxation (Cth) (1981) 147 CLR 297; Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1924) 35 CLR 449; August v Fingleton [1964] SASR 22; DPP v Bone [2005] NSWSC 1239; Rooke v Auckland City Council [1980] 1 NZLR 680; O'Neill v Ministry of Transport [1985] 2 NZLR 513; Harmer v Grace, ex parte…

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Watson v Police [2011] SASC 240
Case
[2011] SASC 240
Decision Date

CaseChat Overview and Summary

In Watson v Police, the appellant was convicted of driving with a prescribed concentration of alcohol in the blood under section 47B(1)(a) of the Road Traffic Act 1961 (SA). The appellant drove from a function at the Hilton Hotel in Adelaide to her house in Bowden with a blood alcohol concentration more than three times the prescribed limit. After her conviction, the appellant applied to the Magistrate for the offence to be considered trifling, which was dismissed. The appellant then sought an extension of time to appeal on the grounds of not obtaining the Magistrate's reasons and personal illness. The appellant appealed on the grounds that the Magistrate should have found the defence of honest and reasonable mistake applicable or that the offence was trifling.

The court needed to determine if the extension of time should be granted, if the defence of honest and reasonable mistake was available, and whether the Magistrate should have regarded the appellant's conduct as trifling. The court held that the extension of time to appeal was granted, but none of the grounds raised by the appellant could succeed. The appeal against the decision of the Magistrate in relation to both the conviction and sentence was dismissed. The court found that the defence of honest and reasonable mistake was not available as the appellant's belief regarding the effect of her alcohol consumption was not reasonable in all the circumstances. The Magistrate correctly concluded that the appellant's offending was not trifling as it did not align with the purposes of the Road Traffic Act 1961 (SA) to promote safe driving conditions.

The appeal was dismissed, and the extension of time to appeal was granted. The appellant's liver disease or dysfunction exacerbated by prescribed medication was insufficient to result in her offending being trifling. The court concluded that the appellant's offending did not align with the purposes of the Road Traffic Act 1961 (SA) to promote safe driving conditions, and the Magistrate correctly found the appellant's conduct was not trifling.

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

KELLY J (dissent)
The defendant in the present proceeding was, like the defendant in Siviour-Ashman, driving on a main road with greater than the prescribed concentration of alcohol in her blood. In the present proceeding, the defendant’s blood alcohol concentration was more than three times the prescribed concentration. She was driving a vehicle from a function at the Hilton Hotel in Adelaide to her house in Bowden. It is not a case in which the driving of the vehicle was atypical as the defendant was simply parking the vehicle or moving it a short distance.[45] Nor is it a case where the defendant was driving to achieve a humanitarian purpose. In these circumstances, to categorise the defendant’s offending as trifling would offend against the purposes for which s 47B(1) was created; that is, to protect the community by promoting safe driving conditions. In my view, the Magistrate correctly concluded that there was nothing about the actual offending itself that could be regarded as trifling. The defendant’s liver disease or dysfunction exacerbated by the prescribed medication was an insufficient basis to result in her offending being trifling. [45] See eg, Campbell v Fuss (1991) 55 SASR 355.Conclusion The extension of time to appeal is granted. However, after consideration of the evidence as a whole, in my view, none of the grounds raised by the defendant on appeal can succeed. The appeal against the decision of the Magistrate in relation to both the conviction and sentence is dismissed.

Ratio Decidendi

Legal Principle Established

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