Wheare v Police

This matter concerned an appeal by Mr Wheare against a decision of the Magistrates Court, heard in the Supreme Court of South Australia. Mr Wheare sought to appeal against his conviction and sentence for a driving offence.

The legal issues before the Court of Appeal included whether the record of the Magistrates Court incorrectly stated Mr Wheare’s plea as guilty, and whether Mr Wheare should be permitted to adduce further evidence, specifically a video clip from his mobile telephone, in support of his appeal. The Court was also required to consider whether there was any express error in the Judge's dismissal of the appeal against sentence.

The Court determined that the conviction was not based on a plea of guilty, but rather on findings of guilt made by the Magistrate after a trial where witnesses were called and evidence was presented. Therefore, the ground alleging an incorrect record of plea was without merit. Regarding the application to adduce further evidence, the Court found that the video footage, when viewed, did not support Mr Wheare’s assertions that he complied with police directions regarding a breath sample. The footage only captured the final attempt to blow, with the camera pointed away from the relevant action, and had been available to Mr Wheare since the time of the incident, suggesting it did not assist his defence. The Court also found no express error in the dismissal of the appeal against sentence, nor were the sentences manifestly excessive.

Consequently, the Court of Appeal refused Mr Wheare’s application for permission to appeal and dismissed the appeal, finding all grounds to be without merit and not raising any point of general importance.