WHITE v Police - [2017] SASC 111

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WHITE v POLICE
[2017] SASC 111
Judgment of The Honourable Justice Nicholson
25 July 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PLEA BARGAIN
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - USE OF INTOXICATING LIQUOR OR DRUGS - DRIVING WITH MORE THAN PRESCRIBED CONCENTRATION OF ALCOHOL IN BLOOD
The appellant was charged with driving a vehicle in a manner dangerous to the public, failing to stop and provide particulars at the scene of an accident and driving while having the prescribed concentration of alcohol in his blood. On the morning of the trial, 20 January 2017, the appellant pleaded guilty to counts 2 and 3, guilty to a charge of driving without due care which had been laid on a separate complaint and count 1 (driving in a manner dangerous) was dismissed. Upon conviction of the drink driving offence the appellant was fined $1,100 and disqualified from holding a driver’s licence for 11 months and 12 days commencing 12 January 2017.
The appellant has appealed against his conviction for the drink driving offence on the basis that the circumstances in which he entered his guilty plea gave rise to a miscarriage of justice. He has also appealed against the sentence imposed on the ground that the circumstances of the offending rendered the drink driving offence trifling.
Held:
1. The appeal against conviction for the offence of driving with the prescribed concentration of alcohol, contrary to section 47B(1)(a) of the Road Traffic Act be allowed.
2. The matter be remitted to the Magistrates Court for trial before a different Magistrate with respect to this charge.
Road Traffic Act 1961 s 45, s 47B, s 47GA, s 47K; Australian Road Rules r 287; Magistrates Court Act 1991 s 42, referred to.
Groom v Police (No 2) [2013] SASC 50, (2013) 115 SASR 446; Green v Police [1999] SASC 412, (1999) 108 A Crim R 246; Choong v Police [2010] SASC 312; Tsavalas v Police [2016] SASC 103; Cheung v The Queen [2001] HCA 67, (2001) 209 CLR 1; Meissner v The Queen [1995] HCA 41, (1995) 184 CLR 132, considered.

WHITE v POLICE
[2017] SASC 111
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

On 20 January 2017, the appellant pleaded guilty in the Magistrates Court to one count of driving without due care contrary to section 45 of the Road Traffic Act 1961 (RTA), one count of failing to stop and provide particulars at the scene of an accident contrary to rule 287 of the Australian Road Rules and one count of driving while having the prescribed concentration of alcohol in his blood contrary to section 47B(1)(a) of the RTA.
Initially, the appellant had been charged with driving a vehicle in a manner dangerous to the public contrary to section 46 of the RTA. This charge, together with the failing to stop and provide particulars and the drink driving charges (counts 2 and 3), were listed for trial on 20 January 2017. On the morning of the trial, the appellant pleaded guilty to counts 2 and 3 and guilty to a charge of driving without due care which had been laid on a separate complaint. As a result, count 1 (driving in a manner dangerous) was dismissed.
Upon conviction for the drink driving offence the appellant was fined $1,100 and disqualified from holding a driver’s licence for 11 months and 12 days commencing 12 January 2017.[1]
[1] The Magistrate allowed for 18 days earlier served following an automatic licence disqualification
The appellant has appealed against his conviction for the drink driving offence on the basis that the circumstances in which he entered his guilty plea gave rise to a miscarriage of justice. He has also appealed against the sentence imposed on the ground provided for by section 47B(3)(b) of the RTA, that is, that the circumstances of the offending rendered the drink driving offence trifling.
For the following reasons I allow the appeal against conviction, set aside the decision of the Magistrate and remit the drink driving offence to the Magistrates Court for trial.
Circumstances of the offending
At about 2 pm on 12 November 2015, the appellant was driving his car southwards along Main North Road at Enfield. He was in the right-hand lane. A motorcyclist in the left lane activated his right indicator in anticipation of avoiding a build up of traffic ahead of him in the left lane. The appellant did not realise that the motorcyclist intended to move to the right lane and upon the motorcyclist doing so, a collision with the appellant’s vehicle ensued.
On the appellant’s case, he thought there had been a ‘brushing’ impact but did not realise the motorcyclist had fallen and been injured. The appellant pulled over a short distance ahead and looked back but did not see the motorcyclist. According to the appellant, he returned home and consumed a large volume of spirits mixed with cola. The appellant concedes that he does, from time to time, drink excessively but maintains he never does so prior to driving.
At 4.16 pm the police attended the appellant’s home, accompanied him to the Holden Hill police station and required him to undergo a breath analysis test. This was conducted at 4.50 pm and disclosed 0.216 grams of alcohol in 100 millilitres of blood. He declined the option of taking a blood test kit which would have enabled him to check this result.
The appellant’s legal representatives and the police prosecutor entered into negotiations with a view to resolving the matter. The fact that the appellant had a zero alcohol concentration at the time of driving was agreed between the parties for the purposes of the appellant pleading guilty and making a submission that the offence was trifling.[2] A statement of agreed facts, put before the Magistrate, included a statement that ‘in reality’ the appellant’s blood alcohol concentration at the time of driving was zero.
[2] The prosecution now maintains that the agreement to this effect had not been authorised by the prosecutor’s superior.
According to the statement of agreed facts, the parties were also agreed that the defence available under section 47GA of the RTA was not available to the appellant because of the appellant’s failure to comply with rule 287 of the Australian Road Rules. Ordinarily, the defence under section 47GA will operate where there is evidence that the alcohol was consumed after the relevant driving offence. As a consequence of this defence being unavailable, the presumption in section 47K(1) of the RTA applied to deem that the appellant had a blood alcohol reading of 0.216 in the two hour period preceding the breath analysis. However, notwithstanding that the defence under section 47GA was not available, the presumption created by section 47K(1) was of limited assistance to the prosecution. The breath analysis was conducted at 4.50pm such that the period of two hours prior thereto within which there was a deemed reading of 0.216 commenced at 2.50 pm, that is, after the time of the collision which was at or about 2 pm.
The appeal is conceded
The appellant has appealed against the conviction on the ground that the circumstances in which the appellant entered his guilty plea resulted in a miscarriage of justice. The appellant has raised a number of arguments in support of this ground. However, the ground has been conceded by the respondent. Further, the respondent has conceded that it is in the interests of justice that the appeal be allowed and the conviction for the drink driving offence be set aside and the matter remitted to the Magistrates Court for a re-hearing which may well involve a trial on the facts.
On my review of the materials before the Magistrate, the Magistrate’s reasons and the submissions provided by both parties I am satisfied that this concession was properly made and that the order as sought by the appellant should be made.
The Supreme Court has jurisdiction under section 42 of the Magistrates Court Act 1991 to hear an appeal against conviction based on the plea of guilty.[3] Ordinarily, a guilty plea will be taken as an admission to all essential elements of the offence and has been described as “the most cogent admission of guilt that can be made”.[4]
[3] Groom v Police (No 2) [2013] SASC 50; (2013) 115 SASR 446, Green v Police [1999] SASC 412; (1999) 108 A Crim R 246, Tsavalas v Police [2016] SASC 103, Choong v Police [2010] SASC 312.
[4] Tsavalas v Police [2016] SASC 103 at [13] (Doyle J).
However, the Court has power to permit a defendant to withdraw a plea of guilty even as late as on an appeal against conviction. A conviction on a plea of guilty will be set aside where, inter alia, the circumstances in which the plea was entered involved a miscarriage of justice.[5]
[5] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132.
On my review of the materials before the Magistrate and the affidavit evidence provided on appeal on behalf of the appellant and the parties’ submissions, I am satisfied that the appellant’s plea of guilty did not, in all of the circumstances, manifest a consciousness of guilt as to an essential element of the offence namely that at the time of the relevant driving the appellant had the prescribed concentration of alcohol in his blood.
Furthermore, the parties are in agreement that the alleged factual basis relied on by the parties before the Magistrate with respect to the sentencing of the appellant for the drink driving offence was fundamentally inconsistent with the factual basis underlying the offending as conceded by the appellant in his plea of guilty. In short, a person cannot be guilty of an offence of driving with a prescribed concentration of alcohol if that person has a blood alcohol concentration of zero. The inconsistency between the factual concession implied by the plea of guilty and the factual basis expressly put forward by agreement of the parties with respect to the basis for sentencing was not dealt with or resolved by the Magistrate.
The attempt by the parties to resolve the matter by way of a plea of guilty but with an application upon sentence that the offending was trivial on the basis that the appellant, as a matter of fact, had a zero alcohol reading at the time of the relevant driving was misconceived. In Cheung v The Queen,[6] Gaudron J observed the following.
One of the limits imposed upon a sentencing judge is that the offender must be sentenced on a basis that is consistent with the verdict. There are two elements to that requirement. First, the verdict must not be controverted. That has the consequence that a sentence must be imposed on the basis that the essential elements of the offence of which the offender has been convicted or to which he or she has entered a plea of guilty have been made out. The second requirement is that the offender must not be sentenced for an offence of which he or she has not been convicted or to which he or she has not entered a guilty plea.
The first element identified by Gaudron J is applicable in this case.
[6] [2001] HCA 67; (2001) 209 CLR 1 at [76].
I am satisfied that the appeal should be allowed and I make the following orders.
1.The appeal against conviction for the offence of driving with the prescribed concentration of alcohol, contrary to section 47B(1)(a) of the Road Traffic Act be allowed.
2.The matter be remitted to the Magistrates Court for trial before a different Magistrate with respect to this charge.