WHITROW v Police - [2015] SASC 17

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WHITROW v POLICE
[2015] SASC 17
Reasons for Decision of The Honourable Justice Nicholson
16 February 2015
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN BLOOD - SENTENCE AND PENALTY
The appellant was charged with various road traffic offences, including one count of driving whilst having the prescribed concentration of alcohol in his blood contrary to s47B of the Road Traffic Act 1961. The appellant’s offending occurred in circumstances where he was driving himself to the closest hospital, having suffered a gaping wound to his hand following a chainsaw accident at his home. Prior to his departure, the appellant had sutured the wound with fishing line, consuming a large amount of alcohol in the process so as to alleviate the pain of doing so. The appellant’s reading was 0.175.
After pleading guilty to all offences in the Magistrates Court, the appellant brought an unsuccessful application to have the drink driving offence dealt with as trifling pursuant to s47B(3)(b) of the Act. The premise of that application was that the appellant’s urgent need to seek medical attention, inability to afford the cost of an ambulance, and lack of alternative transport constituted exceptional circumstances such that his offending should be considered trifling.
The appellant now appeals against the Magistrate’s dismissal of that application.
Held: Appeal dismissed. The Magistrate was correct to find that the offending was not, in all the circumstances, trifling.
Road Traffic Act 1961 s47A, s47B; Motor Vehicles Act 1959 s75A, referred to.
SA Police v Hodge (1996) 89 A Crim R 290; Police v Ludlow [2008] SASC 43; Siviour-Ashman v Police [2003] SASC 29; Williams v May [1908] VicLawRp 85, [1908] VLR 605; Police v Fargher [1999] SASC 206; Police v Mutton [2006] SASC 328; Mancini v Vallelonga (1981) 28 SASR 236; Verran v Roberts [1938] SASR 256; Campbell v Fuss (1991) 55 SASR 355, considered.

WHITROW v POLICE
[2015] SASC 17
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

This is an appeal from a determination by a Magistrate that an offence of driving with the prescribed concentration of alcohol was not trifling.
The appellant, the holder of a learner’s permit, was charged, by way of complaint and summons dated 5 March 2014, with the offence of driving whilst having a prescribed concentration of alcohol in his blood contrary to s47B of the Road Traffic Act 1961 (the Act). In addition, the appellant was charged with: failing to stop at an intersection, contrary to Rule 67(1) of the Australian Road Rules; driving without displaying two “L” plates, contrary to s75A(15)(b) of the Motor Vehicles Act 1959; driving without the presence of a qualified supervising driver, contrary to s75A(14) of the Motor Vehicles Act; and breaching the terms of his learner’s permit by driving with a prescribed concentration of alcohol contrary to s75A(14) of the Motor Vehicles Act

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.

Continue reading WHITROW v Police

Details

AGLC: WHITROW v Police [2015] SASC 17
Case: [2015] SASC 17
Decision Date: 16 February 2015

CaseChat Overview and Summary

The appeal in Whitrow v Police involved the appellant who was charged with driving while over the prescribed blood alcohol limit in South Australia. The appellant argued that the circumstances leading to his decision to drive, despite being intoxicated, amounted to a trifling offence under section 47B(3)(b) of the Road Traffic Act. The appellant claimed that he needed to get to the hospital urgently after injuring his hand and self-medicating with gin, and he was unable to afford an ambulance or wait for one to arrive. The case was heard in the Magistrates Court and subsequently appealed to a higher court.

The legal issues before the court were whether the appellant's circumstances constituted a trifling offence and if the Magistrate erred in not finding the offence trifling. The court had to consider the appellant's urgency in seeking medical attention, his available alternatives to driving, and the objective danger posed by his decision to drive while intoxicated.

The court found that the appellant's circumstances did not justify his decision to drive while intoxicated. Although the appellant was concerned about his injury, the court noted that there were other viable options available to him, such as calling a taxi, an ambulance, or asking a neighbour for help. The court also highlighted that the appellant's decision to drive posed a significant risk to himself and other road users, given his high blood alcohol content and the busy road conditions. The court concluded that the appellant's actions were not justified under the law, as the offence was not trifling within the meaning of section 47B(3)(b) of the Road Traffic Act.

The appeal was dismissed, and the matter was remitted to the Magistrates Court for sentencing. The court emphasised that only in rare and exceptional circumstances would an offence of this nature be considered trifling. The appellant's grounds of appeal were not upheld, and the original decision of the Magistrate was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant’s notice of appeal contains the following grounds:That whilst the Learned Magistrate was prepared to accept the appellant’s version of events, he ruled that those circumstances did not amount to trifling.That His Honour placed too much emphasis on the alternative means of transport is excluding a finding of trifling.That the Learned Magistrate failed to recognise the urgency in attending the hospital for medical attention.The factual background to the offending The appellant’s evidence as to the circumstances leading up to the offending was, by and large, adopted by the Magistrate. On 7 February 2014, the appellant was at home in Port Willunga. He needed to clear tree branches in order to facilitate access by workmen who were repairing his air conditioning unit. While using a chainsaw he cut the back of his hand near the base of his thumb resulting in a gaping wound. The appellant telephoned his local doctor in Aldinga who advised him that the wound ought to be examined by a surgeon. The appellant then called the emergency department of the Noarlunga Hospital and was told that the department was extremely busy and that it could be more than 10 hours before he might be treated. The appellant telephoned the Flinders Medical Centre and was advised that its emergency department was in a similar position such that the delay before treatment would also be several hours. He had not consumed any alcohol to this point. The appellant became concerned that, if left untreated, there was a serious risk that his wound would become infected. He found a large sewing needle and some fishing line and commenced suturing the wound himself. Not having any antiseptic in the house, the appellant used gin to wash the wound. The process of stitching the wound was, not surprisingly, quite painful. The appellant therefore also drank the gin which proved to be an effective form of pain relief. The appellant managed to suture the wound with four neat stitches. He took photographs of the process which were admitted into evidence before the Magistrate. Upon completing the suturing, the appellant formed the view that the wound required professional treatment to avoid or limit the risk of infection. By this stage the workmen had left and the appellant was home alone. He tried to call his wife who was at work but was unable to reach her. He therefore resolved to drive himself to the nearest hospital. After failing to stop at an intersection on Main South Road, he attracted the attention of a patrolling police vehicle and was pulled over. An alco-test was administered, followed by a further breath analysis test at the nearest police station. He recorded a blood alcohol concentration of 0.175 grams of alcohol in 210 litres of breath, that being the equivalent of 0.175 grams of alcohol in 100 millilitres of blood. The appellant was issued with a notice of immediate licence disqualification. The Magistrate’s reasons for dismissing the application The Magistrate accepted the appellant’s account of the circumstances leading up to the offending. His Honour recognised that the appellant was concerned about the risk that his wound, though stitched, may soon become infected. He noted that the appellant was in a relatively isolated place, was unable to contact his wife and had reached the conclusion that he had a choice of either calling an ambulance or driving himself to the hospital. The appellant’s evidence was that he could not afford the cost of calling an ambulance which he estimated at approximately $800. However, the Magistrate observed that, as conceded by the appellant under cross-examination, he also had the option of calling a taxi. I add that there also were the options of asking one of the workmen (before they left) to drive the appellant to the hospital or a medical centre or of investigating whether a neighbour was available. During cross-examination, the appellant made the following concession – “I would say it was bad judgment on the day and you’re right I could have had better options”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

I am also not persuaded by the appellant’s reasons as to why he elected to drive as opposed to seeking out alternative modes of transport. Apart from the appellant’s assertion that he could not afford the cost of an ambulance, there was no evidence which would support such a finding. The appellant also said that he did not know his neighbours. However, there was nothing to prevent him from inquiring whether they were home and willing to drive him to the nearest hospital. It was also not beyond the appellant to have enquired, at least, as to the length of time a taxi would take to get to his premises. He could have advised the operator of the urgency of his situation which may have rendered it more likely that a taxi would arrive promptly. Conclusion The appellant must have known that it was highly likely that he was substantially over the limit when he decided to drive, yet he elected to run that risk. He had other potential alternatives which he failed to explore. Objectively his actions were extremely dangerous. The difficult circumstances he found himself in did not justify his decision to get behind the wheel and put the wellbeing of both himself and others into serious jeopardy. Only in rare and exceptional circumstances will a finding of trifling with respect to offending of this nature be made.[21] I have had regard to the various considerations identified by White J in Police v Ludlow and the balancing exercise called for. The circumstances the appellant found himself in were not sufficiently atypical as to justify his decision to drive whilst intoxicated. None of the appellant’s three grounds of appeal has been made out and the Magistrate was correct to find that the offending was not “trifling” within s47B(3)(b) of the Road Traffic Act. [21] Police v Mutton [2006] SASC 328 at [15] (Sulan J). I dismiss the appeal and remit the matter to the Magistrates Court for sentencing.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

Other submissions by the appellant included: that, even though he only held a learner’s permit, he was an experienced driver having held a full licence for 10 years in California; that, as such, his driving on 7 February 2014 did not create a risk to the general public due to inexperience; and that the actual offending that attracted the attention of police (failing to stop at a stop sign whilst travelling at approximately 5km per hour) was itself trivial and did not cause any embarrassment or safety concerns to other road users. Consideration The appellant knew that he had consumed a considerable amount of alcohol when he elected to drive. I agree with the Magistrate that the situation the appellant found himself in was not sufficiently serious as to justify his actions on the basis of a pressing humanitarian purpose or other necessitous circumstance. There were other options available such as calling an ambulance or a taxi or approaching a workman or a neighbour. None of these were explored before the appellant decided to drive himself. Furthermore, the appellant’s very high blood alcohol content, combined with the fact that his journey, had it been completed, would have required him to traverse the main arterial road of Main South Road on a Friday afternoon, meant that he posed a clear danger not only to himself but to other road users. Even if the appellant’s driving had not been adversely affected by the level of intoxication,[18] this would be of no great significance to the question of whether the offending was trifling. In Siviour-Ashman v Police[19] Doyle CJ, in the context of a trifling application where there was no evidence to suggest the appellant felt the effects of her alcohol intake or had an impaired ability to drive a motor vehicle, observed: If attention is confined in the present case to the conduct constituting the offence, it is a typical offence of its type. The appellant drove her car for some distance on a main road while the prescribed concentration of alcohol was present in her blood. The fact that the appellant’s driving was not apparently adversely affected by the alcohol is of no great significance. The offence in question is not concerned with the actual standard of the driving in question. It is concerned, as much as anything, with preventing the danger that can arise when motor vehicles are driven by person with the prescribed concentration of alcohol in their blood.[20][18] Although there is no evidence to this effect and I expect that such a conclusion, if fully tested, would be found wanting.[19] [2003] SASC 29. [20] At [26]. Hodge is distinguishable on the facts. As Debelle J observed, the offending there was very much on the borderline of what might constitute a trifling offence. In Siviour-Ashman v Police, Doyle CJ expressed the view that the offending in Hodge was on the wrong side of the borderline. In Hodge the appellant’s urgency to get behind the wheel derived from her concern for the wellbeing of another individual, one who was semi-conscious and largely unresponsive. In the present case the appellant was fully cognisant of the predicament he faced. Objectively speaking, there was no immediate emergency. The need to have the wound appropriately treated was of course very important, but not so important as to justify him driving in a highly intoxicated state a substantial distance on public roads including a busy arterial road.