CHARLES v POLICE No. SCGRG-98-1217 Judgment No. S58 [1999] SASC 58

In relation to the offence of driving whilst disqualified, the learned Magistrate sentenced the appellant to one month's imprisonment commencing forthwith. The appellant was released on bail pending the outcome of this appeal.

When the plea of guilty was entered in relation to the drink-driving charge the appellant was present in court and was represented by counsel.

The defendant appealed to this Court against penalty in relation to each of the convictions. At the hearing before me, counsel for the appellant indicated that the appellant also wished to appeal against the conviction in respect of the drink-drive charge.

In an affidavit filed in the course of the hearing of the appeal, the appellant sought leave to amend the Notice of Appeal:

by adding a paragraph enabling him to appeal against the conviction in respect of the drink-driving charge; and

by adding a paragraph enabling him to seek an order that the conviction and penalty in respect of that charge be set aside.

In the same affidavit, the appellant sought leave to withdraw his plea of guilty in respect of the drink-driving charge and an order that the charge be remitted to the Magistrates Court for hearing.

The grounds of appeal in relation to the penalty are that the sentence was manifestly excessive and that the learned Magistrate failed to take sufficient account of the appellant's circumstances in declining to suspend the sentence. The appellant seeks to amend them to read as follows:

(1) The sentence imposed with respect to the driving whilst disqualified charge was manifestly excessive.

(2) The Magistrate failed to have sufficient regard to the appellant's personal circumstances and/or had too great a regard to general and personal deterrence in imposing a sentence of imprisonment and in declining to suspend the sentence.

An affidavit has been filed in relation to this appeal on behalf of the respondent in which Ms Carole Gallie, the deponent, outlined the facts of the matter as they were stated to the Court for the purpose of fixing a penalty. That affidavit is before me now. The material part of the statement as best Ms Gallie can recall it was as follows:

"... at about 5:35pm on Tuesday the 24th of February, 1998, police were travelling south on David Street, Evanston Park following a Ford sedan, registration number SA ULY-817. A police computer check on the registration of the vehicle revealed it expired on the 18th of February 1998. The vehicle was stopped and police had a conversation with the driver, this defendant. As a result of this conversation, police ascertained that the vehicle was currently unregistered and that the defendant was currently disqualified from holding a drivers licence. Police could smell a slight smell of liquor on the defendant's breath and he was subsequently alco tested, the result of which was positive. The defendant was conveyed to the Elizabeth Police Station where he undertook a breath analysis test at 6:24pm. The result of the test was 0.275%. There were nil obvious DUI signs, only a slight smell of liquor and no obvious faculty impairment. The defendant declined blood rights and was conveyed to his home address by police ...

He stated that he had only consumed 3 schooners of beer prior to driving, but further added that he is a seasoned drinker and that he does have an alcohol problem which may have contributed to the high reading."

In Attorney-General v Kitchen and Roberts [1989] SASC 1471; (1989) 51 SASR 54 the defendant pleaded guilty in the presence of his counsel to ten counts involving various dishonesty offences. The matter was adjourned for submissions and in the adjourned hearing the defendant sought to change his plea to one of not guilty. In the Full Court, White J said at p57:

"What is paramount is the interests of justice. It is true that this accused disclosed his change of mind at the last minute. In all cases, and in such a case in particular, great care must be exercised to guard against manipulation by cunning offenders of the court system, forum shopping, and like abuse of process. A plea of guilty in open court after advice is a solemn acknowledgment of guilt."

In Block v Police (1994) 177 LSJS 103, Olsson J dealt with the question of a change of plea but in the context of an appeal to this Court. After referring to Attorney-General v Kitchen & Robert (supra), he said, at p106:

" A perusal of the authorities suggests that, in general, where a plea has been entered after advice, a defendant will not be allowed to retract that plea unless two broad conditions are satisfied, namely:

(1) that it is shown that the plea was the product of a material mistake, a lack of understanding by the defendant of his legal rights, or an improper threat or inducement of some type; and, equally importantly,

(2) that it is made to appear that, if the plea had not been entered, there would have been a substantial issue to have been tried which could, on the face of it, have had the potential to significantly affect the outcome."

In this case the appellant relied upon the advice of his solicitor which is set out in an affidavit sworn 29 October 1998. The relevant parts of this affidavit are as follows:

"3. The appellant consulted me in relation to the drive disqualified and prescribed concentration of alcohol on the 9th June, 1998. My instructions were that Mr Charles had not sought a blood test.

4. It was my understanding at that time that it was unlikely that the breath analysis result would be excluded on a plea of not guilty to the charge of prescribed concentration of alcohol. From research I had performed previously and from matters in which I have been involved, the names of which I cannot recall, it was my belief that the discretion to exclude the breath analysis reading was generally not exercised in the favour of the defendant and in reliance of section 42 of the Road Traffic Act, 1961. I indicated to Mr Charles by implication that there was little prospect of defending the charges. I understood that the Police were empowered pursuant to Section 42 to stop a driver and ask for his name and address and if they detect a smell of alcohol they were, without more entitled to request the driver to submit to a breath analysis test. I did not address my mind as to whether a breath analysis test would be regarded as unlawful."

Counsel for the appellant submitted that this advice was wrong and that had the appellant pleaded not guilty, the evidence of the breath analysis, which was the only evidence in support of the charge, may have been successfully challenged at the trial on the basis that it was obtained unlawfully.

Under s47E of the Road Traffic Act, where a member of the police force believes on reasonable grounds that a person while driving a motor vehicle has committed an offence under the provisions of Part 3 of the Act of which the driving of a motor vehicle is an element, that member of the police force may require the person concerned to submit to an alcotest or breath analysis or both. An offence against the provisions of Part 3 of the Act includes an offence against s47B(1) in circumstances where the defendant is proved to have in his blood a concentration in excess of 0.05 grms of alcohol per 100 mls of blood.

The appellant was pulled over, not on the suspicion of a drink-driving offence, but rather pursuant to s42 of the Act as the police had ascertained that the motor vehicle which the appellant was driving was unregistered. During the conversation which ensued the police became aware of a slight smell of liquor on the appellant's breath and on the basis of that observation administered an alcotest which was positive. The appellant was then conveyed to the Elizabeth Police Station where he undertook a breath analysis test.

In this matter, the reason why the motor vehicle which the appellant was driving was pulled over is not an issue. The police officers clearly had power to do so pursuant to s42 of the Act. The question is, did the police officer concerned have a belief based on "reasonable grounds" that an offence had been committed under Part 3 of the Road Traffic Act?

It is an offence to drive a motor vehicle with a concentration of alcohol in excess of 0.05 grms per 100 mls of blood. 0.05 is a very small concentration and the reading as a result of the breath analysis in this case was 0.275 grms per 100 mls of blood, which is very high. In this case the police officer concerned may have believed that the appellant had been consuming alcohol. In the statement quoted above the deponent said: "police could smell a slight smell of liquor on the defendant's[appellant's] breath". However, there is no evidence that this belief complied with the requirements of s47E. Consequently, it was arguable on the facts of this case that the breath analysis evidence was obtained in contravention of s47E and was therefore unlawful.

If the drink-driving charge had been tried in the first instance, it would have been necessary to explore whether the police officer concerned held a belief that an offence under Part 3 of the Act had been committed and, if so, whether a slight smell of alcohol was sufficient to constitute reasonable grounds for holding that belief. It would then have been incumbent upon the learned Magistrate to exercise the discretion to admit or reject the breath analysis evidence according to the principles established in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.

In that case it was held that exercising the discretion involved "the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law": Bunning v Cross (supra) at 74 per Stephen and Aickin JJ. A trial of this matter may involve similar considerations.

It is clear from the above that the appellant was labouring under a material mistake and that, had the appellant pleaded not guilty, there would have been a substantial issue to be tried which could, on the face of it, have had the potential to significantly affect the outcome.

For these reasons I think it appropriate that the conviction in respect of the drink-driving charge should be quashed, the appellant should be given leave to withdraw his plea of guilty in respect of that charge and the matter referred back to the Magistrates Court for trial.

In relation to the conviction for driving whilst disqualified and the conviction for driving an unregistered vehicle, I have the choice of reviewing and fixing penalties now or referring the matter back to the Magistrates Court for penalties to be assessed once a conviction or acquittal is recorded in respect of the drink-driving charge.

In this matter, the three charges arose out of the one set of circumstances. One can envisage that the penalty for driving whilst disqualified where the offender is not in some way under the influence of alcohol may differ from circumstances where the offender has a blood alcohol concentration of in excess of 0.2%. An alcohol-related offence is a common cause of a licence disqualification in the first place. In the case of a category two or category three drink-driving offence, a period of disqualification is mandatory. The prescribed concentration of alcohol in this case is substantial and one can well imagine that it should be a significant factor in the determination of penalties operating adversely to the appellant. Having regard to that fact, I propose to set aside the penalties on the offences of driving whilst disqualified and driving an unregistered vehicle to enable them to be fixed following a conviction or acquittal on the drink-driving charge.

I give leave to the appellant to amend the Notice of Appeal within seven days from the date of this order to add a paragraph enabling him to appeal against the conviction in respect of the charge of exceeding the prescribed concentration of alcohol and to seek an order that the conviction and penalty on that charge be set aside.

I also give leave to the appellant to amend the grounds of appeal in relation to the offence of driving whilst disqualified in the manner set out in par2 of the affidavit of John Keith Atkinson sworn 29 October 1998.

I quash the conviction in relation to the charge of driving a motor vehicle on a road when there was present in the appellant's blood the prescribed concentration of alcohol contrary to s47B of the Road Traffic Act, 1961 and set aside the penalties, court fees, levies and costs in relation to that conviction.

I give leave to the appellant to withdraw the plea of guilty entered in respect of that charge.

I remit that charge to the Magistrates Court for hearing.

I set aside the sentence, penalties, court fees, levies and costs in relation to the convictions for driving whilst disqualified and driving an unregistered motor vehicle and direct that they be reassessed and reimposed following a conviction or acquittal of the appellant in respect of the charge in relation to s47B of the Road Traffic Act, 1961.

As the sentence of imprisonment has been set aside, there will be no need to consider the case of bail in the period before the Magistrates Court convicts or acquits the appellant in respect of the drink-driving charge.