Scone Court Report: June 2017 – Extra Hearings

THERE were two additional court days set down for hearings this month. During the hearings Magistrate Prowse recounted a case where it was unclear if prisoners may have escaped a minimum security prison, as the boundary of the prison was not clear. He stressed the importance of knowing the curtlage of a property in cases of entering private land.

CORNISH, Craig John a 50 year old from Cassilis appeared on a charge of drive with middle range prescribed concentration of alcohol, which was third offence. The offence occurred on December 1 last year when Mr Cornish returned a reading of 0.091. Mr Cornish was breath tested by police after pulling into the driveway of his friend. Mr Cornish’s solicitor argued that the police were not entitled to enter the property for the purpose of a random breath test. The solicitor discussed common and statutory law in his case and as an example of how many road rules don’t apply on private property said if you were unlicensed you could still move a car on private property, but not in a public car park which was still considered part of the road. Magistrate Prowse though said that while it may not be an offence to drive an unregistered vehicle on private property, or drive unlicensed it was still an offence to drink and drive on private property. The arguments went into “castle” territory with historical references to if the King of England could access someone’s home. Magistrate Prowse pointing out that when that law was brought to the attention of the King a head would have separated from someone’s shoulders fairly promptly and began lamenting the disconnect between the legal theory and reality. Magistrate Prowse also questioned if the car was stopped in the driveway on private land or if indeed it was still perhaps on the footpath and therefore not on private land. Neither the prosecution or Mr Cornish’s solicitor could clarify, so both agreed to accept it was on private land. Magistrate Prowse spoke of the importance of knowing this recalling a story where a minimum security prison was not sure where they boundary ended, therefore could not be sure if a prisoner had in fact escaped as couldn’t determine if the boundary had been crossed. In considering the matter Magistrate Prowse said it was not an easy matter and not clear cut. However, he concluded that the police officer had not trespassed on private land, because the exchange between the officer, Mr Cornish and the owner of the land was cordial, at no stage did they ask the officer to leave the property or refuse to undertake the breath test. Magistrate Prowse concluded the police were therefore permitted to conduct the test and it was valid. Mr Cornish will undergo the traffic offenders program, a presentence report was ordered and the matter was adjourned for sentencing on August 24.

LOWICK, Ricky Walter a 46 year old from Scone appeared for hearing on a charge  contravene prohibition/restriction order in an apprehended violence order and stalk/intimidate intend fear, physical harm etc. A plea of guilty was entered for the charge of contravene an order and the stalk/intimidate intend fear, physical harm charge was withdrawn. Mr Lowick was convicted with no penalty recorded.

OKANE, Jaqueline Margaret a 49 year old from Nambucca Heads was not in court for a hearing on a charge of common assault on March 5. The matter has again been set for hearing on August 25.

O’HARAE, Graham a 65 year old from Kingswood appeared in court to oppose a charge of negligent driving occasioning death which occurred on July 19 last year at Goonoo Goonoo on the New England Highway at approximately 3pm. Mt Joseph Graham who was a passenger in the front seat of the vehicle being driven by Mr O’Harae died at the scene. It was established Mr O’Harae was not speeding at the time of the accident and while he didn’t recall what happened before he left the road said in his statement “all I can remember is swerving, over correcting, then rolling.” There was much legal argument about the event, but Magistrate Prowse took time to clarify, “while it may appear the death of Mr Graham has been overlooked and a side issue, I can assure the family that this is not the case, I note as Mrs Graham said “I miss my husband” and undoubtedly she would. It is important that the humanity in this is not overlooked, but there is also the legal criminal matter to be considered because Mr Graham died because of the significant injuries he sustained.” The matter in dispute was if Mr O’Harae was driving in a manner considered to be negligent. Magistrate Prowse found that Mr O’Harae was not negligent as he was not driving the vehicle before it left the road because he was not conscious. The court extended its sympathies to all involved, especially the wife of Mr Graham. Magistrate Prowse also made note of the impressive report by Senior Constable Robinson in the case.