ALOISI v Police - [2011] SASC 129

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ALOISI v POLICE
[2011] SASC 129
Judgment of The Honourable Justice Anderson
16 August 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE
Appeal from decision of a magistrate - offence against s 47B Road Traffic Act 1961 (SA) - appellant convicted by magistrate for driving with prescribed concentration of alcohol in blood.
Appellant subjected to alcotest and breath analysis tests pursuant to Road Traffic Act 1961 (SA) - appellant contended he had consumed lozenges prior to both tests - evidence given that such consumption of lozenges would falsely elevate the reading from a breath analysis machine - appellant contended he was not informed by a police officer not to take anything by way of mouth prior to the breath analysis tests.
Whether magistrate erred in rejecting the appellant's contentions that he had consumed lozenges and that he was not informed he was not to consume anything by way of mouth.
Held: Appeal dismissed - the findings of the magistrate were based on Her Honour's assessment of the evidence and her assessment of the credibility of the two main witnesses of fact - magistrate had benefit of seeing and hearing evidence - magistrate has not acted in such a way as to cause an injustice - not appropriate to substitute findings based on credibility or remit the matter for rehearing.
Road Traffic Act 1981 (SA) s 47B(1)(a) and s 47K(3)(b), referred to.
Devries v Australian National Railways Commission (1993) 177 CLR 472, considered.

ALOISI v POLICE
[2011] SASC 129
Magistrates Court: Criminal
ANDERSON J.
Introduction

The appellant appeals to this Court from the decision of a magistrate sitting in the Magistrates Court at Port Adelaide.
The magistrate after a hearing convicted the appellant of one count of driving with a prescribed concentration of alcohol in his blood contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (“the Act”). The appellant was fined $500 and his licence disqualified for 5 months and 28 days. The order for disqualification was suspended pending the determination of this appeal.
The appeal is based on the appellant’s contention that the magistrate should not have been satisfied that the appellant’s account of events, namely that he had consumed Fisherman’s Friend lozenges between the alcotest and breath analysis test, should be rejected. There was evidence to show that such consumption could affect the proper operation of the breath analysis machine. That evidence was contained in a report tendered by consent.
In a long and detailed judgment the magistrate analyses the evidence which was given on behalf of the prosecution and by the defence.
Background
The alleged offence occurred on 18 August 2008 at Hindmarsh when the appellant was driving on Port Road. The appellant was stopped by police and required to undergo an alcotest.
The appellant said that just prior to being stopped for the alcotest he had finished consuming a Fisherman’s Friend lozenge. He had two further lozenges in his pocket. He said that between the alcotest and the breath analysis test, whilst waiting outside the breath analysis van, he put two more lozenges in his mouth. The appellant said Sergeant Weaver asked him what he had in his mouth and then told him to get rid of the lozenges. His evidence is that he then swallowed the lozenges and then almost straight away he went into the van and the breath analysis test was carried out. The allegation is that there was present in the appellant’s blood a concentration of alcohol which was 0.094 grams in 100 millilitres of blood.
Apparently four samples of breath were taken inside the van. Two of these were insufficient for analysis, the other two leading to readings which respectively were 0.098 and 0.094. The appellant was charged in respect of the lower reading.
As I have already indicated, the main issues in the trial were, first, whether the defendant had been sucking Fisherman’s Friend lozenges prior to undergoing the breath analysis and, second, whether a police officer had informed him not to take anything by way of mouth after the positive alcotest had been recorded.
The evidence
I do not intend going into the evidence in the same detail as the magistrate. Her Honour’s judgment contains an analysis of all of the evidence. Ms Fuller for the appellant criticised the reasons in that the magistrate did not properly identify which matters she found favourable in relation to the respective versions of the incident given by the appellant on the one hand the Sergeant Weaver on the other.
Her Honour concludes in favour of the prosecution. It cannot be said that Her Honour has failed to apprehend the defence case. She sets it out in some detail. The appellant maintains that he was not told that he could not take anything by way of mouth. He also maintains that he had just swallowed a Fisherman’s Friend lozenge when he was pulled over into the breath testing station. Sergeant Weaver says she did tell him.
Whilst the appellant was permitted to wait outside the van he said that Sergeant Weaver was with him and that she saw that he had the lozenges in his mouth. He said that when he got out of the van to get some fresh air he got two lozenges out of his pocket and placed them in his mouth. He said nothing was said by Sergeant Weaver at that stage.
The magistrate found that Sergeant Weaver was a good witness. She actually described her as an impressive witness. She found that she had a clear recollection of events. She was satisfied that Sergeant Weaver gave an accurate version of what happened. The magistrate found that she could rely on the evidence of Sergeant Weaver.
In particular Her Honour found that Sergeant Weaver gave the direction that the appellant was not to take anything by way of mouth. She has rejected the appellant’s evidence on this.
The appellant maintained that not only was he sucking the lozenges but that he was told to stop by Sergeant Weaver. Finally, after a consideration of the evidence given by Sergeant Weaver and the evidence given by the appellant, the magistrate rejected the appellant’s evidence that he had been sucking Fisherman’s Friend lozenges after the alcotest but before the breath analysis was taken. Her Honour also rejected his evidence that Sergeant Weaver had seen him sucking the lozenges and told him to get rid of them. She specifically rejects the evidence that the appellant gave, namely, that there was a conversation between Sergeant Weaver and himself.
Expert report
The appellant tendered a report prepared by Mr Churchill. Mr Churchill is an expert in the area of the analysis of the electrical and electronic breath alcohol machines.
His report was tendered by consent at the trial. He was asked in preparing his report to assume that the appellant had been consuming Fisherman’s Friend lozenges and that he had consumed one shortly before the breath analysis test. On the basis of those assumptions he gave the opinion that such a consumption of lozenges would affect the proper operation of the breath analysis machine. He said it would cause the machine to produce a reading that was falsely elevated and did not reflect the actual level of blood alcohol concentration.
Findings on reading
The magistrate found that the certificate issued under s 47K(3a) of the Act was proof of the matters certified pursuant to s 47K(3)(b) in the certificate and that there was no evidence to rebut that proof. Her Honour found that there was compliance with the various procedures required in operating the breath analysing instrument and that all those matters were proved beyond reasonable doubt. Accordingly she found that the offence had been proved beyond reasonable doubt.
The issue to be resolved is whether the magistrate has properly considered all of the evidence and made findings based on the evidence. There are issues of the credibility of the appellant and Sergeant Weaver.
Summary of appellant’s argument
Ms Fuller criticised the magistrate’s reasoning in several ways. In particular Ms Fuller argues that the magistrate erred in her assessment of the evidence given by Sergeant Weaver. She submitted that the magistrate failed to determine that Sergeant Weaver’s failure to require the appellant to read and sign her notes was a matter which was relevant to her credibility. Likewise the magistrate criticised the fact that Sergeant Weaver’s notes which were produced did not contain any note regarding the required direction not to take anything by way of mouth prior to the test. She also argued that the magistrate erred in her assessment of the significance of an email exchange which took place between Sergeant Weaver, Senior Constable Heinze (the breath analysis operator) and the prosecutor in the trial.
Sergeant Weaver’s notes, apart from containing the appellant’s details, included a detailed record of questions and answers as between Sergeant Weaver and the appellant. In particular there is no note regarding any statement by Sergeant Weaver advising the appellant not to take anything by way of mouth nor any note evidencing an inquiry by Sergeant Weaver as to whether in fact anything had been taken by the appellant. Ms Fuller submits that this is a significant omission and was not sufficiently taken into account by the magistrate.
Ms Fuller further criticised Sergeant Weaver for her involvement in an email exchange involving herself, the prosecutor and Senior Constable Heinze who was the breath analysis operator on the night in question. The prosecutor in his email advised both police witnesses, that is, Sergeant Weaver and Senior Constable Heinze, what the appellant’s defence was and said,
I just need both of you to confirm that you had, between you, constant observations on him for the 20 minutes or so between the alcotest and the direction to take nothing by way of mouth, and the BA test, and of course, that he didn’t in fact take anything. This will be a contentious issue at trial.
Sergeant Weaver’s response was,
No consumption that I remember and I took notes step by step as he didn’t like you …
The prosecutor followed later with another email advising both the police witnesses that,
The trial is now purely a matter of credit, his word against yours.
The magistrate said in relation to the email exchange, that she would take it into account when she considered the factual disputes in the case. In her reasons however Ms Fuller points out that the magistrate gave no consideration as to the effect of the email exchange upon the credibility of Sergeant Weaver. It is not clear how the magistrate did take the emails into account.
The email exchange certainly put Sergeant Weaver on notice that it was likely that she would be challenged regarding her statement that she gave the appellant the direction not to take anything by way of mouth. The magistrate on the other hand found that the exchange did not put Sergeant Weaver on notice. The emails speak for themselves and in my view the magistrate has erred in this finding.
It was in my view undesirable in any event for the prosecutor to act in this way. A basic rule of proofing witnesses is that you do not do it in the company of another witness, especially when both of those witnesses are the essential witnesses to the disputed facts.
The appellant also complains that the magistrate failed to properly assess the evidence given by the appellant. The magistrate was quite entitled to accept or reject the appellant’s evidence. Ms Fuller argues that it is apparent that Her Honour rejected the appellant’s evidence by accepting the evidence of Sergeant Weaver without looking at her evidence on its merits.
In my view the evidence of Sergeant Weaver was open to the above criticisms made by Ms Fuller and to other criticisms made in the written argument. In my view the magistrate did not fully deal with all the discrepancies in her evidence. But that is not the end of the matter.
Mr Rodriquez for the respondent submitted that this was a matter involving the findings about credibility of witnesses and that therefore the test set out in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 is the appropriate test.
There, Brennan, Gaudron and McHugh JJ stated:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of a case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
It is Ms Fuller’s submission that the magistrate failed to have regard to material evidence which was relevant to the assessment of the credibility of Sergeant Weaver. She submitted that the failure to have regard to this evidence has resulted in conclusions favourable to Sergeant Weaver and adverse to the appellant. Ms Fuller concedes that, because of the Devries decision, if I were minded to find that the magistrate had made errors in her assessment of the evidence, because of the credibility issues the matter should be remitted for trial before another magistrate.
I have dealt with the main areas in which Ms Fuller contends that the magistrate has erred.
Despite the absence of any note, the magistrate found that Sergeant Weaver did give the required direction. She was entitled to accept the evidence on that aspect. It is not an invariable, although in my view desirable, practice to require the notes to be signed by the defendant in the police officer’s notebook. Whilst it is not clear how the magistrate took account of the email exchange, it is my view that although undesirable, it did not affect the ability of the magistrate to assess the veracity of the witness. As to the complaint about the assessment of the appellant’s evidence, I set out some important findings on credit.
Findings on credit
There are some important findings which the magistrate has made which I set out hereunder:
1.     Magistrate’s reasons paragraph 12:
I am satisfied Sergeant Weaver made the notes at the time she was speaking with the defendant.
2.     Magistrate’s reasons paragraph 38:
I found Sergeant Weaver an impressive witness. She had a clear recollection of events. She was able to recall the defendant and the apprehension. While she could not recite the record of interview line by line her recollection of events generally was in large part her own recollection of events without recourse to notes to refresh her memory.
3.     Magistrate’s reasons in relation to Sergeant Weaver at paragraph 38:
I find she was an honest and credible witness. I find I can rely upon the evidence of Officer Weaver.
4.     Magistrate’s reasons paragraph 39:
The defendant was vague as to some of the procedural aspects of the case and did not demonstrate a clear recollection of the night. … I do not find that the defendant was a reliable witness.
5.     Magistrate’s reasons paragraph 40:
I am persuaded by the evidence of Sergeant Weaver that she gave the direction. She was clear in her evidence. She was not clear as to precisely where she was when she made the direction.
6.     Magistrate’s reasons paragraph 40:
I find that it was not the case that a male officer undertook the alcotest – that Sergeant Weaver did the alcotest and that she is a female police officer.
That finding was necessary because the appellant thought that the officer was male.
7.     Magistrate’s reasons paragraph 41:
I am satisfied that Officer Weaver had taken the defendant’s driver’s licence details immediately following the alcotest.
8.     Magistrate’s reasons paragraph 53:
I find that I can rely upon Sergeant Weaver’s version of events. I reject the defendant’s evidence that he had been sucking Fisherman’s Friend lozenges after the alcotest and before the breath analysis. I reject his evidence that Sergeant Weaver had seen the defendant sucking the lozenges, (or smelt it) and told him to get rid of it. I reject his evidence that there was a conversation between Sergeant Weaver and himself about this issue. I find that the defendant was sucking a Fisherman’s Friend lozenge between the alcotest and the breath analysis.
Conclusion
I have found that some of the magistrate’s reasoning was not permissible. I have also found that she erred in some respects. However, the findings which I have set out above are vital findings and it cannot be said that those findings were not based on an overall assessment of the evidence. It is not to the point that I, or anyone else, might come to a different conclusion on the evidence. The magistrate had the advantage of seeing and hearing the witnesses.
I am not in a position to substitute findings based on credibility. As I have indicated earlier, Ms Fuller suggests that in those circumstances I should remit the matter for a rehearing because an injustice has occurred.
In my view this is not a case where there should be a retrial because of a perceived injustice. The findings I have highlighted show that despite some areas of uncertainty the magistrate was able to positively make findings which have an evidentiary basis. It has not been shown in my opinion that she has acted in such a way as to cause an injustice. I therefore dismiss the appeal.