Anne Elizabeth Higgins v Bryan Keith Morden No. SCRG93/125 Judgment No. 3846 Number of Pages 5 Vehicles and Traffic Offences

[1993] SASC 3846

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA APPEAL FROM A COURT OF SUMMARY JURISDICTION AT CHRISTIES BEACH DEBELLE J

CWDS
Vehicles and traffic - offences - Driving with prescribed concentration of alcohol in blood - Failure of police to facilitate taking of blood sample - Discretion to exclude evidence of breath analysis - Evidence admitted by magistrate - Appellant convicted - Exercise of discretion miscarried - Evidence excluded on appeal and conviction quashed
Road Traffic Act 1961, s.47b, 47f(2).
Ujvary v Medwell (1985) 39 SASR 418, applied.

HRNG ADELAIDE, 1 March 1993 #DATE 12:3:1993
Counsel for appellant:         Mr R Cole
Solicitors for appellant:     R J Cole and Partners
Counsel for respondent:        Mr Wainwright
Solicitors for respondent:     Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 DEBELLE J The appellant was charged in a Magistrates Court sitting at Christies Beach with having committed two offences on 11 April 1992, namely:
    (1) that she drove a motor vehicle on the Willunga to McLaren
    Vale Road while there was present in her blood the prescribed
concentration of alcohol contrary to s.47b of the Road Traffic
    Act, 1961 ("the Act"); and
    (2) that she drove a car on the Willunga to McLaren Vale Road
    whilst the said vehicle in some respect did not comply with the
    requirements of s.119 of the Act. 2. She pleaded guilty to the second count but not guilty to the first. As to the first count it was alleged that the concentration of alcohol was 0.113 grams in 100 millimetres of blood. 3. At the trial on 8 January 1993, there was a dispute as to admissibility of the results of the breath analysis test upon which the prosecution sought to rely. After a voir dire hearing, the learned magistrate ruled that the results of the breath analysis test were admissible. The trial of the matter then continued. The appellant was found guilty. The appellant appeals from the conviction. The validity of the conviction turns on whether the results of the breath analysis test ought to have been admitted. 4. There is little dispute about the facts. At about 12.55 o'clock on the morning of Saturday, 11 April 1992, the appellant was driving a motor car near Willunga on the Willunga to McLaren Vale Road. Senior Constable Bayzley noticed that the light over the rear number plate of the appellant's car was not operating. He stopped the appellant. Soon after, he asked her to submit to an alcotest. The reading was positive. He then asked the appellant to submit to a breath analysis test. In order to conduct the breath analysis test, it was necessary to return to the police station at Willunga. 5. There was a female passenger in the appellant's motor car, a Miss Robinson. Senior Constable Bayzley believed that she was 18 to 19 years old. She was in fact 15 years old. I do not think anything turns on her precise age. The appellant's car had been stopped just outside the town limits of Willunga on the northern side of the town. The appellant asked Miss Robinson to wait in her car until she returned from completing the breath analysis test. Miss Robinson remained in the appellant's car with the windows closed and the doors locked. 6. After the breath analysis test had been taken, the appellant said that she did not believe the result to be correct and requested that a blood sample be taken. There is no dispute that Senior Constable Bayzley had acted in accordance with the requirements of the Road Traffic Act when requesting the appellant to take the breath analysis test and that the appellant had lawfully requested that a sample of her blood be taken pursuant to s.47f of the Act. 7. There was some divergence in the account given by Senior Constable Bayzley and that given by the appellant as to the conversation which took place after the appellant had requested a blood sample. The learned special magistrate preferred the version given by Senior Constable Bayzley. He had the advantage of seeing the witnesses. Nothing has been put to me which justifies me in departing from that course. In any event, the differences between the two versions of the conversation do not materially affect the substance of what occurred. 8. The appellant then asked how long it would take for the blood sample to be taken. Senior Constable Bayzley told her it would take about one and one-half hours and that she would be taken to the Noarlunga Hospital for the test. The appellant then asked if Miss Robinson could be taken in the police car with her while the test was conducted. Senior Constable Bayzley said that Miss Robinson could not be taken with them. He told the appellant it was contrary to departmental policy to do so. The appellant then asked if Senior Constable Bayzley would bring Miss Robinson to the police station and allow her to wait there while the blood sample was taken. Senior Constable Bayzley said it would breach departmental policy to leave a person at the police station unsupervised. In the course of his evidence, he said that the operator for the breath analysis test was about to leave the police station so that there would be no-one at the police station once he left. He also said that there was no police officer available to accompany him when driving the appellant to the Noarlunga Hospital. 9. During the evening of Friday, 10 April 1992, the police had been conducting a blitz in Willunga on persons driving with a blood alcohol level in excess of the prescribed limit. Senior Constable Bayzley acknowledged in his evidence that it might have been necessary for the appellant to wait at the Willunga Police Station while others ahead of her were tested on the breath analysis equipment. He agreed in cross-examination that, at the time when the appellant took the breath analysis test, there was only one other police officer inside the station, namely, the officer operating the breath analysis equipment. He did not know how many police officers were outside the station when the appellant asked for the blood sample to be taken. In her evidence, the appellant said that, at that time, there were five police officers outside the police station. She was not cross-examined on that evidence. There was no independent evidence given as to the number of police officers in and about the station on that evening. The learned magistrate did not make any finding as to how many police officers were in and about the station at that time. I accept the evidence of the appellant. It is consistent with the fact that the police were conducting a blitz on drink-driving. 10. When the appellant was informed that Miss Robinson could not go with her to the Noarlunga Hospital or could not be brought back to wait at the Willunga Police Station, the appellant then expressed concern as to the position of Miss Robinson. She stated that she did not believe that she should leave her alone in the car at that hour of the night and, for that reason, she would not undergo the blood test. The relevant parts of s.47f of the Road Traffic Act, 1961 provide:
    "(1) A person required in accordance with this Act to submit to
    a breath analysis may request of a member of the police force
    that a sample of his or her blood be taken by a medical
    practitioner.
    (2) Where a request is made by a person under subsection (1), a
    member of the police force must do all things reasonably
    necessary to facilitate the taking of a sample of the person's
blood..." 11. The learned magistrate found that Senior Constable Bayzley had not discharged the obligation provided in s.47f(2). It was, therefore, necessary for him to exercise his discretion whether to admit the results of the breath analysis test. He decided to do so, stating his reasons very briefly in these terms:
    "In my view though what Mrs Higgins is doing is an example of
    the pot attempting to call the kettle black. Assuming that the
    consideration of the exercise of the discretion has arisen, and
    on my analysis it has, in all of the circumstances I would
    exercise that discretion in favour of receiving the evidence of
the result of the breath analysis. That is my ruling." 12. The statement that the conduct of Mrs Higgins, the appellant, was an instance of pots calling kettles black was a reference by the magistrate to remarks earlier in his reasons for deciding that the obligation in s.47f(2) had not been discharged. He said that the difficulties associated with Miss Robinson being left alone in the car was a problem which the appellant had herself created by driving with a passenger after having consumed sufficient alcohol to attract the interest of Senior Constable Bayzley. He had then said:
    "Given that the passenger was a 15 year old girl it still seems
    to me, and I make no apology for holding this view that what Mrs
    Higgins now seeks to do, because it is expedient now to do it,
    is to blame Bayzley for not having a solution to a problem that
    she had created herself by her poor judgment with respect to
    the care of the child." 13. The learned magistrate appears to have based the exercise of his discretion only on the fact that the appellant had created a difficulty. Certainly, his reasons suggest that no other factor was considered. In doing so, he has overlooked the fact that it was not the appellant's manner of driving which attracted Senior Constable Bayzley's attention but a defective rear light. Every allowance must, of course, be made for the fact that these are ex tempore reasons given by a busy magistrate concerned to dispose of a heavy list. Regard must also be had to the fact that he was engaged in the exercise of discretion and that appellate courts will only interfere with the exercise of a discretion in the circumstances noted in R v House (1936) 55 CLR
499 at 504-505. Nevertheless, for the reasons which follow, I think that the exercise of his discretion has miscarried in that the learned magistrate failed to have regard to all relevant matters. 14. Generally speaking, where the police have failed to discharge the statutory obligation to facilitate the taking of a blood sample, the discretion should be exercised to exclude the evidence. That is the effect of the remarks of the Chief Justice in Ujvary v Medwell (1985) 39 SASR 418 where he said at 420:
    "Generally speaking, police conduct which deters a suspect from
    requesting a blood test will render it unfair to admit the
    evidence of a breath test. The blood test is the only means by
    which a citizen can question the correctness of the result of
    the breath analysis. It must be the paramount concern of the
    Courts to ensure that the citizen has ready access to that
    check. If obstacles are placed in the way of the citizen, the
    evidence of the breath analysis should be excluded unless there
    is some cogent reason to admit it. When applying Bunning v.
Cross (1978) 141 CLR 54 principles, the public interest in
    securing a conviction for an individual drink-driving offence
    will rarely outweigh the public interest in protecting the
    citizen's right to have the results of the breath analysis
    checked by means of a blood test. In the particular
    circumstances of this case I have reached the conclusion that
    the Court should not disturb the admission of the evidence. In
    reaching that conclusion I am principally influenced by the
    Magistrate's finding that the police attitude was not
    'deliberate or reckless', which I take to imply that there was
    no intention of deterring the appellant from exercising his
    right to a blood test. The police officers were presumably
    acting on their understanding of their duty. As the issue has
    not been ventilated on this appeal, it will now be open to
    Magistrates to take a stricter view. Nor do I think that the
    admission of the evidence can be unfair to the appellant in the
    circumstances of the present case. The evidence as to the
    accident and the appellant's appearance combine to indicate that
    the appellant was substantially affected by liquor." (Emphasis
added) See also French v Scarman (1979) 20 SASR 333. Those observations have been applied in later decisions in this court: Pacillo v Hentschke (1988) 47 SASR
261; Harrison v Wajtasik (1988) 147 LSJS 379; Tann v Schild (1990) 54 SASR 523 and Trueman v Higgins (Jacobs J, unreported, 14 June 1990, Judgment Number S2348). 15. The remarks of the Chief Justice in Ujvary v Medwell which have been emphasised draw attention to the strict view which must be taken of a failure to comply with s.47f(2). Where there has been a failure to comply with that statutory obligation, the citizen is denied not only the statutory safeguard provided by the Parliament as a means of verifying the results of the blood test but also the only means by which the result of the breath analysis can be rebutted in evidence: see s.47g(1a) of the Act. For these reasons, where there has been a failure to comply with s.47f(2), a court will be slow to exercise its discretion to admit evidence of the results of a breath analysis test particularly where, as here, there is no other evidence that the defendant was affected by alcohol. 16. In my view, the learned magistrate failed to give effect to the remarks of the Chief Justice in Ujvary v Medwell and consider whether there was cogent evidence which required the admission of the results of the breath analysis test. There was nothing in the manner of the driving of the appellant as observed by Senior Constable Bayzley to suggest that it was affected by any alcohol she had consumed. She had been stopped only because the light over the rear number plate of her vehicle was not operating because of some mechanical or electrical failure. Nor was there any evidence to suggest that she was affected by alcohol. The appellant was, according to Senior Constable Bayzley, polite and co-operative at all times. Her concern for Miss Robinson was, in all the circumstances, most reasonable. There was no other evidence to suggest the appellant was affected by liquor. 17. Against these factors, it is relevant to note that the failure to comply with s.47f(2) arose from an error of judgment made by a busy police officer at about 1.00 o'clock in the morning. It was not the result of any reckless or capricious failure to discharge the obligations of s.47f(2) or of any deliberate attempt to disregard those obligations. But it would have been relatively easy for those obligations to have been satisfied. There were other police officers who could have assisted in driving Miss Robinson to wait in a safer place outside the police station. Alternatively, Senior Constable Bayzley could quite reasonably have disregarded the departmental policy and taken Miss Robinson with the appellant to the Noarlunga Hospital. It is true also that, according to the breath analysis test, the appellant had a blood alcohol count substantially in excess of the prescribed minimum. But it is difficult to assess the cogency of that evidence because of the absence of any blood test. There is, in short, no cogent evidence which required the admission of the results of the breath analysis test. 18. For all of these reasons, the learned magistrate ought to have exercised his discretion in favour of the appellant and refused to admit the results of the breath analysis test. I, therefore, allow the appeal and quash the conviction and the fine and orders for payment of fees and costs. I also quash the order disqualifying the appellant from holding or obtaining a driving licence. Because I have taken the view that the results of the breath analysis should have been excluded from the evidence and as there is no other evidence sufficient to support a conviction, it is inappropriate to order a retrial. I therefore order that the complaint be dismissed.