Athanasiadis v Police - [2019] SASC 176

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
ATHANASIADIS v POLICE
[2019] SASC 176
Judgment of The Honourable Justice Peek
18 October 2019
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE - BREATH TEST AND ANALYSIS
Constable Bell gave evidence that while on patrol he stopped Mr Athanasiadis’ vehicle because it was being driven in an apparently careless manner. Bell administered an alcotest which indicated a positive result and took Athanasiadis to Coober Pedy police station where he attempted to administer a breath analysis test.
The visual and aural recording lasted 22 minutes. During that time Athanasiadis stated multiple times that he had drunk that day one only 350 ml light beer which was consumed very shortly before being pulled over. Athanasiadis blew into the apparatus several times but no reading eventuated. Athanasiadis gave evidence at trial as to his alcohol intake consistent with the above statements and testified that any poor driving occurred because he was very tired.
The Magistrate convicted of DUI. During the trial, and in his judgment, he referred continually to a note that Bell had made to the effect that the alcotest was “0.162”.
Held, allowing the appeal and setting aside the DUI conviction:
1. A “positive alcotest” can do no more than indicate that the prescribed concentration of alcohol may be present. It simply provides a lawful pathway to compel a person to submit to a formal breath analysis. Road Traffic Act 1961 (SA) s 47E(2ab) applied. Rowntree v Police (2006) 45 MVR 361; Police v Modra (2000) 32 MVR 326; Munn v Police (2017) 82 MVR 370 discussed. The Magistrate erred by ostensibly using the so called alcotest “0.162 reading” as being in some way probative of the prosecution case that Athanasiadis had consumed more than one only light beer.
2. The Magistrate failed to take into account that scientists, prosecution agencies and the courts accept that where a breath analysis test is taken very soon after drinking alcohol it is likely to be inaccurate due to the presence of “mouth alcohol”. This danger will a fortiori arise in the case of an alcotest. Manetta v Police (1999) 74 SASR 329; Barber v Police (1999) 204 LSJS 399 discussed. Here, the so called alcotest “0.162 reading” was likely to have been a random and unpredictable figure, being the result of an entirely unsuitable air sample being submitted for analysis.
3. The Magistrate failed to understand, or correctly direct himself as to, the fact that a charge of Fail to Comply had been withdrawn long prior to trial due to the inept way in which Bell had sought to administer the test.
4. The Magistrate failed to understand, or correctly direct himself as to, both the weaknesses of the prosecution case and the strengths of the defence…

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.

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Details

Case: [2019] SASC 176
Decision Date: 18 October 2019

CaseChat Overview and Summary

The case of Athanasiadis v Police involves a dispute over the legality of a breathalyser test conducted by the police and the subsequent conviction of the defendant for driving under the influence of alcohol. The matter was heard in the South Australian Supreme Court. The appellant contested the validity of the breath test and the reliability of the evidence it provided, arguing that the procedure was flawed and that the test results should not have been admitted as evidence.

The central legal issues revolved around the admissibility of the breath test results and the circumstances under which the test was administered. The court had to determine whether the police officer conducting the test followed the required protocols and whether the test results were accurately obtained and properly documented. Additionally, the court examined whether the appellant's rights were upheld during the breath test procedure.

In reaching its decision, the court emphasised the importance of proper procedure and training in administering breath tests. The recording of the test showed that the officer was curt and unhelpful, and failed to provide the appellant with the necessary opportunity to provide the required breath samples. The court found that the test results were not properly obtained and that the appellant's evidence regarding his alcohol intake should not have been rejected based on the breath test results. Consequently, the court found that the appellant's conviction was unsafe and unreliable, and the appeal was allowed.

The final orders of the court included the quashing of the conviction and the setting aside of the sentence. The court did not impose a new sentence but left it open for the prosecution to consider whether to re-prosecute the appellant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Once again, when read with the other passages referred to above, there is no doubt that the so-called “alcotest 0.162 reading” is again being given probative weight in favour of the prosecution case and against the defence case. Although the passage “However the alcotest, although is indicative [sic], it is just that” is at best Delphic, the beginning of the next sentence “In addition …” can only mean that the so-called “alcotest 0.162 reading” is being added to other aspects of the prosecution case, with the cumulative result being that Athanasiadis’ evidence as to his alcohol intake is rejected. Conclusion as to Ground 1 of Appeal For all of the above reasons, I conclude that Ground 1 is made out. Ground 2: The Magistrate’s approach to the Failure To Comply Charge The breath analysis testing procedure at the Coober Pedy Police Station was recorded visually and aurally, with the recording commencing at 3.10 pm, only 15 minutes after Bell had first sighted Athanasiadis’ vehicle. The prosecutor initially resisted the call by defence counsel for him to tender the recording disc on the basis that it was irrelevant since the Failure To Comply Charge (Count 5) had been withdrawn prior to trial. However, upon further persistence, the prosecutor tendered the disc as Exhibit P5 and the recording was played at trial in open Court. Neither party furnished a transcript at trial or on appeal. A written summary of the recording Exhibit P5 is as follows: As noted above, Athanasiadis was originally charged with “Failure to Comply” (not “Refuse to Comply”) but as a result of an internal review, SAPOL Prosecution decided that no such charge would proceed and withdrew it on 8 May 2018. I consider that that was the only responsible decision to take in the circumstances. The recording (which I have watched and listened to more than once) shows Bell’s manner toward Athanasiadis was, in the most charitable words, curt and unhelpful; and his attempted administration of the test was inept. Athanasiadis was not afforded the requisite opportunity to provide the two breath samples needed under the Act. As Mr Denys Smith so aptly observed in Freckelton & Selby (referring to the general sophistication of the modern Drager 7110 regime):[29]In spite of this sophistication, a good quality assurance program will still include the following: … 8. Refresher courses for all operators at regular intervals. It is important to have specialised personnel for breath alcohol analysis to maintain the high standards set in the past and to achieve the even higher standards which will be expected in the future. With modern instruments, breath analysis has been automated, and is accurate and precise. However, without high-quality breath sampling, the overall accuracy and precision will be severely compromised. It is the interaction with the subject prior to, during and after sampling which still demands training and experience. [Emphasis in italics original] [Emphasis in underline added]…12. Last, but not least, is the role of well-informed legal representatives who can recognise problems that have eluded the system in spite of quality assurance programs like that described above.[29] Denys Smith, ‘Breath Alcohol Measurement’ in Ian Freckelton and Hugh Selby (eds), Expert Evidence in Criminal Law (Thomson Lawbook Co, 1st ed, 1999), 369, 391–392.

Ratio Decidendi

Legal Principle Established

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