Athanasiadis v Police
[2019] SASC 176
•18 October 2019
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 case and did not correctly approach the question of whether the charge was in fact proven beyond reasonable doubt.
5. Having regard to all of the facts and circumstances of the case, it would be unduly oppressive to order a re-trial.
Road Traffic Act 1961 s 47, s 47A(1), s 47E(2ab), s 47E(3), s 47E(7a)(b), s 47EA, s 47EB, s 47K(3b), referred to.
Manetta v Police (1999) 74 SASR 329; Barber v Police (1999) 204 LSJS 399; Rowntree v Police (2006) MVR 361; Police v Modra (2000) 32 MVR 326; Munn v Police (2017) 82 MVR 370; R v Usher (2014) 119 SASR 22, discussed.
Police v Short (2012) 112 SASR 463; Police v Hanton (2018) 131 SASR 226; Police v Williams (2014) 246 A Crim R 317; Evans v Benson (1987) 46 SASR 317; Shearer v Hills (1989) 51 SASR 243; Police v Jervis; Police v Holland (1998) 70 SASR 429, considered.
ATHANASIADIS v POLICE
[2019] SASC 176Magistrates Appeal
PEEK J: Appeal against conviction of ‘Driving under the influence of intoxicating liquor’.
The appellant, Mr Athanasiadis (Athanasiadis), was originally charged with the following offences:
1On the 10TH day of OCTOBER, 2017 at COOBER PEDY in the said State drove a vehicle namely a MOTOR VEHICLE REGISTRATION NUMBER YANIKAS on ROADS namely NORTHWEST RIDGE ROAD AND SEVENTEEN MILE ROAD without due care.
Section 45 of the Road Traffic Act, 1961.
This is a basic offence.
This is a summary offence.
2On the 10TH day of OCTOBER, 2017 at COOBER PEDY in the said State being the driver of a vehicle namely MOTOR VEHICLE REGISTRATION NUMBER YANIKAS on a road namely NORTHWEST RIDGE ROAD AND SEVENTEEN MILE ROAD, you changed direction to the left by turning left, you did not before changing direction, give a change of direction signal by operating the vehicles left direction indicator lights in accordance with rule 47 of the Australian Road Rules for long enough to give sufficient warning to other drivers and pedestrians.
Rule 46(2) of the Australian Road Rules.
This is a summary offence.
3On the 10TH day of OCTOBER, 2017 at COOBER PEDY in the said State being the driver of a motor vehicle registration number YANIKAS that was MOVING on a road namely NORTHWEST RIDGE ROAD AND SEVENTEEN MILE ROAD, you did not wear the seatbelt fitted to your seating position properly adjusted and fastened.
Rule 264(1) of the Australian Road Rules.
This is a summary offence.
4On the 10TH day of OCTOBER, 2017 at COOBER PEDY in the said State drove a vehicle namely a MOTOR VHEICLE [sic] REGISTRATION NUMBER YANIKAS on ROADS namely NORTHWEST RIDGE ROAD AND SEVENTEEN FILE [sic] ROAD whilst HE was so much under the influence of INTOXICATING LIQUOR as to be incapable of exercising effective control of the said vehicle.
Section 47(1)(a) of the Road Traffic Act, 1961.
This is a summary offence.
5On the 10TH day of OCTOBER, 2017 at COOBER PEDY in the said State being a person who was required under Section 47E of the Road Traffic Act 1961, to submit to A BREATH ANALYSIS, FAILED to comply with all reasonable directions of a member of the Police Force in relation to the requirement.
Section 47E(3) of the Road Traffic Act 1961.
This is a summary offence.
Count 5 was withdrawn by the prosecution on 8 May 2018, long before trial. This appeal concerns only the finding and conviction on Count 4, ‘Driving under the influence of intoxicating liquor’ (DUI), following trial in a reserved judgment delivered on 22 May 2019.
The proceedings at trial
The trial took place at Coober Pedy, commencing on Wednesday 23 January 2019, more than eight months after the s 47E(3) charge had been withdrawn.
The prosecution evidence may be stated in brief fashion. Constable Bell (Bell), the only prosecution witness, gave evidence that he was on patrol in a police car a little outside of Coober Pedy on Tuesday 10 October 2017 and first saw Athanasiadis’ Mercedes-Benz vehicle “at about 14:55 hrs”. The Magistrate summarised Bell’s evidence as to his subsequent observations thus:
12. Northwest Ridge Road has an 80 kilometre speed limit and he was near that speed. He noticed the Mercedes vehicle execute a U-turn and proceed south on Northwest Ridge Road ahead of him. It was travelling at a significantly slower speed than the police vehicle. Constable Bell said he was forced to apply his brakes to slow down. He followed the vehicle at a distance of approximately 10 to 15 metres, for approximately 150 metres. The road is a sealed dual carriageway.
13. He noted the registration name ‘Yanikas.’ He observed the vehicle drift to the right and cross the centre line. The left-hand wheels remained on the correct lane but three-quarters of it was not.
14. He then observed the vehicle correct into the left lane but it directed to the left-hand edge as it moved through a right-hand bend raising stoned [sic] and he estimated the vehicle was travelling at approximately 50 to 60 kilometres per hour. The vehicle then corrected to the right and he saw that it nearly hit a concrete raised strip separating the carriageways near the intersection with Seventeen Mile Road. Constable Bell thought the vehicle might strike the edge of a ‘Keep Left” sign which was located in the dividing kerb.
15. Just prior to the driver entering the left-hand turn into Seventeen Mile Road, Constable Bell saw him reach for the seatbelt. He said he had an uninterrupted view through the defendant’s vehicle as he was travelling some 10 to 15 metres behind it. He then activated the exterior lights of the police vehicle for the driver to stop which he did some 50 or so metres onto Seventeen Mile Road.
16. As the driver alighted, Constable Bell noted his right hand held the seatbelt and he appeared to stumble a little onto the bitumen carriageway. The driver appeared to be unaware his vehicle was partially blocking the road. Constable Bell stopped behind and the driver, Mr Athanasiadis walked towards him nearly in the centre of the road. He directed him to move off to avoid a hazard. There were no other vehicles passing at that time.
17. Constable Bell noted the defendant was unsteady on his feet, his eyes appeared bloodshot, and he smelt strongly of liquor. He thought Mr Athanasiadis’ speech was somewhat rambling and repetitive, although he now recalled no words or speech. He formed the view that the defendant was not well coordinated and unsteady. The defendant gave his name, date of birth, and other particulars.
The Magistrate found in his judgment that the alcotest was administered “at 14:57 hours” which would mean that if Bell first sighted Athanasiadis’ vehicle at 14:55 hours as stated in his notes, the period from then to the alcotest was, at the most, just under three minutes[1] and, at the least, just over one minute.[2]
[1] If timing started just after ‘54’ became ‘55’ and ended just before ‘57’ became ‘58’.
[2] If timing started just before ‘55’ became ‘56’ and ended just after before ‘56’ became ‘57’.
Bell gave evidence that because of the “positive” alcotest he took Athanasiadis to the nearby Coober Pedy police station where he attempted to administer a breath analysis test. That procedure was recorded visually and aurally. In circumstances described in more detail below, Athanasiadis blew into the apparatus several times but no reading of blood alcohol content (BAC) eventuated. The recording lasts for 22 minutes. It commences at 3.10 pm, being only about 15 minutes after Bell had first sighted Athanasiadis’ vehicle and about 13 minutes after the alcotest on the roadway.
The recording was important not only for Athanasiadis’ immediate and impressive assertions during its course that he had drunk one only (350 ml) bottle of light beer and his co-operative and sensible attitude, but also because the video (and audio) was in no way suggestive that he was affected by alcohol at a time very soon after the subject driving. Indeed, if one ignored the pejorative influence of the surroundings of a breath analysis test, the overwhelming impression of the video and aural recording is that Athanasiadis was at that time quite sober.
Bell made notes of his observations of the subject driving and of Athanasiadis’ behaviour and appearance at the scene on the roadway only after the breath analysis procedure test at Coober Pedy police station had concluded without result. He commenced making the notes at 4.25 pm and completed them at 4.35 pm.
The first day’s hearing was adjourned at 6.02 pm, shortly after cross-examination of Bell had concluded and the prosecutor had announced the close of his case. The trial resumed on Thursday 24 January 2019 at 9.16 am at which time defence counsel called Athanasiadis to give evidence.
Athanasiadis gave evidence (undisputed) as follows: that he was born on 15 August 1943 (and was therefore 74 at the time of the driving); that he had lived in Coober Pedy continuously since 1977; that he had never been in a Court before; and that he had never been pulled over by police before.
He also gave evidence that he had always been a hard worker and that he had been particularly tired at the time of the subject driving; that he was then simultaneously running the Stuart Range Caravan Park and a pizza business and also building a very large underground residence (the dugout). Thus, he stated:
A… then I started the caravan park from scratch 31 years ago, still going.
QDo you run that by yourself, or do you run that with someone .
AOur problem is I should retire, 75 years old. But it's very hard to find in the town to find workers, short of staff. So I work. I open the reception and I close the reception seven days a week so where I am missing I have to replace his position so I work seven days a week.
QWhat's the regular hours that you work. You say that you work 7 days a week, but hours do you do.
AIf a cleaner is sick I have to clean room. If the driver of the bus is sick or want day off I have to drive the bus. And every night I run the pizza bar.
QAre you able to tell his Honour maybe what time that may be from and to.
AWell when have enough staff and low maintenance I might have during the day hours off but definitely I have to work in the morning and in the afternoon, full time.
…
QI'm taking you to that date, we are in Tuesday 10 October 2017.
AYes.
QAre you able to tell the court how you day started.
AActually I had very hard day that day. I'd been working very hard and then same day with the caravan park. On the top I have the dug out the underground house to build. So I went from one job to another and I was actually very tired that day, yeah.
QYou talk about a dug-out so that's the first time the court's hearing about a dug-out are you able to say where is the dug-out and what dug-out is this.
AActually after 31 years I decide to leave the park and get a house out of the park to have a rest. So I decide to build an underground house. So that's why I started and that's going to be on Grand Design, I don't know if I should mention that, and today's going to be my house but in the future because it’s because its the biggest underground house in the town will be bed and breakfast after my time.
Athanasiadis went on to give specific evidence that he had gone to bed at 11.00 pm on the Monday and had got up at 6.30 am on the Tuesday (his usual hours) but that he had had very little sleep between those times due to having to get up a number of times to attend to arrivals and departures from the caravan park. After getting up at 6.30 am, he worked at the caravan park from then until about 11.30 am to 12 noon. He then went to the dugout where he worked by himself moving dirt with a grader for a time until he decided to go back home. Immediately before leaving the dugout (and therefore only a very short time before taking the alcotest), he drank one (only) 350 ml size bottle of Cascade Light beer (the bottle of light beer) which he had brought with him in the car earlier that day; he was adamant that that was all he had had to drink that day. He drove only a short distance before he was pulled over by Bell. I return to the highly important matter of “mouth alcohol” below.
Athanasiadis conceded much of Bell’s evidence concerning his observations of his driving and, I think, accepted the proposition that there was some “driving without due care”. However, the defence case was that such driving occurred because of the facts that he was very tired, knew the route over which the driving took place very well and was not paying particular attention to his driving. He agreed that he would have had alcohol on his breath. He did not agree that he was as unsteady on his feet as described by Bell.
The nature of the prosecution case
The prosecution case was conducted on the basis that, in the circumstances of this case, Athanasiadis could only be convicted of DUI if it were proven beyond reasonable doubt that first, Bell’s evidence concerning his observations of Athanasiadis’ physical condition, mental condition and his manner of driving were fully accepted; and secondly, those observations were consistent only with an intake of alcohol that was considerably more than one bottle of light beer drunk immediately prior to the driving. In other words, Athanasiadis’ evidence that he had only drunk one bottle of light beer had to be rejected beyond reasonable doubt before he could be convicted.
In those circumstances, the prosecution faced a number of hurdles. One was Athanasiadis’ previous good character and his evidence on oath, which was not implausible and not shaken in cross-examination. Another was the 22-minute video recording described above, commencing at 3.10 pm, only about 13 minutes after the alcotest on the roadway. This was important for the reasons stated above.
These matters were stressed by defence counsel at trial and appear to have been largely accepted by the Magistrate. Thus, his Honour said:[3]
… He was courteous, cooperative, but – we saw him in the interview, he was sitting during the interview, he had certain conversations. I take into account he is a man of mature years. I take into account that his first language was not English, although he has been, I presume a resident of Coober Pedy for many decades now.
Nonetheless I will take those cultural differences into account, but there is nothing adverse that I could find in relation to his behaviour. He was cooperative. He did not refuse any request.
[3] During the course of rejecting a Prasad submission at the end of the prosecution case.
The defence called no witnesses. The prosecution and defence addressed and judgment was reserved at 11.19 am on Thursday 24 January 2019.
On 22 May 2019, the Magistrate delivered judgment and convicted Athanasiadis on Count 4. He imposed the minimum fine of $1,100 with a Court fee of $100, victim of crimes levies and a prosecution fee of $150 and disqualified Athanasiadis from holding or obtaining a driver’s licence for twelve months.
The Grounds of appeal
I come now to the Grounds of Appeal which are as follows:
The learned Magistrate erred in:
(1)Admitting evidence of Constable Bell’s handwritten notation of the alcotest result as “indicative” of the Appellant’s level of intoxication.
(2)Finding, in relation to the breath analysis procedure, that the Appellant “failed to provide three breath samples” and that Constable Bell “carried out the procedure as prescribed by offering the required number of opportunities to comply” in circumstances where a charge of failing to comply with a direction under s47E of the RTA was not proceeded with due to Police non-compliance with statutory requirements.
(3)Disregarded the evidence of the Appellant, and the objective evidence of his demeanour in the video interview conducted immediately after driving, without providing any or adequate reasons for rejection of that evidence.
(4)Accepting the uncorroborated evidence of Constable Bell, in circumstances where that evidence conflicted with other evidence, including objective evidence.
(5)Failing to specifically exclude beyond reasonable doubt other explanations for the observations of Constable Bell, including the Appellant’s age and the fact that he was tired; and failing to provide adequate reasons for rejection of those explanations.
(6) Failing to apply the correct burden of proof of beyond reasonable doubt.
Ground 1 of Appeal: The so-called “0.162 alcotest reading”
Ground 1 of Appeal as it appears above is not well drafted. However, both sides proceeded on the basis that the pith and substance of the ground was the contention that the Magistrate had used a so-called “0.162 alcotest reading” of a screening device (or “alcotest”)[4] in an impermissible way when considering whether the DUI charge was proven. I will proceed by reference to the following matters:
-First, an appreciation of some basic facts concerning breath testing for alcohol (including the necessity of avoidance of “mouth alcohol”);
-Secondly, an appreciation that a preliminary device can do no more than indicate that the prescribed concentration of alcohol (PCA) may be present in the blood of the person tested;
-Thirdly, a consideration of the Magistrate’s relevant comments.
An appreciation of some basic facts concerning alcohol breath testing
[4] I have previously referred to matters of terminology and proprietary brand names (Police v Short (2012) 112 SASR 463; Police v Hanton (2018) 131 SASR 226). There have been, and are, many different makes and models of both formal evidential breath analysing machines (referred to in the Act as “breath analysing instruments”) and screening devices (referred to in the Act as “alcotests”). I mention ex abundanti cautela that the full name of the formal evidential breath analysing machine used in South Australia, the Draeger Alcotest Model 7110 series (Marks 1 to 5), includes, as a matter of serendipidy, the sobriquet “Alcotest”. This is certainly not a reference to the definitional word used in the South Australian Act to refer to screening devices only.
The derivation of a measurement of blood alcohol content from a sample of breath air is a complicated process. For present purposes, it may be considered by reference to two broad stages. The first stage is the taking of an appropriate sample of deep lung (alveolar) air. The second stage is the accurate measurement of the amount of alcohol in that breath sample.
It is the first stage with which we are chiefly concerned here. A “breath analysing instrument” as referred to in the Act (being an apparatus of a kind approved as a breath analysing instrument by the Governor)[5] is designed to analyse only alveolar air because it is only analysis of the air adjacent to the lung tissue that can found an accurate estimate of the amount of alcohol in the blood. This is because of the peculiar and important fact that the air immediately adjacent to the lung tissue is in a continuous state of cross-transference with the alcohol in the lung tissue.
[5] Road Traffic Act 1961 (SA) s 47A(1).
This is in turn why a subject is required to blow into a breath analysing instrument in a long and continuous way, delivering in the process a required minimum volume of breath air. It is only the last of that air – being the alveolar air – that is captured for testing by the machine. As is correctly observed in Freckelton & Selby: Expert Evidence[6] (to be referred to as Freckelton & Selby):
[74.120] Ethanol is an unusual drug in that a small proportion of it exchanges between the arterial blood into air contained in the lungs, which is then expelled in the breath. Although there are a few exceptions, most other drugs are not eliminated in the breath and must therefore be analysed in blood, urine or saliva specimens.
As discussed in Chapter 73 the blood, having passed from the liver to the heart, is pumped through the lungs before flowing back to the heart to be distributed into the rest of the body tissues. It is in the lungs that the exchange of oxygen from the breath (inspired air) into the blood takes place, and also that of carbon dioxide (expired air) in the reverse direction. These processes proceed continuously during the process of breathing. In the same way that carbon dioxide leaves the blood and enters the air in the lungs, then so does a small but representative portion of any alcohol that may be present. This “gaseous exchange” mechanism may be envisaged as in Figure 1 (at [74.125]).
The quantity of ethanol that diffuses into the breath within the lung depends directly on its concentration in the blood at that point. This is known as Henry’s Law.
…
[74.130] … Thus in the context of alcohol measurement, Henry’s Law indicates that the breath alcohol concentration (BrAC) in the lungs depends on the blood alcohol concentration (BAC) in contact with it. The relationship between BAC and BrAC in a stable situation is well defined and is known as the blood:breath ratio, which is, of course, the distribution ratio as defined in Henry’s Law.
Thus by measuring the concentration of alcohol in the breath it is possible (using Henry’s Law) to determine the concentration of alcohol in the blood in contact with it if we know the value of the distribution ratio (ie, the blood:breath ratio) at body temperature. …
[6] Thomson Lawbook Co, Freckelton & Selby: Expert Evidence, vol 5 (at Update 72) [74.120]–[74.130].
The spectre of mouth alcohol
I briefly foreshadowed above the problem of “mouth alcohol”, and it now arises for consideration. As was observed by Mr Denys Smith[7] in his contribution to the first edition of Freckelton and Selby:[8]
Cigarette smoke and mouth alcohol commonly cause false readings on screening devices if drivers are not required to wait 20 minutes before such tests. … Even though a result from a screening device is not used in court, it is desirable that it should give a reasonably accurate indication of the need for an evidentiary test.
[7] A forensic scientist and author of the original treatment of alcohol breach analysis in Freckleton & Selby.
[8] Denys Smith, ‘Breath Alcohol Measurement’ in Ian Freckelton and Hugh Selby (eds), Expert Evidence in Criminal Law (Thomson Lawbook Co, 1st ed, 1999) 369, 394.
As correctly observed in the current edition of Freckelton & Selby:[9]
[74.130] … However, to measure the concentration of breath alcohol (BrAC) accurately and thus calculate the value of blood alcohol concentration (BAC) a number of fundamental precautions must be taken, such as:
(a) breath must be taken from the deeper parts of the lung (alveolar region)
(b)mouth alcohol must not interfere with the measurement. [Emphasis in italics original] [Emphasis in underline added]
[9] Thomson Lawbook Co, Freckelton & Selby: Expert Evidence, vol 5 (at Update 72) [74.130].
The reason why mouth alcohol must be strictly guarded against and not be permitted to interfere with the measurement is explained by the authors thus:[10]
[74.150] The concentration of alcohol in a drink is much higher than would be present in a person’s blood so that, if a breath sample were to be analysed soon after the subject had consumed his/her last drink, the reading would probably be very high due to residual alcohol in the mouth. This “mouth alcohol” is alcohol that is absorbed into the mucous linings of the mouth, the tongue and dissolved in saliva as well as, for example that trapped behind dentures or oral jewellery. It takes time for mouth alcohol to be washed away naturally by the saliva. Some of this “mouth alcohol” would thus evaporate into a breath sample entering a breath analyser and the breath alcohol reading obtained would not reflect the true blood alcohol concentration. …
In practice, therefore, a period of at least 15 minutes should elapse from the time a subject finishes his/her last drink before a breath test is undertaken. This time allows for any mouth alcohol which is present to be eluted (washed away) by saliva so that a valid breath alcohol analysis can be carried out to determine the truly equilibrated breath alcohol concentration.
[10] Thomson Lawbook Co, Freckelton & Selby, Expert Evidence, vol 5 (at Update 72) [74.150].
Put simply for present purposes, if the breath analysing instrument applies its calculating processes and formulae (calibrated to alveolar air) to a sample of air that is in fact partly mouth air containing alcohol material, then a resultant purported “reading” will be quite incorrect. What is important to realise is that a so-called “reading” of say 0.162 that happens to appear in such circumstances does not reflect a situation of a true reading being somewhat exaggerated; rather, the figure is random and unpredictable, being the result of an entirely unsuitable air sample being submitted for analysis.
Such is accepted by scientists, prosecutions agencies and the courts. The decision by the Full Court of this Court in Manetta v Police[11] provides a useful example. There, the appellant was stopped at a random breath testing station and directed to submit to an alcotest. It registered a positive reading and he was informed that he was obliged to undergo a breath analysis test. He requested that the breath analysis test be conducted immediately. That request was refused and the test was conducted some 28 minutes later. The reading was a BAC per 100 millilitres of blood of 0.159 grams. The appellant argued that the period of delay was unreasonable and the reading should be excluded.
[11] (1999) 74 SASR 329.
The prosecution evidence at trial included oral evidence from Senior Sergeant Laslett, a member of both the committees of the Standards Association in relation to breath analysis, evaluating instruments for the South Australian Police and also of the National Police Research Unit. One of his duties was the training of breath analysis operators. During his evidence, the Court admitted as exhibits the Drager Alcotest 7110 Operators Manual and the Breath Analysis Operator’s Handbook. The effect of the evidence for the prosecution was that there was an established procedure of waiting for a period of 20 minutes between tests which the police used as a safeguard to ensure that alcohol and any foreign contaminating substances such as inhalers or other medicines were removed from the mouth. This was, to some extent, based on the operational instructions contained in P12, that is the Drager Alcotest 7110 Operator’s Manual, which provided that:
It is essential to allow at least 15 minutes from the last intake of alcohol to the time of provision of the breath sample for analysis. This waiting also applies after the use of mouth sprays, lozenger medications containing alcohol and medications applied by aerosol. The 15 minutes waiting period is also necessary after vomiting or belching. Rinsing the mouth with water does not reduce the time needed before the person can be tested. … [Emphasis added]
Debelle J (with whom Doyle CJ and Duggan J concurred) referred to the above and stated:[12]
19. The judge appealed from concluded that it accorded with good sense and good practice to carry out the breath analysis in accordance with the instructions of the manufacturer of the breath analysis equipment. Given that those instructions were to provide a minimum waiting time of 15 minutes after the last intake of alcohol, the police procedure requiring a driver to wait 20 minutes between the alcotest and the breath analysis was, it was held, not unreasonable. The judge added that, if the police failed to comply with the manufacturer’s instructions and tested the driver immediately, it was clearly arguable that the breath analysis was flawed. The appellant has not demonstrated why that conclusion should be disturbed.
20. The manufacturer’s instruction is “to allow at least 15 minutes from the last intake of alcohol to the time of provision of the breath sample for analysis” (emphasis added). Police officers do not know when the last intake of alcohol by the driver occurred. It could be a very short time, a matter of a few minutes only, before the driver is stopped at the random breath testing station. It is not unreasonable, therefore, to translate a delay of at least 15 minutes into a 20 minute waiting period to ensure that the test will be effective. …
21. The legislation contemplates that there may be some delay or inconvenience. What is proscribed is undue delay or inconvenience, that is to say, delay or inconvenience which is unjustifiable or excessive or disproportionate: see Macquarie Dictionary and Oxford English Dictionary. A delay of 20 minutes to comply with the manufacturer’s recommendations is not, in all the circumstances, unjustifiable or excessive or disproportionate. If the breath analysis were conducted immediately, there is a real risk that, notwithstanding the fact that the machine is capable of detecting contaminants and mouth alcohol,[13] there would be questions as to the propriety of proceeding in a manner which does not entirely conform with the manufacturer’s instructions.
[12] (1999) 74 SASR 329, 335.
[13] Their Honours here allude to the fact that some evidential machines now have features designed to detect the presence of mouth alcohol and, it is hoped, to halt the test so that time can be taken for the mouth alcohol to clear. Thus Freckelton & Selby observe at [74.150]: “In modern infrared based evidential analysers it is possible using slope detection to identify the presence of residual mouth alcohol (see Figure 5 at [74.240]) and to abort the test.” I also note that in the International Organisation of Legal Metrology International Recommendation OIML R 126 (Edition 2012) it is stated:
Regardless of whether the breath alcohol and analyser has an automatic function that detects whether the measurement of result is affected by the presence of alcohol in the upper respiratory tracts or not, manufacturers may stipulate in their operating procedures that the subject shall not introduce anything in the mouth for at least 15 minutes prior to the collection of a breath sample.
Of course, the existence of such safety features on evidential machines is really by the bye. We are here concerned with screening devices which will not have such refinements for a number of reasons. The main one is that they are designed to be simple and cost effective, and the ratio of their number in use to the number of evidential devices is very high. The fact that a so-called “reading” on a screening device may be erroneous due to mouth alcohol on the odd occasion is not of high concern since a valid detection of the drinking of some alcohol remains, and the correct reading may be ascertained by a subsequent test on an evidential machine with its associated protections against mouth alcohol (a waiting period, mouth alcohol detecting devices, and an ultimate right to a blood test).
To take another example from Court decisions, the above matters are illustrated quite neatly in the context of a preliminary screening device (alcotest) in the case of Barber v Police.[14] There, a police officer on duty at a random breath station required the appellant to submit to a screening test, which proved to be positive. The officer informed the appellant of that fact and indicated that he would have to have an evidential breath analysis. However, during that conversation, the appellant advised that his last drink had been consumed only a few minutes earlier. Due to his experience and knowledge of mouth alcohol giving inaccurate alcotest results, the officer offered the appellant the opportunity of having a second alcotest 10 minutes later. The officer explained at trial that if the second test had proved negative, he would have allowed the appellant to leave and thus avoided the unnecessary inconvenience of an evidential breath analysis. The officer gave the further evidence:[15]
5. Constable Birkner said in circumstances where he had reason to suspect that the alcotest might be inaccurate, it was his common practice to offer the driver an opportunity to take a second test. This practice was in accordance with police general order 8760. That general order refers to the possibility of the accuracy of screening units being affected by a number of matters, including alcohol in the mouth of the driver, and directs that when a member suspects that an alcotest is inaccurate, unfair or incorrect the member “may require the driver to submit to a second test”.
6. The appellant accepted the offer and submitted to a second test 10 minutes after the first test. The second test was also positive. Constable Birkner arranged for a breath analysis to occur as soon as practicable. He said the positive result of the first test was the condition precedent that triggered him requiring the appellant to submit to the breath analysis test.
[14] (1999) 204 LSJS 399.
[15] (1999) 204 LSJS 399, 400.
At trial, and on appeal, it was contended that there was no power to require the appellant to undertake a second alcotest. In dismissing the appeal, Martin J considered that it was unnecessary to answer that precise question because the facts upon which it is predicated had not arisen. His Honour stated:[16]
20. In the circumstances of this matter, however, it is not necessary to decide that question. The magistrate found that Constable Birkner did not require the appellant to undertake the second test. There is no evidence to contradict Constable Birkner's evidence that he offered the opportunity of a second test. As previously indicated, I see no reason to interfere with his Honour's findings. The Act does not prohibit a member of the police force from offering a driver the opportunity of undertaking a second test and it was not unlawful in any other way for Constable Birkner to offer that opportunity to the appellant. It was potentially to the appellant's advantage and no disadvantage ensued to the appellant. Constable Birkner was not obliged to offer the opportunity of a second test and was perfectly entitled to rely upon the result of the first test in requiring the appellant to submit to a breath analysis. The rights of the appellant were not affected in any way by the offer of the second test or by him undertaking that second test.
[16] (1999) 204 LSJS 399, 404–405.
Of course, such facts do not arise here. But the case of Barber is important in that it recognises that, just as mouth alcohol air may cause a false reading in an evidential device, a fortiori it will do so in a preliminary screening device.
A preliminary device can do no more than indicate that the PCA may be present in the blood of the person tested
It is important to appreciate that a “positive alcotest” can do no more than indicate that the PCA may be present in the blood of the person tested. The Act speaks in those terms.[17] Thus, s 47E(2ab) provides:
A person must not, in the exercise of random testing powers, be required to submit to a breath analysis unless an alcotest conducted under subsection (1) indicates that the prescribed concentration of alcohol may be present in the blood of that person.
[17] As examples, Road Traffic Act 1961 (SA), s 47E(2ab), s 47E(7a)(b), s 47K(3b).
It may be helpful to note that alcotest preliminary devices may perform their mechanical function of indicating that the PCA may be present in various ways. Thus, in Rowntree v Police, Bleby J stated:[18]
16. On the evidence in this case the alcotest clearly indicated the possible presence of the prescribed concentration of alcohol in the appellant’s blood. It could do so in any number of ways. In this case the unit displayed a reading in terms of a number of grams of alcohol in 210 L of the person’s breath. However, it could have indicated the required information by, for example, displaying a red or some other coloured light. …
[18] (2006) 45 MVR 361, 363–364.
Given that we now have two levels of PCA (any amount for certain drivers such as persons on P plates and 0.05 for all others) one might allocate different colours for each of them or use some form of numerical indication. While the latter method is permissible, one must be always wary that this does not give rise to a drift in thinking so as to somehow attribute to such “indication’ (which happens to be in the form of a number rather than a colour) an ability to assist in proving BAC.[19]
[19] As an example, in Police v Williams (2014) 246 A Crim R 317 at [62], an “alcotest reading” of 0.10 had been used at a Magistrates Court trial as evidence asserted to be inconsistent with the defendant’s evidence that he had been drinking very heavily, had passed out and was asleep when another person committed the driving offence with which he was wrongly charged. On appeal, such a use was rejected, it being stated (Peek J): “However, this ‘blood alcohol reading’ was actually only a purported indication from a preliminary alcotest type device. Such devices can do no more than indicate a likelihood of the presence of alcohol greater than .05% such as is deemed to constitute sufficient cause for a police officer to require the subject to take a breath analysis test. Some form of additional purported calibration on an alcotest device may not invalidate the above function, but it certainly cannot endow such a device with any ability to perform as a breath analysis instrument. There is no evidence here of either a breath analysis or a blood analysis.”
There is a certain amount of common ground here as between respondent and appellant. The respondent’s following submissions are acceptable to the appellant:
4. The appellant rightly asserts (and the respondent agrees) that in South Australia, alcotests are used in screening procedures designed to ascertain the identity of drivers who may be driving with excess alcohol in their blood. Consequently, a positive alcotest is commonly referred to as “indicative”.[20] Parliament contemplates that alcotests may indicate that the prescribed concentration of alcohol may be present in the blood of the person tested.[21] Courts accept that an alcotest reading is commonly regarded as providing some indication of the presence of alcohol in the subject’s blood.[22] A positive alcotest indicates that there is a reasonable likelihood that the driver has a blood alcohol level higher than the permitted range.[23]
5. Where police officers attempt to prove that a driver has exceeded a prescribed concentration of alcohol using s47K presumptions, they must rely not upon alcotest results but breath analysis instrument results. A positive alcotest result is part of the random breath test procedure by which a power to require breath analysis is enlivened. The reference to positive alcotest results as being “indicative” has generally arisen in that context. [Original emphasis]
[20] Treloar v Police [2019] SASC 128 at [61].
[21] Road Traffic Act 1961 s 47E(2ab); s 47E(7a); s 47K(3b).
[22] Police v Barber [2010] SASC 329 at [145].
[23] Manetta v Police [1999] SASC 232 at [23].
However, these careful statements by counsel for the respondent are to be contrasted with the Magistrate’s statements in his reserved judgment. For the moment,[24] I will only refer to the first of those statements:
18. A portable alcotest was presented and the defendant blew into it. The reading indicated to Constable Bell that the driver had in his system more than the permitted amount of alcohol to drive. [Emphasis added]
[24] The other statements are referred to below.
This type of statement is quite erroneous. The most that a positive alcotest could have “indicated to Constable Bell” (or to anyone else) was that the PCA may be present in the blood of the person tested.
This is by no means a matter of semantics. The important point to be understood is that both the purpose of, and the permissible use to be made of, such an “indication” by a positive alcotest is a very narrow one. It is simply to provide a key to a lawful pathway to compel that person to submit to a quite different procedure, namely a formal breath analysis by a breath analysing instrument, for the purpose of measuring how much (if any) alcohol is present in the blood stream. To be quite clear, a positive alcotest does not “measure”; rather, it grants the police a right to measure by means of (and only by means of) a “breath analysing instrument”.
It should thus be obvious that an “alcotest” cannot be used in any way for “breath analysis” under the Act. As Bleby J stated for the Full Court in Police v Modra: “An alcotest apparatus is not included in the definition of “breath analysing instrument” in s 47A, nor can it be used for “breath analysis” as defined in that section”. [25] Or as Parker J stated in Munn v Police, “no reliance could be placed upon the alcotest result, other than that a positive reading authorised the later request by the police for the appellant to take a breath analysis test”.[26]
[25] (2000) 32 MVR 326, 336 [73].
[26] (2017) 82 MVR 370, 376 [23].
I turn now in more detail to the approach of the Magistrate.
The Magistrate’s references to a so-called “alcotest 0.162 reading”
In fairness to the trial prosecutor, it is to be noted that he never sought to refer to a numerical alcotest “reading” at all. In opening the case he correctly put the matter this way: “Shortly after Officer Bell directed the defendant to submit to an alcotest, to which a positive result was noted and as a result Officer Bell … conveyed the defendant to the Coober Pedy Police Station for a breath analysis …”. And similarly, when Bell gave evidence he simply (and correctly) said: “I had a positive result on the alcotest”.
The Magistrate’s first reference to the so-called “0.162 reading” during the trial
The Magistrate’s first reference at trial to the so-called “alcotest 0.162 reading” occurred at the end of the cross-examination of Athanasiadis when his Honour asked defence counsel whether he wished to ask Athanasiadis further questions in re-examination in the following extract from the transcript (with passage numbers added for ease of discussion):
1. HIS HONOUR: Just before Mr Athanasiadis is released and there are no further questions - do you want to - and I think in cross- examination the witness indicated that he took an alco-test on the road.
2. APP MARCHIORO: Yes, you Honour.
3. HIS HONOUR: It certainly appears in the notes if there's anything about that issue, whether it took place or not - do you want to put to your client. I'm not asking you to get him to comment on the indicative reading but it did take place
4. MR WRIGHT: Yeah, I think certainly with an alco- test on the road, it's either positive or it's not. The readings of no relevance whatsoever to the court … It would be consistent, your Honour, that it would be positive if he's had a beer, it was over [sic: only] a few minutes prior.
5. HIS HONOUR: Alright well I'll just, perhaps have a look at this, I'm not taking it any further than what it is but clearly in the notes it's got 0.162 at 14.57, now that's clearly on the road, that's the reading and you got no reading from the breathalyser back in the station.
6. MR WRIGHT: No, and certainly my submissions on that would be 0.162 can't be taken as 0.162, it can be taken as positive or negative but the high reading, if indeed that was correct which cannot be justified beyond a reasonable doubt, hence the - is simply, possibly as a result of having just had a beer a few minutes prior and the alcohol being in the mouth.
7. HIS HONOUR: It's really more that setting and there was a positive reading.
8. MR WRIGHT: There' s no questions in respect to that, your Honour.
Passages 1 and 3 are notable in that hitherto at trial it had been clear that a positive alcotest had occurred but was entirely irrelevant because the police did not base anything upon it; there was never any BA reading and the charge of Fail to Comply had been withdrawn. There was never any suggestion that Athanasiadis denied that an alcotest had occurred, it being in no way inconsistent with his version (given from the earliest time) that he did have one beer just before the alcotest.
As to passage 5, despite all of the above, the Magistrate here stresses that Athanasiadis was not denying that the alcotest occurred and then attributes importance to the so-called “alcotest 0.162 reading” in quite a stark way: “clearly in the notes it's got 0.162 at 14.57, now that's clearly on the road, that's the reading and you got no reading from the breathalyser back in the station” [emphasis added].
I consider that this passage cannot mean anything other than that his Honour considered that there was “a reading of 0.162” and that that particular reading had probative significance in the case.
As to passage 7, I do not know precisely what the Magistrate means by the words, “It's really more that setting and there was a positive reading in the passage” but again his Honour seems to be placing weight on the so-called “0.162 reading”.
The Magistrate’s second reference to the so-called “0.162 reading” during the trial
The prosecutor (again correctly) made no mention of the matter in his final address. However, during the defence address, the Magistrate raised the matter again with defence counsel thus:[27]
9. HIS HONOUR: … The issue of the reading itself, the alco-testing I think you've already covered that by saying it is simply indicative that there had been an amount of alcohol consumed, enough to be positive. But the evidence from Mr Athanasiadis is the fact that he only had one bottle, stubby if you will, they aren't longnecks anymore, of light beer, Cascade light beer. One he said, which has an alcohol content of about three or 3.5 or whatever it is. And we all take notice of what low alcohol beers are and therefore where that may sit in terms of either behaviours and or the reading as indicative alco-test only. I just wonder if you'd like to comment on that. Or do I also understand that you're saying his behaviours, for want of another word, an observation made by constable Bell are tantamount entirely to an accumulation of one, his age and two, his at that day, extreme tiredness.
10. MR WRIGHT: Yeah your Honour, a couple of points with that is that certainly between having the beer that he accepts that he had, hence the smell on his breath, that the period of time by which he then get pulled over was a few minutes. So the positive reading and irrespective of whatever it says is consistent with there being alcohol in the mouth as opposed to in the breath. …
11. HIS HONOUR: I'll keep this as brief discussion and I'm happy to contribute as opposed to addresses. It's my understanding with an alco-test if someone has had a very small amount of alcohol it registers at a certain threshold, otherwise if there is even a trace of alcohol everybody would be submitted to a breathalyser test if it simply gives you no indication at all of the amount.
12. APP MARCHIORO: You actually get a number.
13. HIS HONOUR: There is a number on the alco. We've got no formal evidence but it's so common these matters that it's something that shows. It gives an indicator. But it's certainly not an accurate indicator. Would that be accepted
14. MR WRIGHT: That's right. The court can only take into account, was it positive or was it not. And it would be consistent with our evidence that it would be positive because there was a beer that was drunk. In which case we don't dispute the fact then that requires a breath analysis. That's indeed the way that this occurred. Police were going to charge for the failure to comply, ironically that matter was withdrawn on the basis that it was a failure to comply by police so that ... and then they 're left with, as I say the poor cousin which is the DUI which they probably didn't want to run.
[27] Passage numbers added for ease of discussion.
As to passage 9, his Honour appears to reason that one bottle of Cascade light beer would have only a very small amount of alcohol. At passage 11, his Honour appears to reason that the alcotest would be programmed so as to avoid reacting to very low alcohol readings “otherwise if there is even a trace of alcohol everybody would be submitted to a breathalyser test”. The combined effect of passages 9 and 11 appears to be a conclusion that the “reading” of the alcotest indicated that more than only one bottle of light beer would have been needed to produce that reading.
This line of reasoning is deeply erroneous for several reasons. The first in logical order might be that it ignores the fact that a not insignificant number of drivers (such as “P Platers”) are subject to a zero PCA driving regime and, accordingly, preliminary devices may give an indication of any amount of alcohol.
However, of greatest concern is the fact that although defence counsel repeatedly raised the matter of mouth alcohol during the trial in answer to his Honour's comments (including at passages 4, 6, 10 and 14 above), at no time was there any indication whatever by his Honour that he appreciated what counsel was talking about or that his Honour was at all aware of either the Courts’ recognition of the problem (vide: Manetta and Barber discussed above) or of any of the scientific literature available including such texts “for lawyers” as Freckelton & Selby.
The Magistrate’s first reference to the so-called “0.162 reading” in his judgment
I noted above at paragraph [40] that the Magistrate’s statement at paragraph [18] of his judgment “the reading indicated to Constable Bell that the driver had in his system more than the permitted amount of alcohol to drive” was erroneous in that the most that a positive reading could have “indicated to Constable Bell” was that the PCA may be present.
At paragraph [24], the Magistrate took the matter a step further in that he specifically referred to the so-called “0.162 reading” and stated:
24. Constable Bell then made handwritten notes of the incident which he started at 4.25 p.m., a short time after Mr Athanasiadis left the station. He completed them some 10 minutes later. These notes comprise some five notebook size pages and accord with the oral evidence Constable Bell gave. It includes a note of the alcotest, a reading of 0.162 taken at 14.57 hours as an indicator of the alcohol level then present. The photocopied notes were tendered as Exhibit P4. [Emphasis added]
Thus, it is here erroneously asserted that a particular reading of 0.162 taken at 14.57 hours is an indicator of the alcohol level then present when all that could properly have been said was that the alcotest was “positive” and indicated that the PCA “may be present”.
The Magistrate’s second reference to the so-called “0.162 reading” in his judgment
At paragraphs [62] and [64] of his judgment the Magistrate stated:
62. Those factors together with his close observation of Mr Athanasiadis after alighting lead Constable Bell to form the view the defendant may have been affected by alcohol such that it had impaired his driving. He administered the mobile alcotest which showed a preliminary reading of 0.162 at 14:52 which he wrote in his notes.
…
64. With regard to the amount of alcohol consumed prior, Mr Athanasiadis said he had consumed one standard (350ml) bottle of light beer some minutes before driving. Mr Wright submitted the preliminary alcotest result may have indicated a higher indicative reading as the alcohol content may have remained in his mouth. I make no findings with regards to the level of alcohol in Mr Athanasiadis’ system based on the single alcotest. It is indicative that he may have drunk more than he recalled.[28] [Emphasis added]
[28] The last sentence is the subject of further discussion below at paragraph [86].
The italicised words in the first two and last lines of paragraph [64] undoubtedly refer to Athanasiadis’ evidence at trial that all that he consumed was one bottle of light beer. His Honour's statement that “it (the so-called “0.162 reading”) is indicative that he may have drunk more than he recalled” is unequivocally using the so-called “0.162 reading” in a probative fashion in favour of the prosecution case and against the defence case. (There are also other different problems with this paragraph of the judgment to which I will return in the context of the other grounds of appeal.)
The Magistrate’s third reference to the so-called “reading” in his judgment
Finally, at paragraphs [83] and [84] of his judgment the Magistrate stated:
83. I make no finding as to the amount of alcohol Mr Athanasiadis consumed on 10 October prior to driving. In all the circumstances, I do not accept he consumed only one light beer given the observations of Constable Bell despite Mr Athanasiadis’ assertions.
84. I take into account his age and accept that he was tired. However the alcotest, although is indicative [sic], it is just that. In addition, there are the other observations by Constable Bell: the smell of alcohol, the apparent lack of normal awareness, and Mr Athanasiadis’ demeanour. They are persuasive.
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:
Timer
Description of Event
0:00 – 3:08
At 3:10 pm on 10 October 2017 the video recording equipment is activated. Talk including as to Athanasiadis’ particulars. Athanasiadis says three times that he only had one drink.
3:11 – 5:45
Bell commences to give Athanasiadis a direction as to the breath analysis test.
Athanasiadis says, “I would never refuse”. There is innocuous conversation by Athanasiadis. The responses of Bell are curt. Athanasiadis then requests to see the Sergeant but is told by Bell that there is no Sergeant present.
5:45 – 7:21
Bell asks where Athanasiadis had his last alcoholic drink. Athanasiadis says, “That was five minutes ago, I had one drink” (the fourth time), and then repeated for a fifth time that he only had one drink. Bell is again curt.
7:21 – 7:47
Bell directs Athanasiadis thus: “I am Constable Bell. I’m authorised to analyse samples of a person’s breath. You are required to provide two separate samples of breath for analysis in accordance with my directions. The lower of the two results will be your breath alcohol concentration. Do you understand?” Athanasiadis says that he understands and says for a sixth time that he only had one drink.
8:00 – 8:13
Bell holds the pipe into which Athanasiadis is to blow and says: “I now direct you to take a deep breath and to seal your lips around the mouth piece and to exhale continuously through this mouthpiece into the breath analysing instrument in one continuous breath until I tell you to stop. Do you understand?” The direction is delivered very quickly, while looking at a sheet of paper and holding the mouthpiece away from Athanasiadis. Athanasiadis says that he understands and takes the mouthpiece.
8:16 – 8:22
Athanasiadis, with the mouthpiece in his hand, inhales and then exhales. He then appears to inhale a small amount before sealing his lips around the mouthpiece. At 8:19 into the tape, he begins to blow. He blows, under the direction of Bell, for about 2.5 – 3 seconds, until he is told to stop. During the test, Bell holds the pipe. It is clear that a partial sample is rendered because condensation can be observed within the mouthpiece as Athanasiadis is blowing.
8:25
Bell says to Athanasiadis that he is not blowing correctly but does not tell him what he is doing incorrectly.
8:33 – 8:39
Athanasiadis says for the seventh time that he has only had one drink. He says that it “happens to be in five minutes”.
9:07 – 9:28
Bell directs Athanasiadis: “I again direct you to take a deep breath, seal your lips around the mouthpiece and exhale continuously through this mouthpiece into the breath analysing instrument in one continuous breath until I tell you to stop. Do you understand?” Athanasiadis confirms that he understands and takes the mouthpiece into his hand. He takes a deep breath, breathes out, takes another (seemingly shorter) breath in and then seals his lips around the mouthpiece. Bell maintains his grip on the pipe during the entirety of the test. At 9:26 into the tape, he begins to blow under the direction of Bell for about two seconds, at which point, without warning, Bell removes the mouthpiece from Athanasiadis’ mouth.
9:30 – 9:57
Athanasiadis asks what the result of the test was and Bell does not reply but instead prepares paperwork. Athanasiadis asks again, “How I am?” Bell does not reply and does not direct Athanasiadis as to what he did incorrectly.
9:58 – 10:33
Bell directs Athanasiadis: “Listen very carefully. It is a criminal offence to refuse or fail to provide a breath sample without good cause. You could be fined or lose your licence for 12 months or more. It is a defence if you have some physical or medical condition that prevents you from providing a breath sample but only if you ask for a sample of your blood to be taken instead or can show that your condition also prevents the taking of blood. If you want a blood sample taken because of your condition, you should ask for that and police will help you have the sample taken [Athanasiadis interjecting: no no] at government expense. Do you understand?” Athanasiadis states that he did.
10:35 – 11:12
Athanasiadis asks, “So, what’s going to happen now?”
Bell says, curtly, “Listen, I’m going to test you two more times. And if you do not blow, you will lose your licence for 12 months.”
Athanasiadis says, “I blow, I blow, I blow.”
Bell says, “You are not blowing correctly. … Biggest breath out you can. If you fail to comply with this, you lose your licence and you lose your car.”
…
Athanasiadis says, “You do your job, I don’t blame you. … I don’t want to lose …”
Bell says, “This is your last chance. Your car will go if you do not comply.”
11:18 – 12:05
Athanasiadis commenced to say something but Bell cut him off to give him a further direction about the breath analysis test: “I again direct you to take a deep breath, seal your lips around the mouthpiece and exhale continuously through this mouthpiece into the breath analysing instrument in one continuous breath until I tell you to stop. Do you understand?” Athanasiadis confirmed that he understood and again said for the eighth time that he only had one drink.
12:09 – 12:18
Athanasiadis is directed by Bell to “please blow”. He blows for a period of just over 1 second before the pipe is removed from his mouth by Bell who maintained his grip during the entirety of that period. Bell did not tell Athanasiadis that he was about to remove the mouthpiece and Athanasiadis can be seen still blowing on the mouthpiece as it is being removed from his mouth. Oxygen is clearly entering the mouthpiece as condensation from his breath appears in the mouthpiece.
12:20 – 12:40
Athanasiadis asks the result and receives no response. Bell attends to paperwork. Athanasiadis again asks whether he “can sit here for half an hour”. He says, “Please help me” and says for the ninth time that he only had one drink.
13:10 – 14:23
Bell steps up from his chair and moves out of the view of the camera. Athanasiadis is not informed about why Bell has stepped away. There is some conversation heard between Bell and another officer, which starts off camera before both officers enter the frame.
14:26 – 14:40
Bell informs Athanasiadis that he is going to ask him some “further questions concerning this matter” and says, “You are not obliged to answer these questions unless you wish to do so. Anything you do say may be, anything you do say may be given in evidence. Do you understand?”
Athanasiadis responds, “Not really”.
14:41 – 14:55
Bell repeats the above caution (with Athanasiadis’ responses in brackets):
“I’m going to ask you some further questions [yeah] concerning this matter [yeah]. You are not obliged to answer unless you wish to do so [anything you want]. Anything you do say may be given in evidence. Do you understand? [Yeah]”
14:58 – 16:23
Bell, reading from a sheet: “Have you any reason for refusing or failing to comply with my direction in relation to submitting a breath analysis?”
Athanasiadis: “No refusing, no refusing, no. No. That’s your job. You do whatever you do.” [Indecipherable]
Bell, reading from a sheet: “Have you any reason of a physical or medical nature for refusing or failing to comply with my direction in relation to submitting to this breath analysis?” Athanasiadis: “No refusing, no.”
Bell, reading from a sheet: “It is a criminal offence to refuse or fail to provide a sample of breath without good cause. You could be fined and lose your licence for twelve months or more. Do you understand?” Athanasiadis: “Yeah, I do.”
Bell, reads from a sheet the following passage rapidly and without any pauses: “It is a defence to a charge of refusing or failing to comply with my direction to provide a breath sample if the reason for your refusal or failure to comply is because of some physical or medical condition. You cannot use such a defence unless you immediately make a request that a sample of your blood be taken by a medical practitioner nominated by you. However, if it becomes apparent that there is no reasonable likelihood that the medical practitioner nominated by you will be available to take a sample within one hour at some place not more than 10 kilometres from this location, or you do not nominate a particular medical practitioner, the sample of blood may be taken by any medical practitioner who is available to take the sample. Do you request that a sample of your blood be taken?” [Emphasis added]
Athanasiadis: “No.”
16:28 – 17:05
Athanasiadis: “What I see is you don’t try to help me. That is what disappoint me. People that try to survive, they pay you, and you don’t try to – I had one drink, all of my life [indecipherable], I never had this problem. [Indecipherable] I had one drink (the tenth and eleventh times). What’s wrong with that? You’re going to destroy my business. What you try to do now? Can I see the Sergeant please? Huh? …” He receives no response.
17:15 – 22:02
After a pause, there is further conversation about Athanasiadis signing the notes. Athanasiadis offers to sign them and says for the twelfth time that he had one drink. Bell prints out paperwork and ignores Athanasiadis’ questions. He again asks to see the Sergeant and is again ignored. Bell departs the screen, then returns and retrieves the final print out from the breath analysis unit. He says: “Now the rest of this doesn’t need to be conducted on video so I’m now going to deactivate the recording equipment. Time by my watch is 15:32, same day and date, still at Coober Pedy Police Station”. Bell deactivates the recording equipment.
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.
At the trial of the present case, defence counsel observed in the course of his final address (in what amounted to something of an understatement):
Police were going to charge for the failure to comply, ironically that matter was withdrawn on the basis that it was a failure to comply by police so that ... and then they're left with, as I say the poor cousin which is the DUI which they probably didn’t want to run.
While it may be contended that the Magistrate made a number of comments at trial concerning the law and procedure concerning s 47E(3) charges which are highly debatable, Athanasiadis has not been convicted of such an offence and it is pointless to reproduce or consider those comments. However, I do consider it relevant to note that his approach to, and consideration of, the breath analysis procedure was at best superficial. I will give two examples. First, his Honour said in his judgment:
19. At the police station, Mr Athanasiadis was directed to participate in a breath analysis procedure which was recorded. The court viewed the visual record which was tendered as Exhibit P5. It showed Mr Athanasiadis seated behind a table upon which the breath analyser was located. He was given a direction to blow into the instrument and on three occasions failed to produce an adequate breath, and thus was deemed to have failed to comply with a direction.
The Magistrate here appears to have ignored, or failed to understand, the undisputed information supplied to him by defence counsel (let alone the ‘irony’ thereof) that the charge was actually withdrawn by the prosecution because of Bell’s inept manner of conducting the procedure.
As to the second example, the matter of a blood test, his Honour said:
82. … Mr Athanasiadis was invited to take a blood test as also shown in Exhibit P5, but declined, which is his right. I did not form the view that he appeared to be confused or misunderstood what that invitation meant. …
The so-called “invitation” is reproduced above at paragraph [63]. It consisted of Bell reading, from a sheet of paper, the 143 italicised words in a rapid monotone without any pauses between sentences or topics. There was clearly no intention to do any more than rapidly follow a script with the sole object of being able to assert, at the end of it, that he had read out that script. There was no attempt whatever to explain or convey meaning, let alone any attempt to help Athanasiadis gain any understanding of his legal position. If his response “no” signifies anything, it is bewilderment.
And, as noted above, after a short pause, Athanasiadis says, “What I see is you don’t try to help me. That is what disappoint me. … I had one drink, all of my life [indecipherable], I never had this problem. [Indecipherable] I had one drink. What’s wrong with that? You’re going to destroy my business. What you try to do now? Can I see the Sergeant please? Huh? …”
No doubt it was towards the end of the shift and Bell may have been tired. However, he was there to assist members of the public and not just to prosecute them. Athanasiadis was not refusing; he was co-operating. He was offering his side of the story and was happy to answer questions. He was a 74 year-old man, alone, without a lawyer, of little sophistication, whose first language was not English. He was saying that he had not been in trouble before (a matter that Bell could have immediately checked). I consider that Bell should have made some effort to assist Athanasiadis to understand his option to request a blood test (and the ramifications of not doing so) rather than just ignoring the cri de coeur as he did. In view of the fact that the charge was correctly withdrawn prior to trial I will say no more.
Excursus: section 47EB of the Road Traffic Act 1961
During the course of argument, there was some uncertainty expressed as to the meaning and relevance of s 47EB of the Act which provides as follows:
If a person submits to an alcotest or a breath analysis and the alcotest apparatus or the breath analysing instrument produces a reading in terms of a number of grams of alcohol in 210 litres of the person's breath, the reading will, for the purposes of this Act and any other Act, be taken to be that number of grams of alcohol in 100 millilitres of the person's blood.
In fact, it has no present relevance and I indicated that I would briefly explain why that is so in this judgment.
The considerable scientific literature available bears out the conclusion that the attempted calculation or derivation of a percentage blood alcohol content from an analysis of a sample of exhaled alveolar air critically requires: first, proper collection of alveolar air; secondly, the avoidance of contamination by such factors as mouth alcohol; and thirdly, the application to the particular case of the tested person of a number of assumptions or formulae concerning how the average human body generally functions. While theoretically applicable to the “average person”, some of these assumptions may be not insignificantly inaccurate when applied to the particular tested person.[30]
[30] From the beginning of alcohol breath testing in Australia, the Courts have recognised that a breath analysis reading is inferior to a direct analysis of blood; the South Australian Supreme Court has been quite clear on this matter. See: Evans v Benson (1987) 46 SASR 317, 320; (King CJ); Shearer v Hills (1989) 51 SASR 243, 247-248 (King CJ) (Jacobs J agreeing on this point); Police v Jervis; Police v Holland (1998) 70 SASR 429, 444 (Doyle CJ, with whom Matheson and Prior JJ concurred).
For these, and perhaps other reasons, one body of scientific opinion has long been that it would be best to simply express breath testing results in terms of breath alcohol content (BrAC) with the offence being constituted by having a prescribed breath alcohol level. The matter came to a head some years ago in circumstances where Australia has long been a member of the International Organisation of Legal Metrology (OIML) and a signatory to the Convention establishing an International Organisation of Legal Metrology.
The convention requires that evidential breath analysing machines comply with certain specified standards. The most recent OIML standard I have been able to access (which is in line with earlier standards concerning the matter presently under discussion) is OIML International Recommendation OIML R 126 (Edition 2012) which specifies:
4. Units of measurement and decimal sign
The breath alcohol analyzer shall display and/or print measurement results in terms of mass concentration of alcohol in a specified volume of exhaled air.
The mass concentration shall be indicated in milligram per liter of exhaled breath (mg/L).
The use of an equivalent unit of measurement is possible if the indication is in conformity with the legal international units.
The decimal marker on the display or printout shall be either a comma on the line or a dot on the line. Admissibility of the comma and/or the dot is left to national legislation.
The practical problem was that in Australia (and certainly including South Australia) great amounts of money had been spent in publicity campaigns in which the levels of 0.05, 0.08 and 0.15 featured prominently, with those figures (and accompanying information on “standard drinks” and so forth) having been forcefully imbedded in the Australian psyche.
An interesting solution was eventually reached[31] whereby Australian evidential breath analysing instruments would be calibrated so as to measure and read out “in terms of a number of grams of alcohol in 210 litres of the person's breath” (thus satisfying the letter of the convention) in circumstances where the grams of alcohol were in fact equivalent to the previous scale, including the critical levels of zero, 0.05, 0.08 and 0.15 (thus retaining the old familiar numbers and assuring seamless continuation of propaganda). The ‘secret’ to this happy result was that the random looking figure of “210 litres” was very deliberately chosen in that it picks up the “distribution ratio” of 1:2100 previously programmed into Australian evidential breath analysing instruments.[32] Thus, s 47EB (originally numbered 47EA) was enacted simply to provide legislative backing to this solution to a rather knotty problem.
[31] This was not unprecedented. I note that Mr Denys Smith in his contribution to the first edition of Freckelton and Selby, Denys Smith, ‘Breath Alcohol Measurement’ in Ian Freckelton and Hugh Selby (ed), Expert Evidence in Criminal Law (Thomson Lawbook Co, 1st ed, 1999) 369, said at 373:
The use of breath alcohol concentration limits avoids the uncertainty associated with the normal range of distribution ratios (see [p 380]) by enshrining the chosen ratio in the legislation. This may be done in an obvious way, as in the case of some States of the United States which declare breath alcohol limits in terms of grams of alcohol per 210 litres of breath and the chosen ratio of 2,100:1 can be seen in the units of measurement.
[32] Those familiar with the “distribution ratio” (also known as “partition ratio” or “partition co-efficient”) will immediately see the significance of the above. Those unfamiliar may refer to the extracts from Freckelton & Selby at [74.120] and [74.130] reproduced above at paragraph [24] but will need to consult discussion in the caselaw and text books to obtain a full appreciation.
Of course, by the time of the passage of s 47EA in 2001, a number of preliminary devices in use in Australia had numerical readouts (rather than the alternatives such as colour changes alluded to by Bleby J in Rowntree v Police.[33] Accordingly, the dial or readout facility on such preliminary devices needed to match the dial or readout facility of the formal breath analysing machine so as to provide what I have referred to above as ‘the key to a lawful pathway to compel a person to submit to a formal breath analysis by a breath analysing instrument’; and hence the inclusion of both screening devices and breath analysing instrument in s 47EB.
[33] (2006) 45 MVR 361.
Grounds of Appeal 3 to 6
Counsel for both the appellant and the respondent dealt with Grounds of Appeal 3 to 6 together and I will do the same.
Counsel for the appellant stressed that the Magistrate never once in his judgment used the phrase ‘beyond reasonable doubt’ (or any comparable formula); never directed concerning onus or standard of proof; and made the ultimate finding of guilt simply in these terms:
85. I find the observations of careless driving and Mr Athanasiadis’ presentation when he alighted from the vehicle are sufficient in these circumstances to give rise to a finding that he was not capable of exercising effective control because his faculties had been impaired by alcohol. Consequently, I find him guilty of the charge in respect of s 47(1) RTA.
This is somewhat concerning but I am not prepared to find that the Magistrate was unaware that a charge of DUI must be proven beyond reasonable doubt.
However, I do accept that this approach forms a backdrop against which to consider the appellant’s principal contention. This was that the Magistrate failed to understand correctly, or direct himself as to, both the weaknesses of the prosecution case and the strengths of the defence case; and that accordingly he did not correctly approach the question of whether the charge was in fact proven beyond reasonable doubt. I consider that this contention is made out. However, since it is clear that the appeal must be allowed under Ground 1 of Appeal, I will explore only some of the more important criticisms.
The Magistrate’s reference to Athanasiadis’ memory as to alcohol intake
Reference is made at paragraph [57] above to paragraph [64] of the Magistrate’s judgment and it is convenient to again reproduce its last two lines:
64. … I make no findings with regards to the level of alcohol in Mr Athanasiadis’ system based on the single alcotest. It is indicative that he may have drunk more than he recalled. [Emphasis added]
This approach is of serious concern. Athanasiadis gave evidence on oath at trial that he had drunk only the one 350 ml bottle of light beer, in circumstances where there was in evidence (and played in Court prior to his evidence) a
22-minute visual/aural recording (starting only 15 minutes after the driving incident) during which he said the same thing twelve times. This was very clearly a case which could not be disposed of by rejecting Athanasiadis’ evidence as to his alcohol intake by saying, as does the Magistrate here, that his memory about how much he drank may have been faulty.
In my view, this considered comment in a reserved judgment starkly demonstrates that the Magistrate has simply not faced up to the fact that this was a case where it had to be squarely found that Athanasiadis was deliberately lying on oath about how much he had drunk before he could be convicted. As I say, within literally a few minutes of the subject driving Athanasiadis told Bell twelve times that he had had only one bottle of light beer. To now convict him on a basis that his present evidence on oath about the incident (the only time he has ever been pulled over by police) might be wrong due to bad memory is, to purloin a term from the Judicial Review jurisdiction, irrational.
The Magistrate’s reference to the “probity of Constable Bell’s notes”
The Magistrate for some reason considered that notes made by Bell an hour after the subject driving had “probity with regards to Constable Bell’s observation of the defendant’s driving”. His Honour stated:
19. … Mr Athanasiadis … was given a direction to blow into the instrument and on three occasions failed to produce an adequate breath, and thus was deemed to have failed to comply with a direction.
20. He was then issued with a Driver Direction Notice pursuant to s 40K of the RTA not to drive for 24 hours as a consequence of the failure to comply with a direction to supply breath sample (Exhibit D1). The notice was issued at 3.41 p.m. He was also issued a Notice of Licence Disqualification or Suspension for 12 months pursuant to s 471AA of the RTA. The notice alleged that at 3.56 p.m. that day, Mr Athanasiadis was suspended for failure to comply with a direction to provide a breath analysis (see Exhibit P2).
…
24. Constable Bell then made handwritten notes of the incident which he started at 4.25 p.m., a short time after Mr Athanasiadis left the station. He completed them some 10 minutes later. These notes comprise some five notebook size pages and accord with the oral evidence Constable Bell gave. It includes a note of the alcotest, a reading of 0.162 taken at 14:57 hours as an indicator of the alcohol level then present. The photocopied notes were tendered as Exhibit P4.
…
65. The notes made by Constable Bell were written at the conclusion of his interview and were completed at 16:35 hours on the same day, a short time after Mr Athanasiadis left the police station. At that time, the focus of a breach of the RTA was the refusal to blow or breach of s 47E, not s 47. The notes have probity with regards to Constable Bell’s observation of the defendant’s driving. [Emphasis added]
It would appear that the Magistrate’s reasoning here was as follows.
-First, Bell’s attention was focused on a “s 47E, not s 47” offence because he issued Athanasiadis a Driver Direction Notice not to drive for 24 hours as a consequence of the failure to comply with a direction to supply breath sample and a Notice of Licence Disqualification or Suspension for 12 months alleging that at 3.56 pm that day, Athanasiadis was suspended for failure to comply with a direction to provide a breath analysis.
-Secondly, Bell knew that Athanasiadis had “failed to blow” and accordingly a s 47E conviction was assured.
-Thirdly, Bell’s notes had “probity” presumably because he had no motive or reason to exaggerate concerning his observations relevant to a DUI charge because he would have considered that a s 47E conviction of equivalent seriousness was assured.
I firmly reject that approach for the following reasons. First, Bell’s own evidence was that he had issued the Driver Direction and Licence Disqualification Notices by reference to the s 47E rather than the s 47 offence by pure chance and that it is wrong to say that his attention was on a “s 47E, not s 47” offence:
QDo you accept that the licence disqualification was as a result of refusing or failing to comply with a direction under s. 473E(3).
AThat notice was issued at completion of the breath analysis. I had to make one selection. That was the selection I chose.
QAnd why didn’t you choose driving under the influence.
ABecause I had two choices. I chose the breath analysis.
QIs there a reason that you did it, was it just a toss of the coin.
AYou have to tick one box and that’s the box I ticked.
QSo there’s no specific reason.
ANo.
Secondly, at the time of making the notes, the situation would have appeared to Bell as follows:
-Bell would have known that the video recording would show that Athanasiadis certainly did not “refuse” and Bell may well have been afraid that his case was far from solid on a “failure basis” (and as events transpired, his superiors later withdrew that charge);
-Bell would have known that the video/aural recording would show Athanasiadis to be apparently sober very soon after the subject driving;
-Bell would have known that he had no BAC reading and that a positive alcotest (as he correctly termed it at trial) was of no avail on a DUI trial;
-Bell would have known that a trial would be “word against word”; and that Athanasiadis had no previous convictions and might well be believed, at least to the extent of preventing proof beyond reasonable doubt;
-Bell would have known that such a trial was virtually certain to occur because:
oAthanasiadis had protested some twelve times during that 22‑minute recording that he had drunk only one light beer; and that Athanasiadis may have perceived that Bell had been somewhat impolite towards Athanasiadis;
o
Athanasiadis had indicia of wealth (he was driving a
Mercedes-Benz vehicle and owned a caravan park); he was highly likely to get lawyers and highly unlikely to go down without a fight.
Thus, while I do not make any finding against Bell that he did consciously exaggerate, I cannot in any way accept the Magistrate’s argument that Bell could not have had any reason or motive to do so.
And nor do I accept that the notes have some particular “probity” (whatever that might be intended to mean). Indeed, this whole idea of “probity of notes” (introduced by the Magistrate rather than the prosecutor) sounds very much like a breach of the rule against narrative/self-corroboration (or self-bolstering by the use of prior consistent statements).[34] However, that matter was not gone into on the hearing of the appeal and I will not pursue it further.
[34] In R v Usher (2014) 119 SASR 22 at [39]–[40], Kourakis CJ (with whom Peek J agreed) said: “The rule [against hearsay] is said to combine two sub-rules. The first is referred to as the “ rule against narrative” or the “rule against self-corroboration”. The second is the rule that assertions by persons other than a witness are inadmissible as evidence of the facts asserted. The second rule may be referred to as the rule against hearsay in the strict sense. The rule against self-corroboration has been traced to the 18th century. Proof that a person has in the past consistently asserted a disputed account of events is commonly regarded as enhancing that person’s credit but, under the common law rules of evidence, evidence of a prior consistent statement is inadmissible unless recent invention has been alleged against the witness who made the statement.” [Citations omitted]
The failure of the prosecution to call Constable Allt
I note that the Magistrate pointedly observed in his judgment on two occasions that Athanasiadis was sitting during the 22-minute recording, this obviously being a reference to the fact that one does not see his manner of standing or locomotion. However, there was another police officer who can be seen and heard occasionally on the recording, one Constable Allt (referred to by name in Bell’s notes). Thus Athanasiadis gave the following evidence in chief (as to which he was not challenged in cross-examination):
QYou were taken to the police station and you were, there was a breath analysis done. We’ve seen the video in respect to that. What do you say about – do you feel that you were unsteady on your feet at the police station.
AWell you see me there, I was alright.
QThe video doesn’t show you standing up, it shows you sitting down.
AI never had the problems walking. I don’t know.
QThe police officers that you talked to at the police station, was it just constable Hall or was there anyone else there that you talked to.
AThere was another police officer there.
QDo you know who that police officer was.
AI don’t know him because they change every now and again. I seen him from distance but.
QWas he there whilst the video was taken.
AYes he was there.
QDid he see you for quite a long time at the police station.
AYeah.
QDid you talk to that police officer.
AAfter we finish with the police officer I was before he booked me in, he said ‘Mr Athanasiadis you leave your car here, your licence suspend for one year and now you can walk home’ and the other police officer, he said ‘no he doesn’t have to walk I give him a lift’. So he gave me a lift.
QAnd he gave you a lift. Where did he give you a lift to.
ATo my house.
QWhich house.
AThe Stuart Range Caravan Park, I live behind the reception.
In the circumstances of this case, any prosecutor would have foreseen well prior to the trial that:
-Bell’s evidence of Athanasiadis’ state of sobriety would be disputed at least to some extent;
-the defence would be relying heavily on the appearance and demeanour of Athanasiadis in the video;
-Constable Allt saw Athanasiadis almost certainly prior to, and certainly during and immediately after, the BA procedure as was obvious from the video itself and from Bell’s notes, at the end of which Bell wrote: “Allt conveyed (Athanasiadis) to home address”.
-There was every reason to think that Constable Allt could give relevant evidence of his observations of the defendant’s manner of standing and locomotion and his demeanour generally.
And yet, the prosecutor did not call Constable Allt and made no suggestion that he was unavailable.[35] Defence counsel made a Jones v Dunkel type submission but the Magistrate made no reference to it in his judgment. I consider that he should have done, particularly in circumstances where his Honour relied on Bell’s evidence of observations at the scene and emphasised the inability to view Athanasiadis’ manner of standing and locomotion in the video recording made so shortly thereafter.
[35] Technological facilities were available; I note that Bell himself gave evidence by video link to Nurioopta, where he was then stationed.
Conclusion and disposition
I have found that the Magistrate erred in a number of important respects in his approach to, and analysis of, the Act and its present application. Those errors require that the finding of guilt and conviction on Count 4 be set aside.
It would be unduly oppressive to order a re-trial having regard to all of the facts and circumstances including the following:
-The appellant is now 76 years old with no previous offences alleged against him. His assertions on oath that he has never been in a Court before and has never been pulled over by the police before are unchallenged.
-The case is essentially one of oath against oath. The prosecution case is devoid of any blood alcohol evidence and depends upon the evidence of one police officer’s observations of driving and demeanour in circumstances where the vast majority of those observations would be consistent with the evidence given by the appellant. That evidence included that he had consumed only one 350 ml bottle of light beer immediately before driving and that any apparent lack of care in his driving was due to his extreme tiredness (the reasons for which he gave in evidence) and his high degree of familiarity with the local area.
-The appellant underwent a visually and aurally recorded 22-minute “interview”, commencing within a few minutes of the subject driving, which shows him to be apparently quite sober.
-The Magistrate made no credit finding adverse to the appellant on the basis of the consistency of his evidence or his demeanour.
-The Magistrate’s ultimate rejection of the appellant's evidence as to his consumption of alcohol was based solely upon a misunderstanding of the provisions of the Act and the application of illogical reasoning.
-I consider that it is unlikely that the appellant would be convicted at a re-trial in which the evidence and the law were correctly analysed and applied by a Magistrate.
-The charges even now are very stale; by the time of a re-trial, the charges would by then have hung over the appellant for an inordinate period of time with their associated features of worry, inconvenience and an interference with his personal and business affairs.[36]
-The appellant is dependent upon his driver’s licence for a number of reasons. He has already served some 38 days of disqualification of driving licence (although other portions were stayed), being 15 days from the date of the incident 10 October 2017 to 25 October 2017 and 23 days from 5 June 2019 to 28 June 2019.
-While the charge is a serious one, the period of driving was short and the alleged speed was low. The area was semi-rural and no other vehicles or members of the public were present. The driving was on a Tuesday, around the middle of the afternoon and the weather was fine. No actual danger (as distinct from potential danger) was caused to any particular member of the public.
[36] Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, [51].
The appropriate disposition is that Count 4 of the complaint be dismissed with no order for a re-trial. Accordingly, I allow the appeal and make the following orders:
1. The appeal is allowed.
2. The findings of guilt and the conviction on Count 4 are set aside.
3. Count 4 of the complaint is dismissed without re-trial.
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