Barber v Police No. Scgrg-99-923 Judgment No. S384

[1999] SASC 384

BARBER V POLICE
[1999] SASC 384

Magistrate’s Appeal

1. MARTIN J. (Ex tempore) The appellant was convicted of driving a motor vehicle on Jeffcott Street while there was present in his blood the prescribed concentration of alcohol as defined by section 47A of the Road Traffic Act 1961 (“the Act”) contrary to s 47B of the Act. It was alleged that the concentration of alcohol was .081 grams in 100 millilitres of blood.

2. The appellant appeals against the conviction on a number of grounds. Primarily he complains that the magistrate erred in admitting the result of the breath analysis and in applying the statutory presumption found in s 47G(1) of the Act. It is also said that the magistrate erred in finding that the procedures referred to in s 47G(1) were complied with and failed to distinguish the case of Johnson v Semple (1988) 8 MVR 217,

3. At about 4.10 a.m. on Sunday, 21 February 1999, the only prosecution witness, Senior Constable First Grade Birkner, was on duty at a random breath station situated on Jeffcott Street, North Adelaide.  The defendant was driving a motor vehicle and was required to drive the vehicle into the breath testing station.  He complied with a requirement to submit to a screening test commonly known as an alcotest by blowing into the mouthpiece of a Lyon Alcometer SD-400 of the alcotest.  The alcotest was positive.  The officer informed the appellant of the positive result and indicated that he would be required to submit to a breath analysis. 

4. During the ensuing conversation, the appellant advised the officer that his last drink had been consumed a few minutes earlier.  Due to his experience and knowledge of alcohol in the mouth giving inaccurate alcotest readings, Constable Birkner offered the appellant the opportunity of having a second alcotest 10 minutes later.  If the second test had proved negative, Constable Birkner would have allowed the appellant to leave and thus would have avoided unnecessarily inconveniencing the appellant by requiring him to wait and then undergo the breath analysis. 

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. 

7. During cross-examination the officer confirmed that notwithstanding that the appellant told him he had been drinking that evening, he offered the appellant the opportunity of a second screening test because the first reading could have been high by reason of the alcohol present in the appellant's mouth. 

8. While waiting for the breath analysis operator, Constable Birkner completed certificates pursuant to ss 47G(3a), (3b) and (3c).  In those certificates he made no mention of a second alcotest.  When it was suggested to him during cross-examination that the certificate was inaccurate by reason of that omission, Constable Birkner again explained that it was as a result of the first test that triggered the requirements to undergo a breath analysis.  He had merely given the appellant the opportunity of a second test because of the possibility that alcohol in the mouth had resulted in an inaccurate reading.  He said it was his understanding that he was not required to complete the separate certificate for the second test.

9. A breath analysis conducted at 4.42 a.m.  resulted in a reading of .081 grams of alcohol in one millilitres of blood.  

10. The magistrate accepted Constable Birkner’s evidence that he extended an offer to the appellant to undertake the second test.  His Honour found that the result of the second test was not relied upon in support of the decision to require the defendant to submit to breath analysis.  He was of the view that the only relevance of the second test was that, if it had proved negative, the officer could have exercised his discretion and may not have required the appellant to submit to breath analysis.  I agree with his Honour and see no reason to interfere with those findings.  

11. In essence, the appellant submitted before the magistrate and in this court that the procedures in relation to the exercise of the police powers had not been complied with and that evidence in the form of the certificate of breath analysis should not have been admitted by reason of the failure to comply with the specified procedures.  In particular, the appellant argued that there was no power to require a second alcotest and the police officer's actions in that regard were in breach of the procedures.  It was also submitted that the officer failed to correctly fill out the certificate required by s 47G(3b) and had failed to issue a certificate as required by that sub-section in connection with the second alcotest.

12. The short answer to the appellant's contentions is that Constable Birkner did not require the appellant to submit to a second alcotest.  He offered the appellant the opportunity to do so.  The appellant voluntarily, and without any hint of compulsion, accepted that offer.   Constable Birkner relied upon the result of the first alcotest in requiring the appellant to undertake a breath analysis.  In those circumstances, the second test was irrelevant and there was no requirement to mention the second test in the certificates prepared pursuant to s 47G(3a) and (3b).  In addition, there was no requirement to prepare a separate certificate with respect to the second alcotest.  It is, therefore, unnecessary for me to determine the issue of the power to require submission to a second alcotest.  However, as arguments were addressed to that question, I have decided it is appropriate to indicate my views. 

13. Section 47DA(1) of the Act empowers the police to establish breath testing stations “for the purpose of enabling alcotests to be conducted in relation to persons driving motor vehicles on the road”. Sub-section (3) enables a member of the police to require a driver to submit to an alcotest at a breath testing station. Section 47DA does not create any offence as a consequence of the positive reading through an alcotest and does not mention breath analysis. That section is to be read with s 47E. Subsection (2a) of s 47E authorises a member of the police force to require the driver of a motor vehicle approaching the breath testing station established pursuant to s 47DA to submit to an alcotest. Subsection (2b) provides that where an alcotest conducted under subs (2a) indicates that the prescribed concentration of alcohol may be present in the blood of any person, a member of the police force may require that person to submit to a breath analysis.

14. The scheme of the sections in setting up what is known as random breath testing stations is to establish a screening procedure, through the use of the alcotest, designed to ascertain the identity of the drivers who may be driving with excess alcohol in their blood.  If the screening test proves positive, the police are authorised to require the driver to submit to a breath analysis and the driver is under a corresponding obligation to submit to a breath analysis.

15. There is no suggestion that Constable Birkner acted unlawfully in requiring the appellant to submit to the first alcotest.  The appellant contended that there was no power to require the appellant to undertake a second alcotest.  Section 47E(2a) authorises the police to require the driver “to submit to an alcotest” (my emphasis).  There is no express power to require a driver to take a second alcotest.  The expression “an alcotest” tends to suggest that the power is limited to requiring submission to a single test.  Parliament would have intended, however, that a driver be required to submit to an effective alcotest.  In this context, although directed to breath analysis requirements, the remarks of King CJ in Evans v Benson (1986) 46 SASR 317 at 328 are relevant:

    “I would, however, add a word of caution about the case of Flavel v Samuels [1970] SASR 54 and what is said to follow from it. In that case Hogarth J held that the obligation under s 47e was to submit to one breath analysis only and that there is no legal warrant for a requirement to submit to a second analysis. In that case, however, there was no reason to doubt that the first test had produced a proper analysis. The requirement authorised by the section, and the corresponding obligation, is to submit to a breath analysis. If the attempt to submit is abortive in that it does not produce an analysis, the right to require and the corresponding obligation to submit, remain until an analysis is achieved. If therefore the operator suspects on reasonable grounds that a correct analysis may not have occurred by reason of radio interference or other cause, I see no reason why he is not entitled to maintain his requirement, or why the driver ceases to be obliged to submit to breath analysis. The driver, in my opinion, is required to provide samples of breath, within sensible and reasonable limits, until an effective analysis is made by the instrument.”

16. In my opinion, if an attempt to conduct an alcotest is abortive in that the instrument does not operate to give an effective analysis, the officer conducting the alcotest is authorised to require the driver to submit to a second test in order to achieve an effective analysis.

17. Constable Birkner did not suspect that the first alcotest had not been conducted effectively by reason of any fault of the equipment or lack of co-operation by the appellant.  He was of the view that due to the possibility of the extraneous factor of alcohol in the mouth, the reading may not have accurately reflected the appellant's blood alcohol level.  The question to be determined is whether Parliament intended that a member of the police force should have the power to require a driver to submit to a second alcotest, not because of some fault in the instrument or lack of co-operation by a driver leading to an ineffective operation of the instrument, but by reason of some extraneous factor such as alcohol in the mouth leading to the possibility of the error I have described. 

18. In the circumstances I am postulating, an effective analysis has been made by the instrument.  The words of King CJ in Evans v Benson are wide enough to include these circumstances, but his Honour was not addressing the distinction to which I have referred.  In Johnson v Semple the appellant had been required to undergo a second alcotest because of the possibility that alcohol in his mouth had affected the reading.  It was contended that the second alcotest was illegal and tainted the whole procedure so as to make the breath analysis result inadmissible.  Having referred to the remarks of King CJ in Evans v Benson, which I have quoted, Mohr J found that the constable who conducted the alcotest had suspected on reasonable grounds that the first test may have been inaccurate.  His Honour then held (p 220):

    “Accordingly, he was entitled to conduct the second test.   It is not beside the point that the first test was positive and gave him grounds to insist on a 'breath analysis' and the only purpose of the second test was to explore the possibility of the appellant being relieved of that obligation”.

19. As indicated, in my opinion Parliament clearly intended to authorise a member of the police force to require that a driver submit to an effective alcotest in the sense of a test that was not abortive by reason of a lack of co-operation on the part of the driver or through the faulty operation of the instrument.  The corresponding obligation is to submit to an alcotest in which the instrument operates effectively to give an analysis.   However, I have reservations about the view expressed in Johnson v Semple that Parliament intended to authorise the police to require submission to a second alcotest merely because the member of the police force operating the instrument has reason to believe that the result may be inaccurate through some cause, such as the presence of alcohol in the mouth of the driver, which is a cause not associated with the effective operation of the instrument.  

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.

21. Before the magistrate, the respondent tendered appropriate certificates of the breath analysis operator to establish that the analysis conducted at 4.42 a.m. resulted in a reading of .018 grams of alcohol in 100 millilitres of blood. The respondent relied upon the presumption in s 47G(1) to prove the case against the appellant. The statutory presumption is not available unless the requirements and procedures in relation to breath analysis instruments and breath analysis under the Act have been complied with: see Manetta v Police (1999) SASC 232. The appellant contended that there was a lack of compliance with the requirements and procedures because of the conduct of the second alcotest and the absence of any reference to the second alcotest in the certificates prepared by Constable Birkner. There is no suggestion that Constable Birkner did not comply with the procedures and compliance of the first alcotest.

22. Section 47DA does not require the operating officer to complete a certificate in connection with the operation and result of the alcotest.  The result of that test is not used in any evidentiary manner against a driver.  If the result of the test indicates that the prescribed concentration of alcohol may be present in the blood of the driver, that result authorises a member of the police force to require the person to submit to a breath analysis (s 47DA(2b)). 

23. Section 47G imposes certain obligations on the person operating the breath analysis equipment by which the breath analysis is conducted.  The presumption relied upon in evidence is related to the result of the breath analysis, not the earlier alcotest.  The certificates in issue related to the alcotest and were prepared in accordance with sub-ss(3a), (3b) and (3c) of s 47G.  Those sub-sections provide as follows:

    “(3a)     A certificate purporting to be signed by a member of the police force and to certify that an apparatus referred to in the certificate is or was of a kind approved under this Act for the purpose of performing alcotests is, in the absence of proof to the contrary, proof of the matters so certified.

    (3b)      A certificate purporting to be signed by a member of the police and to certify that a person named in the certificate submitted to an alcotest on a specified day and at a specified time and that the alcotest indicated that the prescribed concentration of alcohol may then have been present in the blood of that person is, in the absence of proof to the contrary, proof of the matters so certified.

    (3c)      A certificate purporting to be signed by a member of the police force and to certify that a breath testing station had been established pursuant to section 47DA at a place and during a period referred to in the certificate is, in the absence of proof to the contrary, proof of the matters so certified.”

24. There is no specific direction in the Act requiring a completion of the certificates referred to in subss (3a), (3b) and (3c) of s 47G. Those sub-sections merely enable proof of the matters stated in the certificate by use of the certificate, should the need for the proof of those matters arise. The Act does not require the operating officer to complete those certificates and completion of them is not a condition precedent to requiring a driver to undergo a breath analysis. It is, however, obviously a sound practice to complete the certificates. They are a convenient means of conveying information to the breath analysis operator. Issues may arise, for example, as to whether a driver was lawfully required to submit to an alcotest or to a breath analysis. In such situations, the certificates provide proof of some of the facts necessary to establish that the conduct in question was lawful. To the extent that the police general orders require the completion of those certificates, those general orders accord with good practice.

25. The requirement in s 47G(1) is to comply with “the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act.” The expressions “alcotest”, “breath analysing instrument” and “breath analysis” are separately defined in s 47A of the Act. In my opinion, s 47G does not impose any obligation to comply with the requirements and procedures in relation to alcotests as a condition precedent to the operation of the presumption afforded by s 47G. The breath analysing instrument referred to in s 47G is defined as meaning “an apparatus of a kind approved as a breath analysing instrument by the Governor.” The alcotest or the instrument used to conduct the alcotest is not such an apparatus. The expression “breath analysis” is defined as meaning “an analysis of breath by a breath analysing instrument” which excludes the analysis by the alcotest. By way of contrast, “alcotest” is defined as meaning “a test by means of an apparatus of a kind approved by the Governor by which the presence of alcohol in the blood of a person who exhales into the apparatus is indicated”. In this context, I refer to the decision of Mullighan J in Plunkett v Liddy (1991) 162 LSJS 452.

26. In my view, therefore, the availability of the statutory presumption in s 47G(1) is not dependent upon compliance with the requirements and procedures in relation to the preceding alcotest. In addition, even if it is assumed that when s 47G speaks of compliance with requirements and procedures it encompasses compliance with requirements and procedures relating to the preceding alcotest, and on the assumption that completion of the certificates pursuant to sub-sections (3a), (3b) and (3c) is necessary in order to comply with the requirements and procedures relating to the preceding alcotest, in my opinion Constable Birkner complied with those requirements and procedures. The relevant certificates concerning the first alcotest were tendered and there is no evidence to suggest that the first alcotest was conducted otherwise and in accordance with the Act. The result of the first alcotest was the basis of the requirement that the appellant submit to a breath analysis. The result of the second alcotest was not the basis of the requirement to submit to the breath analysis. No other use was made of the second alcotest. It was irrelevant, and in my opinion, there was no requirement to mention it in the certificates related to the first alcotest or to prepare separate certificates in connection with it.

1. The offer of the second test resulted in a delay of 10 minutes before Constable Birkner determined to proceed with the requirement that the appellant submit to the breath analysis.  Section 47DA directs a Commissioner to establish procedures for those performing duties at or in connection with the breath testing station designed to prevent, as far as reasonably practicable, any undue delay or inconvenience to persons stopped at the station.  In my opinion, there was no undue delay or inconvenience in offering the second test and in permitting a delay of ten minutes to elapse before that test was conducted. 

2. In Manetta the Full Court discussed the procedures to be followed after a positive alcotest.  General order 8760 provides that the driver must be further addressed in the manner recorded in the pro forma brief PD281 and escorted to the breath analysis operator.  PD281 is a form which sets out the procedure to be followed once a driver has recorded a positive reading on the alcotest.  The general orders do not provide any guidance or direction concerning the time within which the breath analysis should be conducted.  The operator's handbook directs that the operator should wait 20 minutes before conducting the analysis.  The police have, therefore, established a regime which requires a period of 20 minutes to elapse between the time of the alcotest and the breath analysis in order to ensure that alcohol and any other foreign contaminating substances are removed from the mouth.  The circumstances of establishing that regime are discussed in Manetta. 

3. In this matter, there was a delay of 32 minutes.  10 minutes of that delay was brought about waiting for the second alcotest.  In Manetta, the Full Court concluded that the requirement to avoid undue delay does not apply in respect of a breath analysis.  The requirement is limited to the administration of the alcotest and there is no suggestion of undue delay in that regard.  Even if the requirement to avoid undue delay or inconvenience applied to the entire procedure including the breath analysis, in my opinion no such undue delay or inconvenience existed in this matter. 

4. Constable Birkner operated in accordance with the Act. He demonstrated commendable concern for the interests of the appellant. In my opinion, there is no substance in any of the criticism directed at Constable Birkner. He properly complied with all relevant procedures and no unlawfulness occurred. The appellant was not prejudiced and did not suffer any unfairness as a consequence of the actions of Constable Birkner.

5. The appeal is dismissed.