BLEEZE v Police - [2011] SASC 147

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BLEEZE v POLICE
[2011] SASC 147
Judgment of The Honourable Justice David
16 September 2011
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - MISCELLANEOUS ROAD RULES - FAILURE TO OBEY DIRECTIONS
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE - BREATH TEST AND ANALYSIS
Appeal against conviction – appellant found guilty by Magistrate of failing to comply with reasonable directions of a police officer in relation to the requirement to submit to a breath analysis – appellant was directed by police officer to give two samples of breath – appellant complied with direction and gave a proper first sample – appellant did not comply with directions in relation to second sample – instrument apparently timed out within 10 minutes of first sample of breath being given – no evidence led that the instrument was in working order – whether prosecution was required to prove the instrument was in working order – appellant gave evidence that he did not comply because of excess saliva in his throat – whether defence of good cause existed.
Held: appeal allowed – the power of police to require a person to submit to a breath analysis is fundamentally predicated on the assumption that the breath analysis instrument is in working order – in the absence of proof the instrument was in working order the breath analysis is unlawful – the appellant has the defence that the police officer’s direction was not lawfully made – the Magistrate was correct to find the defence of good cause was not made out.
Road Traffic Act 1961 (SA) s 47A, s 47E, s 47H(1)(a), s 47K(3)(b), s 47K(18); Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A, reg 8B, Sch 1AA, referred to.
Police v Barber (2010) 108 SASR 520, distinguished.
R v Prasad (1979) 23 SASR 161, considered.

BLEEZE v POLICE
[2011] SASC 147
Magistrates Appeal: Criminal

DAVID J: The appellant was charged with failing to comply with the reasonable directions of a police officer in relation to the requirement to submit to a breath analysis, contrary to s 47E(3) of the Road Traffic Act 1961 (SA) (“the Act”). The particulars of the offence are that on 25 June 2010 at Ottoway the appellant, being a person who was required under s 47E(1) of the Act to submit to a breath analysis, failed to comply with all reasonable directions from a member of the police force in relation to that requirement.
The appellant pleaded not guilty to the charge and after a trial was convicted. He now appeals against that conviction.
Trial
The prosecution at trial called two police witnesses and tendered a number of documents. A police officer, Constable Horley, attended at the premises of Monaghan’s Pty Ltd on South Terrace, Ottoway shortly before 2.23pm on Friday 25 June 2010. At the time Constable Horley was attached to the Traffic Enforcement Section based at the Parks Police Station.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BLEEZE v Police [2011] SASC 147
Case: [2011] SASC 147
Decision Date: 16 September 2011

CaseChat Overview and Summary

In the matter of Bleeze v Police, the appellant was found guilty by a Magistrate of failing to comply with the reasonable directions of a police officer in relation to a breath analysis. The appellant complied with the initial direction to provide a breath sample, but did not comply with the subsequent direction to provide a second sample. The prosecution relied on the appellant's failure to comply with this second direction as the basis for the conviction. The appellant argued that the direction was not lawfully made because the breath analysis instrument was not in working order. The appellant also claimed that he did not comply with the direction due to excess saliva in his throat, which he considered to be a good cause for non-compliance.

The court had to determine whether the prosecution was required to prove that the breath analysis instrument was in working order and whether the defence of good cause existed. The court found that the power of police to require a person to submit to a breath analysis is fundamentally predicated on the assumption that the breath analysis instrument is in working order. In the absence of proof that the instrument was in working order, the breath analysis is unlawful. The court also found that the appellant had the defence that the police officer’s direction was not lawfully made. However, the court found that the defence of good cause was not made out as the appellant did not provide sufficient evidence to support his claim.

The appeal was allowed, and the conviction was set aside. The court substituted a verdict of not guilty. The court found that the prosecution had not proved that the breath analysis instrument was in working order, and therefore the direction given to the appellant was not lawful. The court also found that the appellant did not provide sufficient evidence to support his claim of good cause for non-compliance. The court held that the appellant's failure to comply with the second direction was not a valid ground for conviction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would dismiss that ground of appeal.Conclusion For the reasons above, I set aside the conviction. I substitute a verdict of not guilty.

Ratio Decidendi

Legal Principle Established

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