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. He went to those premises because he received information that the driver of a particular truck appeared to be under the influence of alcohol. By a number of investigations, the details of which are irrelevant, Constable Horley was led to believe that the driver of the truck who was allegedly under the influence of alcohol was an employee at Monaghan’s. As a result he spoke to the appellant and asked him to submit to an alcotest. During that conversation, Constable Horley gave evidence that the appellant had admitted that he had driven his truck on Grand Junction Road to get it washed. Constable Horley observed that the appellant was unsteady on his feet and slurred his words, and was of the opinion that he was intoxicated.
Another police officer, Constable Taylor, arrived shortly later having been contacted by Constable Horley because either Constable Horley had an alcotest machine which was not working or did not have one at all. By use of an alcotest machine which was brought by Constable Taylor, an alcotest was conducted and indicated a positive result. At that stage the appellant was asked to accompany Constable Horley back to the Parks Police Station where he intended to conduct a breath analysis. Constable Horley gave evidence of what then took place.
The appellant was directed into a room that is specifically used for breath analysis tests and in the presence of Sergeant Brown (who was not called at the trial) attempted to conduct the test upon the appellant. At trial, Constable Horley’s memory of events was admittedly impaired. He made very limited notes of what occurred because the whole procedure was the subject of an audio recording. He intended to rely upon that recording to recall events. However, for some unknown reason, that recording was lost and Constable Horley was forced to give evidence with the notes that he had taken.
He gave evidence that he had asked the appellant to submit to a breath analysis test on a Drager Alcotest 7110 machine. There was no dispute at trial that that machine was an instrument approved as a breath analysing instrument by the Governor and, accordingly pursuant to s 47A(1) and s 47H(1)(a) of the Act it is a breath analysing instrument for the purposes of the Act.
Constable Horley then gave evidence of the following sequence of events:
1The breath analysing instrument was activated for the first time according to a printout of the instrument at 2.42pm. At 2.49pm, Constable Horley directed the appellant to take a deep breath and settle his lips around the mouthpiece and exhale continuously through the mouthpiece into the instrument with one continuous breath until told to stop. On that occasion the appellant provided a sufficient sample of breath, which gave a reading of 0.250 grams of alcohol in 210 litres of breath.
2 Constable Horley then gave the same direction for a second time, to direct the appellant to give a second sample of breath. Constable Horley gave evidence that the appellant did not place the mouthpiece properly in his mouth when the blowing commenced and only one star was displayed on the instrument readout, indicating an insufficient sample. A sufficient sample will display 16 stars. He gave evidence that the instrument printout indicated that this occurred at about 2.51pm.
3Constable Horley then directed the appellant in the same terms as above for a third time and demonstrated to the appellant the method of placing a mouthpiece in his mouth, sealing his lips and blowing with one long continuous breath. Constable Horley then gave evidence that he heard a sound consistent with the mouthpiece being blocked by a tongue before observing that the blowing resumed. The instrument reading was about 14 stars. The instrument then displayed the readout “stop” and “insufficient sample”. Constable Horley gave evidence that he was familiar with the sound made by the blocking of the tube with the tongue. He was of the opinion that the appellant was deliberately trying to abort the process.
4At this stage, Constable Horley read out to the appellant a statement in compliance with s 47E(4)(ab) of the Act and reg 8B and Schedule 1AA of the Road Traffic (Miscellaneous) Regulations 1999 (SA) (“the Regulations”). That statement says:
It is a criminal offence to refuse or fail to provide a breath sample without good cause. You could be fined and 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 the police will help you to have the sample taken at Government expense. Do you understand that question?
In response Constable Horley said that the appellant said, “Yes”.
5Constable Horley again directed the defendant in the same terms as the other three occasions, but this time the instrument displayed, “non‑compliant exceed 10 minutes”. Constable Horley gave evidence that this could not have been correct as the time was 2.54pm and the first breath sample was given at 2.49pm. There was no satisfactory evidence led, according to the findings of the Magistrate, to explain the readout and to allow the Court to understand the precise time at which this occurred or to explain why the instrument apparently timed out within 10 minutes of the first sample being provided. As a result, Constable Horley aborted the process and decided to start again.
6At 3.03pm Constable Horley gave the appellant a further direction in the same terms as previously as to the manner of providing a sample. The appellant blew and 16 stars were displayed on the instrument readout and a breath alcohol analysis of 0.261 grams in 210 litres of breath was indicated. According to the instrument printout the time of the sample was 3.06pm.
7Constable Horley then gave the appellant a further direction in the same terms. On his evidence, the appellant commenced to blow into the tube but then stopped blowing and the instrument displayed “stop” and “insufficient sample”. Constable Horley then read the same statement and asked the same question as he did on the previous occasion quoted above in point 4. He then asked the appellant the following question, “Have you any reason of a physical or medical nature for refusing or failing to comply with my directions in relation to submitting to this breath analysis?” and on his evidence the appellant answered, “No”. Constable Horley then said, “Do you request that a sample of your blood be taken by a medical practitioner?” and the appellant said on a number of occasions, “If you wish”.
8After a further conversation with the appellant, a blood kit test was issued. Constable Horley denied in cross-examination that the appellant at any time raised with him a potential explanation for the failure of the testing, namely excessive saliva because of a carbon box which was inserted in his spine. Constable Horley then gave the blood kit test to the appellant who was then conveyed to the hospital for a blood test. A copy of a statement by a medical practitioner was admitted during the cross-examination of Constable Horley (Exhibit P2) and on that form it is clear that a medical practitioner who took blood from the appellant ticked a box which stated “At the request of the person who has refused alcohol breath analysis by reason of some physical or medical condition (pursuant to s 47E(4)(a)) a police officer must be present”.
At the conclusion of the prosecution case, counsel for the appellant at the time submitted that the evidence presented by the prosecution was so inherently unreliable due to the loss of the audiotape and the difficulties with the memory of Constable Horley that at that stage the Magistrate should return a verdict of not guilty pursuant to the principles set out in R v Prasad.[1] That application was refused and the appellant then gave evidence.
[1] (1979) 23 SASR 161.
The appellant told the Court that he arrived at Monaghan’s at approximately 12.30pm in order to wash his truck. When he arrived he had not drunk any alcohol. The appellant said he then went to another premises to wash his truck and returned to Monaghan’s at about 1.20pm. He said that he intended to be collected by his friend and taken away for the weekend and therefore decided to drink from a bottle of port. The police arrived at about 2.20pm. The appellant gave evidence that when required to submit to an alcotest at Monaghan’s the batteries in the alcotest machine were flat and a new machine had to be obtained. Whilst he was waiting for the new machine to arrive, he had some more port. He then undertook a second alcotest at the scene which gave a positive result and then was asked to accompany the police back to the Parks Police Station, which he did. He maintained at all times that he had done nothing wrong.
The appellant gave evidence that, at the Parks Police Station, the breath analysing instrument gave a reading indicating an insufficient sample on two occasions and Constable Horley accused him of “mucking around” and blocking the instrument. The appellant gave evidence that he had told Constable Horley that he had no reason to block it and in Court indicated that his version of the conversation was accurate and it would all be on the audio, if that had been available. The appellant gave evidence that he told Constable Horley after being directed to blow that he had had a neck injury which could result in him producing too much saliva and blocking the tube. He told Constable Horley, as he told the Court, that a carbon fibre box with a stainless steel plate had been inserted in his spine. He said that he produced more saliva than he used to prior to the operation and certainly more saliva than a normal person. In evidence the appellant produced an x-ray which indicated that such an insertion had been made, although there was no evidence led as to the results of that insertion concerning the production of excess saliva.
He told the Court that when blowing into the instrument he could feel a lot of moisture as he kept blowing and the instrument did not work. He denied trying to deliberately abort the process. His defence was that he was genuinely trying to obey the directions of the police officer concerning the breath analysis but could not do so because of his medical condition.
In his reasons, the Magistrate found that even though there were unsatisfactory aspects of the evidence of Constable Horley due to his paucity of memory because of the loss of the audiotape, the Magistrate found him to be an honest witness. The Magistrate found his observations of the appellant’s conduct during the occasions the instrument indicated that the appellant did not provide a sufficient sample to be “compelling”. The Magistrate found the appellant to be an unimpressive witness. He found the appellant to be untruthful when he asserted in his evidence that he had a genuine belief that excessive saliva had contributed to failures to provide a sufficient sample and also that he made a genuine effort to comply with the directions of Constable Horley.
It is to be noted that within the Magistrate’s reasons he said that he was cautious about the extent to which he could rely upon the printout of the breath analysing instrument as indicating a failure to provide sufficient example, given the absence of any specific evidence that the instrument was operating correctly. There was no such evidence led at trial. The legislation, which I will come to later in these reasons, does not allow any evidentiary aid to prove that the instrument was in working order or operated correctly at the time. There was no such evidence led. However, the Magistrate based his decision on the evidence of Constable Horley, rather than on anything coming from the instrument. The Magistrate said in his reasons:
[55]… In this case, the starting point in considering the evidence of refusal to comply is the evidence of Constable Horley which I found reliable as to his observations of the [appellant’s] conduct during the procedure.
He then added:
[59]… I am not of the view that the failure of the prosecution to explain why, on one interpretation of the printouts of the breath analysis instrument, it might be seen to have shut down after nine minutes from the commencement of each breath analysis procedure, affects my conclusion that the legislative requirements and the regulations as to the conduct of the tests have been complied with.
The Magistrate was there referring to printouts of the various breath tests which were tendered in evidence (P2) and stated that the procedure had exceeded 10 minutes when in fact the times on the printout only indicated 9 minutes had elapsed. He then rejected the defence of “good cause” in that the appellant had failed to establish on the balance of probabilities that there was good cause for refusing or failing to comply.
He found the appellant guilty as charged.
The relevant legislation
Before turning to the grounds of appeal, it is important that I set out the relative legislative scheme. Section 47E of the Act provides:
47E—Police may require alcotest or breath analysis
(1)Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person—
(a)     is driving, or has driven, a motor vehicle; or
(b)     is attempting, or has attempted, to put a motor vehicle in motion; or
(c)     is acting, or has acted, as a qualified supervising driver for the holder of a permit or licence,
the police officer may require the person to submit to an alcotest or a breath analysis, or both.
(2)A police officer may direct a person driving a motor vehicle to stop the vehicle and may give other reasonable directions for the purpose of making a requirement under this section that a person submit to an alcotest or a breath analysis.
(2a)A person must forthwith comply with a direction under subsection (2).
Maximum penalty: $2 900.
(2ab)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 the person.
(2b)Without derogating from section 47DA or 47EA, an alcotest or breath analysis to which a person has been required to submit under subsection (1) may not be commenced more than 8 hours after the conduct of the person giving rise to the requirement.
(2d)The performance of an alcotest or breath analysis commences when a direction is first given by a police officer that the person concerned exhale into the alcotest apparatus or breath analysing instrument to be used for the alcotest or breath analysis.
(2e)The regulations may prescribe the manner in which an alcotest or breath analysis is to be conducted and may, for example, require that more than one sample of breath is to be provided for testing or analysis and, in such a case, specify which reading of the apparatus or instrument will be taken to be the result of the alcotest or breath analysis for the purposes of this and any other Act.
(3)A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a police officer.
Penalty:
(a)     for a first offence—a fine of not less than $1 100 and not more than $1 600;
(b)     for a subsequent offence—a fine of not less than $1 900 and not more than $2 900.
(4)It is a defence to a prosecution under subsection (3) that—
(a)     the requirement or direction to which the prosecution relates was not lawfully made; or
(ab)   the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to—
(i)the consequences of refusing or failing to comply with the requirement or direction; and
(ii)the person’s right to request the taking of a blood sample under subsection (4a); or
(b)     there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction.
(4a)If a person refuses or fails to comply with the requirement or direction under this section by reason of some physical or medical condition of the person and forthwith makes a request of a police officer that a sample of his or her blood be taken by a medical practitioner, a police officer must do all things reasonably necessary to facilitate the taking of a sample of the person’s blood—
(a)     by a medical practitioner nominated by the person; or
(b)     if—
(i)it becomes apparent to the police officer that there is no reasonable likelihood that a medical practitioner nominated by the person will be available to take the sample within 1 hour of the time of the request at some place not more than 10 kilometres distant from the place of the request; or
(ii)the person does not nominate a particular medical practitioner,
by any medical practitioner who is available to take the sample.
(5)No person is entitled to refuse or fail to comply with a requirement or direction under this section on the ground that—
(a)     the person would, or might, by complying with that requirement or direction, furnish evidence that could be used against himself or herself; or
(b)     the person consumed alcohol after the person last drove a motor vehicle or attempted to put a motor vehicle in motion and before the requirement was made or the direction given.
(5a)A person may not raise a defence that the person had good cause for a refusal or failure to comply with a requirement or direction under this section by reason of some physical or medical condition of the person unless—
(a)     a sample of the person’s blood was taken in accordance with subsection (4a); or
(b)     the person made a request as referred to in subsection (4a), but—
(i)a police officer failed to facilitate the taking of a sample of the person’s blood as required by that subsection; or
(ii)a medical practitioner was not reasonably available for the purpose of taking such a sample; or
(c)     the taking of a sample of the person’s blood in accordance with subsection (4a) was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person.
(6)Where a court convicts a person of an offence against subsection (3), the following provisions apply:
(a)     the court must order that the person be disqualified from holding or obtaining a driver’s licence—
(i)in the case of a first offence—for such period, being not less than twelve months, as the court thinks fit; or
(ii)in the case of a subsequent offence—for such period, being not less than three years, as the court thinks fit;
(b)     the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case the court may order a period of disqualification that is less than the prescribed minimum period but not less than one month;
(d)     if the person is the holder of a driver’s licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification;
(e) the court may, if it thinks fit to do so, order that conditions imposed by section 81A or 81AB of the Motor Vehicles Act 1959 on any driver’s licence issued to the person after the period of disqualification be effective for a period greater than the period prescribed by that section.
(7)In determining whether an offence is a first or subsequent offence for the purposes of this section, any previous drink driving offence or drug driving offence for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the prescribed period immediately preceding the date on which the offence under consideration was committed.
(7a)If a person—
(a)     refuses or fails to comply with a direction under this section; or
(b)     submits to an alcotest and the alcotest indicates that the prescribed concentration of alcohol may be present in the blood of the person,
there will be reasonable ground to suspect that the prescribed concentration of alcohol is present in his or her blood for the purposes of the exercise of any power conferred on a police officer (including a power of arrest) to prevent the person committing an offence by driving a vehicle in contravention of this Division.
(7b)Subsection (7a) does not limit the circumstances in which such a power may otherwise be exercised by a police officer under this or any other Act.
(8)The Commissioner of Police must, in his or her annual report to the Minister responsible for the administration of the Police Act 1998, include the numbers of drivers required to submit to an alcotest in the course of the exercise of random testing powers (otherwise than at breath testing stations established in accordance with section 47DA).
As can be seen, the appellant was charged and convicted under s 47E(3) of the Act and argued that there was a defence pursuant to s 47E(4)(b) of the Act.

I also point out reg 8A of the Regulations which reads:
8A—Conduct of breath analysis
(1)Pursuant to section 47E(2e) of the Act (Police may require alcotest or breath analysis), where a person submits to a breath analysis, the breath analysis must be conducted in the following manner:
(a)     the person must provide two separate samples of breath for analysis; and
(b)     each sample must be provided in accordance with the directions of the operator of the breath analysing instrument and must consist of not less than one litre of breath; and
(c)     there must be an interval of not less than two minutes and not more than 10 minutes between the provision of the samples.
(2)Despite subregulation (1)—
(a)     if, on analysing a sample of breath, the breath analysing instrument indicates an error in the analysis of the sample—
(i)that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis using a different instrument (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(b)     if, on analysing a sample of breath, the breath analysing instrument indicates the presence of alcohol in the mouth of the person—
(i)that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(c)     if, on analysing two samples of breath, the breath analysing instrument indicates that the reading obtained on analysis of the second sample was more than 15% higher or lower than the reading obtained on analysis of the first sample—
(i)those samples must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(d)     if, for any reason, a second sample of breath is not provided within 10 minutes of the provision of the first sample—
(i)the first sample is to be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)).
(3)Where a person submits to a breath analysis, the result of the breath analysis will, for the purposes of the Road Traffic Act 1961 and any other Act, be taken to be the reading produced by the breath analysing instrument, on analysis of the samples of breath provided by the person in accordance with this regulation, that indicates the lower concentration of alcohol in the person's breath (not taking into account any samples that, in accordance with this regulation, are to be disregarded).
Also relevant to this matter is s 47K(3)(b) which I set out:
(3)A certificate—
…
(b) purporting to be signed by a person authorised under subsection (1) and to certify that—
(i)the apparatus used by the authorised person was a breath analysing instrument within the meaning of this Act; and
(ii)the breath analysing instrument was in proper order and was properly operated; and
(iii)the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with,
is, in the absence of proof to the contrary, proof of the matters so certified.
That section, however, is rendered nugatory for the purposes of this offence by s 47K(18) which reads:
(18)The provisions of this section apply in relation to proceedings for an offence against this Act or the Motor Vehicles Act 1959 or a driving-related offence, subject to the following exceptions:
(a) subsections (1a), (1ab) and (13) apply only in relation to proceedings for an offence against section 47(1) or 47B(1), or an offence against the Motor Vehicles Act 1959;
(b) subsection (3)(b)(ii) does not apply in relation to an offence against section 47E(3);
(c) subsection (15) applies only in relation to proceedings for an offence against section 47(1) or 47BA(1), or an offence against the Motor Vehicles Act 1959.
I point that out to indicate why a certificate was not tendered at trial. However, I also note that there was no evidence led in any form that the breath analysing instrument was in proper order and was properly operated.
Appeal
I turn to the grounds of appeal which are as follows:
1.The Learned Magistrate should have found that there was no case to answer following the closing of the prosecution case as the prosecution failed to establish that the breath analysis instrument, namely the Drager Alcotest 7110, serial number MRZEA001, at the relevant time, was in good working order and condition.
2.The Learned Magistrate should have found that there was no case to answer following the closing of the prosecution case as the prosecution failed to establish that the breath analysis instrument, namely the Drager Alcotest 7110, serial number MRZEA001, at the relevant time, was being operated correctly.
3.The Learned Magistrate should have found that there was no case to answer following the closure of the prosecution case as the prosecution failed to establish that the Defendant had driven his motor vehicle in the 2 hours preceding his having been directed to undertake an alcotest.
4.The Judgement (sic) is unsafe and unsatisfactory on the evidence before the Learned Magistrate.
Ground 3 was abandoned.
I will deal first with Grounds 1 and 2. As I understand the argument presented, the Magistrate should have found at the end of the prosecution case that there was insufficient evidence to convict the appellant. Strictly speaking the argument presented to me and presented at trial was not that there was no case to answer but that, pursuant to the principles set out in Prasad, at the stage that the prosecution case had closed there was insufficient evidence to convict.
In argument on appeal counsel for the appellant submitted that looking at the evidence as a whole, the Magistrate erred in two ways. Firstly, because there was no evidence led at trial that the breath analysing instrument was in good working order and condition (Ground 1) or that at the relevant time it was being operated correctly (Ground 2), it could not be proved beyond reasonable doubt that the failure to obtain a proper reading was due to the deliberate non‑compliance by the appellant with the directions of Constable Horley. In other words, without evidence that it was in good and working order a hypothesis consistent with innocence, namely that it was the fault of the instrument that caused the non-reading not the behaviour of the appellant, had not been excluded beyond reasonable doubt. It is to be noted that, in his reasons, the Magistrate makes it clear that he accepts the evidence of Constable Horley as to his observations of the appellant about his attempt to obfuscate the procedure. It is upon that evidence that he based his decision, ignoring any presumption that the instrument was correct. Mr Jacobi, for the respondent, argues that having relied entirely upon Constable Horley’s evidence which the Magistrate found to be proved, the question of whether the breath analysing instrument was working properly or not was irrelevant. Mr Jacobi argues that that is because the working or not of the instrument plays no part in the Magistrate’s finding.
In argument on appeal the question became even more specific. The appellant argues that if there was no evidence that the instrument was in good working order and condition and especially in the case where there was a suggestion that it may not be in good working order and condition (because it timed out early) no charge could be successfully prosecuted under s 47E(3) of the Act. In other words, as I understand the argument, how could there be valid directions which needed compliance if it had not been proved that the instrument to which the directions referred, of itself had not been proved to be in good working order?
This question has caused me great concern, especially in the present case where the Magistrate has made clear findings of fact concerning the credit of the appellant and Constable Horley. He has found very clearly that the appellant has not obeyed the directions of Constable Horley but the appellant argues despite those findings if it has not been proved that the breath analysing instrument was in good working order the conviction must be set aside.
There appears to be no direct authority on this question. A similar but not identical matter was dealt with in Police v Barber,[2] where White J said:[3]
[2] (2010) 108 SASR 520.
[3] (2010) 108 SASR 520 at [150]-[154].
The Magistrate dismissed the charge that the respondent had failed to comply with the reasonable directions of Sgt Clark with respect to breath analysis, in contravention of s 47E(3) of the RTA. He did so for two alternative reasons.
The first was that the prosecution had not established that the Drager’s indication that the respondent had not provided complete samples of breath was a consequence of the respondent’s conduct, and not a result of some fault or malfunction in the Drager itself. In my opinion, this conclusion was correct and the appellant’s complaints about the Magistrate’s dismissal of Count 3 should be rejected.
When the prosecution case depends upon evidence derived from the operation of an instrument or device, the prosecution must usually (absent any statutory provision to the contrary) establish that the instrument or device was, at the relevant time, in good operating order and condition and that it was operated correctly. King CJ referred to this requirement in Evans v Benson[4] in relation to breath analysis instruments:
A breath analysis instrument can only indicate a blood alcohol concentration if it is in proper order and is properly operated. If an instrument is not in proper order or is not properly operated, it cannot be said to indicate any concentration of alcohol. For that reason it is necessary for the prosecution to prove that the instrument was in proper order and properly operated.[5]
Similarly, in Police v Henwood,[6] Doyle CJ said:
That these matters (proper order and proper operation) can be proved by certificate cannot be allowed to obscure the fact that, in one way or another, it is necessary for the prosecution to prove that the breath analysing instrument was in proper order and was properly operated, before it can prove that a concentration of alcohol was indicated as being present by the breath analysing instrument.[7]
In the present case, the prosecution’s own evidence indicated that the respondent appeared to be making a genuine attempt to comply with Sgt Clark’s instructions. For that reason alone, the prosecution had to exclude the possibility that the Drager was indicating that the respondent was providing incomplete samples as a result of some malfunction or defect. The prosecution could have tendered a certificate under s 47K(3)(b) to establish this evidentiary requirement, but it did not do so.
Accordingly, the Magistrate was correct for this reason to find that the charge was not made out.
[4] (1986) 46 SASR 317.
[5] Ibid at 323.
[6] [2005] SASC 209; (2005) 92 SASR 15.
[7] Ibid at [60].
Both counsel in the present case sought to rely upon this decision to support their respective arguments. Counsel for the appellant argues that it is clear authority that in a case such as this there must be evidence led that the instrument or device was in good operating order at the relevant time. That was not done in this case. Counsel for the respondent argues that the decision of White J only applies to a factual situation where non-compliance is sought to be proved by the output of the breath analysing instrument as distinct from the observations of the conduct of the defendant. It is only in that situation that it need be proved that the instrument was in good working order.
I am of the view that the failure to call evidence that the breath analysing instrument was in good working order is fatal to this conviction. I find that to be so even allowing, as I do in this case, for the Magistrate’s findings that the appellant was untruthful in his evidence and in fact did not obey the directions of Constable Horley.
The power of police to require a person to submit to a breath analysis is contained in s 47E(1) of the Act. It is not in dispute in this case that the conditions precedent for that power to be enlivened were satisfied, and that Constable Horley was able to require the appellant to submit to a breath analysis.
Breath analysis is defined by s 47A as “an analysis of breath by a breath analysing instrument”. In my view, this definition of breath analysis must imply that the relevant breath analysing instrument is in working order. In particular, it is difficult to envisage how the procedure could be described as “an analysis of breath” if the instrument is not shown to be in working order, especially in circumstances such as the present where there has been a prima facie malfunction of the breath analysing instrument. In my view, the power of the police to require a person to submit to a breath analysis is fundamentally predicated on the assumption that the breath analysing instrument is in proper working order.
Therefore, in the absence of proof that the breath analysing instrument was in working order, the procedure undertaken by Constable Horley and the appellant was not concerning a lawful “breath analysis” for the purposes of the Act. Therefore it follows that the appellant would have the defence provided by s 47E(4)(a) available to him, namely that the direction to which the prosecution relates was not lawfully made.
Although it is unnecessary to deal with Ground 4 of the appellant’s notice of appeal, I find that there is no substance in the appellant’s argument in relation to that ground.
The appellant’s argument on that ground that the verdict is unsafe and unsatisfactory relates to whether there has been proved on the balance of probabilities that there was good cause for the refusal or failure of the appellant to comply with the requirement or direction of Constable Horley pursuant to s 47E(4)(b). It is undisputed that the onus is on the appellant to prove those circumstances of good cause existed. Here the only evidence provided to the Magistrate was the fact that on the form signed by the medical practitioner in relation to the blood test was that he ticked the box which said “At the request of the person who has refused alcotest or breath analysis by reason of some physical medical condition etc”. That, according to the appellant, is evidence going towards the question of whether some physical or medical condition did exist which would provide good cause. There was also a document by way of x-ray tendered which supports the appellant’s contention that there was an insertion as he described. In my view, the Magistrate was correct in finding that none of those circumstances could provide evidence on the balance of probability to make out good cause.
I would dismiss that ground of appeal.
Conclusion
For the reasons above, I set aside the conviction. I substitute a verdict of not guilty.