Bransdon v Police No. Scgrg-98-917 Judgment No. S6785

[1998] SASC 6785

BRANSDON  v  POLICE
[1998] SASC 6785

Magistrates Appeal
Bleby J

1. This is an appeal against sentence. The appellant was convicted after a trial, which proceeded before a magistrate, of the offence of failing to comply with reasonable directions in relation to the administration of a breath analysis contrary to s47E(3) of the Road Traffic Act, 1961. The particulars alleged against the appellant were that on 14 June 1997 at Bedford Park, being a person who was required under s47E of the Road Traffic Act to submit to a breath analysis, he refused to comply with all reasonable directions of a member of the police force in relation to the requirement. 

2. The penalty for a first offence, which this was, is a fine of not less than $700 nor more than $1,200. In addition, by virtue of s47E(6) the court must order that the defendant be disqualified from holding or obtaining a driver's licence for a period of not less than 12 months. However para(b) of sub-section (6) provides:

   “(b).. a disqualification prescribed by para(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.”

3. The appellant was sentenced on 28 April 1998. The learned magistrate imposed a fine of $700 and ordered that the appellant be disqualified from holding or obtaining a driver's licence for a period of 12 months with effect from 12.01am on 17 July 1998. It was the minimum penalty that could have been imposed without invoking s47E(6)(b). The magistrate rejected a submission made by the appellant's counsel that the offence was properly characterised as trifling for the purposes of para(b) of sub-s(6).

4. The only issue on the appeal is therefore whether the magistrate erred in failing to find that the offence was trifling.  The offence occurred on 14 June 1997.  The appellant had been involved in a motor vehicle accident at about 3.20am that morning.  Police attended at the scene and required that the appellant submit to an alcotest.  He did so and the test was positive in the sense that it revealed the quantity of alcohol in the appellant's blood.  He was taken to the Sturt Police Station and at the request of police participated in a breath analysis test.  He exhaled into the breath analysis machine.  However, when police went to check the reading they noticed that the machine reported an “invalid test result”.  It was suggested to the appellant at the time that that may have been because he had briefly placed his tongue over the mouthpiece with the effect of obstructing the passage of air into the machine.  That suggestion irritated the appellant who believed it not to be true and expressed the view that the only possible explanation for the invalid result was a faulty machine. 

5. As the magistrate found, the police then lawfully required the appellant to undergo a second breath analysis test.  The appellant refused and it appears to have been put to the magistrate that he did so on the ground that he believed that the breath analysis machine was faulty and therefore incapable of providing an accurate reading.  He was warned about the consequences that his refusal might bring, but he continued to refuse to undertake the test. 

6. The magistrate found that the refusal was conscious and wilful and based on a mistaken belief that the machine was faulty.  In fact it was not faulty as the appellant appears to have accepted at the trial. 

7. There was subsequently a conversation between the appellant and police in relation to the possibility of undertaking a blood test. In fact, although it forms no part of the magistrate's findings in relation to the question of guilt, the appellant in fact voluntarily undertook a blood test. The sample of blood was taken at the Flinders Medical Centre at about 6.00am. How that came about is not entirely clear on the evidence before me. Section 47F of the Road Traffic Act now only allows that as an alternative to a breath analysis test where a person refuses a breath analysis test by reason of some physical or medical condition of the person, and the person forthwith requests a member of the police force that a sample of his blood be taken.  It is not an option or alternative to a breath test for a healthy person.  There was no suggestion that the appellant suffered a physical or medical condition which would justify the refusal or would justify the request that a blood sample be taken.  Nevertheless, it was undertaken apparently with the cooperation of the police and on the understanding by the appellant that it might discharge his obligation under the law.  However, the magistrate found that whatever conversation there was about the blood test, it occurred well after the refusal and was not a relevant consideration in the mind of the appellant at the time of refusal.

8. The appellant's motor car was written off in the accident concerned and he had suffered a minor injury to the head.  It was suggested before the magistrate that the shock and confusion brought about by the accident may have contributed to the commission of the offence. 

9. The learned magistrate found that the offence was not trifling for the purposes of s.47E(6)(b). The test adopted by the magistrate was in these terms:

   “The question in any given case where a suggestion of triviality arises is whether the case in question is so far removed from what might be regarded as a normal offence that parliament would not have considered that it was the sort of case which ought to be met with a penalty of a 12 month licence disqualification.”

10. He went on to say that he considered that none of the points put by the appellant's counsel made the offence trifling.

11. The appellant argues that the offence is not typical because the refusal to submit to the second breath analysis was because of his belief that the apparatus had malfunctioned, because the appellant’s belief as to the malfunction was based on the police officer's wrongful assertion that the appellant had placed his tongue over the mouthpiece, which he apparently denied, and because the appellant was not attempting to avoid a blood alcohol reading.  On the contrary, he voluntarily submitted to the blood test. 

12. It may be that in those circumstances one can say that the offence is not typical, but merely because it is not typical does not therefore render it trifling.  It was a deliberate and conscious refusal.  Indeed it will be a rare case where it can be said that such an offence is trifling. 

13. One of the cases often cited in the application of this and similar provisions appearing in other Acts of the South Australian parliament is the decision of Mitchell J in Mancini v Vallelonga (1981) 28 SASR 236, which was a case dealing with overweight vehicles under s147 of the Road Traffic Act.  Olsson J on more than one occasion has summarised some of Mitchell J's views in that case in the following manner:

    “An offence is not trifling if it is a typical offence of the class prescribed.  Where the breach is deliberate it can rarely be characterised as trifling.  An offence is trifling where it is merely technical, casual or inadvertent and there was no deliberate intention to commit a breach of the statute.  An offence may be held trifling where there were compelling humanitarian or safety reasons for doing what was in fact done.”  (Daniels v Cleland (1991) 55 SASR 350 at 353).

14. I note that Olsson J has made similar observations in a number of other cases including Campbell v Fuss (1991) 55 SASR 355 at 357, and Hills v Warner (1991) 55 LSJS 397 at 401.

15. I respectfully agree with his Honour when he went on to say in those cases that none of those particular considerations should be accorded any particular invariable relative weight.  His Honour went on to say that it is the totality of the features emerging from the whole of the circumstances which must lead to any ultimate conclusion as to whether or not the offence is trifling. 

16. Whilst the refusal was deliberate, perhaps with the mistaken belief that the machine was faulty, that in itself in my view would be insufficient to bring it within the definition of being a trifling breach.  However, when all the circumstances are analysed, and in particular the circumstances which gave rise to the refusal (including his participation in the invalid test), the appellant's willingness to undergo - and the police cooperation with the appellant in having - the blood test, it is clear that the appellant's refusal was not associated with some desire to avoid detection of alcohol in his blood.  On the contrary, he cooperated in having that analysis performed, and the police appear to have cooperated with him in arranging for that, even though in law it was not an alternative on which he could insist. 

17. Whilst the undergoing of the blood test does not excuse the refusal or the breach of s47E(1) of the Road Traffic Act, it does throw substantial light on the circumstances of the breach. Although the offence was deliberate, in my opinion it was one of those rare cases which can be said to be trifling. I do not consider that such a finding would open the floodgates to a range of defendants offering to undergo blood tests instead of submitting to breath tests. If they do so, such an offer can properly be refused unless the circumstances come within the provisions of s47E(5a).

18. I have had regard to all the circumstances as they unfolded, and as they were led in evidence before the magistrate.  The implication to be drawn from the apparent cooperation of the police is that they may have accepted that there was perhaps some justifiable irritation on the part of the appellant as to the assertions which had been made by the police at the time which gave rise to the refusal to undertake the second test. 

19. A finding that the offence is trifling permits the imposition of a licence suspension of not less than one month.  Taking into account the circumstances of the offence, it was nevertheless a serious offence and the appellant admitted at the trial that the machine was working properly.  His behaviour does not excuse the offence at all.  Although the appellant was irritated by what was said to him at the time, it was a clear refusal to undergo the breath test and some appropriate penalty must be prescribed.  I would not be prepared, in those circumstances, to reduce it to the statutory minimum of one month, but I would be prepared to reduce the disqualification imposed by the magistrate to a period of three months. 

20. The formal orders of the court will therefore be;

21. That the time for filing the notice of appeal be extended to 2 July 1998; 

22. That the appeal be allowed;

23. That the order of the magistrate disqualifying the appellant from holding and/or obtaining a driver's licence for a period of 12 months be set aside;

24. That there be substituted for that order an order that the appellant be disqualified from holding or obtaining a driver's licence for a period of three months, to commence from 12.01am  on 17 July 1998;

25. That the appellant have the costs of the appeal fixed at $150.00.