Burton v Police - [2004] SASC 85

BURTON v POLICE
[2004] SASC 85
Magistrates Appeal

GRAY J: This is an appeal against conviction.
On 6 November 2003 a magistrate found the appellant guilty of driving with the prescribed concentration of alcohol in his blood.[1]
[1] Section 47B of the Road Traffic Act 1961 (SA)
At approximately 1.50am on 9 October 2000 police stopped a vehicle driven by the appellant on Sudholz Road, Paradise. The appellant submitted to an alcotest which produced a positive result. Constables Grant and Tolinar then took the appellant to Holden Hill Police Station. He underwent a breath analysis test which produced a reading of 0.151 grams of alcohol per 100 millilitres of blood.
Senior Constable Nigel Hearnden conducted the breath analysis and issued a certificate pursuant to section 47G(3)(b) of the Act. This certified that Senior Constable Hearnden was authorised to operate breath analysing instruments and that the prescribed oral and written advice was provided to Mr Burton in accordance with section 47G(2)(a). It was not suggested that Senior Constable Hearnden provided incorrect or incomplete information to the defendant.
The appellant was then given a blood analysis kit and was provided with the prescribed oral and written advice. The prescribed oral advice is found in Schedule 1 of the Road Traffic (Miscellaneous) Regulations 1999 (SA) and includes:
If you obtain a blood test kit and want to have your blood tested, you should take the kit promptly to a hospital or medical practitioner in order to have a sample of your blood taken.
On the appellant’s case, he was then provided with further oral advice regarding when and where to have the blood sample and analysis taken.
The appellant left the police station around 3am on 9 October 2000. Later that morning at about 8am the appellant telephoned his general practitioner. He attended his general practitioner’s surgery at 11am. This was the first available appointment. A blood sample was taken and analysed with a nil result. As the blood analysis was performed many hours after the breath analysis the two were not relevantly comparable. As a result the appellant was unable to challenge the breath analysis evidence collected by the police by obtaining a blood analysis.[2]
[2] This opportunity is provided for under section 47G(1) of the Road Traffic Act 1961 (SA).
The primary issue on appeal was a challenge to the magistrate’s discretionary decision not to exclude the breath analysis evidence. It was contended by the appellant that a proper exercise of discretion would have considered both the issue of public policy and unfairness to the appellant. It was submitted that the magistrate should have excluded the breath analysis evidence.
The Appellant’s Case
The appellant did not contest that following the breath analysis test he had received a blood analysis kit accompanied by the prescribed oral and written advices. The appellant’s evidence was that after he had been provided with the blood analysis test kit he had a conversation with one of the arresting police officers. He could not recall whether that…

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

Case: [2004] SASC 85
Decision Date: 26 March 2004

CaseChat Overview and Summary

The case of Burton v Police involved an appeal against a decision of the South Australian Magistrates Court. The appellant, Burton, contested the decision of the court to refuse his application to exclude evidence obtained under the Road Traffic Act 1961 (SA). Specifically, Burton sought to exclude the results of a breath analysis conducted by police. The legal issues before the court were whether the magistrate exercised his discretion properly in refusing to exclude the breath analysis evidence, and whether the police conduct in providing advice to Burton had any impact on his ability to challenge the breath analysis results.

The court examined the magistrate's exercise of discretion and found that the magistrate did not consider all relevant factors. The advice given by Constable Tolinar, which was not in line with the statutory prescription, led to ambiguity and misunderstanding on Burton's part. This misunderstanding meant that Burton was unable to effectively challenge the police evidence. The court held that the magistrate's decision did not take into account the considerations of unfairness and public policy, which were relevant to the exercise of discretion. Given that Burton had acted in good faith and attempted to protect himself by seeking a blood analysis, the court concluded that it was appropriate to exclude the breath analysis evidence.

The appeal was allowed, and the matter was remitted to the Magistrates Court for further consideration. The court ordered that the evidence obtained from the breath analysis be excluded, and that the case be reconsidered in light of the court's findings. The decision highlighted the importance of clear communication of statutory requirements to individuals and the potential consequences of misunderstandings arising from non-compliance with prescribed procedures.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The appeal is allowed.JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT1 Section 47B of the Road Traffic Act 1961 (SA)2This opportunity is provided for under section 47G(1) of the Road Traffic Act 1961 (SA). 3French v Scarman (1979) 20 SASR 333; Robin v Police (2002) 82 SASR 2534 (1979) 20 SASR 333 at 337, 339, 340 and 341 see also Jacobs J at 3425Ujvary v Medwell (1985-86) 39 SASR 418 at 420. See also Pacillo v Hentschter (1988 47 SASR 261 at 255, Tann v Schild (1990) 54 SASR 523 at 5296 Emphasis added7 Emphasis added8 Nolan v Rhodes (1982) 32 SASR 207 at 2129 Macquarie Dictionary (1981) 138010 Butterworth’s Encyclopaedic Australian Legal Dictionary I ‘Immediately’11 Dorsman v Nichol (1978) 20 ALR 23112 See also Linder v Wright (1976) 14 ALR 10513 (2000) 77 SASR 2414 R v Lobban (2000) 77 SASR 24 at 4815 (2002) 81 SASR 253

Ratio Decidendi

Legal Principle Established

As a result of further advice provided to the appellant by the police officers the effectiveness of the statutory notice was diluted in this case. This was a cause of the appellant’s subsequent conduct and loss of rights. Had the appellant not received the additional advice it is probable that he would have immediately attended a hospital to have a blood sample taken. The further advice led the appellant not to seek testing alternatives immediately available. As a result he lost the opportunity of testing or challenging the blood alcohol reading that had been obtained by the police.Reconsideration of Discretion In exercising his discretion, the magistrate reasoned that no unfairness arose. He did not have regard to any public policy considerations. It follows that the magistrate may have exercised his discretion without having regard to all relevant matters. It is necessary to reconsider the exercise of the discretion to exclude the breath analysis evidence. This was the appellant’s first involvement in any alleged offending. He had no experience of the procedures involved. He was given advice in different terms to those prescribed under the Act. This gave rise to ambiguity and led the appellant to believe it was appropriate for him to seek the earliest available appointment with his general practitioner. Acting with this understanding, the appellant effectively precluded himself from challenging police evidence. As earlier observed counsel for the Crown submitted that the considerations of unfairness and public policy were relevant to the magistrate’s exercise of discretion to exclude the breath analysis evidence, but accepted that both ought to be referred to. It was accepted that Constable Tolinar’s ‘usual practice’ departed from the prescribed terms. However, counsel contended that as the appellant was correctly given the prescribed written and oral advice, no issues of unfairness arose. Constable Tolinar’s ‘usual practice’ gave rise to public policy considerations. His usual practice was to give advice in terms different to the prescribed terms. This could give rise to ambiguity and possible misunderstanding. There is a public interest in such misunderstanding not occurring. The advice given by Constable Tolinar departed from the statutory prescription and led to a misunderstanding. This was a material matter to be considered by the magistrate. Issues of unfairness also arose. On the magistrate’s finding, the appellant has acted bona fide, attempted to protect himself by having a blood analysis taken, but has been unable to do so effectively due to the misunderstanding following advice from Constable Tolinar. In the circumstances it is appropriate to exclude the evidence. The appeal is allowed.JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT1 Section 47B of the Road Traffic Act 1961 (SA)2This opportunity is provided for under section 47G(1) of the Road Traffic Act 1961 (SA). 3French v Scarman (1979) 20 SASR 333; Robin v Police (2002) 82 SASR 2534 (1979) 20 SASR 333 at 337, 339, 340 and 341 see also Jacobs J at 3425Ujvary v Medwell (1985-86) 39 SASR 418 at 420. See also Pacillo v Hentschter (1988 47 SASR 261 at 255, Tann v Schild (1990) 54 SASR 523 at 5296 Emphasis added7 Emphasis added8 Nolan v Rhodes (1982) 32 SASR 207 at 2129 Macquarie Dictionary (1981) 138010 Butterworth’s Encyclopaedic Australian Legal Dictionary I ‘Immediately’11 Dorsman v Nichol (1978) 20 ALR 23112 See also Linder v Wright (1976) 14 ALR 10513 (2000) 77 SASR 2414 R v Lobban (2000) 77 SASR 24 at 4815 (2002) 81 SASR 253