Burton v Police

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 officer was Constable Tolinar or Constable Grant. The appellant recalled the conversation as follows:
I asked them when I needed to have the test done and they said, ‘within a reasonable time’. I also went on to ask specifically if I could have it done at my local doctor’s (sic) and again, they said as long as it was within a reasonable time. Seeking further clarification I asked if that meant first thing in the morning and the same response, as long as that was within a reasonable time.
It was said that this conversation gave rise an understanding that by seeing his general practitioner at the next available appointment, the relevant blood analysis would be obtained. It was thought by the appellant that this blood analysis could then be used to test and the accuracy of the breath analysis conducted earlier that day. The appellant said:
That [conversation] left me with the impression that it didn’t really matter how long as long as it was within a reasonable time, as long as I didn’t take two or three days to have it done, that was the impression I was left with.
As earlier observed, by the time the blood sample was taken, the analysis proved to be of no value for the purposes of challenging the breath analysis evidence.
Counsel for the appellant submitted that public policy considerations as well as an issue of unfairness arose in this case. Both of these factors should have been considered by the magistrate when exercising his discretion concerning the application to exclude the evidence of the breath analysis. It was submitted that the two factors should have been considered together and that the magistrate should have exercised his discretion to exclude the breath analysis evidence.
Crown Case
At trial the Crown called Constables Grant and Tolinar. It was submitted by the Crown that neither constable gave incorrect information or advice to the appellant and that the magistrate was correct in admitting the breath analysis evidence.
Constable Grant recalled a conversation with the appellant. He was unable to recall the contents of the conversation other than that which he had recorded in his notes. The constable’s notes did not disclose any reference to advice being given concerning blood analysis procedures. Constable Grant gave evidence that he was confident that he would not have discussed blood analysis with the appellant as he had no training in that area.
Constable Tolinar had no recollection of a conversation taking place between himself and the appellant. However he agreed that such a conversation may have occurred as the appellant described. Constable Tolinar had experience of some 50 arrests in similar circumstances. He stated that in his experience it was not uncommon for arrested persons to seek information regarding blood analysis procedures. Constable Tolinar said that it was his usual practice to respond to such requests. He stated that if asked a question such as ‘when should I have the blood sample taken?’ his usual response was ‘as soon as possible’.
Counsel for the Crown contended that as it was not disputed that the correct prescribed written and oral advice was provided to the appellant, the magistrate was correct not to have excluded the evidence of the breath analysis.
Magistrate’s Findings
At trial the magistrate was satisfied that the prosecution had proved each element of the offence beyond reasonable doubt. The magistrate identified the issue in contention:
The defendant concedes that all the legislative requirements of the Act were complied with thereby triggering the presumption contained in S.47G(1). The defendant nevertheless argues that I should exclude evidence of the results of the breath analysis as the police mislead the defendant into believing that he had at least until later that day to attend his medical practitioner and arrange for a blood sample to be taken. It was argued that by misleading the defendant in this way the police denied him the only opportunity he had to utilise S.47G(1)(a) of the Act and rebut the presumption with evidence of the results of a blood test conducted in accordance with S.47(1). Before ruling on this submission I will outline my findings of fact. Apart from discussions had between the defendant and Constables Grant and Tolinar there was no dispute on the evidence.
The magistrate accepted the evidence of the police witnesses. He found that Constable Grant was present during the breath analysis test and made notes of the conversation he had with the appellant. There were no notes of any conversation concerning the question of when a blood test should be taken. He accepted that neither constable had any recollection of such a conversation taking place.
The magistrate accepted that all witnesses were honest and doing their best to recount the events as accurately as possible. There were no adverse findings of credit. The magistrate made the following findings concerning the appellant’s credibility:
The defendant’s recollection of the conversations was not precise. I am not critical of him for this given the passage of time, however he was unable to recall which of the two officer the conversations were with. My impression of his evidence was that he was being as precise as he could but was not suggesting the words he was using were a verbatim recollection of the conversations.
In the course of his reasons, the magistrate concluded that a conversation took place between the police officers and the appellant beyond that recorded in Constable Grant’s notes. He found that this conversation left the appellant with a misunderstanding of what he was required to do regarding the blood analysis procedure.
Nevertheless I am satisfied that the conversations had with the police left the impression on the defendant that the blood sample had to be taken within a reasonable time and could be taken by his medical practitioner.
A difficultly is that the magistrate did not make any precise finding of the content of such a conversation.
The magistrate concluded that there was no intention by the police officers to act illegally or to misled the appellant. This was not disputed on appeal. Although no express finding was made the magistrate appeared to accept Constable Tolinar’s evidence that if asked about when a blood sample should be taken he would have said ‘as soon as possible’. The magistrate then concluded:
[T]he findings of fact I have made provide no basis upon which I can conclude that to allow the breath analysis evidence in would be unfair to the defendant in the sense that the trial would be unfair. The submission is put that the defendant did not have the opportunity to test the breath test by way of blood test. However, the statutory requirements were complied with. The defendant was given the required oral and written information.
The magistrate considered that no issues of public policy arose for consideration in the exercise of his discretion:
In my view, there is no evidence that the police acted unlawfully or improperly or with a conscious reluctance to implement the safeguards resulting in actual illegality.
Legislative Scheme
Division 5 of the Road Traffic Act 1961 (SA) deals with persons driving motor vehicles whilst under the influence of liquor or drugs. Section 47B makes it an offence to drive whilst having a prescribed concentration of alcohol in blood and sets out the penalties for an offence under that section. Section 47DA gives the police power to establish breath testing stations in order to test drivers randomly. Section 47E empowers the police to stop drivers and require them to submit to a breath analysis test when certain conditions have been satisfied or suspicions aroused. Section 47G also deals with the evidence necessary to prove an offence. Section 47G addresses the admissibility of evidence and provides for the operation of statutory presumptions in favour of the Crown:
(1) Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis.
(1a) No evidence can be adduced in rebuttal of the presumption created by subsection (1) except-
(a) evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I or in accordance with the procedures prescribed by regulation; and
(b) evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.
(1ab)If it is proved in proceedings that a concentration of alcohol was present in the defendant's blood at the time of a breath analysis, it must be conclusively presumed that that concentration of alcohol was present in the defendant's blood throughout the period of two hours immediately preceding the analysis ... .
This court has observed that in order to redress the imbalance brought about by these statutory presumptions, the legislative scheme provides rigorous safeguards to protect the rights of drivers who may be dissatisfied with the breath testing regime.[3] The scheme provides drivers with the opportunity to have a portion of their blood sample independently tested. The results can then be compared. These legislative safeguards are critical. They are built into and form an integral part of the legislative scheme.
[3] French v Scarman (1979) 20 SASR 333; Robin v Police (2002) 82 SASR 253
The importance of these safeguards was addressed in French v Scarman[4] where King CJ observed:
Section 47e places an obligation upon a citizen, in certain circumstances, to submit to an alcotest or breath analysis or both. The legislature has recognised that by requiring the citizen to submit to those tests, it places him in a position in which his fate will be determined by the accuracy of the instrument and the honesty and reliability of the police evidence as to its results. It further recognises that the citizen has no control over either of these factors. This recognition finds expression in the provisions of s.47f which provides a safeguard. This safeguard takes the form of an obligation on police officers to facilitate the taking of a blood test if the citizen requests it.
These principles were again stated in Ujvary v Medwell by King CJ:
The blood test is the only means by which a citizen can question the correctness of the result of the breath analysis. It must be the paramount concern of the Courts to ensure that the citizen has ready access to that check. If obstacles are placed in the way of the citizen, the evidence of the breath analysis should be excluded unless there is some cogent reason to admit it. When applying Bunning v Cross principles, the public interest in securing a conviction for an individual drink-driving offence will rarely outweigh the public interest in protecting the citizen’s right to have the results of the breath analysis checked by means of a blood test.[5]
[4] (1979) 20 SASR 333 at 337, 339, 340 and 341 see also Jacobs J at 342
[5] Ujvary 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 529
Prescribed Terms of Advice
The purpose of stipulated terms of oral and written advice regarding the procedure to be followed for blood analysis is to provide a level of consistency and certainty regarding the relevant advice that drivers are to be given. The wording of the terms has been carefully selected and is contained in the Road Traffic Regulations. The oral advice specifies that the driver should take the blood kit ‘promptly’ to a hospital or medical practitioner in order to have a sample of their blood taken’.[6]
The written advice includes:
1. You may have a sample of you blood taken and analysed if you wish.
2.For that purpose, you must request the breath analysis operator to supply you with an approved blood test kit (you must sign a written request form for the kit and should retain a copy of the signed request form).
3.You should then proceed promptly to a hospital or a medical practitioner [*or registered nurse] of your choice and request that a sample of you blood be taken (using the blood test kit).[7]
[6] Emphasis added
[7] Emphasis added
Difficulty may arise if advice is given in other terms. Even where the provider of the advice has the driver’s interests in mind, providing advice in addition or in different terms to that prescribed can result in an erosion of the driver’s right to challenge the evidence against him or her. In Nolan v Rhodes[8] Bollen J observed:
[Counsel], for the respondent, emphasized that [the police officer] told the appellant exactly what the law required him to tell him. So he did. The trouble is that he said more. He said more out of a wish to help the appellant. He spoke in a spirit of goodwill. He did not seek to do anything prejudicial to the appellant at all. But what was the result to the appellant? What follows from the Magistrate’s finding that the appellant accepted [the police officer’s] advice not to have a sample of blood taken by medical practitioner for analysis? The answer is that the appellant gave up his one and only chance to obtain evidence capable of defeating the presumption that the concentration of alcohol in his blood at the time of his driving was 0.09 grams in 100 millilitres of blood. … Pressing the point further, the result of the appellant’s accepting [the police officer’s] advice was that he gave up his only chance of defeating the charge under s.47b on the merits.
[8] Nolan v Rhodes (1982) 32 SASR 207 at 212
It is implicit in the magistrate’s findings that Constable Tolinar acted in accordance with his usual practice and gave the appellant the impression that he should have the blood sample taken ‘as soon as possible’ by his general practitioner. The appellant appeared to take this to mean ‘as soon as reasonable’. Both statements depart from the prescribed content of the written and oral advice.
It appears to have been Constable Tolinar’s usual and frequent practice to provide advice in terms that differ from the statutory prescription. Such a practice has the capacity to cause confusion. For example, the phrase ‘as soon as possible’ in the context of having a blood sample taken by a general practitioner can be readily understood as meaning ‘as soon as an appointment is available’. Similarly, ‘within a reasonable time’ could be generally understood as meaning as soon as arrangements can reasonably be made. In selecting the word ‘promptly’ the legislature sought to avoid misleading drivers into understanding that a blood test could be effectual if taken many hours after the breath test. The word ‘promptly’ is more likely to convey a closer proximity of time - a sense of urgency.
The Macquarie Dictionary defines ‘prompt’ as ‘done, performed, delivered etc, at once or without delay’.[9] Butterworths Encyclopaedic Australian Legal Dictionary described ‘prompt’ as analogous to ‘immediate’ and ‘without delay’. [10] ‘Promptly’ or ‘immediately’ have been described as stronger words than the expression ‘within a reasonable time’.[11] ‘As soon as possible’ has been described as analogous to ‘as quickly as the task at hand is capable of being done in the circumstances’.[12] These descriptions make it clear that by using the term ‘promptly’, the legislature intended to convey a different meaning than the expression ‘as soon as possible’.
[9] Macquarie Dictionary (1981) 1380
[10] Butterworth’s Encyclopaedic Australian Legal Dictionary I ‘Immediately’.
[11] Dorsman v Nichol (1978) 20 ALR 231
[12] See also Linder v Wright (1976) 14 ALR 105
The information given to the appellant in the present case was in the context of obtaining a blood sample from a general practitioner as soon as possible. This was equivocal. It gave rise to the possibility of a misunderstanding. In this case it led to a misunderstanding.
Public Policy and Unfairness Discretions
There has been considerable judicial discussion about the scope of the public policy discretion and the general unfairness discretion. In R v Lobban[13] Martin J identified three distinct discretions relating to the exclusion of evidence. They were:
- an overall discretion limited to confessional evidence;
- a public policy discretion not limited to confessional evidence ;
- a general unfairness discretion applicable to any evidence.
[13] (2000) 77 SASR 24

Martin J held that it was appropriate to consider factors relevant to the exercise of the public policy discretion when considering an application of the general unfairness discretion. He observed:[14]
… [T]he concept of fairness to an accused is a broad one and the remarks of the majority in Swaffield, although made in the context of the unfairness discretion concerned with confessional evidence, are equally applicable to the operation of the general unfairness discretion. The purpose of both discretions includes the protection of “the rights and privileges of the accused”, which rights “include procedural rights” (at 189 and 197). Both discretions look ‘to the risk that an accused may be improperly convicted’ (at 189). If the admission of the evidence would create a perceptible risk of a miscarriage of justice that cannot adequately be dealt with by appropriate directions to the jury, the proper exercise of the general unfairness discretion would require exclusion of the evidence. In those circumstances the admission of the evidence would result in an unfair trial. In determining whether such a perceptible risk cannot adequately be dealt with by appropriate directions, however, the capacity of juries to understand, appreciate and apply directions should not be underestimated. In circumstances where the admission of the evidence would cause unfairness, but not to the extent of creating a perceptible risk of miscarriage of justice or a perceptible risk that could not be adequately avoided by directions, the nature and extent of the unfairness will need to be assessed as will matters such as the probative and prejudicial value of the evidence and its importance to the prosecution case. The court may need to weigh factors such as those that are considered in the context of the public policy discretion. In this way, the type of circumstances that existed in French v Scarman are encompassed within the general unfairness discretion.
[14] R v Lobban (2000) 77 SASR 24 at 48
The general unfairness discretion is applicable to any evidence if the reception of the evidence would be unfair to the accused in the sense that the trial would be unfair. The purpose of the discretion is to ensure that an accused receives a fair trial and is not improperly convicted.
In applying the general unfairness discretion in this case, public policy issues arise. Matters affecting the rights of the appellant also arise. In Robin v Police[15] it was observed that in such circumstances it was inappropriate to separately consider the discretions. It is appropriate in the present case to consider the general unfairness discretion at the same time as any relevant public policy considerations. The Crown accepted that the approach identified in Robin was appropriate in the present case although counsel for the Crown preferred the two considerations to be described as “overlapping considerations”.
[15] (2002) 81 SASR 253
There is a clear public interest in the prescribed advice being given to drivers and not advice in other terms. As a matter of public policy practices such as that engaged in by Constable Tolinar ought to be discouraged. Such advice has the capacity to dilute the effectiveness of the statutory prescribed oral and written advice and to lead to ambiguity and uncertainty.
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 JUDGMENT
1 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 253
4 (1979) 20 SASR 333 at 337, 339, 340 and 341 see also Jacobs J at 342
5Ujvary 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 529
6      Emphasis added
7      Emphasis added
8      Nolan v Rhodes (1982) 32 SASR 207 at 212
9      Macquarie Dictionary (1981) 1380
10     Butterworth’s Encyclopaedic Australian Legal Dictionary I ‘Immediately’
11     Dorsman v Nichol (1978) 20 ALR 231
12     See also Linder v Wright (1976) 14 ALR 105
13 (2000) 77 SASR 24
14    R v Lobban (2000) 77 SASR 24 at 48
15 (2002) 81 SASR 253

[2004] SASC 85

26 March 2004