CARLETTI v Police - [2020] SASC 30

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CARLETTI v POLICE
[2020] SASC 30
Judgment of The Honourable Auxiliary Justice David
4 March 2020
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - STATUTORY PROVISIONS AS TO PRIMA FACIE EVIDENCE - OTHER PROVISIONS - TRAFFIC OFFENCES
Driving motor vehicle with prescribed concentration of alcohol present in blood - statutory aids to proof - statutory aids to proof require operator to give specific oral and written advice to driver outlining procedure for blood tests - failure to comply strictly with statutory duty – previous version of oral and written advice used - whether deviation from prescribed words prevented reliance on evidentiary presumption.
Held: Appeal dismissed, the deviation in the oral and written advice given was inconsequential and therefore the Magistrate did not err.
Road Traffic Act 1961 (SA) s 47B, s 47K; Road Traffic (Miscellaneous) Regulations 2014 (SA) Sch 1; Road Traffic (Miscellaneous) (Drink and Drug Driving) Variation Regulations 2018 (SA), referred to.
Lloyd v Police [2004] SASC 278, applied.

CARLETTI v POLICE
[2020] SASC 30
Magistrates Appeal: Criminal

DAVID AJ: The appellant was convicted of one count of driving with a prescribed concentration of alcohol in his blood contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (“the Act”).
He now appeals against that conviction arguing that the Magistrate erred in finding that the prosecution had been in compliance with s 47K(2a) of the Act and therefore the presumption provided by s 47K(1) of the Act could not have arisen, thus there was no evidence, in the absence of that presumption, to indicate that the alleged level of alcohol in the blood of the defendant at the time was present.
Background
On 30 June 2018, Brevet Sergeant John Slater and Constable Cox were on mobile patrol duty. They observed the appellant driving a vehicle from The Golden Way to The Grove Way at Golden Grove. Having observed his driving they stopped him and asked the appellant to submit to an alcotest, which showed a positive reading. As a result, he was then conveyed to the Golden Grove Police Station where Brevet Sergeant Slater conducted a breath analysis test which recorded a reading of 0.171 gm of alcohol in 100 ml of blood. Brevet Sergeant Slater gave evidence that after obtaining the positive results of the breath analysis, he gave the appellant his oral rights according to the contents of exhibit P11 tendered at the trial. Within that document was a record of that oral advice as demanded by 47K(2a)(a) of the Act which must be given before s 47K can come into effect. He also, pursuant to that same subsection, gave the appellant a prescribed written notice setting out the same advice. In short, both the oral and written advice prescribed by the Act is to the effect that, having provided a positive reading, a person charged with s 47B of…

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: [2020] SASC 30
Decision Date: 4 March 2020

CaseChat Overview and Summary

The case of Carletti v Police involved the appellant, Carletti, who was convicted of driving with a prescribed concentration of alcohol in his blood. The conviction arose from an incident where Carletti was stopped by police, subjected to a breath analysis test, and subsequently found to have a blood alcohol concentration above the legal limit. Carletti appealed his conviction, arguing that the Magistrate erred in finding that the prosecution did not comply with statutory requirements, thus invalidating the presumption of blood alcohol concentration under the Act. The primary legal issue was whether the failure to use the updated version of the statutory advice given to Carletti, which contained minor changes to the prescribed words, prevented the prosecution from relying on the evidentiary presumption under s 47K(1) of the Act. The court had to determine whether the deviations in the advice were significant enough to invalidate the presumption.

The court examined the statutory provisions and concluded that the differences in the advice were not fundamental to the purpose of ensuring Carletti was made aware of his rights to challenge the breath analysis results. The court found that the omission of additional information about potential charges under s 47B(1a) was irrelevant to the circumstances of this case. Consequently, the court held that the deviation from the prescribed advice was inconsequential and did not compromise the aim of the statutory provisions. Therefore, the Magistrate's decision was upheld, and the appeal was dismissed. The court emphasized that the primary goal of the statutory advice is to inform the defendant of their rights, which was achieved despite the minor discrepancies in the advice provided.

Orders

Orders of the court

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Background

Background to the litigation

He now appeals against that conviction arguing that the Magistrate erred in finding that the prosecution had been in compliance with s 47K(2a) of the Act and therefore the presumption provided by s 47K(1) of the Act could not have arisen, thus there was no evidence, in the absence of that presumption, to indicate that the alleged level of alcohol in the blood of the defendant at the time was present. Background On 30 June 2018, Brevet Sergeant John Slater and Constable Cox were on mobile patrol duty. They observed the appellant driving a vehicle from The Golden Way to The Grove Way at Golden Grove. Having observed his driving they stopped him and asked the appellant to submit to an alcotest, which showed a positive reading. As a result, he was then conveyed to the Golden Grove Police Station where Brevet Sergeant Slater conducted a breath analysis test which recorded a reading of 0.171 gm of alcohol in 100 ml of blood. Brevet Sergeant Slater gave evidence that after obtaining the positive results of the breath analysis, he gave the appellant his oral rights according to the contents of exhibit P11 tendered at the trial. Within that document was a record of that oral advice as demanded by 47K(2a)(a) of the Act which must be given before s 47K can come into effect. He also, pursuant to that same subsection, gave the appellant a prescribed written notice setting out the same advice. In short, both the oral and written advice prescribed by the Act is to the effect that, having provided a positive reading, a person charged with s 47B of the Act is allowed to have a blood test to check the reading and a blood test kit is supplied. It is important at this stage to set out the relevant legislation: 47B—Driving while having prescribed concentration of alcohol in blood(1)A person must not—(a) drive a motor vehicle; or(b) attempt to put a motor vehicle in motion,while there is present in the person's blood the prescribed concentration of alcohol as defined in section 47A.… (1a)If a person engages in conduct involving a motor vehicle that constitutes an offence against subsection (1) (other than a category 1 offence) while a child under the age of 16 years is present in or on that motor vehicle, the person commits an offence against this subsection and is liable to the same penalty as is prescribed for an offence against subsection (1).…47K—Evidence(1)Without affecting the admissibility of evidence that might be given otherwise than under 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 and throughout the preceding period of 2 hours.… (2a)If a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith—(a) give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person's blood; and(b) at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, there is much to commend what Mr Allen has put. I agree with him that the differences between the two pieces of advice are not merely cosmetic and are indeed fundamental. However, the question must go further. The purpose of the advice which was to be given was to ensure that a defendant was made clearly aware that he had further avenues of challenging the results of the breath analysis test. If the advice that was given in anyway compromised that aim of the legislation then it would clearly be invalid. As it was in this case, the extra advice that was not given, namely that an offence under s 47B(1a) is possible, was totally irrelevant to the facts of the present case. In those circumstances, I would consider that the deviation could be described as inconsequential and the aim of the advice was not compromised. I therefore find that the Magistrate did not err. Conclusion I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

It is important at this stage to set out the relevant legislation: 47B—Driving while having prescribed concentration of alcohol in blood(1)A person must not—(a) drive a motor vehicle; or(b) attempt to put a motor vehicle in motion,while there is present in the person's blood the prescribed concentration of alcohol as defined in section 47A.… (1a)If a person engages in conduct involving a motor vehicle that constitutes an offence against subsection (1) (other than a category 1 offence) while a child under the age of 16 years is present in or on that motor vehicle, the person commits an offence against this subsection and is liable to the same penalty as is prescribed for an offence against subsection (1).…47K—Evidence(1)Without affecting the admissibility of evidence that might be given otherwise than under 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 and throughout the preceding period of 2 hours.… (2a)If a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith—(a) give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person's blood; and(b) at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person. As can be seen, both the prescribed oral advice and the prescribed written notice must be given to a defendant before the presumption contained in s 47K can be used by the prosecution. The appropriate oral and written advice is contained in Schedule 1 Form 1 of the Road Traffic (Miscellaneous) Regulations 2014 (SA) (“the Regulations”). Within that form, which is given to the appellant, there is a record of the oral advice which must be given, and in this case was given, and also a written record confirming that oral advice. In the present case, all of this was duly done and both the written and a record of the oral advice were contained in exhibit P11 tendered at trial. However, on 24 April 2018 (some three months before the appellant was detected and subjected to a breath analysis test) the form was amended as a result of the Road Traffic (Miscellaneous) (Drink and Drug Driving) Variation Regulations 2018 (SA). In other words, both the written advice and the oral advice were altered. That amended schedule was tendered at trial as exhibit P12.