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 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.
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.
The Court therefore was told that the content of the oral and written advice given to the appellant (P11) was an outdated version. The appellant argued at trial and before me that as the advice as required by subsection (2a) was not in this case correct, then the presumption under s 47K could not arise. It is therefore important to point out the difference between the advice set out in exhibit P11 and the advice which should have been given, set out in exhibit P12.
The oral advice actually given to the appellant was recorded thus:
The breathalyser reading just taken shows that you had a prohibited level of alcohol in your blood.
Therefore, it appears that you have committed an offence against section 47B of the Road Traffic Act.
In any court proceedings for the offence, or for an offence against section 47 of the Road Traffic Act (driving under the influence of liquor), it will be presumed that the breathalyser accurately indicated your blood alcohol level at the time of the reading and for the preceding two hours. However, the Road Traffic Act allows for contrary evidence based on the results of a blood test.
If you want to have such a blood test you will have to make your own arrangements and follow certain procedures, using a special blood test kit. This blood test kit will be supplied to you on your signing a written request.
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.
[*Alternatively, you may have the sample taken by a registered nurse.]
You must not consume any more alcohol before having a sample of you blood taken and must not open the blood test kit before delivering it to a medical practitioner [*or registered nurse].
Under the blood test procedure, the sample of blood is divided and sealed in two containers. You will have to sign a form that will be given to you by the medical practitioner [*or registered nurse].
One of the sealed containers will be given to you and you may make your own arrangements to have the blood in that container analysed.
In any event, the blood in the other container will be analysed by Forensic Science SA and you will be given written notice of the results of the analysis.
Further information as to these matters is contained in the written notice which will be delivered to you shortly.
* Advice as to the alternative of a registered nurse it to be given only if the breath analysis was conducted outside Metropolitan Adelaide.
The written advice given in exhibit P11 was as follows:
1.     Offence
A person commits an offence against section 47B(1) of the Road Traffic Act 1961 if the person –
(a)     drives a motor vehicle, or
(b)     attempts to put a motor vehicle in motion,
While there is present in a his or her blood the prescribed concentration of alcohol (as defined in section 47A of the Act).
This is to be contrasted with the advice that should have been given and as set out in exhibit P12. The oral advice should have been:
The breathalyser reading just taken shows that you had a prohibited level of alcohol in your blood.
Therefore, it appears that you have committed an offence against section 47B(1) or (1a) of the Road Traffic Act 1961.
In any court proceedings for an offence against section 47B(1) or (1a), or for an offence against section 47 of the Road Traffic Act (driving under the influence of liquor), it will be presumed that the breathalyser accurately indicated your blood alcohol level at the time of the reading and for the preceding two hours. However, the Road Traffic Act allows for contrary evidence based on the results of a blood test.
If you want to have such a blood test you will have to make your own arrangements and follow certain procedures, using a special blood test kit. The blood test kit will be supplied to you on your signing a written request.
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.
[*Alternatively, you may have the sample taken by a registered nurse.]
You must not consume any more alcohol before having a sample of you blood taken and must not open the blood test kit before delivering it to a medical practitioner [*or registered nurse].
Under the blood test procedure, the sample of blood is divided and sealed in two containers. You will have to sign a form that will be given to you by the medical practitioner [*or registered nurse].
One of the sealed containers will be given to you and you may make your own arrangements to have the blood in that container analysed.
In any event, the blood in the other container will be analysed by Forensic Science SA and you will be given written notice of the results of the analysis.
Further information as to these matters in contained in the written notice which will be deliver to you shortly.
*Advice as to the alternative of a registered nurse is to be given only if the breath analysis was conducted outside Metropolitan Adelaide.
The written advice should have been:
1. Offence
Section 47B(1) of the Road Traffic Act 1961 provides that a person commits an offence if the person drives a motor vehicle, or attempts 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 or the Act). Section 47B(1a) provides that if a person engages in conduct involving a motor vehicle that constitutes an offence against section 47B(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 section 47B(1a) and is liable to the same penalty as is prescribed for an offence against section 47B(1).
As can be seen, the written and oral advice that was actually given only advises a defendant of the offence contained in s 47B(1) of the Act. In comparison, the written and oral advice that should have been given advises a defendant of the offence contained s 47B(1) of the Act as well as a further offence contained in s 47B(1a) of the Act. The offence contained in s 47B(1a) of the Act has the same elements as s 47B(1) of the Act, and one further element, being the presence of a child under the age of 16 years in or on the motor vehicle at the time of the offending.
It is to be noted that in this case there was no question of there being a child in the car and the charge that the appellant was facing was pursuant to s 47B(1) of the Act.
It was argued both before the Magistrate and in this Court that as there was a fundamental difference between the two documents and the nature of the advice, s 47K(2a) was not adhered to and the presumption could not arise and therefore there was no evidence capable of convicting the appellant.
The Magistrate rejected that argument. He said:
The differences between the two prescribed written notice versions relate solely to the amendment to Section 47B(1a) (where a child under sixteen years is present in or on a vehicle). That circumstances had no relevance to Mr Carletti. He was driving alone. The absence of that advice was of no consequence to him. In my view he could not have been prejudiced by not being “…properly informing a driver of his rights”; that is, a right to seek a blood test.
(Footnote omitted)
Appeal
Mr Anthony Allen, counsel for the appellant, argues that the differences between the outdated advice (exhibit P11) and the proper advice was not minor or inconsequential and was a material deviation from the advice that is required to be given. He argues that where there is an abrogation of fundamental civil liberties, as he puts it, which he says the presumption in s 47K is, then any prerequisite required by legislation must be adhered to strictly. He argues that even though there was no question of any offence pursuant to s 47B(1a) in the present case, nevertheless the difference between the outdated advice which was given and the required advice is fundamental.
He dealt with the decision of the Full Court in Lloyd v Police,[1] as did Ms Marsh, counsel for the respondent.
[1] [2004] SASC 278.
In that case, having been involved in an accident the defendant driver recorded a concentration of alcohol above the prescribed limit. The operator of the breath analysis instrument was required to say to the defendant “further information as to these matters is contained in the written notice which will be delivered to you shortly”. He said instead “now John this is a notice which is similar to what I just read to you”. The written notice that was then given was however correct. That variation in the form of the oral advice was the basis for an argument that the presumption could not be used. The Magistrate in that case held that the requirements had not been complied with because of the difference in the oral advice. On appeal to a single Judge of the Supreme Court, it was held however that that did not amount to a failure to comply with the requirements and the appellant then appealed to the Full Court. Justice Debelle, with whom Chief Justice Doyle agreed, held that the requirements had been complied with and the majority dismissed the appeal. He said the following:[2]
Thus, as a general rule, only minor and inconsequential departures from the prescribed text of the oral advice where the meaning of the prescribed text is correctly conveyed will be permitted. It will in every case be necessary to examine the extent of non-compliance to determine whether the driver has been correctly informed of the meaning and intent of the oral advice. The question is whether what was said amounts to such a change in the meaning of the oral advice that the driver did not receive the information contained in the oral advice. In other words, nothing in these reasons is a charter for police officers to do anything other than to read correctly each word of the prescribed oral text.
He then went on to say that in that case although the words were different they conveyed the same meaning notwithstanding that difference.
[2] Ibid at [27].
Mr Allen argues, in the present case, that the difference between the advice given both orally and in writing is fundamentally different than the advice that should have been given. He argues that it is not merely cosmetic but in fact adds another possible charge which a defendant may face as a result of the breath analysis test. He also argues that the case of Lloyd v Police is further distinguishable because in that case the written advice was correct and it was only the oral advice that was inaccurate and only in a cosmetic sense.
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.