Clark v Police - [2011] SASC 130

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CLARK v POLICE
[2011] SASC 130
Judgment of The Honourable Justice Anderson
16 August 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE
Appeal from decision of magistrate - offence against s 47B of the Road Traffic Act 1961 (SA) ("the Act") - appellant convicted by magistrate for driving with prescribed concentration of alcohol in blood.
Appellant subjected to breath analysis test pursuant to the Act - appellant given oral advice from arresting officer regarding availability of a blood test kit - appellant told to take blood test kit to "a hospital or medical practitioner" in order to have sample of blood taken - appellant had sample taken by a medical practitioner - breath analysis conducted outside metropolitan Adelaide - whether appellant should have also been adviced that sample could be taken by a registered nurse.
Whether magistrate erred in determining the oral advice given by the police officer was prescribed oral advice required under s 47K(2a)(a) of the Act - whether magistrate erred in admitting into evidence the certificate required pursuant to s 47K(5) of the Act.
Held: Appeal dismissed - magistrate correct in admitting certificate into evidence - police officer's departure from prescribed oral advice was inconsequential - object of legislation not frustrated.
Road Traffic Act 1961 (SA) s 47A, s 47B(1)(a), s 47GA, s 47K(2a) and s 47K(5); Road Traffic (Miscellaneous) Regulations 1999 (SA) Reg 9 and Schedule 1, referred to.
Lloyd v Police (2004) 89 SASR 389; Parker v Police (2002) 83 SASR 267, applied.

CLARK v POLICE
[2011] SASC 130
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

The appellant was charged with a driving offence allegedly committed on 23 May 2010 at Jamestown when it is alleged that he drove whilst there was present in his blood more than the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961 (SA) (the Act). The offence is contrary to s 47B(1)(a) of the Act. It was alleged that the concentration of alcohol at the time of driving was 0.178 grams per 100 millilitres of blood.
At the trial before the magistrate Ms Fuller, who also appeared for the appellant in this Court, agreed that an affidavit from Constable Hounslow could be tendered by consent. He was both the arresting officer and the breath analysis operator.
The challenge at the trial related to the admissibility of the certificate required pursuant to s 47K(5) of the Act, because of the oral advice given to the appellant by Constable Hounslow.
Background
After the appellant was arrested he was taken to the police station where he was interviewed and where the breath analysis procedure took place. The audio tape of that interview was tendered to the court. A transcript of the tape has been produced.
Constable Hounslow in providing the oral advice required pursuant to the regulations said to the appellant:
… This blood test kit will be supplied to you upon 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 …
Section 47K(2a)(a) states:
47K—Evidence
(2a)Where 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;
(My underlining)
The prescribed oral advice required is covered by regulation 9 of the Road Traffic (Miscellaneous) Regulations 1999 and states that the oral advice for the purposes of s 47K(2a)(a) of the Act must be as set out in Part A of Schedule 1.
Part A of Schedule 1 provides the prescribed oral advice to be in part as follows:
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.
The Schedule further provides as follows:
Alternatively, you may have the sample taken by a registered nurse.
That alternative is subject to the further comment in the Schedule which reads:
Advice as to the alternative of a registered nurse is to be given only if the breath analysis was conducted outside metropolitan Adelaide.
This was a case where the breath analysis was conducted outside metropolitan Adelaide.
Ms Fuller argued that Constable Hounslow failed to advise the defendant of the alternative, namely, that he could also have his blood taken by a registered nurse. He in fact had a sample of blood taken by a medical practitioner.
The magistrate received the evidence and decided to rule on the admissibility of the certificate at the conclusion of the prosecution case. He ruled that the certificate was admissible and he found a case to answer.
The appeal point
The point on appeal is that the magistrate, in finding that the departure from the terms of the oral advice required by the legislation was inconsequential, was in error. It was argued that the police officer had failed to comply with the strict terms of s 47K(2a) of the Act. It was said that compliance with the strict terms was required to ensure that the appellant was made fully aware of his rights.
The magistrate points out in his reasons that the appellant was advised of his right to have blood taken by a medical practitioner and indeed he availed himself of that opportunity and had blood taken. The magistrate found that he was not deprived of his rights and he was provided with the blood test result. He was in a position to use it in his defence had it been a favourable result.
The authorities
The magistrate considered the relevant decision of Lloyd v Police (2004) 89 SASR 383. In Lloyd the appellant was involved in a motor accident in the country. He underwent an alcotest which was positive. He was then conveyed to the police station and participated in a breath analysis which recorded an excess amount of alcohol in his blood. The prosecution sought to rely on the presumption contained in s 47GA of the Act. That is in the same terms as s 47K(2a). The prosecution has to establish that it has complied with all the requirements and procedures laid down in relation to the taking of a breath analysis.
In Lloyd’s case the alleged defect in delivering the prescribed oral advice related to a written notice required to be delivered. The prescribed text required the operator to say, “Further information as to these matters is contained in the written notice which will be delivered to you shortly”.
Instead of that the operator said, “Now, John, this is a notice which is similar to what I just read out to you”. Debelle J, with whom Doyle CJ agreed, upheld the decision of the single judge that the departure from the text set out above did not amount to a failure to comply.
Debelle J said at [25]:
[25]This is not, therefore, a case where the object of this legislation requires a complete or total observance of subs (2a) and reg 9 or, expressed another way, where any degree of non-observance cannot be excused. Instead, this is an instance of a stipulation that is capable of some degree of non-compliance without necessarily causing prejudice to the object of the Act, namely, properly informing a driver of his rights. It is sufficient if there is substantial compliance with the requirement to read the oral advice correctly. The question then to be determined is what constitutes substantial compliance.
He added at [26]:
[26]It is not possible to prescribe a test of what constitutes substantial compliance which will have a universal application. Plainly, much will depend on the facts and circumstances of each individual case. In some cases, there may be a wholesale departure from the terms of the oral advice. In other cases, it might be no more than a minor or inconsequential omission from the test or variation of the text of the kind already indicated.
The arguments presented
Ms Fuller referred to the words of Debelle J in Lloyd at [23] where His Honour said:
[23]In this case, for example, the police officer said towards the end of the oral advice, “You’ll be given written notice of the results of the analysis”, instead of “You will be given written notice of the results of the analysis”. That is plainly an unimportant and inconsequential deviation from the precise terms of the oral advice. It is not difficult to think of other slight departures from the text of the oral advice which will not in any sense affect its meaning and which, on any view are entirely inconsequential. For example, the police officer who has administered the test might say, “The breathalyser reading taken a moment ago” instead of following the words of the prescribed text which are, “The breathalyser reading just taken”. Or the police officer might say, “You may therefore have committed an offence” where the prescribed text reads “Therefore it appears that you have committed an offence. Other inconsequential variations readily come to mind. Plainly, the sense and meaning of the oral advice has not been altered in any way in either of those two examples. In other cases a word might be transposed or a word omitted without in any way affecting the meaning.
She submits that the examples given by Debelle J are different from the departure from the prescribed text in this case.
As to substantial compliance, Ms Fuller referred to Debelle J at [27] where His Honour said:
[27]The substance and meaning of the oral advice must be correctly conveyed. The requirement to give both oral advice and written notice in the prescribed forms is an important stipulation. There are several reasons why Parliament would have decided that both oral and written advice must be given. As Parliament has prescribed that both must be given, the fact that the driver also receives a written statement cannot, therefore, excuse a substantial departure from the text of the oral advice which results in the driver not being correctly informed of the meaning of that advice. 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.
Ms Fuller argued that the magistrate had misdirected himself by looking at the outcome. She submitted that the magistrate was in error in finding at [19] that the departure from the prescribed oral advice was “inconsequential”. Her argument is based on the fact that the magistrate in reaching the conclusion that it was inconsequential has misdirected himself by taking account of what in fact happened, namely, that the appellant was able to provide a sample of blood for the purpose of analysis and therefore his right to have the opportunity to dispute the breath reading analysis was not impeded.
Ms Fuller pointed out that in Lloyd Debelle J also said at [24]:
[24]… This is an instance of a stipulation that is capable of degrees of non-compliance without necessarily causing prejudice to the substantial object of the Act, namely, properly informing a driver of his rights. …
She argued that the appellant’s rights included being told that, because it was in a country area, he could also have the blood sample taken by a registered nurse. He was thus deprived of his rights by not being given that information.
Mr Micklethwaite for the respondent met Ms Fuller’s argument by referring to the decision of the Full Court in Parker v Police (2002) 83 SASR 267 at 275 as approved by Debelle J in Lloyd at [18]. The passage quoted by Debelle J in Lloyd is from Bleby J in Parker. Both Perry and Williams JJ agreed with Bleby J who said in Parker at page 275:
One of the purposes behind the elaborate provisions of s 47G of the Act and the supporting regulations is to ensure that a defendant who is required to submit to a breath analysis under s 47E of the Act is afforded every opportunity to dispute the breath reading analysis.
Mr Micklethwaite argued that the proper course is to look to see whether the departure in the instant case had any practical adverse consequences to the object of the legislation as set out above. He submitted that to that extent, when one looks to see what consequences the departure has on the objects of the Act, it does include a consideration of the outcome.
Mr Micklethwaite submitted that the departure in this case was inconsequential to the objects of the Act. He submitted that Ms Fuller was construing the objects of the Act too narrowly. He submitted that the object in this case was achieved, namely, that an admissible blood sample was obtained by the respondent. There were no practical adverse consequences from the departure. It therefore was an inconsequential departure.
Put another way, Mr Micklethwaite’s argument is that the object of the legislation is not just to inform a person of their rights, as submitted by Ms Fuller, but to ensure that a person is given every opportunity to exercise those rights. In this case those rights were exercised.
Conclusion
In my view the magistrate correctly discerned from the relevant authorities that it was the substance and meaning of the oral advice which had to be accurately conveyed to the appellant.
The magistrate found that the oral advice given contained the necessary and essential information. He found that the departure from the strict text of the oral advice required under the regulations was “inconsequential”.
I agree with the magistrate in the way in which he has reasoned and in the conclusion which he reached.
Properly viewed, the magistrate is saying what was said in both Lloyd and Parker, namely, that in this matter the departure was inconsequential because the object of the legislation was not frustrated. The appellant was advised of his rights and the degree of non-compliance did not cause prejudice to the substantial object of the Act.
The appeal is dismissed.