Coleman v Police - [2024] SASCA 30

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
COLEMAN v POLICE
[2024] SASCA 30
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice David)
21 March 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PROCEDURE
The appellant was convicted of driving a motor vehicle with a prescribed drug in his oral fluid, the presence of which had been confirmed by an oral fluid analysis test. The police officer who conducted the test added a substance from his collection kit to the appellant’s swab sample. The police officer did not know the identity of this substance.
The police officer certified that he complied with cl 7 of Schedule 1 of the Road Traffic Act 1961 (SA). The certificate enabled the court to find the facts certified as proved unless the appellant provided proof to the contrary.
On appeal, the appellant argued that there was proof to the contrary rebutting the certificate.
Held, dismissing the appeal:
1 The police officer was permitted to add the substance to the oral fluid.
2The addition of an unknown substance to the sample was insufficient to constitute ‘proof to the contrary’.
3Absent the assistance of the certificate, the evidence was sufficient for the prosecution to prove the charge.

Motor Vehicles Act 1959 (SA) s 81AB(5); Road Traffic Act 1961 (SA) s 47A(1), s 47BA(1)(a), s 47EEA, s 47F, s 47K(3a), s 47K(9), s 47K(11) and cl 7 of Sch 1, referred to.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Police v Butcher (2014) 119 SASR 509, applied.
Police v Hanton (2018) 131 SASR 226, not followed.

COLEMAN v POLICE
[2024] SASCA 30
Court of Appeal – Criminal: Lovell, Doyle and David JJA

LOVELL AND DAVID JJA: The appellant was convicted in the Magistrates Court of driving his motor vehicle while there was a prescribed drug (THC) present in his oral fluid. He was also convicted of driving with a prescribed drug in his oral fluid while being the holder of a probationary licence. The prosecution at trial relied upon two evidentiary certificates to prove aspects of their case. The certificates enabled the court to find the facts certified as proved unless the appellant provided proof to the contrary. On appeal the appellant submitted that he had provided proof to the contrary and therefore he was entitled to be acquitted of the charges.
Background
On 13 September 2020 Senior Constable Jackson stopped the appellant’s vehicle. The appellant held a probationary license at the time. Jackson required the appellant, who was driving the car, to undergo a drug screening test; he complied with Jackson’s direction. The result of the drug screening test indicated the presence of THC (cannabis) in the appellant’s oral fluid. Jackson then required the appellant to undergo an oral fluid analysis test.[1]
[1] Pursuant to Road Traffic Act 1961 (SA) s 47EEA.
The appellant complied and Jackson conducted the test. Subsequent analysis of the appellant’s oral fluid obtained during this test confirmed the presence of cannabis in his system.
The appellant was charged with driving a motor vehicle whilst there was present in his oral fluid a prescribed drug, namely delta-9-tetrahydrocannabinal, contrary to s 47BA(1)(a) of the Road Traffic Act 1961 (SA) (“RTA”). He was also charged with breaching the conditions of his probationary licence.[2] The appellant denied the charges and the matters proceeded to trial before a Magistrate.
[2] Contrary to Motor Vehicles Act 1959 (SA) s 81AB(5).
To prove the charges the prosecution relied significantly on evidentiary certificates admissible under s 47K of the RTA. Evidentiary certificates, if properly admitted, enable the court to find the facts certified as proved unless a defendant provides proof to the contrary.
At trial the appellant challenged the admissibility of two certificates tendered by the prosecution under the RTA. The appellant submitted that the police, by failing to comply with their obligations in conducting the oral fluid test, could not rely on the evidentiary certificate as the appellant had provided “proof to the contrary”. The appellant also objected to the evidentiary certificate signed by the analyst Dr Pollnitz. The Magistrate found the appellant guilty of driving with THC, a prescribed drug, in his oral fluid and of doing so whilst the holder of a probationary licence.
The appellant appealed the convictions to a single Judge of the Supreme Court (Kimber J). That appeal was dismissed.
The appellant, before this Court, accepted that the certificates tendered by the prosecution at trial were admissible. However, the appellant submitted that Kimber J, like the Magistrate, erred in finding proof to the contrary had not been established thereby rebutting the presumption established by the certificates.
We would dismiss the appeal. Our reasons follow.
Legislative scheme
It is an offence under s 47BA(1)(a) of the RTA for a person to drive a motor vehicle with a prescribed drug present in their oral fluid or blood. THC is a prescribed drug for the purpose of the RTA.[3] The RTA permits the police, in certain circumstances, to require a driver of a vehicle to submit to a drug screening test. If the drug screening test is properly conducted and indicates the presence of a prescribed drug, the police may require the driver to submit to an oral fluid analysis test.[4]
[3] Road Traffic (Miscellaneous) Regulations 2014 (SA) reg 16(a).
[4] Road Traffic Act 1961 (SA) s 47EEA(2).
Section 47A(1) of the RTA defines ‘oral fluid analysis’ to mean the analysis of a person’s oral fluid to determine the presence, if at all, of prescribed drugs. ‘Oral fluid’ includes saliva.[5]
[5] Road Traffic Act 1961 (SA) s 47A.
Section 47F provides that Schedule 1 of the RTA regulates oral fluid and blood sample processes. Clause 7 of Schedule 1 regulates the taking of a sample of oral fluid. Clause 7(c) was the focus of the appellant’s submissions. It relevantly provides:
7 – Oral fluid sample processes
The following provisions apply if a sample of oral fluid is taken under section 47EAA(2):
(a)     the police officer who takes a sample of oral fluid for the purposes of an oral fluid analysis must—
(i)    place the sample of oral fluid (and any reagent or other substance required by the regulations to be added to the sample) in approximately equal proportions, in 2 separate containers marked with an identification number distinguishing the sample from other samples of oral fluid and seal the containers; and
(ii)     give to the person from whom the sample was taken a notice in writing –
…
(B)     advising that a container containing part of the sample and marked with the identification number specified in the notice will be available for collection by or on behalf of the person at a specified place;
…
(b)     each container must contain a sufficient quantity of oral fluid to enable an analysis to be made of the presence of a prescribed drug in the oral fluid;
(c)     it is the duty of the police officer who takes the sample of oral fluid for the purposes of the oral fluid analysis to take such measures as are reasonably practicable in the circumstances to ensure that the sample is not adulterated (other than as required under paragraph (a)) and does not deteriorate so as to prevent a proper analysis of the presence of a prescribed drug in the oral fluid;
(emphasis added)
The trial evidence
The prosecution were required to prove that the appellant was driving the vehicle and that at the time of driving, THC was present in the appellant’s bodily fluid.
To prove the charges various certificates signed by Jackson were tendered. Jackson also gave oral evidence. Of relevance to this appeal is the certificate he signed pursuant to s 47K(3a) (“the s 47K(3a) certificate”). The prosecution also tendered a signed statement of the analyst Dr Pollnitz and a certificate he signed pursuant to s 47K(9) and s 47K(11) (“the analyst certificate”).
Jackson gave evidence that he stopped the appellant’s vehicle, that the appellant was the driver, that he required the appellant to undertake a drug screening test, that the appellant complied with his request and that the result of the drug screening test indicated the presence of THC in his oral fluid. Jackson accordingly required the appellant to submit to an oral fluid analysis which he complied with.
These facts were not disputed.
It is necessary to set out in detail the procedure Jackson adopted as his evidence is relevant to the operation of cl 7(c) of Schedule 1 of the RTA and the question of the operation of the s 47K(3a) certificate.
Jackson stated that he had been trained in how to take samples of oral fluid by South Australia Police. Jackson followed that training and used the equipment provided to him by South Australia Police for the purposes of taking oral fluid samples (“the collection kit”).
Jackson, using the equipment provided, swabbed the inside of the appellant’s mouth. Jackson then took from the collection kit a sealed “collection tube” containing a liquid, opened the tube, placed the swab inside, and shook the tube. Jackson understood from his training that the purpose of placing the swab in the tube containing the liquid and shaking it was “to make sure that any particles that are on the swab go into that fluid”.
Jackson then poured the combined liquid into two empty vials obtained from the collection kit before sealing them in a bag marked with an identification number. Jackson was under a legal obligation to “place the sample of oral fluid … in approximately equal proportions, in 2 separate containers”, and to ensure that each container contained “a sufficient quantity of oral fluid to enable an analysis to be made of the presence of a prescribed drug in the oral fluid”. Jackson understood that this was important as it ensured that the appellant could arrange independent testing of one container of the oral fluid sample.
Jackson stated that he did not know the nature of the substance in the tube in which he placed the swab. Nor did he know what reaction the substance in the tube may cause, or if the substance was used in chemical analysis in some manner.
The vials were sent to Forensic Science SA for analysis which was performed by Dr Pollnitz. The statement of Dr Pollnitz, and the analyst certificate, established that his analysis had been properly conducted, that THC was detected in the sample of the appellant’s oral fluid and that there were no factors adversely affecting the accuracy or validity of the analysis.
Jackson’s evidence was not challenged.
When taking the appellant’s oral fluid sample, Jackson was required to comply with the requirements of cl 7 of Schedule 1 of the RTA.
Jackson gave evidence of complying with cl 7 of Schedule 1. In addition to Jackson’s evidence the prosecution tendered the s 47K(3a) certificate, signed by Jackson. Section 47K(3a) relevantly states:
(3a) A certificate purporting to be signed by a police officer and to certify that—

(a) a sample of oral fluid for the purposes of an oral fluid analysis was taken on a specified day and at a specified time from a person named in the certificate; and
(b) the provisions of this Act with respect to the taking of samples of oral fluid for such purposes were complied with, is, in the absence of proof to the contrary, proof of the matters so certified.
(emphasis added)
Tendering the s 47K(3a) certificate was relevant in that Jackson certified that he had complied with the provisions of the RTA when taking the sample of oral fluid. Therefore, this fact was presumed to be proved in the absence of proof to the contrary.
The appellant submitted at trial that Jackson’s evidence demonstrated that he had not complied with the requirements of cl 7 of Schedule 1 and that this provided proof to the contrary of the matters stated in the certificate. The appellant argued that the evidentiary presumption had been rebutted. The Magistrate found that the appellant had not produced proof to the contrary and therefore the evidentiary presumption had not been rebutted.
The Magistrate found the appellant guilty of the following offences:
1.Driving a motor vehicle whilst there was present in his oral fluid a prescribed drug, namely delta-9-tetrahydrocannabinal, contrary to s 47BA(1)(a) of the RTA; and
2.Being the holder of a probationary licence, driving a motor vehicle in contravention of a prescribed condition of that licence, namely driving with a prescribed drug is his oral fluid, contrary to s 81AB(5) of the Motor Vehicles Act 1959.
Appeal to a single Judge of the Supreme Court
The appellant appealed against the Magistrate’s decision to a single Judge of the Supreme Court (Kimber J) on two grounds, namely:
1.That the learned Magistrate erred in not finding that there was ‘proof to the contrary’ to rebut the evidentiary certificate admitted pursuant to s 47K(3a) of the Road Traffic Act 1961.
2.That the learned Magistrate erred in admitting the certificate tendered pursuant to s 47K(9) of the Road Traffic Act 1961.
Although Kimber J found error in the Magistrate’s reasoning, he dismissed both grounds of appeal. Justice Kimber concluded, in relation to Ground 1, that on a proper construction of Schedule 1 of the RTA, Jackson was entitled to place the swab in the liquid contained in the tube. The evidence established that Jackson did nothing to prevent a proper analysis of the oral fluid sample. Justice Kimber also found that simply showing that Jackson did not know the identity of the liquid did not suffice to discharge his proving on the balance of probabilities that the procedures governing oral fluid samples were not complied with.
In relation to Ground 2, Kimber J found that the certificate was properly admitted.
The appellant challenges Kimber J’s findings in relation to Ground 1, pertaining to the s 47K(3a) certificate. There is no appeal from Kimber J’s decision on Ground 2.
Grounds of appeal
The appellant appeals against the decision of Kimber J on the following ground of appeal:
1. That the Court erred in finding that there was no evidence to the contrary regarding the certificate tendered under s 47K(3a) of the Road Traffic Act 1961.
Particulars
1.1. The Court erred in finding that cl 7 of Schedule 1 of the Road Traffic Act 1961 allows the addition of ‘any substance’ to the oral fluid provided the sample is not debased or made impure so as to prevent a proper analysis of the presence of a prescribed drug in the oral fluid.
1.2. The Court erred in finding that the oral fluid sample had not been adulterated in contravention of cl 7 of Schedule 1 of the Road Traffic Act 1961.
1.3. The Court erred in finding that Schedule 1 of the Road Traffic Act 1961 is not a codification of the process for taking an oral fluid sample.
1.4. The Court erred in finding that there was no ‘evidence to the contrary’ in circumstances where the police officer has a positive duty to ensure the sample is not adulterated as per cl 7 of Schedule 1 and gives evidence that he added a substance to the oral fluid not knowing the identity or purpose of the substance and without there being any evidence before the Court as to the nature of that substance.
Appellant’s submissions
The appellant submitted that he demonstrated proof to the contrary in two ways:
(a) by demonstrating that Jackson had added a substance to the oral fluid that was not a reagent, or a substance required by the regulations to be added to the sample, contrary to cl 7(a)(i) of Schedule 1 of the RTA, with the result that Jackson had “adulterated” the sample in breach of his duty under cl 7(c);
(b) by demonstrating that Jackson had not taken “such measures as are reasonably practicable in the circumstances to ensure that the sample is not adulterated … and does not deteriorate so as to prevent a proper analysis of the presence of a prescribed drug in the oral fluid”, contrary to cl 7(c) of Schedule 1 of the RTA, by proving that he had added a substance to the oral fluid not knowing the identity of that substance.
The first argument raises a question as to the proper construction of cl 7 of Schedule 1 of the RTA.[6] The second argument raises questions as to what may amount to proof to the contrary of the facts certified by a s 47K(3a) certificate, and whether on the evidence the appellant did satisfy his onus.[7]
[6] Particulars 1.1, 1.2 and 1.3 of the Ground of Appeal.
[7] Particular 1.4 of the Ground of Appeal.
Before turning to these particular arguments, the appellant also submitted, relying on the remarks of Peek J in Police v Hanton,[8] that the use of the evidentiary certificate pursuant to s 47K(3a) of the RTA imposed a personal and positive duty on Jackson to hold a reasonable belief that the liquid added to the oral fluid sample was not an adulterant. The appellant submitted that Jackson was obliged to “actively consider whether he was able to certify the permissible certifiable fact” and without that state of mind he could not sign the certificate. That state of mind, it was submitted, could not be, and was not, satisfied from the collection kit having been supplied by South Australia Police or from Jackson’s training. It was common ground that Jackson did not know the nature of the substance he added to the oral fluid sample. By not knowing the effect of the liquid and adding it regardless Jackson breached his duty and that the breach amounted to proof to the contrary. This point was not argued before Kimber J.
[8] (2018) 131 SASR 226.
We reject the appellant’s submission.
Hanton involved the interpretation and construction of s 175(3)(ba) of the RTA. Justice Peek stated: [9]
I express the following views solely on the basis of principles of statutory interpretation of the Road Traffic Act 1961 and not by reference to remedies in the nature of judicial review. RTA s 175(3)(ba) grants to a narrow class of persons a power, the exercise of which very seriously affects both the rights of a defendant to a criminal charge and the usual course of a common law trial. While the way in which that power is to be exercised is not spelt out, neither is the way in which many and various other statutory powers are to be exercised by many and various other officials. As a matter of statutory interpretation, the common law touchstone in such cases is that the power must be exercised reasonably. In order to furnish a RTA s 175(3)(ba) certificate, the senior police officer must believe on reasonable grounds that “the statutory test” showed that the TSA unit was, at the relevant time, accurate to a particular specific extent; and he or she must be able to specify that particular extent of accuracy. These requirements must be clearly distinguished from merely being of a general belief that the TSA is accurate, whatever might be the basis of such a belief.
(emphasis added)
[9] Police v Hanton (2018) 131 SASR 226 at [21].
By analogy the appellant argued that, wherever an evidentiary certificate under the RTA is sought to be tendered, the prosecution must establish that the certifying officer had a reasonable belief that what he or she is certifying is accurate.
With respect to Peek J, we are unable to accept that a certifying police officer must have a reasonable belief that what he or she is certifying is accurate before the certificate can be relied upon. No such provision is found in the RTA. We prefer the reasoning of Stanley J in Police v Butcher who, when dealing with s 175(3)(ba) of the RTA, observed:[10]
It provides that a document produced by the prosecution and purporting to be signed by a relevant police officer and purporting to certify that a specified traffic speed analyser had been tested on a specified day, and was shown by the test to be accurate to the extent indicated in the document, constitutes proof of the facts certified and that the traffic speed analyser was accurate to the extent indicated in the document on that day unless the person charged proves to the contrary. A submission that the police officer could not, as a matter of fact, have been satisfied of the matters certified in the document misunderstands the very intent and purpose of the statutory provision. The purpose of the certificate is to establish a statutory presumption without regard to the facts. In effect, it reverses the onus of proof. It shifts the onus to the person charged to discharge the evidentiary burden of disproving the facts certified in the document. That is not achieved by pointing to the absence of sufficient evidence of the facts certified before the relevant police officer. The operation of s 175(3)(ba) requires the accused person, if he is to discharge the evidentiary burden that the provision has shifted to him, to prove on the balance of probabilities the contrary of the facts certified. But the shifting of the onus only occurs once the certificate has been admitted into evidence. There can be no issue as to its admissibility on the basis that there is evidence to the contrary of the facts certified in the document.
(emphasis added)
[10] Police v Butcher (2014) 119 SASR 509 at [65].

As observed by Stanley J the purpose of the certificate is to establish a statutory presumption without regard to the facts. To require a police officer to have a “reasonable belief” in the matters certified is contrary to the intent and purposes of the statutory provisions.
In any event, there is nothing in the reasons of Peek J that would suggest that if the duty were to exist, a breach of such a duty could amount to proof to the contrary. Proof to the contrary can come from within the prosecution case. However, the absence of evidence, or the inability of a police officer to justify the certification, does not amount to positively demonstrating a matter on the balance of probabilities.
We now turn to the appellant’s main arguments.
The submissions of the appellant regarding the Particulars 1.1, 1.2 and 1.3 focused on the interpretation of cl 7(c) which is in the following terms:
it is the duty of the police officer, to take such measures as are reasonably practicable in the circumstances to ensure that the sample is not adulterated (other than as required under cl 7(a)) and does not deteriorate so as to prevent a proper analysis of the presence of a prescribed drug in the oral fluid
The appellant submitted that Kimber J erred in concluding that on a proper construction of Schedule 1 of the RTA, Jackson was entitled to place the swab in the liquid contained in the tube and that simply showing that Jackson did not know the identity or chemical composition of the liquid did not suffice to discharge his onus of proof to the contrary of the facts certified.
The appellant submitted that cl 7(c) imposed two separate duties or obligations on Jackson. Jackson had a duty to ensure that the sample was not adulterated and a separate duty to prevent deterioration so as to prevent a proper analysis. The appellant submitted that the use of the conjunction “and” in the wording of cl 7(c) suggested that there were two duties not one. Thus, whether the sample is “adulterated” is unrelated to whether a proper analysis of the sample was prevented. To add a substance to an oral fluid sample is, in the appellant’s submission, to adulterate the sample. To interpret cl 7(c) as requiring the substance added to prevent a proper analysis would be to alter the meaning of adulterate. It would in effect mean a police officer could add any substance to the oral fluid analysis and there would be no consequences provided the substance added did not operate to prevent a proper analysis. The appellant submitted that such an interpretation should be rejected.
The appellant submitted that the meaning of “adulterated” in cl 7(c) had to be considered in the context of the wording found in cl 7(a)(i), which relevantly states:
(a) the police officer who takes a sample of oral fluid for the purposes of an oral fluid analysis must—

(i) place the sample of oral fluid (and any reagent or other substance required by the regulations to be added to the sample) in approximately equal proportions, in 2 separate containers marked with an identification number distinguishing the sample from other samples of oral fluid and seal the containers; and
(emphasis added)
The appellant submitted that the proper interpretation of cl 7(c) in light of the wording in cl 7(a)(i) is that no substance could be added other than “any reagent or other substance required by the regulations to be added to the sample”. It was common ground that there were no regulations authorising any reagent or other substance to be added to the sample. Adulterate, in context, means adding a substance that makes the oral fluid less than pure. The addition of a substance to the oral fluid meant that what was analysed was not a sample of oral fluid but a mixture of oral fluid and an unknown substance.
The appellant submitted that his construction of cl 7 ensures rigour and transparency. To interpret cl 7(c) as requiring that the substance added must prevent a proper analysis of the sample would be to alter the meaning of adulterate. It would, in effect, mean a police officer could add any substance to the oral fluid analysis and there would be no consequences provided the substance added did not operate to prevent a proper analysis. The appellant submitted that such an interpretation should be rejected.
Thus, the appellant submitted that Jackson, in adding a substance not authorised by regulation, “adulterated” the sample. Whether the phrases in cl 7 (a)(i) are read disjunctively or conjunctively, Jackson did not add a reagent and the regulations did not require any substance (reagent or not) to be added. It was “reasonably practicable” for Jackson to add nothing to the oral fluid and simply place the oral fluid he had obtained in two separate containers.
Jackson, the appellant submitted, could not simply rely on his training and the fact that South Australia Police had provided the collection kit to discharge his obligation to ensure the sample was not adulterated. Jackson admitted that he did not know the nature of the substance he added to the oral fluid sample. It followed that Jackson had no knowledge as to whether adding the substance to the sample would or could cause deterioration of the sample such that it may interfere with the analysis. Therefore the appellant had proved that he had not taken such measures as were reasonably practicable in the circumstances to ensure that the sample is not adulterated. This, the appellant submitted, amounted to proof to the contrary of the facts certified.
Respondent’s submissions
The respondent submitted that properly construed cl 7 does not prohibit the adding of a substance other than “any reagent or other substance required by the regulations”. What is prohibited by cl 7 is adulteration, i.e., adding a substance which could affect the accuracy of the oral fluid analysis subsequently conducted.
The starting point of analysis to consider the meaning of “adulterated”. “Adulterated” is not defined in the RTA. Macquarie Dictionary defines adulterate as:^[11]
to debase by adding inferior materials or elements; make impure by admixture; use cheaper, inferior, or less desirable goods in the production or marketing of (any professedly genuine article)
[11] Macquarie Dictionary (online at 19 February 2024) ‘adulterate’ (def 1).
The respondent submitted that the appellant’s proposed construction of cl 7 ignored the ordinary meaning of “adulterated”. A substance is not adulterated as a matter of common usage if anything whatsoever is added to it (for example, distilled water). The word is not used to refer to absolute purity, but purity by reference to the reasonably anticipated use of the substance.
Bearing in mind the definition of adulterate, the respondent submitted that Jackson’s duty was to take reasonably practicable measures to ensure the sample of oral fluid was not debased or made impure “so as to prevent a proper analysis of the presence of a prescribed drug in the oral fluid”. The use of the word “and” between the two component parts of cl 7(c)—“to ensure that the sample is not adulterated … and does not deteriorate”—is as a matter of ordinary speech used conjunctively such that both component parts would refer to the words at the conclusion of the sentence. To construe cl 7 as the appellant proposed would be to read the clause untethered from its immediate textual context and create an inconsistency of purpose established by the single provision.
Given the definition of adulterate the respondent submitted that the duty imposed by cl 7(c) does not require the police officer to ensure that no substance at all is added to the oral fluid obtained from the swab nor to only add something which is a “reagent or other substance required by the regulations to be added”. The words in in cl 7(c) “other than as required under paragraph (a)” should be read as establishing that the only adulteration (i.e., the only debasement or making impure) which is permitted is by adding a reagent or substance authorised by the regulations. That is, if the substance does not have an adulterating effect, it may be added regardless despite not being authorised under the regulations.
Thus, the respondent submitted that cl 7 permitted Jackson to add a substance to the oral fluid provided he took such measures as were reasonably practicable in the circumstances “to ensure the sample is not adulterated and does not deteriorate such that a proper analysis of the presence of a prescribed drug is prevented.” Here Jackson relied upon his training and the fact that he used equipment provided by the Police Department.
The respondent submitted that Kimber J was correct to conclude that having regard to the text, context and purpose of the RTA as a whole that adding substances to the oral fluid sample is permissible as long as the police officer is complying with their duty under cl 7(c) to take reasonably practicable measures to ensure that the sample is neither adulterated nor allowed to degrade to ensure that proper analysis of the oral fluid can be conducted. The demonstration by the appellant that a substance had been added to the oral fluid sample, in circumstances where no substances were specified in the regulations for the purpose of cl 7(a), did not mean that the appellant had demonstrated proof to the contrary of the facts certified.
Turning to the appellant’s second argument, it was not disputed that the appellant had an onus to establish, on the balance of probabilities, the contrary of what the certificate pursuant to s 47K(3a) asserted. The respondent, relying on the decision and reasoning of Stanley J in Police v Butcher[12] (discussed earlier in these reasons) submitted that the certificate had the effect of establishing a “statutory presumption without regard to the facts” such that proof to the contrary is not achieved by pointing to the absence of sufficient evidence of the facts certified before the relevant police officer or by submitting that the police officer could not, as a matter of fact, have been satisfied of the matters certified in the document. Proof to the contrary required the appellant to prove that a substance was added which may have resulted in the oral fluid being adulterated such that a proper analysis was prevented. The appellant failed to do so.
[12] (2014) 119 SASR 509.
The respondent in the alternative submitted that even assuming for present purposes that it would suffice to discharge the onus if the appellant prove that Jackson had not taken such measures as were reasonably practicable in the circumstances to ensure that the sample was not adulterated, even in the absence of any suggestion that the sample was actually adulterated, the evidence in the present case did not enable the appellant to discharge the lesser onus either. The respondent submitted that cl 7 did not require that a police officer take “all” such matters as reasonably practicable. The duty was simply to take “such measures”.
The objective of the duty is to avoid an adulteration or a deterioration that might prevent a proper analysis for the presence of a prescribed drug. Jackson’s evidence established that he had been trained in how to take samples, that he followed the training, that he used equipment provided to him by South Australia Police for the purposes of taking oral fluid samples and that he had in fact taken the swab correctly. This evidence established that he had taken such measures as were reasonably practicable in the circumstances to ensure that the sample was not adulterated.
Further, there was no evidence led at trial that the liquid in the collection tube of the kit provided by South Australia Police did affect the ability of the analysis to accurately reveal the presence of THC in the oral fluid sample. Both the statement of Dr Pollnitz and the analyst certificate established that the analysis of the sample did not reveal anything that might have adversely affected the accuracy or the validity of the analysis.
Finally, the respondent submitted that, even if the appellant demonstrated that Jackson breached his duty, the evidence was sufficient for the prosecution to prove beyond a reasonable doubt, without the assistance of the certificate, that there was nothing in the sample collection process that undermined the accuracy of the analysis.
Discussion
In assigning legal meaning to the words of a provision, the court starts with consideration of the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose. That is, the process begins with the text but, as the meaning of words can never be acontextual, the process must also begin by examining the context.[13] The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[14] Context, in its widest sense, and the purpose of the statute, inform the interpretative task throughout.[15]Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.[16]A statutory offence provision is to be construed according to the ordinary rules of construction; courts do not employ a different regime of construction or interpretation simply because conduct is proscribed as an offence.[17]The language of a penal provision should not be unduly stretched or extended and any real ambiguity as to meaning should be resolved in favour of an accused. However, any ambiguity that calls for such resolution is one which persists after the application of the ordinary rules of construction.[18]
[13] The Queen v A2 (2019) 269 CLR 507 at [163] (Edelman J), citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) CLR 355 at [69] (Brennan CJ).
[14] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).
[15] The Queen v A2 (2019) 269 CLR 507 at [124] (Bell and Gageler JJ, in the minority on the result).
[16] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).
[17] The Queen v A2 (2019) 269 CLR 507 at [163] (Edelman J).
[18] The Queen v A2 (2019) 269 CLR 507 at [52] (Kiefel CJ and Keane J).
Having regard to the text, context and purpose of the RTA, we consider that what is prohibited by cl 7 is adulteration, i.e., adding a substance which could affect the accuracy of the oral fluid analysis subsequently conducted.
Support for this conclusion is found in the use of the word “and” between the two component parts of cl 7(c): “to ensure that the sample is not adulterated … and does not deteriorate”. In context, the phrases should be read conjunctively. That is, both component parts refer to the expression at the end of the sentence “so as to prevent a proper analysis of the presence of a prescribed drug in the oral fluid”. The expression in cl 7 (c) “other than as required under paragraph (a)” refers to the addition of an adulterant, that is, a substance which debases or make impure the collected oral fluid sample. In such circumstances the only adulterant which may be added is a reagent or substance authorised by the regulations.
If the substance added does not have an adulterating effect, such as to prevent a proper analysis, it may be added despite not being authorised under the regulations. That is, adding substances to the oral fluid sample is permitted provided the police officer complies with the duty under cl 7(c) to take such reasonably practicable measures to ensure that the sample is not adulterated and does not deteriorate so as to prevent a proper analysis of the presence of a prescribed drug in the oral fluid. Jackson was not restricted to ensuring that nothing was added to the oral fluid unless that substance was a reagent or other substance authorised by the regulations.
To put that another way cl 7 permitted Jackson to add a substance to the oral fluid provided he took such measures as were reasonably practicable in the circumstances “to ensure the sample is not adulterated and does not deteriorate such that a proper analysis of the presence of a prescribed drug is prevented.”
Justice Kimber observed:
I agree with the respondent that Sch 1 of the RTA does not have the textual or contextual hallmarks of an exhaustive codification of the process for taking an oral fluid sample. On the approach of the appellant, the regulations must set out all substances which might be added to a sample, including inert substances added for the sole purpose of aiding separation or preservation and analysis. That approach would require the regulations to be updated every time SAPOL changed the supplier of oral fluid sample kits or an existing supplier changed any solution within a kit. I agree with the respondent that construction would be unduly burdensome while serving no additional purpose. Given the duty imposed by cl 7(c) which I prefer, and which protects the sample from adulteration or deterioration, I agree with the respondent that such a construction favouring exhaustive codification would provide no material protection to defendants.
We agree with Kimber J’s observations.
Turning to the question of whether the appellant demonstrated proof to the contrary, the relevant permissible facts certified in the s 47K(3a) certificate were of the provisions of the RTA: “with respect to the taking of samples of oral fluid for the purposes of an oral fluid analysis were complied with”. As discussed earlier, the duty created by cl 7(c) was to take such measures as were reasonably practicable in the circumstances to ensure the sample was not adulterated or deteriorated so as to prevent a proper analysis. Proof to the contrary required that either the appellant demonstrated a substance was added which may have resulted in the oral fluid being adulterated, or that it had deteriorated such that a proper analysis was prevented. Jackson gave evidence that he did not know the nature of the substance. The fact that he did not know the nature of the substance does not provide proof to the contrary of the certified facts. As stated earlier in these reasons, the certificate has the effect of establishing a “statutory presumption without regard to the facts” such that proof to the contrary is not achieved by submitting the police officer could not, as a matter of fact, have been satisfied of the matters certified in the document.
Other evidence in the case established that the analysis of the sample was conducted properly and that the analyst detected no factors which affected the accuracy or validity of the analysis. Proof to the contrary required more than the mere fact that an unknown substance was added. What was needed was proof that what had been added adulterated the oral fluid sample.
We reject the appellant’s construction of cl 7 of Schedule 1. We would dismiss the appeal on that basis.
However, we would add that having conducted a review of the evidence in the case we find that even if the appellant demonstrated that Jackson breached his duty, the evidence was sufficient for the prosecution to prove beyond a reasonable doubt, without the assistance of the certificate, that there was nothing in the sample collection process that undermined the accuracy of the analysis.
Order
We would grant permission to appeal. We would dismiss the appeal.
DOYLE JA: I agree with Lovell and David JJA that the appellant should be granted permission to appeal, but that his appeal should be dismissed. I gratefully adopt their Honour’s summary of the background to the issues raised by this appeal. I will only repeat matters necessary to articulate my reasons.
The appellant was convicted in the Magistrates Court of two offences involving him driving a motor vehicle while having a prescribed drug (cannabis) in his oral fluid.

At trial, Senior Constable Jackson gave evidence that he placed the swab with the appellant’s saliva into a collection tube from a collection kit that had been provided to him by the South Australian Police for the purposes of taking oral fluid samples, and that in so doing he followed his police training. In particular, he took a sealed tube from the collection kit, opened it, placed the swab into the liquid in the tube, shook the tube, and then poured the liquid into two empty vials from the collection kit. The vials were then sent to Forensic Science SA for analysis, which resulted in the detection of THC (the active ingredient in cannabis).
In proving the offences with which the appellant was charged, the prosecution relied inter alia upon a certificate under s 47K(3a) of the Road Traffic Act 1961 (SA) (the RTA) to the effect that SC Jackson had complied with the provisions of the RTA with respect to the taking of samples of oral fluid, being the provisions set out in cl 7 of Schedule 1 to the RTA. These provisions included a duty that the police officer “take such measures as are reasonably practicable in the circumstances to ensure that the sample is not adulterated”. Under s 47K(3a) of the RTA, a certificate purporting to be signed by a police officer, and to certify compliance with these provisions, was “in the absence of proof to the contrary, proof of the matters so certified”.
In this Court, the appellant complains that the Magistrate (and then the single judge) erred in rejecting the appellant’s argument that he had provided “proof to the contrary” of the matters certified. In particular, he complains that by placing the swab into the unknown liquid in the collection tube, SC Jackson failed to comply with his duty to take such measures as were reasonably practicable in the circumstances to ensure that the sample of oral fluid was not adulterated.
The appellant’s grounds of appeal require consideration of two related matters. The first is the meaning of “adulterated” in cl 7(c) of Schedule 1 of the RTA. The second is the content of the police officer’s duty under cl 7(c) of Schedule 1 and, consequentially, what was required to establish “proof to the contrary” for the purposes of s 47K(3a).
In short, I agree with the Magistrate and single judge, and Lovell and David JJA, that on a proper construction of cl 7 of Schedule 1 of the RTA, SC Jackson was entitled to place the swab in the unknown liquid in the collection tube, and that his evidence that he did not know the identity or chemical composition of the liquid did not suffice to discharge the appellant’s onus of proving on the balance of probabilities that the provisions of the RTA with respect to the taking of oral fluid samples were not complied with. My reasons for so concluding follow.
In addressing the matters raised by the appellant’s grounds of appeal, it is appropriate to commence by considering the terms of cl 7 of Schedule 1 of the RTA. It relevantly provides:
7—Oral fluid sample processes
The following provisions apply if a sample of oral fluid is taken under section 47EAA(2):
(a)     the police officer who takes a sample of oral fluid for the purposes of an oral fluid analysis must—
(i)place the sample of oral fluid (and any reagent or other substance required by the regulations to be added to the sample) in approximately equal proportions, in 2 separate containers marked with an identification number distinguishing the sample from other samples of oral fluid and seal the containers; and
(ii)give to the person from whom the sample was taken a notice in writing …;
(iii)complete and sign a certificate containing the information required under paragraph (d);
(b)     each container must contain a sufficient quantity of oral fluid to enable an analysis to be made of the presence of a prescribed drug in the oral fluid;
(c)     it is the duty of the police officer who takes the sample of oral fluid for the purposes of the oral fluid analysis to take such measures as are reasonably practicable in the circumstances to ensure that the sample is not adulterated (other than as required under paragraph (a)) and does not deteriorate so as to prevent a proper analysis of the presence of a prescribed drug in the oral fluid;
(d)     the certificate referred to in paragraph (a) must state—
(i)the identification number of the sample marked on the containers referred to in that paragraph; and
(ii)the name and address of the person from whom the sample was taken; and
(iii)the identification number of the police officer by whom the sample was taken; and
(iv)    the date, time and place at which the sample was taken; and
(v)that the police officer gave the notice referred to in that paragraph to the person from whom the sample was taken;
(e)     one of the containers containing the sample must—
(i)as soon as reasonably practicable be taken by a police officer or an approved courier to the place specified in the notice given to the person under paragraph (a); and
(ii)be kept available at that place for collection by or on behalf of the person for the period prescribed by the regulations;
(f)     after analysis of the sample in a container referred to in paragraph (a), the analyst who performed or supervised the analysis must sign a certificate containing the following information …;
(g)     on completion of an analysis of a sample, the certificate of the analyst who performed or supervised the analysis must be retained on behalf of the Minister and copies of the certificates must be sent—
(i)    to the Commissioner of Police; and
(ii)to the person from whom the sample was taken or, if the person is dead, a relative or personal representative of the deceased;
(h)     …
Whilst the appellant’s arguments require a focus upon cl 7(c), that paragraph contains an express cross-reference back to cl 7(a) and must in any event be construed in its context. It is thus convenient to commence with some observations in relation to the balance of cl 7, and in particular paragraph (a).
It can immediately be seen that whilst cl 7 is relatively prescriptive and detailed in nature, it is not an exhaustive or comprehensive prescription, or codification, of the process for taking oral fluid samples. Clause 7(a) does not, for example, prescribe the mechanism by which an oral fluid sample is to be taken from the driver. Here, the sample was taken through the use of a swab placed in the appellant’s mouth.
Clause 7(a)(i) requires that the police officer take the sample of oral fluid and place it and “any reagent or other substance required by the regulations to be added to the sample” in approximately equal proportions in two separate containers.
Clause 7(a)(i) thus contemplates, indeed requires, that the sample of oral fluid be combined with “any reagent or other substance required by the regulations to be added to the sample”. However, it is common ground that no relevant regulations have been passed, and hence that there was no reagent or other substance required by the regulations to be added to the sample.
Importantly, whilst cl 7(a)(i) prescribes the use of any reagent or substance required by regulations, it does not proscribe the use of any other substance. It does not prohibit, for example, combining the sample of oral fluid with some other substance, such as an inert buffer solution designed to enable the sample to be separated into two separate containers. Indeed, assuming a swab is used to collect the oral fluid, it is difficult to see how the sample could otherwise be separated into approximately equal proportions in two containers, particularly bearing in mind the obligation in cl 7(b) to ensure that each container has a sufficient quantity of oral fluid to enable the analysis to be undertaken.
The appellant suggested that two swabs might be used, or alternatively that a larger quantity of saliva might be obtained through some other appropriate process and receptacle. The appellant also suggested that any difficulty in complying with cl 7(a) might simply be a function of the absence of any appropriate regulations providing for an approved reagent or other substance. But regardless of the merit of these suggestions, the point remains that cl 7(a) does not prohibit adding the sample of oral fluid to a liquid or solution which has not been required by regulations.
Moving to cl 7(c), the first issue is the meaning of “adulterated”, in the context of the police officer’s duty to take such measures as are reasonably practicable in the circumstances “to ensure that the sample is not adulterated (other than as required under paragraph (a)) and does not deteriorate so as to prevent a proper analysis”. The word “adulterated” is not defined in the RTA. In determining its meaning, the task is, of course, one of construing the text, having regard to not only the ordinary meaning of the words used, but also the relevant context and purpose.
The appellant contends that the notion of adulteration in this context extends to the addition of any foreign substance to the sample; that is, the addition of anything which renders the sample other than pure oral fluid or saliva. It follows that cl 7(c) involves a duty to take such measures as are reasonably practicable to ensure that no substance is added to the sample. By reason of the words in parentheses cross-referencing paragraph (a), the only exception to this is to permit the addition of a reagent or substance required by regulations.
The respondent, on the other hand, contends that adulteration connotes the addition of a substance which has the tendency to debase or compromise the substance to which it is added, having regard to the intended or expected use or purpose of the original substance. In developing this contention the respondent gave the illustration of adding water to various substances, such as wine, beer, cordial and soup. Whilst it may depend on the context, adding water to wine or beer would ordinarily tend to debase or compromise the quality of the wine or beer having regard to its intended purpose, meaning that the water is properly to be regarded as an adulterant. On the other hand, adding water to dilute cordial or soup would not ordinarily debase or compromise the quality of the cordial or soup, or otherwise be inconsistent with its intended purpose, and hence would not ordinarily involve the addition of an adulterant.
On the appellant’s contended meaning of adulterated, cl 7 does not contemplate the addition of any substance to a sample, other than a reagent or substance required by regulation. The addition of any other substance would involve an adulteration of the sample. On the respondent’s contended meaning of adulterated, cl 7 permits the addition of a substance which would not interfere with the intended purpose or quality of the sample. In other words, the addition of an inert buffer solution which facilitates the separation of the sample into two containers, and which does not interfere with the intended analysis of the sample, would not involve an adulteration of the sample. And that would be so even if the inert buffer solution was not one prescribed by regulations.
In considering these competing contentions, the single judge referred to the Macquarie Dictionary definition of “adulterate”:
… to debase by adding inferior materials or elements; make impure by admixture; use cheaper, inferior, or less desirable goods in the production or marketing of (any professedly genuine article).
Although the first and third meanings support the respondent’s contentions, it might be said that the second meaning (“make impure by admixture”) is consistent with the appellant’s meaning. On the other hand, the meanings provided by other dictionaries to which I have had regard generally support the respondent’s contentions:[19]
·debase by adding other or inferior substances.
·to make something weaker or of worse quality by adding something else to it.
·to corrupt, debase, or make impure by the addition of a foreign or inferior substance or element.
·to debase by adding inferior material.
[19] Being the meanings provided by the Oxford Dictionary, and the online Cambridge, Merriam-Webster and Collins dictionaries respectively.
In my view, the ordinary meaning of adulterate connotes something more than the mere addition of another substance. It connotes the addition of a substance which has the tendency to debase, corrupt, or make inferior the substance to which it is added; or a substance which has the tendency to compromise, undermine or otherwise interfere with the quality or intended purpose of the substance to which it is added.
I accept that the reference to “other than as required under paragraph (a)” in parentheses after the use of the word “adulterated” in cl 7(c) provides some contextual support for the appellant’s contended meaning of adulterate. In particular, it is unlikely that any reagent or substance required by the regulations would be a substance which would tend to debase or compromise the sample of oral fluid, and hence it is unlikely that any such reagent or substance would be an adulterant in the sense I have described. Accepting this to be so, it is difficult to see why, on the respondent’s meaning of adulterated, it was necessary to exclude any reagent or other substance required by the regulations from the articulation of the police officer’s duty in cl 7(c).
On the other hand, it may be that the words in parentheses were included merely by way of confirmation or clarification, or out of an abundance of caution, so as to prevent any argument that the use of a reagent or other substance required by the regulations would adulterate the sample of oral fluid.
In any event, I consider that there are stronger contextual indicators that favour the respondent’s meaning of “adulterated” as it appears in cl 7(c).
In particular, in describing the police officer’s duty in cl 7(c), the word “adulterated” is used in combination with the words “deteriorate so as to prevent a proper analysis”. The use of the conjunction “and” makes it plain that the police officer’s obligation to take such measures as are reasonably practicable in the circumstances has a dual aspect to it. It is a duty to take measures to ensure that the sample “is not adulterated” and that the sample “does not deteriorate so as to prevent a proper analysis”. The fact that the notion of deterioration is expressly confined to deterioration of a nature or extent that would “prevent a proper analysis” supports a meaning of “adulterated” that is similarly confined.
Indeed, the respondent’s primary submission is that the relevant words in cl 7(c) should be read distributively so that the qualifying words “so as to prevent a proper analysis” apply to both “adulterated” and “deteriorate”. If cl 7(c) were to be read in this way, then it would strengthen the respondent’s argument that cl 7 permits the addition of a substance as long as it does not interfere with the sample in a way that prevents a proper analysis. However, I am not persuaded that the relevant words are to be read distributively in this way.
It may be accepted that the words of cl 7(c) leave open a distributive reading, and that this would be the preferable reading if there were commas before and after the words “and does not deteriorate”. However, in the absence of any punctuation supporting a distributive reading, I consider that the preferable reading of cl 7(c) is one in which the words “so as to prevent a proper analysis” only apply to, or qualify, “deteriorate”. Whilst mindful of not slipping into circular or ‘bootstraps’ reasoning, I consider that this construction is supported by my view that the word “adulterate” already carries with it a similar qualification (in that it involves adding a substance so as to debase or compromise) in a way that the word “deteriorate” may not. Without the qualifying words “so as to prevent a proper analysis”, there might have been room for an argument, for example, that there had been a relevant deterioration by reason of the collection kit being exposed to the elements, or left in a police vehicle, for only a relatively short period of time.
All of that said, even accepting that the words “so as to prevent proper analysis” are not to be read distributively as applying directly to qualify the meaning of “adulterated”, they nevertheless provide some contextual support for the respondent’s meaning of “adulterated” in the sense that they support a construction of cl 7(c) that involves a focus upon ensuring that the sample remains appropriate for analysis.
In a related way, I consider that the respondent’s meaning of the word “adulterated” is consistent with the apparent purpose of cl 7, and in particular cl 7(c). It is consistent with an approach that seeks to ensure that the sample remains appropriate for analysis, but without necessarily preventing the use of a reagent or other substance not specifically required to be used by regulation. Whilst the appellant emphasises that a purpose of cl 7 is to ensure rigour and transparency in the sample collection process, I do not consider that the respondent’s meaning of “adulterated” is inconsistent with this purpose.
Having accepted the respondent’s meaning of the word “adulterated” (as involving the addition of a substance that has a tendency to debase or compromise the sample for its intended purpose of oral fluid analysis), it is appropriate to turn to the content of the police officer’s duty in cl 7(c). Importantly, the duty is not one to ensure that the sample is not adulterated; or to not add any substance to the sample that may adulterate the sample. It is a duty to take “such measures as are reasonably practicable in the circumstances” to ensure that the sample is not adulterated.
The appellant’s primary argument is that the addition of any substance (other than a reagent or substance required by regulation) would involve a breach of this duty. However, even accepting the respondent’s meaning of “adulterated”, the appellant argues that it would be a breach of the police officer’s duty to place the sample in an unknown solution. On the appellant’s argument, because there is a risk that the unknown solution might be an adulterant, and because it is reasonably practicable not to place the swab into that solution, then the police officer’s duty would require him or her to not place the swab into that solution.
In developing this argument, the appellant emphasised that the content of the police officer’s duty should not be approached from an assumption that there must be some alternative way of collecting the oral fluid sample reasonably available to the particular police officer. Just as would be the case if the police officer had not been issued with any collection kit at all, or had used all of the collection tubes he or she had been supplied with, it may be that a particular police officer will simply not be equipped to take an oral fluid sample in a way that complies with his or her duty under cl 7(c). Whilst a police officer with a collection tube containing a solution which he or she knows is a reagent or substance required by regulation (in accordance with cl 7(a)) would be in a position to take a sample for analysis without breaching his or her duty under cl 7(c), a police officer with a collection tube containing a solution about which he or she knows nothing at all would not be in a position to do so.
There would be some merit in the respondent’s argument in circumstances where the police officer knew nothing at all about the solution; for example, if he or she somehow came into possession of a collection kit or tube of completely unknown origin. But that is an unrealistic scenario, and is certainly not the present case.
In the present case, while SC Jackson did not know the identity of the solution in the collection tube, he knew that he was using a tube from a collection kit which had been supplied to him by South Australian Police for the purpose of taking an oral fluid sample for analysis, and which was consistent with the collection kit he had been trained to use. In those circumstances, there was no reason for SC Jackson to think that there was any realistic possibility that the solution in the collection tube would adulterate the oral fluid sample he had taken from the appellant using the swab supplied with that kit. To the contrary, he was reasonably entitled to assume that the solution would not debase or compromise the sample; to assume that it was likely to be some inert solution intended to facilitate the collection of the sample, and its separation into two vials, for the purpose of analysis.

Understood in this way, SC Jackson acted in conformity with his duty under cl 7(c). He did not fail to take any measure reasonably practicable to ensure that the sample was not adulterated.
It follows that SC Jackson’s evidence did not provide “proof to the contrary” of the matters certified in the s 47K(3a) certificate that he signed. SC Jackson did not purport to certify that the sample was not adulterated; or even that he had not added any substance that may be an adulterant. He certified merely that he had complied with his duty to take such measures as were reasonably practicable in the circumstances to ensure that the sample was not adulterated. For the reasons I have explained, the evidence of SC Jackson conformed with the matters certified, rather than providing evidence to the contrary.
Whilst this is enough to dispose of the appeal, for completeness I make two further observations.
The first is that I agree with Lovell and David JJA’s reasons for rejecting the appellant’s argument that the use of a s 47K(3a) certificate as an aid to proof required a personal and positive duty on the part of the police officer (here, SC Jackson) to hold a reasonable belief that the oral fluid sample was not adulterated. To the extent such a conclusion is supported by the reasoning of Peek J in Police v Hanton,[20] I agree with Lovell and David JJA’s preference for the reasoning of Stanley J in Police v Butcher.[21] In any event, on the wording of the s 47K(3a) certificate, SC Jackson purported only to certify that he had complied with the provisions of the RTA with respect to the taking of samples of oral fluid. This relevantly involved SC Jackson certifying only that he had placed the sample of oral fluid in approximately equal proportions in two separate containers (cl 7(a)) and that he had taken such measures as were reasonably practicable in the circumstances to ensure that the sample was not adulterated (cl 7(c)). On my construction of cl 7, there is no basis for contending that SC Jackson did not have a reasonable belief that he had complied with his duty and, indeed, that the sample had not been adulterated.
[20] Police v Hanton (2018) 131 SASR 226 at [21] (Peek J); noting that, on one view, all his Honour was saying (as explained at [111]) is that the absence of this reasonable belief may be relevant in determining whether there is “proof to the contrary” of the matter certified, depending upon the balance of the evidence and the precise nature of the matter certified.
[21] Police v Butcher (2014) 119 SASR 509 at [65] (Stanley J); noting the significance of the certificate “purporting” to certify the relevant matters.
The second is that I also agree with Lovell and David JJA that, even if the prosecution ought not to have been permitted to rely upon the s 47K(3a) certificate, the evidence was sufficient to establish that there was nothing in the sample collection process which undermined the accuracy of the analysis that was performed.
For the reasons given, I would grant permission to appeal, but dismiss the appeal.