Coleman v Police - [2023] SASC 19

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
COLEMAN v POLICE
[2023] SASC 19
Judgment of the Honourable Justice Kimber
17 February 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - EVIDENCE - ADMISSIBILITY
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PROCEDURE
Following a trial, the appellant was found guilty of two offences, the driving the subject of each being the same:
1.Driving a Motor Vehicle while present in his oral fluid was a prescribed drug, namely delta 9 tetrahydrocannabinol (THC) contrary to s 47BA(1)(a) of the Road Traffic Act 1961 (SA) (RTA).
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 in his oral fluid contrary to s 81AB(5) of the Motor Vehicles Act 1959 (SA) (MVA).

After being stopped by a police officer while driving, the appellant was subject to a drug screening test which indicated the presence of cannabis in his oral fluid for the purpose of analysis. The sample was collected using a swab, which was placed in a tube containing a liquid which was then sealed. The collection tube was shaken, then re-opened so that the liquid was separated into two smaller empty vials which were then sealed. The two samples were sent to Forensic Science SA for analysis. The evidence of the police officer was that he did not know the character of the liquid in the collection tube.
Two evidentiary certificates were admitted at trial. First, a certificate pursuant to s 47K(3a) of the RTA (the s 47K(3a) certificate) which set out the police officer had complied with provisions of the RTA in taking the sample of oral fluid. Second, a certificate pursuant to ss 47K(9) and 47K(11) of the RTA (the certificate of the analyst).
The appellant appeals on the basis that the Magistrate erred in admitting both certificates. With respect to the s 47K(3a) certificate, the appellant submitted that the evidence of the police officer that he did not know the character of the relevant liquid was ‘proof to the contrary’ that the provisions of the Act had been the subject of compliance (Ground 1). The appellant submitted Sch 1, cl 7 of the RTA was to be construed as imposing an obligation to add to the oral fluid only a reagent or other substance required by the regulations. No reagent or substance being set out in the regulations, the appellant submitted the evidence that there was a liquid in the collection tube was proof to the contrary of compliance. With respect to the certificate of the analyst, the appellant submitted that certificate had more than one error which meant it was not one ‘purporting to be signed by an analyst’ (Ground 2).
Held, per Kimber J, dismissing Grounds 1 and 2:
1.While the Magistrate erred in an aspect of her approach to the admissibility of the s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coleman v Police

Details

AGLC: Coleman v Police [2023] SASC 19
Case: [2023] SASC 19
Decision Date: 17 February 2023

CaseChat Overview and Summary

In the appeal of Coleman v Police, the appellant contested the decision of a Magistrate to convict him of driving a motor vehicle while the concentration of tetrahydrocannabinol (THC), a drug specified in the Road Traffic Act 1961 (SA), was above the prescribed limit. The primary issue in this appeal was the admissibility of a certificate under s 47K(3a) of the RTA, which certified that the sample of oral fluid was taken in compliance with the Act. The appellant argued that the certificate was inadmissible because there was proof to the contrary that the sample was not taken in accordance with the provisions of the Act. The appeal was heard and dismissed by the Supreme Court of South Australia.

The legal issue before the court was whether the Magistrate erred in admitting the s 47K(3a) certificate despite the appellant's contention that there was proof to the contrary of the relevant certified fact. The appellant submitted that there was evidence to show that the sample was not taken in compliance with the Act, which would render the certificate inadmissible. The court had to determine whether the certificate was admissible under the provisions of the RTA and whether the appellant's argument that there was proof to the contrary had merit.

The court found that the appellant's argument that there was proof to the contrary of the relevant certified fact was not well founded. The court held that the appellant had not provided any evidence to show that the sample was not taken in compliance with the provisions of the Act. The court noted that the appellant's argument was based on the fact that Jackson did not know the chemical composition of the substance in the tube, did not know what chemical reaction it would cause, and did not know if it was a substance used in chemical analysis. However, the court held that these facts did not undermine the validity of the certificate. The court held that the certificate was admissible and that the Magistrate did not err in admitting it.

The Supreme Court of South Australia dismissed both grounds of appeal and affirmed the conviction of the appellant. The court held that the Magistrate did not err in admitting the s 47K(3a) certificate and that there was no proof to the contrary of the relevant certified fact. The conviction of the appellant was upheld, and the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, I dismiss both grounds of appeal. Factual background There is no dispute about the following matters. On 13 September 2020 the appellant was stopped by Senior Constable First Class Jackson (Jackson) while driving his motor vehicle on a road at Meadows. The appellant held a probationary licence. Jackson administered a drug screening test which indicated the presence of cannabis in the oral fluid of the appellant. Jackson then required the appellant to provide a sample of his oral fluid for the purpose of analysis. Using a swab, Jackson took a sample of oral fluid. Jackson placed the swab in a tube containing a liquid and sealed the tube. Jackson agreed in evidence that he did not know what the substance was in the tube, including not knowing its chemical composition. Jackson also acknowledged he did not know what chemical reaction the substance would cause or if it was a substance used in chemical analysis. Jackson shook the collection tube so that any saliva particles on the swab mixed with the liquid in the tube. Jackson then separated the liquid from the collection tube into two smaller empty vials before sealing them and labelling them with an identification number. Jackson later sent the two vials along with relevant paperwork to Forensic Science SA for analysis. Among the exhibits tendered at trial were two certificates pursuant to the RTA. The first certificate was pursuant to s 47K(3a) of the RTA and signed by Jackson on 24 March 2022 (the s 47K(3a) certificate). [1] That certificate set out:[2] I, Kenneth Jackson being a police officer do hereby certify that a sample of oral fluid for the purposes of an oral fluid analysis was taken on the 13th day of September 2020 at 13.12 hours from Paul Phillip Coleman and the provisions of the Act with respect to the taking of samples of oral fluid for such purposes were complied with. [1] Exhibit P7.[2] Ibid. The second certificate was pursuant to ss 47K(9) and 47K(11) of the RTA and related to the analysis of the oral fluid taken from the appellant by Jackson (the certificate of the analyst).[3] That certificate set out, inter alia, that an oral fluid analysis was properly conducted for the presence of drugs prescribed in the RTA and that THC had been detected. The certificate of the analyst bore a signature and set out that it was a certificate signed by ‘A Pollnitz PHD’. Beneath Dr Pollnitz’s name were the words: ‘an analyst approved by the Minister of Transport’. Dr Pollnitz attended the trial but was not called to give evidence after the appellant indicated there would not be any cross-examination. A statement signed by Dr Pollnitz was tendered by the prosecution but that statement is not relevant to any issue on the appeal.[4] [3] Exhibit P2. [4] Exhibit P3.Ground 1 The appellant submits the Magistrate erred in admitting the s 47K(3a) certificate. The appellant submits there was ‘proof to the contrary’ of the relevant certified fact pursuant to s 47K(3a) of the RTA. That is, there was proof to the contrary that the ‘provisions of the Act with respect to the taking of oral samples were complied with’ by Jackson. To understand the submissions of the appellant, it is necessary to set out some aspects of the legislative scheme. The legislative scheme

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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