Coleman v Police
[2023] SASC 19
•17 February 2023
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 47K(3a) certificate, the decision to admit the certificate was correct. The evidence of the police officer that he did not know the nature of the liquid in the collection tube did not amount to the necessary proof to the contrary.
2.The certificate of the analyst was properly admitted. It was one ‘purporting to be signed by an analyst’ as required by ss 47K(9) and 47K(11) of the RTA.
Magistrates Court Act 1991 (SA) s 42; Road Traffic Act 1961 (SA) ss 47A, 47BA(1)(a), 47E, 47EAA, 47F, 47K(3a), 47K(9), 47K(11), Sch 1 cl 7; Motor Vehicles Act 1959 (SA) s 81AB(5); Road Traffic (Miscellaneous) Regulations 2014 (SA) reg 16(a), referred to.
Police v Butcher [2014] SASC 85; Law Society (SA) v Tom (1984) 8 SASR 517; Police v Short (2012) 112 SASR 463; Police v Hanton (2018) 131 SASR 226, considered.
COLEMAN v POLICE
[2023] SASC 19Criminal: Magistrates Appeal
KIMBER J:
This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA) (MCA). Following a trial, the appellant was found guilty of the following offences:
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); 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 in his oral fluid contrary to s 81AB(5) of the Motor Vehicles Act 1959 (SA) (MVA).
The driving the subject of each offence was the same and there is no dispute that a finding of guilt on Count 1 meant a finding of guilt on Count 2 inevitably followed.
The appellant appeals on two grounds:
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.
Particulars:
a)there was ‘proof to the contrary’ on the whole of the evidence that the provisions of the Act with respect of taking of samples of oral fluid had not been complied with, namely that the police officer had not taken such measures as are reasonably practicable in the circumstances to ensure that the sample was not adulterated.
2.The learned Magistrate erred in admitting the certificate tendered pursuant s 47K(9) of the Road Traffic Act 1961.
Particulars:
a)The certificate is admissible in circumstances where it complies with the statutory requirement to be signed by an analyst appointed by the Minister for the purposes of the Act.
b)The certificate tendered did not comply with that statutory requirement.
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
Section 47BA(1)(a) of the RTA provides that ‘[a] person must not … drive a motor vehicle … while a prescribed drug is present in the person’s oral fluid or blood’. Pursuant to reg 16(a) of the Road Traffic (Miscellaneous) Regulations 2014 (SA), THC is a prescribed drug. When considering the performance of an oral fluid analysis in connection with a charge under s 47BA(1)(a), the appropriate starting point is s 47E. Section 47E prescribes the circumstances in which a police officer may require a person to submit to an alcotest or a breath analysis.
Section 47E(1)(a) of the RTA relevantly provides:
(1)Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person –
(a)is driving, or has driven, a motor vehicle;
…
the police officer may require the person to submit to an alcotest or a breath analysis, or both.
There is no dispute Jackson lawfully required the appellant to submit to both an alcotest and a ‘drug screening test’. Section 47EAA(1)-(2) provides:
(1)Subject to this Act, if a person has submitted to an alcotest or breath analysis as a result of a requirement under section 47E, a member of the police force may require the person to submit to a drug screening test.
(2)If—
(a)a person has submitted to a drug screening test as a result of a requirement under subsection (1) and the drug screening test indicates the presence of a prescribed drug in the person's oral fluid; or
(b)a person has submitted to an alcotest or breath analysis as a result of a requirement under section 47E that was made in prescribed circumstances,
a police officer may require the person to submit to an oral fluid analysis or a blood test.
The terms ‘drug screening test’ and ‘oral fluid analysis’ are defined in s 47A(1) as follows:
“drug screening test” means a test by means of an apparatus of a kind approved by the Governor for the conduct of drug screening tests;
…
“oral fluid analysis” means the analysis of a person’s oral fluid to determine whether a prescribed drug is present in the oral fluid;
The definition of oral fluid in s 47A(1) is ‘includes saliva’.
Section 47F of the RTA provides that Sch 1 ‘makes further provision regulating oral fluid and blood sample processes for the purpose of this division’. Clause 7 of Sch 1 relevantly provides:
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;
Provisions creating evidentiary aids to proof of the elements of the offence
Section 47K of the RTA provides for the admission of certificates as proof, in the absence of proof to the contrary, of certain matters relevant to proving an offence against various provisions of the RTA, including s 47BA(1a).
Relevant to this appeal, ss 47K(3a), 47K(9) and 47K(11) provide:
(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.
…
(9)A certificate purporting to be signed by an analyst and to certify that an oral fluid analysis was properly conducted is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matter so certified.
…
(11)Subject to subsection (17), an apparently genuine document purporting to be a certificate under Schedule 1 and purporting to be signed by a police officer, medical practitioner or analyst, or copy of such a certificate, is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters stated in the certificate.
The reasons of the Magistrate
The Magistrate admitted the s 47K(3a) certificate. The Magistrate found the appellant had not provided proof to the contrary of the matters set out in that certificate. It is not necessary to set out every aspect of the reasons of the Magistrate for concluding Jackson had complied with the RTA when taking the oral fluid sample. The Magistrate held:[5]
The purpose of the drug driving provisions of the RTA is to prevent persons from driving with prescribed drugs in their oral fluid by creating an offence to do so. The offence is enforced by empowering police to compel the provision of an oral fluid sample from a driver (subject to police complying with certain steps preceding this, which is not in issue here). Establishing the presence of a prescribed drug in a driver’s oral fluid can only be achieved by chemical analysis, which necessarily requires the use of a reactive chemical, otherwise known as a reagent. In the circumstances and in its context, the meaning of the word ‘reagent’ where it appears in cl 7(a) is so clear as to not require definition in the RTA or qualification by prescription in the regulations. I consider the phrase ‘reagent or other substance required by the regulations’ should be interpreted disjunctively, such that a ‘substance required by regulations’ is an alternative to ‘any reagent’.
It follows from my interpretation of that phrase, that Mr Coleman therefore bears the onus of establishing on balance that Jackson added a substance other than a reagent to Mr Coleman’s sample of oral fluid. That Jackson did not know what the substance was in the collection tube is not evidence of this. He acknowledged in cross-examination that he is not a chemist. He is therefore not qualified to give expert evidence about the chemical composition or chemical properties of the substance in the collection tube into which he placed Mr Coleman’s swab. RTA s 47K(3) and cl 7 do not require Jackson to have knowledge of the chemical composition or chemical properties of the substance in the collection tube or to issue any certificate about this. Mr Coleman has not produced any expert evidence that the substance in the collection tube was not a reagent. Therefore, Mr Coleman has not displaced the permissible certified fact of Jackson’s compliance with the RTA provision when taking the oral fluid sample.
…
Jackson’s lack of knowledge about the substance in the collection tube does not establish Mr Coleman’s assertion that the oral fluid sample was adulterated. Expert evidence is required as to the chemical composition of the substance in the collection tube to confirm that it was contaminated with a substance other than a reagent. By failing to call any expert evidence, Mr Coleman has failed to establish on balance that Jackson failed to discharge his duty under cl 7(c).
[5] Police v Coleman [2022] SAMC 105, [16]-[17], [19].
The Magistrate erred in her reasoning
The appellant submits the Magistrate erred in more than one respect. For the moment, it is only necessary to consider the first error relied upon by the appellant. That error appears in the first paragraph extracted above.[6]
[6] Ibid, [19].
The Magistrate found that the substance Jackson had added was a ‘reagent’ or ‘reactive chemical’.[7] The appellant submits that finding was erroneous. The appellant submits there was no basis to find the substance had that character. With respect to the Magistrate, I agree. The only evidence about what had been added came from Jackson. As the Magistrate recognised, Jackson’s evidence was that he did not know what had been added. Given that evidence, and the absence of any other relevant evidence, it was not open to the Magistrate to find what was added was a ‘reagent’ or ‘reactive chemical’.
[7] RTA Sch 1, cl 7(a)(i).
The above error by the Magistrate was a central aspect of her process of reasoning in admitting the s 47K(3a) certificate. Nonetheless, it does not follow the appeal must be allowed.
This is an appeal pursuant to s 42 of the MCA. Section 42(5) of the MCA provides:
(5)On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a)it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b)it may remit the case for hearing or further hearing before the Magistrates Court;
(c)it may make any other order (including, subject to subsection (5a), an order for costs) that may be necessary or desirable in the circumstances.
In the circumstances, I must consider whether the decision to admit the relevant certificate should be confirmed or quashed. This directs attention to what Jackson did and the proper construction of the relevant parts of Sch 1, cl 7 (cl 7).
The submissions of the appellant
The submissions of the appellant direct attention to the words within cl 7(c) and the 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 cl 7(a))’. The appellant submits those words, read in light of cl 7(a)(i), are to be construed as meaning that no substance may be added other than ‘any reagent or other substance required by the regulations to be added to the sample’.
The appellant submits that regardless of whether the words within cl 7(a)(i) ‘no reagent or other substance required by the regulations to be added’ are read conjunctively or disjunctively, there was no evidence Jackson added a ‘reagent’ and that the regulations did not require any substance (reagent or not) to be added. The appellant submits that it was reasonably practicable for Jackson to add nothing to the oral fluid and simply place that oral fluid into two separate containers.
The submissions of the respondent
The respondent submits that the appellant misconstrues cl 7. The respondent submits the approach of the appellant to cl 7 proceeds from the three premises: that the oral fluid cannot be adulterated; that adulterated means ‘not to add any substance to the oral fluid’ - and - that the only exception to this is that the RTA authorises the mixing of a ‘reagent or other substance required by the regulations to be added to the sample’. The respondent submits the first premise is correct, but the second and third are not.
The respondent commences with the ordinary meaning of ‘adulterated’ as defined in the Macquarie Dictionary:
… 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).
The respondent submits that properly construed, cl 7 does not prohibit the adding of a substance other than ‘any reagent or other substance required by the regulations’. Rather, the respondent submits what is prohibited by cl 7 is ‘adulteration’ (i.e. - the adding of a substance which could affect the accuracy of the oral fluid analysis which may follow the collection of the oral fluid). Put another way, the respondent submits cl 7 permitted Jackson to add a substance to the oral fluid, provided he took such measures as 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 in the oral fluid is prevented.[8] The respondent further submits the s 47(3a) certificate established ‘the provisions of the Act with respect to the taking of samples of oral fluid for such purposes were complied with’ and that the evidence of Jackson that he did not know the nature of the substance he added was not ‘proof to the contrary’ of the relevant compliance. The respondent submits the ‘proof to the contrary’ required was more than the mere fact that an unknown substance was added. In the respondent’s submission, what was needed was proof that what had been added had adulterated the oral fluid.
[8] Ibid, Sch 1, cl 7(c).
Discussion
In my view, the duty imposed by cl 7(c) is not, as the appellant contended, to take such measures as are reasonably practicable in the circumstances to ensure no substance is added to the oral fluid unless that substance is ‘any reagent or other substance required by the regulations to be added to the sample’.[9] In my view, cl 7 establishes the only adulterant which may be added is a reagent or other substance required by the regulations to be added. Put another way, any substance may be added provided the oral fluid sample is not adulterated.
Clause 7(c)
[9] Ibid, Sch 1, cl 7(a)(i).
I commence with cl 7(c).
The relevant duty placed upon Jackson by cl 7(c) was to ‘take such measures as reasonably practicable in the circumstances to ensure that the sample is not adulterated’. Bearing in mind the definition of adulterated which is set out above, the duty is 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’.[10] Equally the duty is not to ensure no substance at all is added to the oral fluid nor to only add something which is ‘a reagent or other substance required by the regulations to be added’.[11] I am satisfied the words in cl 7(c), ‘other than as required under paragraph (a)’, are to be read as establishing that the only adulteration (i.e. the only debasement or making impure) which is permitted is by the adding of a reagent or substance required by the regulations. Put another way, if the substance added does not have an adulterating quality or effect, it may be added regardless of whether it is a reagent or other substance in the regulations.
[10] Ibid, Sch 1, cl 7(c).
[11] Ibid, Sch 1, cl 7(a).
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.
What the appellant was required to prove
The relevant permissible fact certified in the s 47K(3a) certificate was that 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’. Section 47K(3a) required proof to the contrary of that fact (i.e. – that Jackson did not comply with the duty in cl 7(c)). As set out above, the duty created by cl 7(c) relevant in this case was to take such measures as were reasonably practicable in the circumstances to ensure the sample was not adulterated so as to prevent a proper analysis. Proof to the contrary required that a substance was added which may have resulted in the oral fluid being adulterated such that proper analysis was prevented. That required proof the substance may have adulterated the oral fluid. The evidence of Jackson that he did not know nature of the substance did not provide that proof. That is so as the evidence of Jackson said nothing about whether there had been adulteration. As the respondent submitted, 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 submitting that ‘the police officer could not, as a matter of fact, have been satisfied of the matters certified in the document’.[12]
[12] Police v Butcher [2014] SASC 85, [65].
For the above reasons, the Magistrate was correct to conclude:[13]
Jackson’s lack of knowledge about the substance in the collection tube does not establish Mr Coleman’s assertion that the oral fluid sample was adulterated. Expert evidence is required as to the chemical composition of the substance in the collection tube to confirm that it was contaminated with a substance other than a reagent. By failing to call any expert evidence, Mr Coleman has failed to establish on balance that Jackson failed to discharge his duty under cl 7(c).
[13] Police v Coleman [2022] SAMC 105, [19].
I dismiss Ground 1.
Ground 2
The appellant submits the certificate of the analyst should not have been admitted. It must be accepted that for the certificate to be admissible, it needed to be one ‘purporting to be signed by an analyst’.[14]
[14] RTA ss 47K(9) and 47K(11).
The appellant submits the relevant certificate was deficient in three respects, all going to the issue of whether Dr Pollnitz was ‘an analyst’.
The first alleged deficiency is that ‘analyst’ is defined in s 47A of the RTA as ‘a person appointed by the Minster as an analyst for the purposes of the Act’. The appellant submits the certificate set out Dr Pollnitz was ‘approved’ by the Minister, not ‘appointed’. The appellant directs attention to the ordinary meanings of the words ‘approved’ (i.e. – to pronounce or consider good; speak or think favourably of; to confirm or sanction officially; ratify) and ‘appointed’ (i.e. – to nominate or assign to a position or perform a function; set apart; designate; to constitute, ordain or fix by decree, determine by authority or agreement).[15]
[15] Macquarie Dictionary.
The second alleged deficiency also relates to the definition of ‘analyst’ in s 47A. The appellant directs attention to the need for Dr Pollnitz to be appointed ‘for the purposes of the [RTA]’. The appellant submits there was no express reference to Dr Pollnitz having been ‘approved’ for that specific Act.
The third alleged deficiency is that the certificate set out Dr Pollnitz was approved by the ‘Minister of Transport’. There is no dispute the relevant Minister at the time of the certificate was the ‘Minister for Infrastructure and Transport’. As I understand it, the appellant makes no complaint about the absence of a reference to ‘Infrastructure’. Rather, the appellant submits the use of the word ‘of’ instead of ‘for’ is important.
The appellant directs attention to Law Society (SA) v Tom (Tom).[16] In Tom the Law Society purported to rely upon an evidentiary provision and a purported certificate by its chief executive officer. That certificate was deficient in more than one respect. In upholding the decision of the Magistrate, the certificate was properly deemed a ‘nullity’. Bright J stated:[17]
I start with a view that those who rely on certificates issued on statutory authority as evidentiary short cuts should strictly conform to the statutory requirements. Some slight departure may not cause the certificate to cease to be a ‘statutory certificate’. But where the certificate quotes a wrong authorization, includes matter which is outside the authorization and omits matter which is fundamental to the authorization, all of which apply to the present certificate authorized by sub-s. (5). I therefore agree with the learned Special Magistrate that it is a nullity.
[16] Law Society (SA) v Tom (1984) 8 SASR 517, 524 (Tom).
[17] Ibid.
The respondent also relies upon Tom but submits, inter alia, that it must not be overlooked that Tom is consistent with a ‘slight departure’ from a statutory requirement not leading to a certificate being inadmissible. The respondent submits that the use of words in the certificate of ‘similar import’[18] to those in the RTA is sufficient.
[18] Police v Short (2012) 112 SASR 463, [28].
Discussion
It may be accepted that where evidentiary certificates are concerned there must be ‘strict adherence to the requirements’[19] of the relevant provision(s). The starting point is the identification of the relevant requirement in this case. The relevant requirement established by s 47K(9) was that the certificate be one ‘purporting to be signed by an analyst’[20] (emphasis added) to be admissible. That is, that it ‘professed or claimed’[21] to be signed by an analyst. The issue is whether the alleged deficiencies relied upon by the appellant meant the certificate was not one ‘purporting’ to be signed by an analyst.
[19] Police v Hanton (2018) 131 SASR 226, [28].
[20] RTA s 47K(9).
[21] Macquarie Dictionary.
As to the first alleged deficiency, in the context of the requirement in s 47A for an analyst to be ‘a person appointed by the Minister as an analyst’, the word ‘approved’ is one of sufficiently similar import. As to the second alleged deficiency, the certificate set out that it was a ‘Certificate of Oral Fluid Analysis for Drugs Pursuant to s 47K(9) and Schedule 1 of the Road Traffic Act, 1961’. Read together with the certificate stating Dr Pollnitz was ‘an analyst’, those matters were sufficient to establish Dr Pollnitz was an analyst ‘for the purposes of the RTA’ as required by s 47A. As for the third deficiency, the nature of the error in the use of the word ‘of’ instead of ‘for’ is typographical. In my view, it is not an error which meant the certificate was not one ‘purporting to be signed by an analyst’.
For the above reasons, I find the relevant certificate was one ‘purporting to be signed by an analyst’. The decision of the Magistrate to admit the certificate was correct. Ground 2 must be dismissed.
I mention a further matter. On my reading, the Magistrate proceeded on the basis the onus was on the appellant to provide ‘proof to the contrary’ that Dr Pollnitz was an analyst. As I understand the reasons of the Magistrate, that onus did not arise from the terms of s 47K(9). With respect, I agree. On my reading of that sub-section, the relevant proof to the contrary is with respect to the ‘matter so certified’. The ‘matter so certified’ is that an ‘oral fluid analysis was properly conducted’, not that the person who signed the certificate was ‘an analyst’.
The Magistrate considered that proof to the contrary may be required, at least in part, because of s 47K(11) and Sch 1, cl 7(f). Clause 7(f) provides:
The following provisions apply if a sample of oral fluid is taken under section 47EAA(2):
(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:
(i)the identification number of the sample marked on the container;
(ii)the name and professional qualifications of the analyst;
(iii)the date on which the sample was received in the laboratory in which the analysis was performed;
(iv)the information required by the regulations in relation to any prescribed drug or drugs found to be present in the sample;
(v)any factors relating to the sample or the analysis that might, in the opinion of the analyst, adversely affect the accuracy or validity of the analysis;
(vi)any other information relating to the sample or analysis or both that the analyst thinks fit to include;
Section 47K(11) and Sch 1 cl 7(f) may be read in more than one way on the question of whether a certifiable fact requiring a defendant to provide ‘proof to the contrary’ is whether the person is ‘an analyst’. I incline to the view that it is. However, as the parties directed their submissions to s 47K(9) and not to the proper construction of s 47K(11) and Sch 1 cl 7(f), I have not reached a concluded view. For the purposes of this appeal, it is sufficient to observe that, for the reasons I have given, despite the alleged deficiencies, the certificate was one ‘purporting to be signed by an analyst’ and the decision of the Magistrate to admit it was correct.
Orders
1.The appeal is dismissed.
2.I will hear the parties as to any further orders.
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