Dennert v Police No. Scgrg-98-1203 Judgment No. S6913

[1998] SASC 6913

DENNERT v POLICE

[1998] SASC 6913

Magistrates Appeal: Criminal

1 WICKS J This is an appeal against conviction. The appellant was charged on two counts, the first being for driving a motor vehicle whilst there was present in his blood a prescribed concentration of alcohol as defined by s47A of the Road Traffic Act 1961 contrary to s47B of that Act. The concentration of alcohol alleged was 0.136 grms in 100 mls of blood. The second charge was for driving without due care.
2 The appellant pleaded not guilty to the drink-driving charge under s47B but pleaded guilty to the charge of driving without due care. The latter offence is not in contention on this appeal.
3 At the trial, a number of documents were put in evidence by consent, no oral evidence was called, the learned Magistrate ruled that there was a case to answer and the appellant elected not to call evidence.
4 On 18 August 1998, the learned Magistrate found the appellant guilty of the drink-driving charge and entered a conviction. Under s18A of the Criminal Law (Sentencing) Act 1988, a single fine of $900 was imposed covering both the drink-driving charge and the charge of driving without due care. In addition, in respect of the drink-driving charge, the appellant was disqualified from holding or obtaining a driver’s licence for a period of nine months.
5 At 11 pm on 9 January 1997 while the appellant was driving his motor vehicle on Main Road, Moorak, the vehicle skidded off the road and into a paddock.
6 The appellant’s right shoulder was injured and he also suffered a broken toe and an injured ankle.  He was conveyed from the scene of the accident to the Mount Gambier Hospital by ambulance where he received treatment for his injuries.  He said that while he was in hospital a blood sample was taken. 
7 A certificate of a medical practitioner pursuant to s47I was received in evidence in relation to the appellant who was described in the certificate as the driver of the vehicle.  The certificate stated that Dr C R Pye took a blood sample from the appellant at 1.05 am on 9 January 1997.  Clearly, the date was an error in that it should have been 10 January 1997, bearing in mind that the accident in question occurred at 11 pm on 9 January 1997.  At the hearing of the appeal, counsel for the appellant conceded that the date stated should have been 10 January 1997.
8 A statement relating to the accident and events which occurred subsequently was taken from the appellant by a police officer.  The appellant was asked whether a sample of blood had been taken from him at the hospital.  He said that it had.  He was asked what type of alcoholic liquor he was drinking prior to the accident.  He said: "Jim Beam and coke".  He said that he had consumed the liquor at home, that he had had his first drink at about 4.00 pm Victorian time and his last at about 6 pm.  He said that he had consumed six cans of 375 mls each.
9 The blood sample to which the certificate related was subsequently forwarded for analysis.  A certificate from an analyst at the State Forensic Science Centre was subsequently obtained showing that the result of the analysis of the sample was that it contained not less than 0.136 grms of alcohol per 100 mls of blood.  The number of the certificate of analysis was the same as that of the certificate of the medical practitioner who took the blood at the hospital on 10 January 1997.
10 The learned Magistrate convicted the appellant of an offence under s47B(1) of the Road Traffic Act.
11 The appellant has appealed to this Court on the following grounds:
"(a)    Only the conviction on the first count is appealed against.

(b)     On the first count His Honour convicted the appellant of driving with a blood alcohol content of .136

(c)     His Honour relied upon the result of a blood test carried out at the Mount Gambier Hospital at some time (which his Honour presumed to be within eight hours) after the appellant was involved in a one car motor vehicle accident in which he was the driver.

(d)     The trial proceeded by the way of tendering of certificates and agreed facts with no verbal evidence given.

(e)     His Honour incorrectly concluded that the blood alcohol level presumed by the Certificate of Analysis could be presumed to be .136 grams in 100 millilitres of blood as certified by the said certificate at any time prior to the taking of the blood sample.

(f)     His Honour failed to have any or any sufficient regard to Section 47I(13ba) by not finding that the Certificate pursuant to the section could only be relied upon to presume the blood alcohol level at the time of taking of the blood test.

(fa) The Learned Magistrate was not entitled to rely upon the presumption set out in Section 47B(2) of the Road Traffic Act 1961 on the basis that it was not established that the prescribed concentration of alcohol was present in the blood of the appellant at any time within two hours after the alleged offence.

PARTICULARS

1. Based on the agreed facts as set out in the record of Interview tendered by consent, the time of the appellant’s driving was 11.00 pm.

1. Based on the agreed facts, the time of taking of the blood sample was 1.05 am, namely two hours and five minutes after the time of driving.

(g) Further or in the alternative to paragraph (fa) His Honour ought to have found that the presumption created by Section 47B(2) only allows a Court to presume that the appellant has a concentration of .05 grams or more of alcohol in 100 millilitres of blood and not any specific reading.

(h)     Further or in the alternative to paragraph (fa) his Honour ought to have convicted the appellant of driving with a prescribed concentration blood alcohol of 0.05 grms or more of alcohol in 100 mls of blood without any particular finding of blood alcohol concentration and convicted and fined the appellant no more than $100."

12 Under s47B of the Road Traffic Act 1961, it is an offence for a person to drive while there is present in his blood a concentration of alcohol in excess of 0.05 grms per 100 mls of blood.
13 Where a motor vehicle is involved in an accident, and within eight hours of the accident, a person who has suffered injury in the accident is admitted to hospital for treatment, it is the duty of the medical practitioner by whom the patient is attended to take a sample of blood as soon as possible: subs47I(1) of the Road Traffic Act. The medical practitioner is obliged to divide the sample into two parts. One of such parts is to be made available to a member of the police force together with a certificate identifying the sample and specifying the date and time it was taken. The sample is sent for analysis and the analyst is required to sign a certificate as to various matters including the concentration of alcohol found to be present in the blood: s47I(7), s47I(10) and s47I(11). Section 47I contains evidentiary provisions to facilitate proof of the contents certificates of the medical practitioner and the analyst.
14 Subsection 47I(13ba) of the Road Traffic Act provides that where a certificate of an analyst is received in evidence, it will be presumed, in the absence of proof to the contrary, that the concentration of alcohol stated in the certificate as having been found to be present in the sample of blood to which the certificate relates, was present when the sample was taken.
15 In the present case, the certificate of the medical practitioner and the certificate of the analyst were both admitted in evidence by consent and must be taken by the appellant to be relevant to the issues in this case.  Those certificates, when taken with subs47I(13ba), establish that the concentration of alcohol found in the sample analysed (0.136 grms of alcohol per 100 mls of blood) was the same concentration as was present when the sample was taken at the hospital at the time of the appellant’s admission.
16 As I have said, in evidence the appellant admitted that prior to the accident he had had his last drink (of an alcoholic beverage) at about 6.00 pm on 9 January 1997. This would mean that the appellant had had nothing alcoholic to drink from 6.00 pm to the time of the taking of his blood at the hospital at 1.05 the following morning. The question arises as to whether an inference can be drawn from the evidence that the concentration of alcohol in the appellant’s blood at the time of the accident would necessarily be greater than the concentration found to be present at the time of taking the blood sample at the Mount Gambier Hospital. Having regard to the amount of alcohol consumed, the time of the consumption and the period elapsed since the last consumption and the time of the accident, one would be tempted to infer that the concentration of alcohol in the appellant’s blood at the time of the accident would have to be greater than it was at the time the blood sample was taken. I am inclined to think however, that such a step would involve an impermissible assumption and should not be taken. In Evans v Benson (1986) 46 SASR 317 at 320, King CJ said at p320:
"Golding v Liddy held that the court could not take judicial notice of rates of absorption into and elimination from the blood of alcohol consumed.  In general I think that that is clearly right.  Perhaps prudence dictates that we reserve for future decision the extreme case, if it arises, in which common sense combined with the most general knowledge of the subject would make the position clear.  Courts hear much evidence about alcohol, its effects on the human system and the manner and rate of its absorption into and elimination from the blood.  As time passes much of this knowledge becomes so common as to be a permissible subject of judicial notice.  I think that courts must be entitled to take judicial notice of the fact that alcohol, once consumed, is progressively absorbed into and eliminated from the blood.  Perhaps some judicial knowledge, within the most general limits, of rates of absorption and elimination may be permitted.  I would not wish to exclude in advance the possibility of judicial notice that a gross divergence between the result of the blood test and the result of the breath test could not be reconciled.  There are, however, so many variable factors and possibilities, arising out of drinking and eating history and constitutional idiosyncrasies, that the possibility of judicial notice should clearly be approached with great caution.  Without wishing to foreclose the decision in an extreme case, ..."

17 In the light of this passage, I do not think I can take judicial notice of the relative rates of absorption in and elimination from the blood of alcohol.  That is a matter for expert evidence.
18 In the present case it is conceivable that the absorption of alcohol into the bloodstream was, in the period 11.00 pm to 1.05 am, greater than its elimination from the blood stream.  If that is so, one could not rely upon the reading at the time of the taking of the blood sample as necessarily being less than the reading at the time of the accident.  After one ceases consuming alcohol, there is a point where elimination overtakes absorption; but where that point is on the time scale is a matter for scientific opinion.  No doubt many factors are involved.  Whatever may be the position, it is not a case of simply projecting the results at the time of taking the blood test back to the time of the accident.
19 I do not believe that subs47B(2) is applicable. In the case of a blood sample, the subsection only applies where it is taken within two hours of the accident. In the present case, there was a gap of more than two hours between the accident and the taking of the blood sample. The subsection is inapplicable.
20 For these reasons, I would allow the appeal, quash the conviction in respect of the charge contained in the first count of the complaint and dismiss that charge.