Douglas v Police - [2011] SASC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DOUGLAS v POLICE
[2011] SASC 50
Judgment of The Honourable Justice Sulan
11 April 2011
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SO UNDER INFLUENCE OF LIQUOR OR DRUGS AS TO BE INCAPABLE OF CONTROL - PROOF AND EVIDENCE
Appellant convicted of the offence of driving a motor vehicle while there was in his blood the prescribed concentration of alcohol - appealed against conviction - whether reading obtained from the breath analysis instrument could be reconciled with blood test result - whether reading obtained from breath analysis instrument exaggerated - whether presumption in s 47K rebutted - whether expert evidence as to alcohol elimination rates explained disparity between breath analysis instrument reading and blood test result - appeal allowed - conviction quashed and verdict of not guilty substituted.
Road Traffic Act 1961 (SA) s 47B(1)(a), s 47K(1), s 47K(1a), s 47K(1a)(b), referred to.
Evans v Benson (1986) 46 SASR 317; Tonkin v Police (2006) 95 SASR 36; Police v Shelmerdine (2000) 76 SASR 199, considered.

DOUGLAS v POLICE
[2011] SASC 50
Magistrates Appeal: Criminal

SULAN J: This is an appeal against conviction.
On 23 December 2010, the defendant, Jason Robert Douglas, was convicted by a Magistrate of the offence of driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol, contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA).
The defendant asserts that the reading obtained from the breath analysis instrument was exaggerated and cannot be reconciled with the results of a blood test which was undertaken approximately two hours after the breath analysis. The defendant contends that the Magistrate erred in concluding that the defendant had failed to prove that the breath analysis result was exaggerated and that the presumption as to the accuracy of the result had been rebutted.
Facts
On 10 April 2010 at about 9.40 pm, the defendant was driving on Red Hill Road at Scott Creek when he was stopped by police who conducted an alcotest. The alcotest returned a positive reading. The defendant was taken to the Mount Barker Police Station, where he was required to undertake a breath analysis test. The defendant’s breath sample was provided at 10.20 pm and returned a reading of 0.098 grams of alcohol in 100 millilitres of his blood. I shall refer to grams of alcohol in 100 millilitres of blood as a percentage throughout the judgment. A blood sample test kit was provided to the defendant. The defendant had expressed surprise when the breath analysis recorded a reading of 0.098 per cent, as he had told police that he had only consumed four cans of full-strength beer between 4.30 pm and 6.00 pm. The police provided the defendant with an alcohol blood test kit which he took with him to the Mt Barker Hospital.
On 11 April 2010 at 12.30 am, some two hours and ten minutes after the initial breath analysis, the defendant provided a…

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 Douglas v Police

Details

AGLC: Douglas v Police [2011] SASC 50
Case: [2011] SASC 50
Decision Date: 11 April 2011

CaseChat Overview and Summary

In the matter of Douglas v Police, the defendant appealed against a conviction for driving a motor vehicle while there was in his blood the prescribed concentration of alcohol. The defendant argued that the reading obtained from the breath analysis instrument was exaggerated and could not be reconciled with the results of a blood test taken approximately two hours later. The defendant contended that the presumption in s 47K of the Act as to the accuracy of the breath analysis result had been rebutted. The appeal centred on whether the expert evidence regarding alcohol elimination rates could explain the disparity between the breath analysis reading and the blood test result. The appeal was allowed, the conviction was quashed, and a verdict of not guilty was substituted.

The legal issues before the court were whether the breath analysis reading of 0.098 per cent could be reconciled with the blood test result of 0.034 per cent, and whether the breath analysis result was exaggerated within the meaning of s 47K(1a) of the Act. The court had to determine if the defendant had rebutted the presumption in s 47K(1) that the breath analysis result was accurate. This involved examining the expert evidence on alcohol elimination rates and whether it could account for the disparity between the two test results.

The court examined the expert evidence presented by Mr Felgate, a forensic scientist, who explained that individuals with a high tolerance to alcohol, such as alcoholics, can have elimination rates higher than 0.026 per cent. However, Mr Felgate testified that it was unlikely for a social drinker like the defendant to have an elimination rate greater than 0.02 per cent. The Magistrate had concluded that the breath analysis result and the blood analysis result were reconcilable, allowing for the defendant having a normal elimination rate albeit at the higher end of the normal range. The court found that the Magistrate’s conclusion was not supported by the evidence and that the breath analysis result could not be reconciled with the blood test result. Furthermore, the court found that the breath analysis result was an exaggerated reading, thereby rebutting the presumption in s 47K(1) of the Act.

The final orders of the court were to allow the appeal, quash the conviction, and substitute a verdict of not guilty for the defendant. The court found that the breath analysis result was exaggerated and could not be reconciled with the blood test result, thereby rebutting the presumption of accuracy under s 47K(1) of the Act.

Orders

Orders of the court

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Background

Background to the litigation

The defendant asserts that the reading obtained from the breath analysis instrument was exaggerated and cannot be reconciled with the results of a blood test which was undertaken approximately two hours after the breath analysis. The defendant contends that the Magistrate erred in concluding that the defendant had failed to prove that the breath analysis result was exaggerated and that the presumption as to the accuracy of the result had been rebutted.Facts On 10 April 2010 at about 9.40 pm, the defendant was driving on Red Hill Road at Scott Creek when he was stopped by police who conducted an alcotest. The alcotest returned a positive reading. The defendant was taken to the Mount Barker Police Station, where he was required to undertake a breath analysis test. The defendant’s breath sample was provided at 10.20 pm and returned a reading of 0.098 grams of alcohol in 100 millilitres of his blood. I shall refer to grams of alcohol in 100 millilitres of blood as a percentage throughout the judgment. A blood sample test kit was provided to the defendant. The defendant had expressed surprise when the breath analysis recorded a reading of 0.098 per cent, as he had told police that he had only consumed four cans of full-strength beer between 4.30 pm and 6.00 pm. The police provided the defendant with an alcohol blood test kit which he took with him to the Mt Barker Hospital. On 11 April 2010 at 12.30 am, some two hours and ten minutes after the initial breath analysis, the defendant provided a sample of his blood to the Mt Barker Hospital. The sample was taken by a registered nurse using the blood alcohol kit. The blood sample was analysed by Forensic Science South Australia and found to contain not less than 0.034 per cent. There was an inconsistency between the breath analysis result of 0.098 per cent and the blood analysis result of 0.034 per cent. The conclusion that the two results were inconsistent was as a result of an analysis conducted by Mr Felgate, a forensic scientist who has expertise in the analysis of the concentration of alcohol in blood. The defendant relied on the evidence of the disparity between the breath analysis reading and the blood test to contend that the readings could not be reconciled and that the breath analysis reading was ‘exaggerated’ within the meaning of section 47K(1a), thereby rebutting the presumption contained in section 47K(1) of the Act that his blood alcohol content was as indicated by the breath analysis. Section 47K relevantly provides:47K – Evidence(1)Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis and throughout the preceding period of 2 hours.(1a)No evidence can be adduced in rebuttal of the presumption created by subsection (1) except – (a) evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I Schedule 1 or in accordance with the procedures prescribed by regulation; and(b) evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.(1ab)If, in any proceeding for an offence, it is proved – (a) that the defendant drove a vehicle, or attempted to put a vehicle in motion; and(b) that a concentration of alcohol was present in the defendants blood at the time of a breath analysis performed within the period of 2 hours immediately following the conduct referred to in paragraph (a).It must be conclusively presumed that that concentration of alcohol was present in the defendant’s blood.…(2)As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying – (2a) Where a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith – (a)give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person’s blood; and(b)at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.…(16)If certificates of a police officer and analyst, or a medical practitioner and analyst, under Schedule 1 are received as evidence in proceedings before a court and contain the same identification number for the samples of oral fluid or blood to which they relate, the certificates will be presumed, in the absence of proof to the contrary, to relate to the same sample of oral fluid or blood.

Evidence

Evidence Before The Court

Section 47K relevantly provides:47K – Evidence(1)Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis and throughout the preceding period of 2 hours.(1a)No evidence can be adduced in rebuttal of the presumption created by subsection (1) except – (a) evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I Schedule 1 or in accordance with the procedures prescribed by regulation; and(b) evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.(1ab)If, in any proceeding for an offence, it is proved – (a) that the defendant drove a vehicle, or attempted to put a vehicle in motion; and(b) that a concentration of alcohol was present in the defendants blood at the time of a breath analysis performed within the period of 2 hours immediately following the conduct referred to in paragraph (a).It must be conclusively presumed that that concentration of alcohol was present in the defendant’s blood.…(2)As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying – (2a) Where a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith – (a)give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person’s blood; and(b)at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.…(16)If certificates of a police officer and analyst, or a medical practitioner and analyst, under Schedule 1 are received as evidence in proceedings before a court and contain the same identification number for the samples of oral fluid or blood to which they relate, the certificates will be presumed, in the absence of proof to the contrary, to relate to the same sample of oral fluid or blood.

Decision

Reasons for decision

In cross-examination, Mr Felgate explained that people who have a high tolerance to alcohol, for example alcoholics, can have elimination rates which are higher than 0.026 per cent. He gave evidence that, for a person to have an elimination rate of above 0.02, they would usually be a heavy drinker. It is unlikely that a social drinker such as the defendant would have an elimination rate greater than 0.02 per cent.The magistrate’s decision The Magistrate recited the facts. He correctly identified the issue that, if the breath analysis gave an exaggerated reading of the concentration of alcohol in the defendant’s blood, then the reading is unreliable and the presumption does not apply. He referred to Evans v Benson[1]in which King CJ, with whom Jacobs, Bollen and Olsson JJ agreed, stated that the presumption of the correct blood alcohol reading created by the Act can be disproved on the balance of probabilities by the defendant. The only evidence which may be adduced to displace the presumption is evidence of blood analysis taken and dealt with in accordance with the Act. For that purpose, blood analysis is deemed to be intrinsically superior to breath analysis as a means of determining accurately the concentration of alcohol in the blood.[1] (1986) 46 SASR 317. The Magistrate concluded:It is possible the defendant’s elimination rate on the evening of 10 April 2010 was toward the higher end of the normal range. If that is possible then the defendant has eliminated alcohol at a different rate than Mr Felgate has postulated.In my opinion the breath analysis result and the blood analysis result are reconcilable allowing for the defendant having a normal elimination rate albeit at the higher end of the normal range.Even if I am wrong in that conclusion I am not persuaded the breath analysis result was an “exaggerated reading”. It cannot be said that the breath analysis result was “abnormally large or unduly magnified” when compared with the blood analysis result allowing a 2 hour and 10 minute gap between the breath analysis and the taking of the blood sample.Finally while it is not relevant to the issue before me, I doubt the defendant consumed only four cans of Hahn Super Dry beer and I doubt he stopped drinking just before 6 pm. At 10.20pm his blood alcohol level was .098% and at 12.30am it was still less than 0.38%. Common sense suggests he consumed more alcohol than he says he did.I find the charge proved beyond reasonable doubt. (emphasis added)Discussion Counsel for the Police on the appeal agreed that the prosecution did not challenge Mr Felgate’s evidence at trial. Further, counsel concedes that the defendant’s evidence about his drinking habits was not challenged. That evidence was that he was a moderate social drinker. In Tonkin v Police,[2] the appellant was convicted of driving a motor vehicle on 21 April 2005 while present in his blood the prescribed concentration of alcohol. The blood was taken at 10.00 pm. An expert carried out an ethanol elimination test on Mr Tonkin on 21 October 2005, which revealed that his rate of elimination was .0145 per cent. It was agreed that if that rate was applied to the blood test at 10.00 pm on 21 April 2005, it would result in a reading of .073 per cent alcohol at the time of the breath test.[2] (2006) 95 SASR 36.

Ratio Decidendi

Legal Principle Established

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