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 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.
The question to be resolved by the Magistrate was whether the presumption that the defendant had in his blood the prescribed amount of alcohol, as indicated by the breath analysis, was rebutted by the evidence of the result of his blood test. It is not disputed that the defendant has the onus on the balance of probabilities to rebut the presumption. If evidence of the blood test could not be reconciled with the result of the breath analysis, the question for the Magistrate was whether the breath analysis reading was exaggerated. If so, then the presumption would no longer apply and the question was whether the prosecution had proved the case against the defendant beyond reasonable doubt.
The evidence
It was conceded at trial that there was no issue as to the conduct of the breath analysis, nor was there operator error. Sergeant Broadbent, the Manager of South Australia’s Technology Support Unit, who was familiar with the breath analysing instrument gave evidence that the breath analysis instrument was operating correctly. The instrument was properly calibrated and there were no irregularities reported between November 2009 and May 2010. There was no issue that the officers conducting the breath analysis test had complied with the correct procedure. The required notices had been completed and served on the defendant.
The defendant gave evidence that he spent the day on 10 April 2010 with his girlfriend. During the day he did not drink alcohol. They were due to attend a party that evening. Between 4.30 pm and 6.00 pm, the defendant drank four cans of full-strength beer. At about 9.00 pm, they left the house to attend the party. The defendant was driving when he was stopped by police who conducted a random alcotest. When the test was positive, the police took the defendant and his girlfriend to Mt Barker Police Station, where the breathalyser test was conducted. The defendant said he was shocked. He was provided with a blood test kit. He attended at the Mt Barker Hospital, where a nurse took a blood sample at about 12.40 am on 11 April 2010. The defendant gave unchallenged evidence that he drank alcohol approximately once a week to once a fortnight. He was asked:
QNow can I ask you some questions about drinking. How often back in April 2010 do you consume alcohol.
AApproximately once a week to once a fortnight.
QAnd when you do drink alcohol do you have any preferred spirit or liquor.
AHahns Super dry as mentioned in the statement and either a mid strength 3.5 or the full strength.
QNow you drink once or twice a week.
AYes.
QIs there an average quantity you drink or does it vary.
AWell at dinner which would be during the week 1 maybe 2 glasses with a meal and on the weekend perhaps 3 or 4 depending on the circumstances if a party or birthday comes up.
QAnd to the best of your recall the approximately situation back in April 2010.
AYes
QHave you ever consumed alcohol on a daily basis any time during your life.
ANo.
QDo you have any health conditions.
AOnly back pain and eye conditions stuff that is synonymous with IT and I am a smoker but just stuff that is related to work.
QNo liver dysfunction or anything like that.
ANo.
The blood sample was analysed by Mr Felgate, the Manager of the Toxicology Section at the Forensic Science Centre. He has had extensive experience of over 35 years analysing blood and other materials submitted to the section for analysis. Mr Felgate’s report was tendered. Mr Felgate made the following assumptions:
I have assumed the subject consumed a quantity of alcohol from 1630 hours to 1830 hours on the 10 April 2010, which was fully absorbed at the time of the breath analysis test at 2220 hours on 10 April 2010. The result of the breath test for alcohol was 0.098%. At 0030 hours on the 11 April 2010 the subject provided a sample of blood, which was subsequently analysed for alcohol with a result of not less than 0.034%.
Mr Felgate explained that there are three phases which a person goes through after consuming alcohol. The first is the ‘absorption’ phase. The second is when a person begins to eliminate alcohol and the ‘absorption and elimination’ phases coincide. Eventually, elimination becomes the dominant process and a person enters the ‘elimination’ phase. Mr Felgate said that for a normal social drinker who is drinking steadily, the elimination of alcohol commences about 30 minutes after the person finishes drinking. That period could extend to two hours if the person had consumed a large quantity of alcohol.
In the case of the defendant, on the assumption that he had stopped drinking at about 6.30 pm, by the time the breath analysis was conducted he would have been in the elimination phase. Mr Felgate analysed the elimination rate, based upon the breath analysis reading of 0.098 per cent at 10.20 pm, and the blood analysis result of 0.034 per cent at 12.30 am the following morning. He concluded that the elimination rate was 0.027 per cent per hour, which is a very high rate and outside the normal range for social drinkers of 0.006 to 0.026 per cent. He gave the following evidence:
AWell like I said that is based on a number of different studies that have been done so looking at all of the studies that have been done the lowest value that has been determined in any of those studies was .006 and the highest value is .026. Now there are numerous studies but what we have done is just used the extremes that have been reported and may have only been reported once or twice in a study but they are reported so we need to use those values.
QNow looking at first of all the .006 figures what would be the characteristics of an individual likely to exhale or have alcohol from their system at that rate.
AWell obviously they have a problem metabolizing alcohol and that maybe (sic) due to liver disease so alcohol is metabolized by enzymes which are produced in the liver now if there is some problem with the liver being able to produce those enzymes then obviously they are not going to be able to get rid of alcohol very quickly so they have a very very low rate of elimination.
QHow (sic) at the other end of the scale what are the characteristics of an individual able to expire or exhale – eliminate at the rate of .026%.
AGenerally these would be people who are very seasoned drinkers. It is well known that the more a person drinks the more their body adapts to coping with that alcohol so the body will actually produce extra enzymes and therefore metabolize quite quickly and in fact if you look at people who are chronic alcoholics they can have much higher rates of elimination because their body has been tuned to the fact they have to cope with large quantities of alcohol but they don’t use chronic alcoholics in these studies.
He gave evidence that, in every study he had read, the average elimination rate for social drinkers is 0.015 per cent to 0.017 per cent for 95 per cent of the population.
Mr Felgate used the result of the blood analysis and undertook two calculations as follows:
1.1Using the alcohol concentration determined in the blood sample taken at 0030 hours on the 11 April 2010 of 0.34% and assuming a reasonable average value for the rate of elimination of 0.016% per hour the subject’s blood alcohol concentration was probably about 0.06% at the time of the breath test at 2220 hours, but this should not be regarded as a firm figure.
1.2Using the alcohol concentration determined in the blood sample taken at 0030 hours on the 11 April 2010 of 0.034% and assuming a minimum reported value for the rate of elimination of 0.006% per hour it is highly unlikely that the subject’s blood alcohol concentration at the time of the breath test was less than 0.04%. (original emphasis)
Mr Felgate concluded:
Assuming the subject’s blood alcohol concentration was falling at a roughly steady rate in the interval between the breath test and the blood test and assuming that the breath test result is accurate for the purposes of this calculation, the subject’s apparent rate of elimination was 0.027% per hour. This value lies outside the normal reported range of 0.006 to about 0.026% per hour and is not explained by the normal process of metabolism and elimination . …
Taking the subject’s apparent rate of elimination of 0.027% per hour a face value, it is my opinion that it would suggest that the breath test result of 0.098% may be exaggerated. (emphasis added)
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.
It was Mr Tonkin’s case that, based on these calculations, the breath analysis instrument had given an exaggerated reading. Doyle CJ concluded that the Magistrate was correct in concluding that the evidence could not establish, on the balance of probabilities, that the result of the breath analysis was incorrect.

The expert called by the appellant accepted the proposition that a person’s elimination rate can vary from occasion to occasion. If the appellant’s elimination rate on 21 April 2005 had been 0.0188 per cent per hour, then the result of the breath analysis and blood test could be reconciled. He conceded that a variation between 0.0145 per cent and 0.0188 per cent of the elimination rate was within the range of variation for individuals reported in the literature. Once that variation is accepted, then the appellant was unable to prove, on the balance of probabilities, that the breath analysis was exaggerated.
However, Doyle CJ observed:
It is necessary to bear in mind that the onus was on Mr Tonkin to establish something on the balance of probabilities. Mr Tonkin had to establish on the balance of probabilities that on 21 April 2005 his alcohol elimination rate was not a rate that enabled the result of the blood analysis to be reconciled with the result of the breath analysis. That is, he had to prove on the balance of probabilities that on 21 April 2005 at 8.21 pm his blood did not contain the concentration of alcohol indicated by the breath analysing instrument. If that had been established, one would then know that the two results could not be reconciled. One would then consider whether the breath analysing instrument had given an “exaggerated reading”. The evidence that Mr Tonkin adduced showed only that the alcohol elimination rate on 21 April 2005 might not have been high enough to enable the two results to be reconciled. That was not sufficient.
The same point can be put in another way. Standing alone, the result of the blood analysis proved nothing. It had to be explained or interpreted. The result could or might indicate that the result indicated by the breath analysing instrument was wrong or unreliable, if a “back calculation”, using an alcohol elimination rate that was probably reliable or accurate, indicated that the breath analysis result was wrong. A calculation using an alcohol elimination rate that might or might not be reliable or accurate could not do this.
To some extent Ms Downey’s submission was that her primary submission should be accepted, because otherwise it was impossible to rebut the statutory presumption. But that is not necessarily so. For all I know it may be possible to show, in a given case, that the results of the breath analysis and of the blood analysis could be reconciled only by postulating an alcohol elimination rate that was outside the known rates of variation. Another possibility is that it might be possible, in a given case, to lead evidence that having regard to the circumstances or characteristics of the defendant, although the variation between the postulated rate and the test rate was not outside the range of experience, nevertheless having regard to particular circumstances the rate could not have varied by the amount that would be necessary for one to be able to reconcile the two results.[3](highlighting added)
[3] Ibid 40 [19] – [21].
The case for the defendant was such a case. This was a case in which the results of the breath analysis and of the blood analysis could only be reconciled by postulating an alcohol elimination rate outside the usual rates of variation.
The Magistrate found that it was possible that the defendant’s elimination rate was toward the higher end of the normal range. The highest end of the range of alcohol elimination is a figure of 0.026 per cent. It is not clear how the Magistrate concluded, without any evidence, that the defendant’s alcohol elimination rate exceeded the highest end of the range. The prosecution did not seek to prove that the defendant was a heavy drinker. Even if it had been established that he was a heavy drinker, that in itself would not have been sufficient to explain why the elimination rate was outside the range in this case.
The Magistrate erred in finding that the result of the breath analysis could be reconciled with the result of the blood analysis. It is not clear how it is possible to reconcile the breath test result of 0.098 per cent with the blood test of 0.06 per cent, or as low as 0.04 per cent, using accepted alcohol elimination rates, as explained by Mr Felgate.
Assuming the calculations of Mr Felgate with the highest rate of error result in a back calculation of 0.06 per cent, can it be said that the defendant has proved on the balance of probabilities that the breath analysis reading is exaggerated?
In Police v Shelmerdine,[4] the question of whether a magistrate was correct in concluding that a breath analysis instrument had given an exaggerated reading was considered by the Full Court (Prior, Williams and Martin JJ). The sample of breath was taken at 4.37 am and a reading of 0.081 per cent was recorded. At 6.48 am a blood sample analysis reading of 0.049 per cent was recorded.
[4] (2000) 76 SASR 199.
An expert conducted a test on the defendant to ascertain his elimination rate on the day and, using that rate, concluded that the breath analysis should have been 0.0747 per cent which was 0.0063 per cent less than indicated by the breath analyser. Prior J considered that evidence of that nature can be adduced to demonstrate that the result of a breath test was greater than the actual concentration of alcohol in the blood at the time of the breath analysis. However, the defendant must also prove that the result of the breath test was exaggerated. He concluded that the evidence did not establish on the balance of probabilities that the breath analysis reading was exaggerated. He observed:
… “Exaggerated” has been defined to mean unduly magnified or inflated beyond the limits of fact, justice, propriety or truth; excessive. Another definition is abnormally enlarged. Those definitions, Benson and the Parliamentary Debates, persuade me that the magistrate was not entitled, on the evidence she accepted, to conclude that the results of the analysis of the sample of blood demonstrated the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the respondent at the time of the breath analysis. It is not correct to make a finding of exaggeration simply because a higher reading than that disclosed by a blood alcohol test resulted or because the breath analysis reading places the offence in a more serious penalty category. The reading prevails until properly rebutted. It was not in this case. “Exaggerated” in the context of this legislation does not simply mean greater but abnormally large or unduly magnified given the previous acceptance by this Court in Benson that a blood analysis was for the purpose of s 47G “intrinsically superior to breath analysis as a means of determining accurately the concentration of alcohol in the blood”.[5] (citations omitted)
[5] Ibid 203 [12].
Martin J, in discussing the term ‘exaggerated’, observed:
In the context of the scheme as I have described it, I agree with Prior J that “exaggerated” in subpar (b) means abnormally large or unduly magnified in the sense that the result is plainly wrong because it is outside the accepted margins for error and indicates that the breath analysing instrument did not function properly or was not operated correctly by the operator.[6]
[6] Ibid 211 [46].
I consider that the Magistrate erred in finding that it was not proven on the balance of probabilities that the result of the breath analysis was exaggerated. The difference between 0.098 per cent and 0.06 per cent is significant. It results in a difference of approximately 30 per cent. In my view, a 30 per cent difference is a difference which is inflated beyond acceptable limits, having regard to an allowance for a reasonable degree of error in calculations of this nature.
In concluding that the defendant must have had more to drink than he disclosed, the Magistrate appears to have attempted to reconcile the disparity in the readings by reaching a conclusion which was not supported by the evidence. Counsel for the Police accepted that the Magistrate’s reasoning was not supported by the evidence.
The Magistrate failed to resolve how the irreconcilable results could be explained. His finding that the defendant must have drunk more than he disclosed is a conclusion based upon the rejection of the defence case, without sufficient analysis of the evidence. In my view, it was based on speculation that the defendant must have consumed more alcohol than he had disclosed.
I consider that the result of the breath analysis could not be reconciled with the result of the defendant’s blood test based on accepted, and unchallenged, alcohol elimination rates for social drinkers such as the defendant. The Magistrate erred in arriving at his decision that it was ‘possible’ to reconcile the two readings and, if not, that the breath analysis was not ‘exaggerated’ within the meaning of section 47K(1a)(b).
The appeal is allowed. The conviction is quashed and a verdict of not guilty is substituted.