DUDLEY v Police - [2022] SASC 155

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
DUDLEY v POLICE
[2022] SASC 155
Judgment of the Honourable Justice Kimber
22 December 2022
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 - PLEAS
The appellant was charged with driving a motor vehicle, namely an electric scooter, while having present in his blood the prescribed concentration of alcohol contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (RTA). It was not disputed that a breath analysis was undertaken at a police station and the reading was 0.18 grams of alcohol in 100 millilitres of blood. The Magistrate found that the police officer with whom the appellant dealt had inadvertently made misleading statements about the process of licence reinstatement pursuant to s 47IAB of the RTA. The appellant submitted the misleading statements were relevant to his refusal of a ‘blood test kit’ pursuant to s 47K(1a) of the RTA and should have given rise to the exclusion of the breath analysis. The Magistrate refused to exclude the breath analysis. The appellant appeals that interlocutory judgement.
Further, during the hearing of the appeal a doubt emerged about whether the appellant had entered a plea of guilty in the Magistrates Court or was convicted in his absence.
Held, per Kimber J, dismissing the appeal:
1.The appellant was not convicted in accordance with the relevant provisions of the Criminal Procedure Act 1921 (SA);
2.Permission is granted to appeal the interlocutory judgment of the Magistrate refusing to exclude the breath analysis; and
3.The appeal with respect to the interlocutory judgment is dismissed. The appellant refused the blood test kit before any misleading statement was made. The decision of the Magistrate to admit the breath analysis was correct.

Magistrates Court Act 1991 (SA) s 42; Criminal Procedure Act 1921 (SA) ss 5, 6A, 62B, 62BA; Road Traffic Act 1961 (SA) ss 47A, 47B(1)(a), 47IAA, 47IAB, 47K, referred to.
Bunning v Cross (1978) 141 CLR 54; Ridgeway v The Queen (1995) 184 CLR 19; R v Lobban (2000) 77 SASR 24, applied.
Rhodes v Nolan (1982) 32 SASR 207, distinguished.
Police v Hall (2006) 95 SASR 482; Police v Dunstall (2015) 256 CLR 403; Police v Jervis (1998) 70 SASR 429, considered.

DUDLEY v POLICE
[2022] SASC 155
Magistrates Appeal: Criminal
KIMBER J:

This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA) (MCA). The grounds of appeal relate to two issues. First, a ruling by the Magistrate admitting evidence establishing an essential element of the offence charged.[1] Second, the failure of the Magistrate to find the offence ‘trifling’ when sentencing the appellant.
[1] Reasons for Ruling on the Voir Dire of Magistrate Basheer, dated 24 February 2022 (Reasons for Ruling on the Voir Dire).
For reasons to be given, there is uncertainty as to the basis upon which the Magistrate was empowered to sentence the appellant. More specifically, there is a doubt about whether the appellant pleaded guilty. Obviously enough that is an important matter with respect to whether this Court can deal with the ruling admitting the evidence. It is also an important matter in determining whether the Magistrate was empowered to sentence the appellant.
I am satisfied that a plea of guilty was not entered in the Court below in accordance with the requirements of the Criminal Procedure Act 1921 (SA) (CPA). I am also satisfied that the appellant was not convicted in his absence pursuant to the relevant provisions in the CPA. I am satisfied that it is appropriate to deal with the appeal on the basis the ruling admitting the evidence was an interlocutory judgment. As to that interlocutory judgment, I dismiss that aspect of the appeal. As to the failure of the Magistrate to find the offence ‘trifling’, that issue depends upon whether the appellant pleaded guilty. As I am satisfied a guilty plea was not entered, I will hear the parties further as to what other orders should be made.
Background
On an Information dated 13 August 2021 the appellant was charged with an offence contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (RTA). The particulars of that offence were:
On the 26^th day of May 2021 at ADELAIDE in the said State, drove a motor vehicle namely an electric scooter on a road namely North Terrace while there was present in his blood the prescribed concentration of alcohol as defined in Section 47A of the Road Traffic Act, 1961.
Section 47B(1)(a) of the Road Traffic Act 1961.
It is further alleged that the concentration of alcohol was 0.180 grams in a hundred millilitres of blood.
This is a Summary offence.
There is no dispute the alleged offence occurred in the following way. On 25 May 2021 the appellant was drinking with others at a suburban hotel. At about 11.30pm the appellant and others came into the city and continued drinking. In the early hours of 26 May 2021, the appellant was at North Terrace in the city. At about 4.00am the appellant was riding an e-scooter on the southern footpath of North Terrace. An e-scooter is a motor vehicle within the meaning of that term as provided in the RTA[2] and the footpath is a road for the purposes of the alleged offence.[3]
[2] Section 5 of the RTA defines ‘motor vehicle’ as ‘a vehicle built to be propelled by a motor that forms part of the vehicle’.
[3] Section 6A of the RTA provides ‘A reference in this Act to a road includes a reference to a road-related area unless it is otherwise expressly stated’. Section 5 provides an ‘road related area’ to include ‘ … any of the following: (a) an area that divides a road; (b) a footpath or nature strip adjacent to a road; (c) an area that is not a road and that is open to the public and designated for use by cyclists or animals; (d) any public place that is not a road and on which a vehicle may be driven, whether or not it is lawful to drive a vehicle there’.
The only issue with respect to the alleged offence is whether the appellant had the prescribed concentration of alcohol in his blood. More particularly, whether the Magistrate should have held the breath analysis was admissible. It is not disputed that the appellant submitted to an alcotest before the appellant and a police officer then went to the police station. The relevant breath analysis (BA) was conducted at the police station. There is no dispute the BA reading was 0.18 grams of alcohol in 100 millilitres of blood.
Before turning to consider the grounds on which the appellant submits the Magistrate erred in admitting the evidence of the BA, it is necessary to refer to some of the evidence which is before me about what occurred in the Court below. It is necessary to refer to this evidence given the uncertainty about whether there was a plea of guilty and compliance with the CPA.
Proceedings before the Magistrate
What occurred in the Court below is to be discerned from the affidavit of the police prosecutor, the affidavit of counsel for the appellant in the Court below, the Certificate of Record (COR) and a report from a clerk in the Court below.
The appellant was represented at all hearings. On 10 February 2022 the matter came before the Magistrate for the purpose of the application to exclude the evidence of the BA. A police officer and the appellant gave evidence. Submissions on admissibility were made. The matter was next listed on 23 February 2022. The COR records the appellant was present but that no plea was entered. The Magistrate advised the evidence would be admitted and reasons would be given later. The reasons of the Magistrate admitting the evidence are dated the following day, but the matter was not listed on that day. The matter next came before the Magistrate on 25 February 2022. The defendant was excused from attending on that occasion.
The matter was next before the Magistrate on 1 July 2022. The appellant was not present. The COR records no plea was entered. Submissions on the issue of whether the offence was trifling were made. As to the events of that day, the affidavit of the police prosecutor sets out:[4]
On 1 July 2022, I appeared at the Adelaide Magistrates Court before [the Magistrate]. [Counsel for the appellant] appeared for the appellant and the appellant was not in attendance.
Although it is not noted on the Certificate of Record for AMC-21-8236 or on the endorsements on the lower court file, it is my recollection that a guilty plea was entered on this date. I have listened to the audio recording of the hearing on 1 July 2022, obtained by the Crown Solicitor’s Office, which does not record that a guilty plea was entered. The audio recoding starts midway through a conversation between the Magistrate and [Counsel for the appellant] and does not appear to capture the start of the hearing.
[4] Affidavit of Craig Patrick Roberts, dated 28 September 2022, [18]-[20].
Counsel for the appellant in the Court below has provided an affidavit which includes the following:[5]
I do not have a specific recollection of a formal plea of guilty being entered by the appellant, or by me on behalf of the appellant. I don’t dispute that a plea may have been entered at some point. There is no such notation on the Certificate of Record, however there is no dispute that the parties accepted that as a consequence of Her Honour’s ruling on the voir dire that the charge was proven.
[5] Affidavit of Stephen White, dated 5 October 2022, [14].
The final sentence of the affidavit extracted immediately above might raise the possibility of the appellant being found guilty in his absence, but that is not consistent with the COR.
The next appearance was on 11 July 2022. The affidavit of the prosecutor and the affidavit of counsel for the appellant make no reference to the appearance on 11 July 2022, but I do not think that matters given what is recorded in the COR about that day and considering no party suggests a guilty plea was entered on that day. Plainly enough on 11 July 2022 the appellant was not present. The COR records no plea was entered. Penalty was imposed.
It is necessary to refer to the report from the clerk in the Court below. It does not resolve the conflict between the memory of the prosecutor and what is recorded in the COR about what occurred on 1 July 2022. Given the uncertainty about whether a plea of guilty was entered, the parties agreed that I should seek a report from the Magistrate. I sought a report from the Magistrate as to the following: whether a plea of guilty was entered by, or on behalf of, the appellant; if so, when that plea was entered; and whether the Magistrate sentenced the appellant on 11 July 2022 on the basis he had entered a plea of guilty. The report received was from a clerk of the Magistrates Court. The relevant aspect of that report is the following: ‘[on] perusing the Certificate of Record and other relevant matters, it appears that on 1 July 2022, there was an omission to record the defendant’s plea of guilty’. No explanation was provided as to what the ‘other relevant matters’ were. It may be noted that the only evidence known to me of what may be on the court file is set out in the affidavit of the police prosecutor who states the entry of a guilty plea on 1 July 2022 is not in the endorsements on the lower court file. I assume that the ‘other relevant matters’ referred to by the clerk are not the endorsements on the court file.
Was a guilty plea entered – was the defendant convicted in his absence?
For the following reasons, I am not satisfied a guilty plea was entered in the way permitted by the CPA.
It appears to be common ground between the parties that what may be discerned about what occurred at the hearing before the Magistrate on 1 July 2022 is the appropriate starting point for whether a guilty plea was entered or whether the defendant was convicted in his absence. It is clear the appellant did not enter a plea of guilty in person. No one disputes he was not present on 1 July 2022. I am also not satisfied a plea of guilty was entered in accordance with the CPA without the appellant being present.
Section 62B of the CPA permits a plea of guilty to be entered to a summary offence without the defendant being present, but requires the plea be in writing. It is not suggested that occurred. The COR does not set out that any guilty plea was entered. The memory of the prosecutor is that a guilty plea was entered on 1 July 2022 but he makes no reference to it being in writing nor does his affidavit otherwise explain how that occurred in the absence of the appellant. Counsel for the appellant frankly admits to an imperfect memory but makes no reference to a plea being in writing. If there was a plea in writing I expect counsel would have assisted the appellant with what was required and would recall doing so. Assuming, without deciding, that the CPA permits counsel to enter a guilty plea on behalf of a defendant in their absence without that plea being in writing, counsel for the appellant has no memory of that and it does not appear on the COR. The report from the clerk of the Magistrate sets out that ‘it appears that on 1 July 2022 there was an omission to record the defendant’s plea of guilty’. With respect, why that view is expressed is unexplained. Whatever the explanation, given the affidavit of the prosecutor, it does not appear to be based on an endorsement on the court file. For the above reasons, I am satisfied a guilty plea was not entered in accordance with the relevant provisions of the CPA.
If the appellant was convicted in his absence without a guilty plea being entered, I am also satisfied the approach mandated by the CPA was not followed. Section 62BA of the CPA permits a court, in certain circumstances, to convict a defendant of a summary offence in their absence. For the following reasons, I am satisfied that s 62BA was not utilised. It is not the memory of the prosecutor nor counsel for the appellant. The use of that power is not set out in the COR. It is not consistent with the report of the clerk from the Magistrates Court and the affidavit of counsel for the appellant.
Given the above, I am not satisfied the Magistrate exercised any valid power to convict the appellant. For that reason, the Magistrate also did not have the power to sentence.
Leave to appeal and the interlocutory judgment
I turn to whether the matters the appellant seeks to advance in the appeal by way of a challenge to the ruling on admissibility may be determined given the above.
The judgment of the Magistrate admitting the evidence of the BA was an interlocutory judgment.
This is an appeal pursuant to s 42 of the MCA. Section 42(1a)(c) provides:
(1a)An appeal does not, however, lie against an interlocutory judgment unless—
…
(c)the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
During the hearing of the appeal, I heard full argument with respect to the issues the appellant seeks to have determined on the appeal. If I return the matter to the Magistrates Court to be dealt with properly according to the CPA, there will be delay. The appellant and the respondent accept there are special reasons why it would be in the interests of the administration of justice for me to consider the interlocutory judgment. In the circumstances, I am satisfied special reasons do exist as required by s 42 of the MCA. I grant permission to appeal the interlocutory judgment of the Magistrate.
The interlocutory judgment
Section 47K RTA
There is no dispute the BA undertaken by the appellant at the police station gave a reading of 0.18 grams of alcohol in 100 millilitres of blood. Section 47K of the RTA provides for, among other things, proof of a breath analysis by certificate. For present purposes the relevant aspects of s 47K are:
(1)Without affecting the admissibility of evidence that might be given otherwise than under 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 and 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 proceedings 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 defendant's 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 at the time of the conduct referred to in paragraph (a).
…
(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—
(a)     the reading produced by the breath analysing instrument; and
(b)     the date and time of the analysis.
(2a)If 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.
(3)A certificate—
(a)     purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments; or
(b)     purporting to be signed by a person authorised under subsection (1) and to certify that—
(i)a breath analysing instrument used by the person was in proper order and was properly operated; and
(ii)the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with, is, in the absence of proof to the contrary, proof of the matters so certified.
Further background

There is no dispute that ss 47K(2) and 47K(2a) were complied with by the police officer. However, after undertaking the BA and giving the relevant reading, the appellant was given a notice of immediate licence disqualification pursuant to s 47IAA of the RTA. There also followed discussion about the ability for the appellant to apply for the licence to be reinstated. Section 47IAB of the RTA provides for such an application to be made.
It was the discussion on the topic of licence reinstatement which assumed considerable significance in the Court below on the application to have the BA excluded. The appellant sought to have the evidence excluded on the basis he was misled by the police officer about the process of having the licence reinstated. More specifically, the appellant alleged that the police officer misled him by creating the impression the reinstatement of his licence was a simple process which could occur the next day. The appellant submitted the misleading statements were relevant to him not requesting the ‘blood test kit’ referred to in s 47K(2)(b). The appellant submitted there was a link between what he was told by the police officer and the refusal of the blood test kit. The appellant submitted that in being misled, he was then precluded from utilising s 47K(1a) and rebutting the breath analysis.
In the Court below, the prosecution called the police officer who dealt with the appellant and he was cross‑examined. The conversation between the appellant and the police officer at the police station, and a transcript of the recording, was before the Magistrate. During that conversation, the following was said:
Police Officer     Allrighty. I’m now going to hand you this statement in writing. The analysis shows that you have a breath alcohol concentration of 0.180 grams of alcohol in 210 litres of your breath. This is over the legal limit. Do you understand?
AppellantWhat legal limit of what? Driving, riding a scooter is now considered the same as a car?
Police Officer     Yeah.
AppellantWell fuck it, fine then, whatever.
Police Officer     Alright, I just need to read you a few more things.
AppellantSo I lose my licence I’m diving a fucking scooter.
Police Officer     Well I don’t actually know if you lose your licence.
AppellantWell how can you not know?
Police Officer     Because these changes have only happened very recently and this is the first time that I’ve stopped anyone riding a scooter with blood alcohol in excess of the legal limit. So, I’m going to give you this information.
Appellant[inaudible]
Police Officer     The breathalyser reading just taken shows that you had a prohibited level of alcohol in your blood.
AppellantYeah, that’s fine.
Police Officer There, it appears that you have committed an offence under section 47B(1) or (1a) of the Road Traffic Act 1961.
AppellantHow recent is this?
Police Officer     The changes to the rules?
AppellantYeah.
Police Officer I think it happened earlier this year. In any court proceedings for an offence against section 47B(1) or (1a), or for an offence against section 47 of the Road Traffic Act, which is driving under the influence of liquor, it will be presumed that the breathalyser accurately indicated your blood alcohol level at the time of the reading and for the preceding two hours However, the Road Traffic Act allow for contrary evidence based on the results of a blood test. If you want to have such a blood test you will have to make your own arrangements and follow certain procedures, using a special blood test kit.
AppellantAm I going to lose my licence or not because of this? I don’t care about the blood test, I don’t give a shit about anything.
Police Officer     Yep, alright, well just bear with me while I have to read this to you. If you want to have such a blood test you will have to make your own arrangements and follow certain procedures, using a special blood test kit. This blood test kit will be supplied to you on your signing a written request. If you obtain a blood test kit and want to have your blood tested, you will have, you should take the kit promptly to a hospital or medical practitioner in order to have a sample of your blood taken. You must not consume any more alcohol before having a sample of your blood taken and must not open the blood test kit before delivering it to a medical practitioner. Under the blood test procedure, the sample of blood is divided and sealed in two containers. You will have to sign a form that will be given to you by the medical practitioner. One of the sealed containers will be given to you and you may make your own arrangements.
AppellantI understand it, that’s fine.
Police Officer     Alright, so do you wish a blood test kit?
AppellantNo, no, no, I’m well over, I don’t give a shit, it’s fine. What’s the next step?
It was following the above conversation that the police officer and the appellant discussed the process by which the licence of the appellant could be reinstated. I will set out later what the Magistrate found about that part of the conversation.
The appellant gave evidence in the Court below. Consistent with the conversation set out above, the appellant accepted he had declined the blood test kit. There is no dispute that refusal was before any misleading statements about the process of licence reinstatement. Given the alleged link between the refusal and the appellant being misled, it is necessary to give some detail of the evidence of the appellant about why he refused the blood test kit. The evidence of the appellant included the following:
QYou agree that the police officer read from a document, what was commonly called the blood test kit rights.
AYep.
QWhat was your concern at the time that he read the blood test kit rights to you.
AIf my licence was in jeopardy. If I was going to lose it for riding a scooter.
QRight, and you didn’t take up the offer of a blood test kit.
ANot at that stage, no.
QWhy did you not take up that opportunity.
ABecause I was, I had no idea about the consequence at that stage and I was more worried about getting my licence back to start with.
QYou’ve seen how the police officer told you that you could go to court in the morning and ask for it to be reinstated.
AYep.
QWhat did that convey to you as opposed to the process with your blood test kit rights.
AHe made it sound like a very simple approach, that I could just come here and apply and ask to get it reinstated effectively, instead of going through the process of getting a blood test kit.
…
QAnd you agree that you were offered a blood test kit.
AI was, yes.
QAnd you said ‘No, no, no, I’m well over. I don’t give a shit, it’s fine’.
AThat’s what I said but, yes, that’s what I said.
…
QAnd you still declined the blood test kit.
AYes, with the interest of getting my licence back as quickly as possible.
Some key findings of the Magistrate
The Magistrate found the police officer to be ‘honest and credible’.[6] The Magistrate also found the appellant to be an ‘honest and reliable’ witness and accepted his evidence ‘in its entirety’.[7]
[6] Reasons for Ruling on the Voir Dire, [27].
[7] Ibid, [38].
The Magistrate found that the police officer had conveyed that the reinstatement of the licence was a simple process and that what had been said was misleading. The Magistrate found the police officer:[8]
… conveyed the strong impression that it was a simple process, namely, that by attending in person at the Magistrates Court the next morning [the appellant] could have his licence reinstated on request. I find that by simplifying his explanation of the requirements of s 47IAB of the RTA, [the police officer] inadvertently provided misleading information about the legal process. That said, I accept that he did not intend to do so and he was genuinely trying to be helpful.
[8] Ibid, [27].
Importantly, the Magistrate did not find the appellant refused the blood test kit as a result of having been misled.
The Magistrate refused to exclude the BA. The Magistrate found there had not been any unlawful conduct or deliberate illegality. The Magistrate also found there had not been any relevant unfairness.
The grounds of appeal
The grounds of appeal as set out in the Notice of Appeal are as follows:
1.The Learned Magistrate erred in failing to exercise her discretion to exclude from evidence the reading of the breath analysis test.
2.The Learned Magistrate erred in finding that because the appellant’s reading of .18 grams of alcohol in 100 millilitres of blood rendered it unlikely that an analysis of the appellant’s blood sample would have demonstrated that the breath analysing instrument gave an exaggerated “reading of the concentrating of alcohol present in the blood of the appellant”.
3.The Learned Magistrate erred in inferentially finding that it was necessary to prove “deliberate misconduct or impropriety” on behalf of the police officer in obtaining the appellant’s breath analysis reading to enliven the judicial discretion to refuse to admit into evidence the breath analysis reading.
4.The Learned Magistrate erred in finding that as there was no suggestion that the police officer (Constable Camilos) “engaged in misconduct of impropriety in obtaining the breath analysis reading” or during the interview there was no ground to enliven the judicial discretion to exclude the evidence of the breath analysis reading.
5.The Learned Magistrate failed to give weight or sufficient weight to the police officer’s explanation to the appellant that all he had to do was to go to the Court the next morning to have his licence “reinstated”, influencing the appellant not to request a blood test kit.
6.The Learned Magistrate having found that the “impugned statements” made by the police officer did convey the impression to the appellant that the reinstatement of his licence was simple process the Learned Magistrate failed to give weight or sufficient weight that those statements influenced the appellant not to request a blood test kit.
7.The Learned Magistrate erred in finding that as the appellant had been given his blood test kit rights the police officer had discharged his duty and that any other comments as to the appellant’s licence or the reinstatement of his licence did not have any bearing on whether the police officer had discharged his duties to the appellant in respect of the blood test kit.
8.The Learned Magistrate failed to give weight or sufficient weight to the appellant’s evidence that his priority was what was involved in getting his licence reinstated as opposed to the process of exercising his right to request a blood test kit and obtain a sample of blood.
Grounds 5 and 6
Grounds 5 and 6 may be dealt with together as both involve complaints the Magistrate failed to give weight, or sufficient weight, to specific matters which the appellant contends influenced his decision whether to request a blood test kit. The premise is that the Magistrate should have found the misleading statements by the police officer influenced the appellant not to request the blood test. It is necessary to test that premise as it is essential to the success of these grounds.
As set out above, the Magistrate found the statements of the police officer about the reinstatement process were misleading. While the Magistrate did not expressly find the appellant had been misled about the reinstatement process, it can be assumed that he was. Nonetheless, that was not the ultimate issue. The ultimate issue was whether being misled about the reinstatement process had influenced the appellant in refusing the blood test kit. The Magistrate found the appellant had not been influenced in that way. The Magistrate found the appellant had ‘declined the blood test kit before any of the impugned statements were made’.[9]
[9] Ibid, [49].
I am not satisfied the Magistrate erred in making the finding set out immediately above. For the reasons which follow, it was consistent with the evidence.
As revealed in the extracts of the recorded conversation set out earlier in these reasons, the blood test kit was refused before the issue of reinstatement was raised. Further, the issue of the blood test kit was not further mentioned subsequent to the refusal. As the Magistrate found, the police officer ‘had no obligation to reagitate the issue of the blood test kit after it had been declined’.[10] I would add that the conversation reveals it was not reagitated.
[10] Ibid, [49].
Given the conversation at the police station, the only evidence which might have permitted the finding urged by the appellant (i.e. – that he had been influenced by the misleading statements in refusing the blood test kit) was his own evidence. While the interview and the evidence of the appellant are certainly consistent with the appellant being concerned about whether he would lose his licence, to so find does not establish the appellant refused the blood test kit because of the misleading statements by the police officer. On my reading of the evidence of the appellant, he did not link in any clear fashion the misleading statements to the refusal of the blood test kit. This is not to overlook that the appellant said that he did not take up the opportunity of the blood test kit at the time it was offered because he ‘had no idea of the consequence at that stage and … was more worried about getting my licence back to start with’.[11] Nonetheless, it was open to the appellant to give evidence that had he not been misled about the process of reinstatement, he would have revisited the issue of the blood test kit, if that was truly his state of mind. The appellant did not give that evidence, albeit he was not expressly asked. I am not prepared to assume that is what he would have said had he been asked for three reasons. First, he was represented. Second, the onus was on the appellant. Third, in his evidence, the appellant set out what he had been drinking and over what period. I cannot discount that there was no reason for him to doubt the BA reading. Indeed, in the conversation extracted earlier, in direct response to being asked if he wanted the blood test kit, the appellant said ‘No, no, no I’m well over’.
[11] Voir Dire T25.
In my view, on the evidence, there was no clear link established between the refusal of the blood kit and the misleading statements. For that reason, I am not satisfied the Magistrate erred in failing to conclude that the appellant had been influenced by the misleading statements in refusing the blood test kit. I dismiss Grounds 5 and 6.
Ground 7
After finding the appellant had refused the blood test kit before any misleading statement, the Magistrate found that, in her view, ‘[the police officer] had no obligation to reagitate the issue of the blood test kit after it had been declined by the [appellant]’.[12] As I understand it, this ground contends that conclusion was erroneous. Put another way, it is contended that the police officer was obliged to return to the issue of whether the appellant wanted to request the blood test kit. There was no such obligation. The refusal of the blood test kit had been in clear terms. I dismiss Ground 7.
[12] Ibid, [49].
Ground 8
Although not expressly relying upon the same premise as Grounds 5 and 6, this ground is nevertheless very similar and must be dismissed for the same reasons. It may be accepted the priority of the appellant, both before and after the refusal of the blood test kit, was the return of his licence. Nonetheless, for the reasons given, the evidence failed to establish a clear link between the refusal of the blood test kit and the misleading statements. I dismiss Ground 8.
Given the Magistrate did not conclude there was a link between the misleading statements and the refusal of the blood test kit and given the appellant has not satisfied me the Magistrate erred in that regard, there is an air of futility about the remaining complaints advanced by the appellant. In the absence of the Magistrate finding a relevant link between the refusal of the blood test kit and the misleading statements and given the appellant failed to persuade me the Magistrate was wrong not to find such a link, there was, or is, no basis to exclude the BA. Nonetheless, as they were argued, I will deal with the remainder of the grounds.
Grounds 3 and 4
These two grounds complain about the failure of the Magistrate to exclude the breath analysis in the exercise of her discretion on the grounds that there had been unlawful or improper conduct by the police officer.
There is a discretion to exclude evidence which is the product of ‘unlawful or improper conduct’ by the authorities.[13] The rationale for the public policy discretion is to protect the integrity of the administration of justice by preventing those involved in law enforcement from inappropriately obtaining a curial advantage as a result of their unlawful and improper conduct. If such an advantage is obtained, the Court may be seen as giving approval to the conduct and thus the administration of justice is brought into disrepute. The discretion involves balancing this consideration against the public interest and the conviction of wrongdoers.[14]
[13] Bunning v Cross (1978) 141 CLR 54, 75 (Bunning v Cross); Ridgeway v The Queen (1995) 184 CLR 19, 37 (Ridgeway v The Queen).
[14] Bunning v Cross, 74; Ridgeway v The Queen, 30-32; R v Lobban (2000) 77 SASR 24, [33] (Lobban).
In Ridgeway v The Queen the plurality stated it was:[15]
… neither practical, nor desirable, to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all of the circumstances.
[15] Ridgeway v The Queen, 37.
The Magistrate found the Bunning v Cross discretion ‘has no application’.[16]
[16] Reasons for Ruling on the Voir Dire, [47].
As set out above, for the discretion to be enlivened, there must be ‘unlawful or improper’ conduct. There is no suggestion the police officer engaged in unlawful conduct. There is no dispute the police officer complied with his obligations pursuant to s 47K(2a) of the RTA. There is no dispute the appellant declined the offer of an approved blood test kit. Plainly the issue was whether the police officer engaged in what can be characterised as ‘improper conduct’ in creating a misleading impression with respect to s 47IAB.
The appellant does not seek to challenge the finding of the Magistrate that the misleading statements were not deliberate. The appellant submits the Magistrate erred in finding, at least impliedly, the ‘improper conduct’ had to be deliberate. The appellant directs attention to the Magistrate agreeing ‘in substance’ with the submissions of the prosecution and then stating it was relevant there had been no deliberate impropriety.
I am not satisfied the reasons of the Magistrate are to be read as her declining to find the misleading statements constituted improper conduct because they were not deliberate. I am satisfied the reasons of the Magistrate reflect only that one of the matters relevant to whether there had been improper conduct was whether that conduct was deliberate.
In any event, putting the above entirely to one side, this was not a case involving conduct which can be characterised as being improper in any relevant sense. The police officer complied with his obligations and, after doing so, provided ‘advice’ about the reinstatement process which was inadvertently misleading. The real issue was whether that misleading impression was relevant to the refusal of the blood test kit. It was only in that event that consideration of the public policy discretion to exclude the BA could arise. For the reasons given earlier, on the evidence, the refusal of the blood test kit was not linked to the misleading statements. In the absence of that link, the admission of the BA should not be described as giving curial approval to conduct which brought the administration of justice into disrepute.

Before the Magistrate and on appeal the appellant placed reliance upon Nolan v Rhodes (Nolan)[17]. In Nolan, the appellant had undertaken a breath analysis which gave a reading of 0.09 per cent. In a process analogous to s 47K(2a), the appellant was told he could have a sample of his blood taken by a medical practitioner. However, before the option of a blood sample was refused, the police officer told the appellant that, in his experience, such a process always led to a higher reading. On appeal it was held that the evidence of the breath analysis should have been excluded in the exercise of the discretion. Importantly it was found that the will of the appellant had been overborne by the relevant statement of the police officer and, in that context, it was held a conviction would be obtained at too high a price.
[17] Rhodes v Nolan (1982) 32 SASR 207 (Nolan).
Nolan can be distinguished. The advice given to the appellant in Nolan was central to the refusal of the blood test. The refusal was in direct response to the statement of the police officer which was obviously designed to discourage the appellant from exercising the option of the blood test. The Court found the comment of the police officer had overborne the will of that appellant. That is not the case in this matter. As set out above, there is no dispute the appellant refused the test kit before any misleading statement was made.
I dismiss Grounds 3 and 4.
Grounds 1 and 2 – unfairness
If the BA was not excluded on the basis there had been unlawful or improper conduct, the only other ground for exclusion was in the exercise of the discretion due to some relevant unfairness.
I will first consider the complaint advanced by the appellant in Ground 2. The appellant submits the Magistrate erred in considering it was unlikely a blood sample would have demonstrated the BA had given an exaggerated reading. As I understood his submissions, the appellant did not challenge that conclusion was one properly available to the Magistrate, but submitted it was not a relevant consideration. The appellant submitted the issue was the importance of providing the right to challenge the reading and not the likely outcome.
The likelihood of a blood test showing the BA had given an exaggerated reading was one of four reasons given by the Magistrate for not excluding the BA on grounds of unfairness. The Magistrate said:[18]
…. Parliament has chosen to provide the prosecution with an aid to proof and to closely confine the circumstances in which rebuttal evidence may be adduced. Firstly, the RA treats the breath analysis as reliable evidence. Secondly, there is no suggestion that (the police officer) engaged in misconduct or impropriety either in association with obtaining the breath analysis reading or during the interview. Thirdly, the RTA does not confer an enforceable right on the driver of a vehicle to have a sample of blood taken. Fourthly, the defendant’s admissions on oath that he had been consuming alcohol from around 8.30 p.m. on 25 May 2021 to around 3.45 a.m. on 26 May 2021 along with the reading of 0.180 grams of alcohol in 100 millilitres of blood render it unlikely that an analysis of the (appellant’s) blood sample would have demonstrates that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the (appellant).
In these circumstances, I am not satisfied that reception of the evidence would result in an unfair trial.
[18] Reasons for Ruling on the Voir Dire, [52]-[53].
The unfairness discretion permits a court to refuse to receive evidence where to do so ‘would be unfair to the accused in the sense that the trial would be unfair’.[19] The purpose served by the discretion is to ensure that the accused is not improperly convicted.[20] The unfairness discretion is not concerned with general unfairness experienced by the accused nor does it give effect to idiosyncratic notions of ‘fair play’ between the parties.[21]
[19] Lobban, [77] per Martin J; Police v Hall (2006) 95 SASR 482, [24] (Hall), at [35] per Doyle CJ (Vanstone J agreeing at [215]), at [88] per Nyland J; at [94] per Bleby J; at [167] per Gray J.
[20] Lobban, [89] per Martin J.
[21] Police v Dunstall (2015) 256 CLR 403, [83] per Nettle J citing Police v Jervis (1998) 70 SASR 429, 446 per Doyle CJ.
I reject that the fourth matter referred to by the Magistrate in the passage above was irrelevant. It was a consideration relevant to evaluation of whether the asserted unfairness was one productive of an unfair trial.
The only evidence which could have been led at trial had there been a blood test kit, was evidence falling within s 47K(1a) of the RTA. That is, evidence the breath analysis instrument gave an exaggerated reading. Given the unfairness discretion is concerned with ensuring an accused does not suffer an unfair trial and is not improperly convicted, in my view, the Magistrate was entitled to consider the likelihood that any blood analysis would establish that there had been an exaggerated reading[22] in considering whether to exercise the unfairness discretion.
[22] RTA s 47K(1a)(b).
The approach of the Magistrate in not exercising the unfairness discretion is consistent with the approach taken in Police v Hall (Hall).[23] Mr Hall (the respondent) had undertaken a breath analysis at about 11.21pm which gave a reading of 0.081 grams of alcohol in 100 millilitres of blood. The respondent was given the prescribed oral advice then set out in s 47G of the RTA, [24] which included that if he was given a blood test kit he should ‘take the kit promptly to a Hospital or medical practitioner to have a sample of your blood taken’. The respondent attended the hospital at about 1.00am the next day, a delay of about ninety minutes which was found not to be his fault. The respondent was not seen until 5.30am. The blood taken at that time was later analysed and contained no alcohol. The Magistrate excluded the breath analysis in the exercise of the unfairness discretion. On appeal it was held that the possibility that had the blood sample been taken earlier it would have assisted the respondent was not sufficient to lead to an unfair trial.[25] It was held that obtaining a conviction on the basis of the result of a breath analysis and a statutory presumption with respect to that analysis (in the case before me the presumption in s 47K(1)) could not be said to make the trial unfair when Parliament provides for proof of guilt in that way.[26]
[23] Hall.
[24] RTA s 47G redesignated as s 47K by 77/2005 s 14(8).
[25] Hall, [70].
[26] Ibid, [81].
The above is not to overlook that if the police officer in the case before me had failed to comply with the requirements in s 47K(2a) of the RTA (or otherwise behaved in a way found to have inhibited the relevant request being made) there might have been relevant unfairness leading to the possibility the discretion might have been enlivened. In that event, it is possible the conduct of the police officer might have contributed to the loss or denial of a safeguard provided by the RTA and the consequential production of a forensic disadvantage.[27] However, for reasons already given, that is not this case. There is no dispute there was compliance with s 47K(2a). The appellant has not established the Magistrate was wrong to conclude the appellant refused the blood test kit before the misleading statements. The appellant has not established that had he not been misled he would have reconsidered his refusal of the blood test kit.
[27] Ibid, [73].
I dismiss Grounds 1 and 2.
Orders
1.Permission is granted to appeal the interlocutory judgment of the Magistrate refusing to exclude the BA.
2.The appeal with respect to the interlocutory judgment is dismissed.