Ehmann v Police - [2006] SASC 235

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
EHMANN v POLICE
[2006] SASC 235
Judgment of The Honourable Justice Perry
10 August 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - OTHER OFFENCES
Appellant convicted of driving with the prescribed concentration of alcohol - whether an attempt to blow into the breath analysis machine that provides less than one litre of air is nevertheless a 'sample' within the meaning of reg 8A(1) of the Road Traffic (Miscellaneous) Regulations 1999 - whether to disturb the magistrate's finding of fact regarding what was said by the police officers to the appellant. Held: an attempt to provide a sample for breath analysis is only a sample within the meaning of reg 8A(1) if it provides more than one litre of air - therefore the regulations were not breached when testing the appellant - appeal dismissed.
Road Traffic Act 1961 s 47a and s 47G; Road Traffic (Miscellaneous) Regulations 1999 reg 8A(1), reg 8A(2) and reg 8A(3), referred to.
Evans v Benson (1986) 4 MVR 257; Taylor v Hayes (1990) 53 SASR 282, considered.

EHMANN v POLICE
[2006] SASC 235
Magistrates Appeal: Criminal

PERRY J. The appellant appeals to this Court following her conviction in the Magistrates Court sitting at Adelaide on a charge that on 14 December 2004 she drove a motor vehicle on Greenhill Road at Hazelwood Park while there was present in her blood the prescribed concentration of alcohol as defined in s 47a of the Road Traffic Act 1961 (“the Act”).
It was alleged, and the trial magistrate so found, that the concentration of alcohol was 0.105 grams in a 100 millilitres of blood. (I will hereafter refer to blood alcohol levels by a % sign.)
Background
At the time of the alleged offence the appellant was aged 42 years. She lived at Beaumont, which is about three minutes by car from The Feathers hotel.
On the evening in question, she had been drinking with her husband at home. According to a statement which she gave later to a police officer, she had her first drink at about 8.00 pm and the last at about 9.30 pm. She said that during that time she had drunk about two and a half glasses of sparkling shiraz. She did not have a meal during that period.
Shortly before 10.00 pm she drove a car from her home to The Feathers Hotel, intending to buy some more wine to drink with her husband that night. She approached the drive-in bottle shop of the hotel, only to find that it was closed. She then drove through the hotel car park, emerging onto Glynburn Road, from which she drove to Greenhill Road.
As she negotiated the roundabout at the intersection of Glynburn and Greenhill Roads, intending to proceed west on Greenhill Road, her attention was drawn to a police car to her rear which signalled her to stop. She pulled over and stopped in Greenhill Road, when she was approached by Senior Constable Allen who was the driver of the police car.
He directed the appellant to submit to an alcotest. He did so as part of a random breath testing campaign.
As Senior Constable Allen approached the appellant’s car, he detected a slight smell of liquor through the open window of the driver’s side.
The appellant co-operated in the administration of the alcotest. The test proved positive.
While the test was being administered, another police officer, Constable Jolley, pulled up in a patrol car. He had also been performing random breath tests in the area. Senior Constable Allen asked him to remain.
Two other police officers were then summoned. They were Senior Constable Matricciani, who was driving a van containing the equipment for the administration of the breath analysis, and Constable Bowels, the breath analysis operator.
At 10.57 pm, the appellant first blew into the breath analysing instrument. The machine recorded the outcome as “not allowed blowing”. This was an indication that an insufficient sample of breath was received by the machine. In those circumstances, no analysis is made or recorded.
The appellant was asked to blow into the machine again. The time of the taking of the second sample was again recorded as 10.57 pm. On that occasion the outcome was successful, and a blood alcohol concentration of 0.110% was recorded.
The appellant was asked to give a further sample, which she attempted at a time recorded as 11.01 pm. This was unsuccessful. The machine again recorded the outcome as “not allowed blowing”.
At 11.02 pm the appellant again blew into the machine. This time a sufficient sample was obtained, and the machine recorded a blood alcohol concentration of 0.105%.
The machine produced a print-out recording the outcome of all four tests. The appellant was given a copy of the print-out at 11.05 pm.
In accordance with reg 8A(3) of the Road Traffic (Miscellaneous) Regulations 1999 (“the Regulations”), the lower of the two readings, namely 0.105%, is taken to be the reading produced by the breath analysing instrument.
Constable Bowels then read out to the appellant the prescribed oral advice, and handed to her the prescribed written notice, as required by s 47G(2a)(a) of the Act. Constable Bowels then asked the appellant whether she wanted a blood test kit. His evidence was that her answer initially was, “I must say no. I’ve got two kids at home.” But that she then said soon afterwards, “Hang on, I’ll take a blood test kit”. Constable Bowels’ evidence was that the two responses made by the appellant were given in less than a minute. She was then given a blood test kit.
The account of the matter which I have so far set out is supported by the evidence of the prosecution witnesses, Senior Constable Allen, Constable Bowels and Senior Constable Matricciani, together with the various certificates which were tendered pursuant to s 47G of the Act, which included a copy of the breath analysis instrument’s print-out.
The appellant gave evidence in her own defence. She did not deny the essential elements of the prosecution case. In her evidence she described Constable Allen’s demeanour as “stern” and overbearing. She suggested that he had become aggressive when she was obviously having difficulties in providing a satisfactory sample.
Senior Constable Allen denied that he had pressured her in any way.
Her explanation for the difficulties which she experienced in blowing into the machine was that she had just got over a bout of pneumonia, and further, that she was nervous and felt stressed.
She said that she did her best to blow into the machine on the first occasion, but that she was “shaking like a leaf and having trouble breathing”. As to the third occasion, which was the second unsuccessful attempt, her evidence was:
… I was so nervous at that point I sucked the tube I was so used to sucking oxygen in the hospital and I made a mistake.
Her evidence was that after being given the blood test kit, she told the police officers that she had two children at home and that she was concerned that her husband and children would not know where she was.
She went on to ask the police officers when she would have to have the blood test done. Senior Constable Allen had said, “As soon as possible”, and she said that this was repeated by all three police officers after she had said, “Does that mean I can go in the morning?”.
After that, she went home in a taxi. Next morning a blood sample was taken by Dr Catherine Mutton at 10.57 am. Analysis of the sample of blood taken was negative.
Senior Constable Allen denied that there was any conversation about the appellant attending for a blood test in the morning, or that he or the other police officers had used the expression “as soon as possible”.
The evidence of Constable Bowels was that he did not use the expression “as soon as possible” and did not recall the appellant asking whether she could go for a blood test in the morning.
Senior Constable Matricciani denied having any conversation with the appellant, and said that he did not hear the other police officers talking to her. He did not hear the words “as soon as possible” used at any time.
The appellant’s evidence was that she had understood her conversation with the police officers, including their use of the words “as soon as possible”, after she had asked if she could go in the morning for a blood test, to mean that it would be in order for her to do just that.
Reasons for judgment of the Magistrate
The defence case put to the magistrate was that the result of the breath analysis (exhibit P8) should be excluded from evidence on three grounds which he summarised in his reasons as follows:
(1)The requirements of the breath analysis procedures were not complied with, as a two minute interval did not occur between the first test and the second test.
(2)A total of four samples of breath were required and given.
(3)Senior Constable Allen and other police officers in attendance that night gave advice over and beyond the prescribed oral and the prescribed written advice which resulted in Mrs Ehmann not having the sample of blood taken from her earlier than 10.30 am and had she done so she would have been able to contest the accuracy of the result of the breath analysis (because the testing of the blood produced a “nil” result).
In order to understand the first two grounds, it is necessary to have regard to reg 8A(1), which is as follows:
8A(1) Pursuant to section 47E(2e), where a person submits to a breath analysis, the breath analysis must be conducted in the following manner:
(a)the person must provide two separate samples of breath for analysis; and
(b)each sample must be provided in accordance with the directions of the operator of the breath analysing instrument and must consist of not less than one litre of breath; and
(c)there must be an interval of not less than two minutes and not more than 10 minutes between the provision of the samples.
(2)….
Based on that regulation, the argument put to the magistrate on behalf of the appellant was that the regulation had not been followed, as four rather than two samples had been obtained, and further, because the time interval between the first and second samples and the third and fourth was less than two minutes.
Relying on observations made by King CJ in Evans v Benson,[1] the magistrate found that on the first and third occasions when the appellant was asked to furnish a sample, in fact no sample within the meaning of the regulation was provided, in that insufficient breath was exhaled to produce an analysis.
[1] (1986) 4 MVR 257.
In Evans v Benson (supra), King CJ observed, with respect to s 47E:
The requirement authorised by the section, and the corresponding obligation, is to submit to a breath analysis. If the attempt to submit is abortive in that it does not produce an analysis, the right to require and the corresponding obligation to submit, remain until an analysis is achieved.[2]
[2] Ibid at 268.
That conclusion is consistent with the terms of reg 8A, more particularly reg 8A(1)(b). This provides that:
Each sample … must consist of not less than one litre of breath.
If the attempt to provide a sample produces less than one litre of breath, no sample has been provided in accordance with the regulation.
It follows that in the context of this case, there were only two samples produced, namely those which gave rise to an analysis. Furthermore, they were samples taken at an interval greater than two minutes.
The conclusion reached by the trial magistrate as to the first two arguments dealt with by him was correct.
I move to the third point considered by him.
This was based upon the appellant’s evidence that she was in some way misled into thinking that it would be sufficient to protect her position with respect to a cross-check of the breath analysis, if she waited until the morning after for a blood sample to be taken.
There was, as I have explained, conflicting evidence as to the terms of her discussion with the police officers on that topic.
Her evidence was summarised at length in the magistrate’s reasons. In the course of doing so, he drew attention to her evidence that when she rang the doctor’s surgery in the morning to arrange an appointment for the blood sample to be taken, she:
… explained to the receptionist that [she] … needed an urgent blood test …
As to that passage of evidence, the trial magistrate observed:
[36]There is a serious inconsistency between the contact with the surgery for a “urgent” blood test and the contemplation of a visit to the Royal Adelaide Hospital that night.
In rejecting her evidence where it conflicted with the evidence of the three police officers, the trial magistrate acknowledged that it was necessary for him to consider whether it was even reasonably possible that what the appellant said about her conversation with the police officers was true. He held that there was no reasonable possibility that it was true, and he preferred the evidence of the three police officers. He summarised the reasons for reaching that conclusion in the following passage from his reasons:
ù   I formed the opinion that her evidence relied greatly upon reconstruction.
ù   Her evidence was internally inconsistent (a request for an urgent blood test is inconsistent with blood being taken “as soon as possible”).
ù   She was in an emotional state that evening.
ù   She was anxious to seek comfort at her residence, even though she considered attending the Royal Adelaide Hospital. The consideration of attending the Royal Adelaide Hospital that night could only – I find – be a result of words said to her.
The trial magistrate specifically rejected her evidence that she was told by any of the police officers that she should have a blood test “as soon as possible”. His conclusion on this issue was as follows:
[44]Ultimately the defendant was deprived of her right to challenge the accuracy of the breath test because of her decision to delay presenting herself to a medical practitioner. That decision was, I find, reached without influence from any remark by any of the police officers that were in attendance. Unfairness to her will not result from the reception of the certificate.
In view of his findings, the trial magistrate admitted into evidence the formal record of the result of the breath analysis, with the inevitable result that he was then led to conclude that the complaint was proved beyond reasonable doubt.
The arguments on appeal
On the hearing of the appeal, the appellant advanced essentially the same arguments as were put unsuccessfully before the trial magistrate.
As to what might be described as the technical arguments relating to the interpretation of reg 8A(1), for the reasons which I have given, in my view, the approach taken by the trial magistrate was correct. Only two samples within the meaning of the regulation were given, and they were spaced as an interval of not less than two minutes and not more than ten minutes, as stipulated in reg 8A(1)(c).
I reach that view, notwithstanding reg 8A(3), which reads:
(3)Where a person submits to a breath analysis, the result of the breath analysis will, for the purposes of the Road Traffic Act 1961 and any other Act, be taken to be the reading produced by the breath analysing instrument, on analysis of the samples of breath provided by the person in accordance with this regulation, that indicates the lower concentration of alcohol in the person’s breath (not taking into account any samples that, in accordance with this regulation, are to be disregarded). (my emphasis)
Within the meaning of that regulation, samples that are to be disregarded, are nonetheless samples which otherwise answer to the description in r 8A(1)(b), as I have construed it, and must result in an analysis. But they may be disregarded, for example, by reference to reg 8A(2)(c), by reason of a disparity of more than 15% when compared with the reading obtained with respect to an immediately preceding sample.
The appellant attacked the findings of the trial magistrate as to her discussion with the police officers as to the timeframe within which she should obtain a blood test.
It is true that, as Mr Woods of counsel for the appellant contended, there was no evidentiary basis upon which the trial magistrate could find, as he did, that the appellant sucked on the first attempt at giving a sample, as opposed to the third. However, I do not think that that discrepancy is significant.
The appellant advanced other arguments against the trial magistrate’s findings as to the appellant’s credit. Mr Woods submitted that there was no “internal inconsistency” as found by the trial magistrate in the appellant’s request for an “urgent” blood test the next morning, and her failure to obtain a blood test on the night before.
Looking at her evidence as to this in context, in my view, the findings by the trial magistrate were correct.
In reaching that conclusion, I have accepted that the proper approach for this Court on an appeal of this kind is as explained by me in Taylor v Hayes[3] where I said:
Grounds of appeal under the Justices Act, when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the magistrate’s findings. While it must give due weight to the advantage held by the magistrate in seeing and hearing the witnesses, if this Court reached a different view on the evidence it must give effect to that by substituting its view for that reached by the magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for rehearing before the same or another court of summary jurisdiction.
[3] (1990) 53 SASR 282 at 291.
I have independently reviewed the whole of the evidence, and at the same time allowed for the fact that the trial magistrate had the advantage of seeing and hearing the witnesses. Having done so, in my view, the conclusion reached as to this aspect of the matter by the trial magistrate was correct, and I would reach the same conclusion.
The conclusions which I have reached dispose of the grounds of appeal.
I would dismiss the appeal.