Finelli v Police No. Scciv-01-1726

[2002] SASC 89

FINELLI v POLICE
[2002] SASC 89

Magistrates Appeal: Criminal

1. WILLIAMS J         This is an appeal against conviction recorded by a Magistrate sitting at Adelaide on 10 December 2001 and against the sentence thereupon imposed.

2. The appellant was charged with an offence contrary to s 47B of the Road Traffic Act 1961. It was alleged that on 30 September 2001 at North Adelaide, he drove a motor vehicle along Barton Terrace while there was present in his blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act.  It was alleged that the concentration of alcohol was .082 grams in a hundred millilitres of blood.

3. I was informed by the appellant’s counsel that Mr Finelli was tested at a breath testing station at 4.49 am after being stopped at 4.28 am.  The blood alcohol reading as recorded on the breath testing instrument was then 0.082.  The appellant had a blood test at 7.20 am which upon analysis showed an alcohol concentration of 0.032 grams in a hundred millilitres of blood.

4. The appellant represented himself before the Magistrate and pleaded guilty.  The Magistrate imposed a fine of $500 together with costs, levy and counsel fee - in all $622.50 including the fine; a licence disqualification for 6 months was also imposed and the appellant was approved for participation in the Alcohol Interlock Scheme.

5. The grounds of appeal read as follows:

   “The defendant who was unrepresented at the first hearing initially pleaded not guilty to the charge but was persuaded to plead guilty after discussions with the prosecutor.

   The defendant still wishes to challenge the PCA reading in view of the blood test results.”

6. The appellant provided an affidavit in which he asserted that he pleaded guilty after a preliminary discussion with the police prosecutor.  An affidavit by the prosecutor explained how he made a calculation based upon the blood test result and an estimated “elimination rate” to relate the blood test reading back for some three hours for rough comparison with reading recorded by the police.  Based upon his discussion with the prosecutor the appellant (who had previously pleaded not guilty) went back into court and entered a guilty plea.

7. The appellant now wishes to dispute the reading alleged in the complaint as being “exaggerated” and he wishes to submit that the offence (if proven) was “trifling”.

8. The appellant has sought out the opinion of an expert to explain the significance of the blood test.  It transpired that he was also seeking to arrange an experiment to test his reaction to alcohol under similar conditions to those which he experienced on the morning of the offence.  The appeal was argued before me on 7 February 2002 when I was informed that a report by an expert had been prepared which required some elucidation.  The effect of the report was mentioned during argument but I did not then see the expert’s letter.  I allowed the matter to be mentioned on 15 February 2002 after argument had been completed in anticipation that counsel might wish an opportunity formally to put the letter before me together with some further explanatory material.  It was only then that I was informed of the proposed experiment - apparently along the lines of that which was conducted in Shelmerdine v Police [2000] SASC 45 to establish rates of relevant elimination or absorption related to the offender’s own metabolism. The situation is therefore that even now the appellant is not able to demonstrate a basis for challenging the presumption arising under s 47B(2) of the Road Traffic Act (cf Shelmerdine v Police supra).  Counsel for the respondent submitted that the appellant was “hunting around for evidence;” that seems to be a fair description as to what has occurred.

9. The appellant based his appeal on a reference to Cooling v Steel (1971) 2 SASR 249. However, I have been unable to identify anything in the affidavits or the argument to suggest that there was anything further which ought to have been made known to the appellant in the course of the hearing. There was no impropriety in the discussion with the prosecutor. There is nothing in the facts which would suggest that this might be classified as a “trifling offence”. The appellant’s submission in this respect is misconceived.

10. It is apparent that the appellant was aware of his right to have legal advice.  He chose not to pursue that course after the prosecutor had made a rough calculation which appeared to confirm that there was nothing to suggest that the breath analysis reading by the police was suspect.

11. I cannot see any basis upon which the appellant could succeed if he were now permitted to contest the charge (see Leathley v Police [1999] SASC 246). The appellant has not demonstrated that upon a new hearing he has any prospects of achieving a result any different from that which is now under appeal. Mancini v Vallelonga (1981) 28 SASR 236 at 239 explains the criteria which might lead to a case being treated as trifling. The mere fact that the offence (by reason of the breath analysis) is barely within the range of a category 2 offence does not lead to the offence being “trifling”. It is indeed typical of the conduct which Parliament intended to proscribe.

12. There is no hint that justice may have miscarried (cf Pallares v Police [1999] SASC 134 citing Meissner v R (1995) 184 CLR 132 at 157). The guilty plea is not vitiated by reason of the encouragement given by the police prosecutor to the view that the appellant had no prospects of success if he chose to contest the charge. There was nothing to suggest that there were grounds not to record a conviction upon the offence being admitted. The sentence was an appropriate one.

13. The appeal against conviction and sentence is dismissed.