Gannon v Police - [2005] SASC 502

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GANNON v POLICE
Judgment of The Honourable Justice White
23 December 2005
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - OFFENCES RELATING TO INTERSECTIONS AND JUNCTIONS
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
Appeal against convictions - appellant convicted of driving with prescribed concentration of alcohol in the blood and of failing to obey traffic lights, but acquitted on charge of exceeding speed limit - Magistrate had "considerable anxiety" about police officer's evidence concerning the speeding charge but accepted the police officer's evidence concerning the traffic light offence - whether adequate reasons for decision - held that the circumstances required an explanation for acceptance of the police officer's evidence on one ground when reservations were held concerning his evidence on another - Magistrate's reasons inadequate - whether belief of the breath analysis operator or of the apprehending officer was relevant for the purposes of s 47E(1) - held that as it was the apprehending officer who had required the appellant to submit to breath analysis it was his belief which was relevant - as conviction on traffic light offence set aside, there were no findings of fact as to the apprehending officer's state of mind - appeal allowed - convictions set aside - retrial ordered.
Australian Road Rules r 25.2, r 56(1)(a); Road Traffic Act 1961 s 47E, s 47G, referred to.
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Pettitt v Dunkley (1971) 1 NSWLR 376; T v Medical Board (SA) (1992) 58 SASR 382; Papps v Police (2000) 77 SASR 210; Rowland v Police (2001) 79 SASR 569; R v Keyte (2000) 78 SASR 68; Harwood v Police (1998) 71 SASR 300; Nash v Berton [2001] SASC 94; Hoobin v Samuels (1971) 2 SASR 238; Cotton v Ramm (1976) 16 SASR 107; Coates v McCormick (1991) 16 MVR 6; Lajos v Samuels (1980) 26 SASR 514, applied.
Brain v Froude (1992) 61 SASR 65; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; Water Board v Moustakas (1988) 180 CLR 491, considered.

GANNON v POLICE
[2005] SASC 502
Magistrates Appeal

WHITE J: The appellant was charged with three offences alleged to have been committed on 21 July 2002 on Hutt Street and Hutt Road, Adelaide. He was convicted of two of those offences. This is an appeal against those convictions.
The first charge was that the appellant drove his car on Hutt Street whilst the prescribed concentration of alcohol was present in his blood. It was alleged that the concentration of alcohol was 0.098 grams in 100 millilitres of blood. Secondly, it was alleged that the appellant had, contrary to r 25.2 of the Australian Road Rules (ARR), driven his vehicle at a speed of about 100 kph, the speed limit then being 60 kph. Thirdly, it was alleged that the appellant had, contrary to r 56(1)(a) of the ARR, failed to stop his vehicle at or before the white stop line at the intersection of Hutt and Halifax Streets when there was a red traffic light applicable to his vehicle.
The appellant was acquitted of the offence of driving at an excess speed but convicted on the other two counts.
The Circumstances of the Offending Alleged
The appellant was first observed by a police officer, Senior Constable Tellam, driving south on Hutt Street, Adelaide, near its intersection with Pirie Street and Bartels Road. SC Tellam, who was driving a marked police vehicle, followed him. SC Tellam’s evidence was that he had seen the appellant’s vehicle speeding and apparently engaged in a “drag race” with another vehicle, a Holden Commodore. The traffic lights applicable to southbound traffic at the intersection of Hutt and Halifax Streets turned red. Although the Holden Commodore stopped at those lights, the appellant’s vehicle, after initially braking, crossed through the intersection, against the red light.
According to SC Tellam, the appellant’s vehicle then accelerated to a speed of approximately 100 kph as it continued south on Hutt Street, through the intersections at Gilles Street and South Terrace. SC Tellam then engaged in a “follow and time” procedure for a distance of 500 metres on Hutt Road, between South Terrace and the Glen Osmond Road. SC Tellam claimed that the appellant drove his vehicle at a speed of 100 kph over that distance. He then saw the appellant turn left into Glen Osmond Road. SC Tellam said that he activated his flashing police lights and siren and caused the appellant to pull over. The Magistrate seems to have accepted that the appellant’s vehicle was pulled over just west of the intersection of Glen Osmond and Fullarton Roads, a distance of approximately 1.3 km from the intersection of Hutt Road and Glen Osmond Road.
The appellant was then questioned. That questioning gave rise to a complaint on appeal to which I will return. The appellant was also required to submit to an alco-test which returned a positive result. He was then required by SC Tellam to accompany other police officers to the Norwood Police Station for the purposes of breath analysis. The breath analysis operator was another police officer, SC Gardner. The breath analysis reading was 0.098 grams of alcohol in 100 millilitres of blood.
The allegations of speeding and of disobeying the red light were disputed by the appellant and his wife, each of whom gave evidence at the trial.
The Decision of the Magistrate
The Magistrate gave an ex tempore decision. He held that he did not have sufficient confidence in the evidence of SC Tellam with respect to the allegation of speeding so as to be able to conclude, beyond all reasonable doubt, that the appellant had been travelling at the speed alleged. The Magistrate did, however, accept SC Tellam’s evidence with respect to the disobeying of the red traffic light. He accepted also that SC Gardner did, as a result of what he had been told by SC Tellam, have the requisite state of mind required by s 47E of the Road Traffic Act 1961 so as to be able to require the appellant to submit to breath analysis, viz, a belief on reasonable grounds that the appellant had committed an offence or offences under the Road Traffic Act 1961 of which the driving of a motor vehicle was an element.
The Grounds of Appeal
As originally expressed, the grounds of appeal comprised a complaint that the Magistrate had not considered the effect which his lack of confidence in SC Tellam’s evidence in respect of the speeding offence had in the consideration of his evidence in relation to the traffic light offence, and a complaint that the requirement that the appellant submit to breath analysis should have been found unlawful.
At the hearing of the appeal, I gave the appellant leave to amend the grounds of appeal in accordance with a document entitled “Proposed Substituted Grounds Of Appeal”. At the time of granting leave, I was informed that the substituted grounds were to replace wholly the original grounds of appeal. However, as the submissions developed, it became apparent that both parties treated the “substituted grounds of appeal” as additional grounds of appeal. I will deal with them in the same way.
Failure to Exclude Evidence
The appellant submitted that the Magistrate should have precluded SC Tellam from giving evidence of the conversation which he had with him immediately after his vehicle had been stopped. SC Tellam’s evidence, assisted by reference to notes, was that the appellant had answered, “Didn’t think it was red”, in answer to a question as to his reason for disobeying the traffic light. Further, when told that he had been timed driving at a speed of 100 kph in a 60 kph speed zone and asked his reason for that, SC Tellam said that the appellant answered “Didn’t think it was that fast”.
The appellant’s submission was that this evidence should have been excluded because SC Tellam had not given him any caution before questioning him, because SC Tellam had not made his notes as soon as practicable after the conversation, and because SC Tellam had not given him the opportunity to read the notes or to acknowledge their accuracy by signature or otherwise. This was particularly important, it was said, because of the appellant’s dispute that any allegation at all of excess speed had been made by SC Tellam when he spoke to him on 21 July 2002.
Although this ground of appeal was pursued with some vigour, I do not consider that it is of any moment in the appeal. The Magistrate did not regard the statements complained of as an acknowledgement or admission by the appellant that he had disobeyed a red light or that he had been speeding. On the contrary, the Magistrate said that he would treat the responses attributed to the appellant by SC Tellam as denials of the allegations. This is evident in the following passage of the Magistrate’s reasons.
Ultimately I am not critical of Tellam’s failure here to administer a caution. I am not critical of that because I think that the appropriate approach to be adopted to the remarks attributed to Mr Gannon is that, in fact these were denials being made by him of conduct being ascribed to him. The responses attributed to him should not in my opinion be categorised as confessional in nature. They should be seen as a protest about the allegations and should be seen in my opinion as denials. The failure to administer a caution here in my view should not be fatal of itself to the reception of evidence about that conversation.
The Magistrate made no use of the statements of the appellant which was in any way adverse to the appellant. In these circumstances, it is not necessary to express a conclusion as to whether the Magistrate’s refusal to exclude evidence of the conversation was in error, and I refrain from doing so.
Unsafe Verdict – Unsatisfactory Reasoning
The appellant submitted that as SC Tellam’s evidence did not satisfy the Magistrate to the requisite degree with respect to the speeding count, it also should not have satisfied him with respect to the traffic light count. Alternatively, it was submitted that the Magistrate had failed to take into account in his consideration of evidence relating to the traffic light count the view which he had formed of SC Tellam’s evidence concerning the speeding count. Coupled with these submissions was a complaint about the adequacy of the Magistrate’s reasons.
The Magistrate’s conclusion with respect to the speeding count was expressed in the following paragraph:
I am not confident that the evidence of Tellam is a sufficient foundation for the findings of fact beyond reasonable doubt as they relate to the progress of the vehicle south at speed, to use Tellam’s phrase, having progressed through Gilles Street. The consequence of these matters is that in connection with the allegation of speed that I am not satisfied beyond reasonable doubt that Mr Gannon’s vehicle travelled at the speed alleged.
The count of speed in my opinion, Count 2, should be dismissed as I am not and cannot on the evidence of Tellam be satisfied that it is proof to the requisite degree.
Before expressing that conclusion, the Magistrate had mentioned some matters from which the basis for his conclusion can be inferred. First, there was the fact that SC Tellam had not pulled the appellant’s vehicle over until approximately 1.3 km after the follow and time sequence had been concluded. The Magistrate regarded that delay as “extraordinary” and unexplained. Further, there was no, or little, evidence about the operation of the traffic lights at the various intersections through which the two vehicles must have passed before the appellant’s vehicle was pulled over. Nor was there evidence of any other traffic movements on the same roads (apart from the Holden Commodore). The Magistrate said that he regarded these “deficiencies” as causing “considerable anxiety about the quality of Tellam’s evidence in connection with the progress south once the vehicle had in fact passed through Gilles Street.” In addition there was a dispute on the evidence as to whether SC Tellam had questioned the appellant about excess speed at all.
Despite that “considerable anxiety” about SC Tellam’s evidence in respect of the appellant’s driving after he had passed through the Hutt Street – Gilles Street intersection, the Magistrate regarded SC Tellam’s evidence about the traffic light count as satisfactory. It is not easy to discern the basis for that conclusion. The Magistrate did say that he was satisfied that Tellam’s evidence concerning the traffic light count was not dependent upon use of his notes. He then gave a short summary of the evidence concerning this count as given by SC Tellam, the appellant and the appellant’s wife, who had been a front seat passenger in the appellant’s vehicle. The Magistrate described the evidence of the appellant’s wife as unhelpful and unreliable, but that of course did not mean that the prosecution case was proved. The Magistrate then concluded:
It is appropriate to find and it is in my opinion appropriate to rely on Tellam’s evidence about the transit of Mr Gannon’s vehicle across the intersection at Halifax Street. I do not accept Mr Gannon’s sworn evidence that he proceeded only through an amber light.
No reason was given by the Magistrate for his acceptance of SC Tellam’s evidence in respect of this count. No reason was given for the Magistrate’s unwillingness to accept the appellant’s evidence. The Magistrate does not appear to have considered an intermediate position, viz, that whilst he may have preferred SC Tellam’s evidence it may not have been sufficient to establish the charge beyond all reasonable doubt.
The Magistrate did refer to the appellant’s acknowledgement that SC Tellam had, shortly after pulling him over, asked why he had driven through a red traffic light. Mr Edwardson, who appeared for the appellant, submitted that this indicated that the Magistrate had reasoned from the fact that SC Tellam had questioned the appellant about his observations to the conclusion that the matters said to have been observed had in fact occurred. I do not accept that submission. Read in context, the Magistrate’s reasons on this topic indicate his conclusion that a circumstance causing disquiet in relation to the count of speeding did not exist in relation to the traffic light count.
The need for a trial court to give adequate reasons is well established as an ordinary incident of the trial. The provision of adequate reasons serves many purposes: it informs the parties as to why they have won or lost; it enhances a satisfaction that all relevant matters, both of fact and of principle have been considered; it enables a proper understanding of the basis upon which the decision was reached; it is a salutary discipline for the decision-maker; and it facilitates the exercise of rights of appeal and the exercise by the appellate court of its function. As was said by Kirby J in Soulemezis v Dudley (Holdings) Pty Ltd[1]:
This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done. Where it is necessary, for default of reasons, to resort to inferences which point to a reason for the decision of highly dubious relevance to the statute being applied, the result is that an error of law has occurred which this Court can and should correct. To adapt the words of Chilwell J in Connell v Auckland City Council[2] the failure of a court to afford reasons in such a case may, in a modern community, result in a litigant who is not only “disappointed” but “disturbed”. Such a result would be unacceptable precisely because of the statutory limitation on appeals to this Court. It would be doubly so because of the strict approach taken by the Court to that limitation. The corollary of the Court’s strict approach is the obligation of the judge of the Compensation Court, by his reasons, to demonstrate, in his determination of relevant factual disputes, that his conclusion amount to a proper application of the statute. That was not done here.
[1] (1987) 10 NSWLR 247 at 259.
[2] [1977] 1 NZLR 630 at 634.
A failure to give adequate reasons is an error of law.[3] However, in assessing whether adequate reasons have been given, account must be made of the fact that the Magistrates Court is a court of summary jurisdiction and that magistrates have a heavy workload.[4] Regard should also be had to the statement of Doyle CJ in R v Keyte:
I do not accept that there is a need to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence.[5]
However, whilst a “detailed explanation” is not required, some explanation is necessary as the decisions in Harwood v Police[6] and Nash v Berton[7] show.
[3] Pettitt v Dunkley (1971) 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; T v Medical Board (SA) (1992) 58 SASR 382; Papps v Police (2000) 77 SASR 210.
[4] Rowland v Police (2001) 79 SASR 569 at 572 [29]–[30].
[5] (2000) 78 SASR 68 at 81 [56].
[6] (1998) 71 SASR 300.
[7] [2001] SASC 94.
In my opinion, the Magistrate’s reasons in this case were inadequate. As already noted, the Magistrate gave no reasons for rejecting the appellant’s evidence with respect to the alleged traffic light offence. Still less did he give reasons for not regarding that evidence as not raising, at the least, a reasonable doubt as to whether SC Tellam’s evidence was reliable. The Magistrate gave no reasons for his preference of SC Tellam’s evidence in relation to the traffic light count. The particular feature of this case which made reasons on those matters necessary is the serious reservation which the Magistrate had about the quality of SC Tellam’s evidence with respect to the speeding offence. Some explanation was necessary so as to enable understanding of how it was that, despite that reservation, SC Tellam’s evidence could produce a state of satisfaction beyond all reasonable doubt on the traffic light charge.
In my opinion, this error of the Magistrate means that the conviction on Count 3 should be set aside. A retrial of that offence should be ordered.
Exceeding the Prescribed Concentration of Alcohol
The prosecution sought to prove this count by the tender of the certificate showing the concentration of alcohol was 0.098 grams in 100 millilitres of blood[8] and by adducing evidence from SC Gardner as to the obtaining of that analysis.
[8] Road Traffic Act 1961 s 47G(3b).

The entitlement of the police to require the appellant to submit to breath analysis arose from s 47E(1) and s 47E(3) of the Road Traffic Act. As at 20 July 2002, those subsections were as follows:
(1)Where a member of the police force believes on reasonable grounds that a person, while driving a motor vehicle or attempting to put a motor vehicle in motion –
(a)     has committed an offence of contravening, or failing to comply with, a provision of this Part of which the driving of a motor vehicle is an element (excluding an offence of a prescribed class); or
********
(c)     has behaved in a manner that indicates that his or her ability to drive the motor vehicle is impaired; or
(d)     has been involved in an accident,
that member of the police force may, subject to subsection (2), require that person to submit to an alcotest or breath analysis, or both.
…
(3)A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a member of the police force in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a member of the police force.
Before a police officer can require a person to submit to an alcotest or breath analysis, the officer must believe, on reasonable grounds, that at least one of the facts specified in sub-paragraphs (a), (c) or (d) exists. If the relevant police officer does not have that belief, he or she cannot require the person to submit to breath analysis and any analysis which is obtained by virtue of such a requirement will not have been lawfully obtained. In that event, the public policy discretion to exclude evidence of the analysis is enlivened.[9]
[9] Brain v Froude (1992) 61 SASR 65.
In the present case, the Magistrate considered that the relevant mind to be considered was that of the breath analysis operator, SC Gardner. The Magistrate’s conclusion was as follows:
I find that at the intersection of Hutt Street and Halifax Street that Mr Gannon’s vehicle proceeded contrary to an indicated red light and that that was observed by Tellam. That allegation was later put to Mr Gannon and later transmitted to Gardner who was in a position to act on the same. Gardner’s state of mind was that he believed that there had been a Part 3 offence, at least that of disobeying traffic light and that Gardner was authorised to require Mr Gannon to undergo the breath analysis.
The appellant submitted that this finding was in error and that, in the circumstances of this case, the Magistrate should have found that the relevant mind was that of the “stopping officer”, SC Tellam. While the conviction on Count 3 stood, this would have been a difference of no consequence, as it was implicit in the Magistrate’s acceptance of the evidence of SC Tellam concerning the traffic light count, that SC Tellam must have believed on reasonable grounds that the appellant had contravened a provision of Part 3 of the Road Traffic Act. Given that the conviction on Count 3 should, as I have found, be set aside, that position no longer pertains. It does not follow of course from the setting aside of the conviction that SC Tellam could not have believed on reasonable grounds that the appellant had disobeyed a red traffic light. His belief might have been reasonable but mistaken. His belief may even have been correct but the evidence of it insufficient to satisfy the Magistrate beyond reasonable doubt of its existence.
Before turning to consider the appellant’s submission further, it is first necessary to consider whether it is open to the appellant to raise this point on appeal. It does not appear to have been argued at all before the Magistrate. The reasons of the Magistrate do not suggest that he regarded it as having been an issue raised for his determination. Further, the cross-examination of SC Gardner rather suggests that the appellant’s then counsel accepted that it was SC Gardner’s belief which was relevant. The only questioning of SC Gardner on this topic was:
Q.You understand that you need to form a belief on reasonable grounds before you can submit that person to a breath test?
A.Yes.
Q.And you can rely on information provided to you by another officer?
A.Yes that’s correct.
Furthermore, there was no cross-examination of SC Gardner suggesting that he was acting merely at the direction of SC Tellam. Despite the submission of the appellant’s counsel to the contrary, I am not satisfied that the point now sought to be made by the appellant was raised at trial.
Ordinarily, an appeal court will not permit a party to raise on appeal a point which was not taken at trial unless that it is satisfied that no further evidence could have been adduced had the point been taken.[10] I have therefore considered carefully whether additional evidence may have been adduced had the point been raised. I do so bearing in mind that this was a criminal prosecution in which the onus of proof at all times was on the prosecution and not on the appellant. There was no need for the appellant to signal in advance any of the submissions which would ultimately be made by him on this topic. Further, it does seem to me that the circumstances in which the appellant was required to submit to breath analysis were fully ventilated at trial. This occurred as part of the dispute as to the content of the conversation between SC Tellam on the one hand and the appellant on the other immediately after the appellant had been pulled over. Accordingly I accept, despite the respondent’s submission to the contrary, that this is a point which may be raised on the appeal.
[10] Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; Water Board v Moustakas (1988) 180 CLR 491.
It is clear enough that the reasonable belief of the police officer for the purposes of s 47E(1) does not have to arise from that officer’s own observations.[11] Nor does the reasonable belief have to arise at the time of the actual driving or attempted driving relied upon. Breath analysis operators are entitled to rely, where it is reasonable to do so, on what they have been told by other police officers.[12]
[11] Hoobin v Samuels (1971) 2 SASR 238; Cotton v Ramm (1976) 16 SASR 107; Coates v McCormick (1991) 16 MVR 6 at 15.
[12] Hoobin v Samuels (1971) 2 SASR 238 at 244-5.
It is also clear enough that the mind of the breath analysis operator is not the only mind which may be relevant for the purposes of s 47E(1). That position was made clear by Jacobs J in Lajos v Samuels.[13] In that case, a driver had been directed by two police officers to accompany them to police headquarters for the purposes of breath analysis. At the headquarters the two police officers spoke to a breath analysis operator who then directed the driver as to the taking of the breath analysis. The operator relied upon what he was told by the two police officers in forming the belief required for the purposes of s 47E(1). An issue in the case was whether the circumstances as known to the apprehending officers could have given rise to a belief, on reasonable grounds, of any of the facts specified in s 47E(1). This led to a consideration of whose belief was relevant: that of the breath analysis operator or that of the apprehending officers. On this topic Jacobs J said:
It seems to have been assumed, however, both at the hearing before the learned Special Magistrate and in argument before me, that the member of the police force referred to in sub-s (1) of s 47E, that is to say, the member of the police force who believes upon reasonable grounds that the defendant’s conduct satisfies one of the criteria referred to in placita (aa), (a) or (b), must be the member of the police force who administers the breath analysis test. That, in my judgment, is not a requirement of the legislation. Whether that is the position, in fact, would depend upon the circumstances of each case.[14]
[13] (1980) 26 SASR 514.
[14] Ibid at 519.
Jacobs J considered that there was a distinction between cases in which a police officer who, having been informed of circumstances coming within s47E(1), then required a driver to submit to breath analysis and gave the necessary directions with respect to that analysis, on the one hand, and the case in which a police officer who, on the basis of his own observations, required the driver to submit to breath analysis and gave directions with respect to the taking of that analysis. Jacobs J considered that where a driver has not been arrested but is required by a police officer to accompany that officer to a police station for the purposes of analysis, it is that officer who requires the driver to submit to breath analysis and who gives directions in relation to that requirement:
Where the defendant has not already been arrested, it is [s 47E(3)] which authorises the police to bring the defendant to a police station, where there is a breath analysis operator, because that is “a reasonable direction in relation to the requirement” to submit to the test; it is also that sub-section which authorises the operator to order the defendant to exhale into the apparatus, for that is likewise “a reasonable direction in relation to the requirement” to submit to the test.
However, it seems to have been the practice, in these cases, for the breath analysis operator to make his own inquiries and to form his own belief, on the footing that it is he who ultimately requires the defendant to exhale into the apparatus, but all he can really do is to rely by hearsay on the belief of the reporting officer. In such a situation, he is really only the alter ego of the officer who first required the defendant to submit to a breath analysis test, and his order to exhale is no more than a direction given in relation to that requirement. No doubt it is a wise and prudent precaution for the operator to satisfy himself as best he can that the apprehending officer did in fact entertain a belief upon reasonable grounds, but I do not think that the section requires, as a matter of law, that the operator must form his own independent belief, in terms of sub-s (1), in cases in which the requirement to submit to a test has already lawfully been made by another officer.[15]
[15] (1980) 26 SASR 514 at 519-20.
In my opinion, the present case comes within the circumstances described by Jacobs J in this passage. The appellant was stopped by SC Tellam. Tellam’s evidence was that he had observed the appellant disobey a red traffic light and drive at an excessive speed. Each of those pieces of conduct constituted an offence in contravention of a provision of Part 3 of the Road Traffic Act. Relying on his belief to that effect, SC Tellam required the appellant to submit to an alco test. When that test returned a positive result, SC Tellam then had the following conversation with the appellant:
Q.Sir, you’ve returned a positive result. I now require you to accompany me to the Norwood Police Station to facilitate a formal [breath analysis]. Do you understand?
A. Yes.
Q.Furthermore, you are not allowed to take anything by way of mouth. That includes water, alcohol, cigarettes, etc. Do you understand?
A.Yes.
Q.Once I have organised a car to convey you we’ll be off, do you understand?
A.Yes.
Arrangements were then made for the appellant to be transported to the Norwood Police Station by other police officers. At the Norwood Police Station SC Tellam spoke to SC Gardner. He said that he provided SC Gardner with “the situation covering the necessary elements to afford him to conduct the breath analysis.”. He explained that by that he meant that he told SC Gardner what he had observed by way of disobeying the traffic light. SC Gardner then directed the appellant to exhale, in the appropriate manner, into the breath analyser. Once it had returned the result SC Tellam then said to the appellant:
Sir, you have returned a positive breath analysis reading of 0.098, which is over the legal limit of 0.05, accordingly you will be reported for speeding, disobeying a traffic light and exceeding the PCA.
In those circumstances, my opinion is that it was SC Tellam who required the appellant to submit to both the alco test and to breath analysis. He was the person who required the appellant to go to the Norwood Police Station. The appellant had not been arrested. Accordingly, SC Tellam was exercising the powers vested in a police officer by s 47E(1) and s 47E(3). Further, SC Tellam gave the direction to the appellant that he should not consume anything until the breath analysis had been taken. That too was a direction of a member of the police force in relation to the requirement to submit to the breath analysis.
Rather than using the phrase “alter ego” I would prefer to describe SC Gardner’s role as that of giving effect to the requirement already imposed by SC Tellam. Although SC Gardner did form his own independent belief before giving further directions to the appellant, the formation of that belief was not required by s 47E(1). It was not necessary because the requirement of the appellant to submit to the breath analysis had been imposed by SC Tellam.
In the view which he took of the matter, it was not necessary for the Magistrate to reach any conclusion about SC Tellam’s state of mind. As I have said, it is implicit in the Magistrate’s finding that the charge of disobeying a traffic light was proved beyond all reasonable doubt that the Magistrate accepted that SC Tellam had a belief on reasonable grounds that the appellant had committed a relevant offence. However, now that the conviction of the appellant on the count of disobeying a traffic light has been set aside, that inference can no longer be drawn. The Magistrate has not made the findings of fact which would be necessary for a conclusion about SC Tellam’s mind to be drawn. Accordingly, in my opinion, the conviction on Count 1 should be set aside. There should be a retrial.
Summary
For the reasons which I have given above, my opinion is that the appeal should be allowed and the two convictions set aside. I would make the following orders:
1. The appeal is allowed.
2. The convictions entered by the Magistrate are set aside.
3.Counts 1 and 3 contained in the Complaint issued on 22 November 2002 are remitted to the Magistrates Court for retrial before another Magistrate.
I will hear the parties as to costs.