Gaskin v Police

Case [2009] SASC 351

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

GASKIN v POLICE

[2009] SASC 351

Judgment of The Honourable Chief Justice Doyle

20 November 2009

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - OTHER OFFENCES

Appellant convicted by a Magistrate of failing to comply with a direction given to her by the police in relation to a requirement that she submit to a breath analysis test, an offence against s 47E(3) of the Road Traffic Act 1961 (SA) (RTA) – s 47E(4)(ab) provides a defence to an offence against s 47E(3) if the person was not allowed the opportunity to comply with the direction after having been given the 'prescribed oral advice' – prescribed oral advice contained in regulations – prescribed oral advice not given to appellant – whether s 47E(4)(ab) requires the prescribed oral advice to be given in relation to all directions or only those to which the content of the advice is relevant – appeal against conviction.

HELD: the RTA directs the reader to the Regulations to determine whether the failure to comply with the relevant direction is one that attracts the obligation to give the prescribed oral advice – s 47E(ab) leaves it to the drafter of the prescribed oral advice to determine, through the content of the advice, which directions attract the prescribed oral advice – in the circumstances, there was no obligation to give the prescribed oral advice – appeal dismissed.

CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - POWERS OF ARREST - STATUTORY POWERS

Appellant convicted by Magistrate of three other offences which arose out of the arrest by police of the appellant in relation to the offence against s 47E(3) – whether there can be "reasonable cause to suspect" a person of having committed an offence for the purposes of s 75 of the Summary Offences Act 1953 (SA) if the arrest is based on a mistaken view of the law.

HELD: of itself, the dismissal of the charge upon which a person is arrested has no implication for the lawfulness of the arrest – nothing in the terms of s 75 to suggest that it cannot operate on a state of mind that includes a mistake of law – a police officer can have reasonable cause to suspect a person of having committed an offence, even though the suspicion rests on a mistaken view of the law – appeal dismissed.

Criminal Code (Qld) s 546; Criminal Law Consolidation Act 1935 (SA) s 15(1), s 15(4), s 20(3); Road Traffic Act 1961 (SA) s 47E(1), s 47E(2), s 47E(2d), s 47E(3), s 47E(4)(ab), s 47E(4)(b); Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8B, Sch 1AA; Summary Offences Act 1953 (SA) s 6(2), s 75, referred to.
Police v Grosev (2006) 246 LSJS 251, applied.
Coleman v Power (2004) 220 CLR 1; George v Rockett (1990) 170 CLR 104; Ruddock v Taylor

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AGLC
Gaskin v Police [2009] SASC 351
Case
[2009] SASC 351
Decision Date

CaseChat Overview and Summary

The appellant, Ms Gaskin, appealed against her conviction for failing to comply with a direction given by the police to submit to a breath analysis test, an offence under section 47E(3) of the Road Traffic Act 1961 (SA). The appeal hinged on whether the prescribed oral advice, set out in regulations, needed to be given for all directions or only those to which the advice's content was relevant. Ms Gaskin was also convicted of three other offences arising from her arrest. The appeal contested whether a police officer can have reasonable cause to suspect a person of having committed an offence, even if the suspicion is based on a mistaken view of the law.

The court examined whether section 47E(4)(ab) required the prescribed oral advice to be given in relation to all directions or only those relevant to the advice's content. The court found that section 47E(ab) left it to the drafter of the prescribed oral advice to determine, through the advice's content, which directions attract the obligation to give the prescribed oral advice. The prescribed oral advice related specifically to the breath analysis test and the obligation to exhale. Therefore, there was no obligation to give the prescribed oral advice in this case. The court also addressed the issue of reasonable cause to suspect an offence based on a mistaken view of the law, concluding that such a mistaken view does not invalidate the arrest.

The court held that the prescribed oral advice was not required to be given for all directions but only for those relevant to the advice's content. Given that the prescribed oral advice was specific to the breath analysis test, there was no obligation to give it in this instance. Consequently, the appeal was dismissed. The court further held that the dismissal of the charge upon which a person is arrested does not affect the lawfulness of the arrest, and a police officer can have reasonable cause to suspect an offence based on a mistaken view of the law. Therefore, the appeal against the other convictions was also dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appeal raises an issue under s 47E of the RTA that is of considerable practical importance. Background Ms Gaskin was driving home with a friend after visiting her sister. Ms Gaskin was upset, as she had recently learnt that a close friend had committed suicide. She and others had been discussing her friend’s death. Ms Gaskin consumed a quantity of alcohol at her sister’s house. While Ms Gaskin was driving on Grand Junction Road about 9 pm that evening, two police officers, Constables Johnson and Ager, directed Ms Gaskin to stop. Constable Johnson required Ms Gaskin to submit to an alcotest. It returned a positive result. Ms Gaskin was told that she would have to accompany the officers to a nearby police station for further testing. Ms Gaskin asked that her dog, which was travelling with her in her car, be allowed to accompany her to the police station. The officers arranged for a cage car, a police vehicle capable of transporting dogs, to attend to enable Ms Gaskin’s dog to be taken to the police station. The cage car soon arrived. Ms Gaskin ushered her dog into the rear of the cage car, and got in herself. Constable Johnson told Ms Gaskin to get out of the car. At first, Ms Gaskin refused, but eventually got out of the car after Constable Johnson told her that she would be arrested. The dog followed Ms Gaskin out of the car. In evidence, Constable Johnson said that after Ms Gaskin got out of the car, Constable Johnson advised her that she was under arrest for failing to comply with a direction. Ms Gaskin dropped to her knees, and grabbed hold of the dog’s collar. The officers present asked Ms Gaskin to let go of the dog. She refused to do so. A struggle ensued. Ms Gaskin held onto the dog’s collar tightly. The officers were unable to separate Ms Gaskin from the dog. During the course of the struggle Constable Ager pulled Ms Gaskin’s thumb back in an attempt to force her to release her grip of the dog’s collar. Ms Gaskin found this painful. The prosecution case was that she bit Constable Ager. He released his grip of her thumb. As he pulled away from her, it was alleged that she bit his thumb. Ms Gaskin released the dog. The officers attempted to handcuff her. She freed one of her arms and grabbed the dog’s collar again. Another officer who had arrived with the cage car, Sergeant Stephen, pulled back on her thumb in the same manner as Ager had done earlier. He gave evidence that, at that point, Ms Gaskin bit his right upper arm. He released Ms Gaskin who was then handcuffed. Ms Gaskin denied that she had bitten anyone. She gave evidence that when Constable Ager pulled back on her thumb, she put her mouth on his forearm and threatened to bite him, but she did not clench her teeth. She gave evidence that she was only told that she was under arrest during the struggle with the police, and not immediately after she got out of the cage car. It is common ground that none of the officers present at any stage gave Ms Gaskin what is referred to in s 47E(4)(ab) of the RTA as the “prescribed oral advice”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Tremaine also contests the Magistrate’s finding that Ms Gaskin was told that she was being arrested, and the finding that Ms Gaskin bit the two police officers in question.Consideration of appeal There is no reason at all to reject the Magistrate’s findings of fact. They were open on the evidence. Mr Tremaine did not identify any sound basis for interfering. Ms McDonald, counsel for the police on appeal, does not submit that the police have been prejudiced by Mr Tremaine taking the four points above on appeal, the points not having been taken at trial. I proceed on the basis that the prescribed oral advice was not given at any stage. There can be no real doubt about that, having regard to the evidence before the Magistrate. I now turn to the first point. The obligation to give the prescribed oral advice is created in an odd backhand way. Nowhere in s 47E or elsewhere does the RTA impose an affirmative obligation to give the prescribed oral advice. The obligation arises by inference and indirectly from the existence of a ground of defence which assumes the existence of an obligation to give the prescribed oral advice. It is this that gives rise to uncertainty as to the circumstances in which the obligation to give the prescribed oral advice arises. Mr Tremaine submits that any direction under s 47E(2) must be followed by the prescribed oral advice. Or, more precisely, that a person cannot be convicted under s 47E(3) unless the prescribed oral advice has been given, and after that the person has been allowed a reasonable opportunity to comply with the requirement or direction. If Mr Tremaine is correct, the prescribed oral advice should have been given after Ms Gaskin was directed to stop her vehicle. It should have been given after each of the other directions (not to drink, to remain with the police officers and so on). The failure to give the prescribed oral advice would mean that Ms Gaskin could not have been prosecuted for failing to comply with any of these directions and requirements. That is an odd result. The terms of the prescribed oral advice, set out above, indicate that it relates to the performance of the breath analysis or alcotest, and in particular it relates to the obligation to exhale. The performance of the alcotest or breath analysis “… commences when a direction is first given by a police officer that the person concerned exhale …”: s 47E(2d). The terms of the prescribed oral advice are relevant when considering whether and when the obligation to give the prescribed oral advice arises. If there is no prescribed oral advice in relation to refusing or failing to comply with a requirement or direction, there can be no obligation to give that advice. One must examine the terms of the prescribed oral advice to decide whether or not it relates to a refusal or failure to comply with the relevant requirement or direction. If, for example, the only prescribed oral advice was to the effect that “… before exhaling into the apparatus you must take three deep breaths …”, one would readily conclude that there was no prescribed oral advice in relation to, for example, a refusal or failure to comply with a direction to stop the driver’s motor vehicle, a direction not to consume fluids, or with a direction to remain in the presence of the relevant police officer. In other words, s 47E(4)(ab) leaves it to the drafter of the prescribed oral advice to determine, through the content of the prescribed oral advice, which requirements and directions under s 47E(2) attract the obligation to give the prescribed oral advice, if there is a failure or refusal to comply.