Hall v Police - [2010] SASC 239

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HALL v POLICE
[2010] SASC 239
Judgment of The Honourable Justice Anderson
10 August 2010
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE
Whether police procedure with respect to breath analysis testing requirements should be followed in relation to alcotesting.
Held: Breath analysis testing requirements do not apply to alcotesting.

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
Appeal against conviction and penalty - whether appellant had sufficient evidence of medical condition for refusing a breath test - whether conviction appropriate.
Held: The magistrate did not err in convicting the appellant of failing to submit to a breath analysis test. There was not sufficient evidence of a medical condition.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Whether penalty manifestly excessive.
Held: Penalty not manifestly excessive.

POLICE - RIGHTS, IMMUNITIES, POWERS AND DUTIES - OTHER MATTERS
Whether police officer adequately carried out his duties in informing the appellant of his rights and obligations with respect to refusing the breath test - whether the direction to submit to a breath test was properly given - whether police officer adequately carried out his duties in informing the appellant of the consequences of refusing to submit to a breath test.
Held: Police officer acted appropriately in all instances and properly carried out his duties.
Appeal dismissed.
Road Traffic Act 1961 (SA) s 47E(3), referred to.

HALL v POLICE
[2010] SASC 239
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

This is an appeal from a magistrate who found the appellant guilty of failing to comply with the directions of a police officer to submit to a breath analysis contrary to s 47E(3) of the Road Traffic Act 1961 (SA).
The appellant represented himself at the trial and on this appeal.
After finding the appellant guilty, the magistrate fined him $800 plus court fees, criminal injuries levy and prosecution costs in the sum of $4,044.50. He also disqualified the appellant from holding or obtaining a driver’s licence for a period of 17 months.
The appellant appeals against both his conviction and the penalty.
Background
The appellant was stopped whilst driving his motor vehicle at Woodside on 24 January 2009 at about 1.28 am. He was requested by a police officer to take a random breath test. He complied with that direction of the police officer and the result of the alcotest was positive.
He was then conveyed to the Mount Barker police station where he was advised that he was required to comply with the police officer’s directions to provide two samples of breath for analysis.
The appellant, when asked to provide the sample, indicated that he would prefer to provide a blood sample. He was directed to exhale into the mouthpiece and he refused, saying that he did not think it was safe for his health and therefore he would not do it.
After being advised that he would be committing an offence by refusing to provide a breath sample, he was advised of the consequences but maintained his refusal. He later requested that a particular doctor, Dr Hickey, take a blood sample. The police officer attempted to locate that person but was unable to do so, and he then conveyed the appellant to the Mount Barker hospital where a sample of blood was taken.
The appellant was later examined by Dr Raeside on 24 September 2009 to see whether there was any psychiatric reason which might have amounted to a medical condition, thereby giving the appellant good cause for refusal. Dr Raeside’s evidence did not assist the appellant. The magistrate found that the appellant had no good cause for refusing to comply with the police officer’s direction and that there was no physical or medical condition which played any part in his refusal.
The reason for the examination by Dr Raeside was because of Mr Hall’s assertion that he had an aversion due to therapy he had undergone when he gave up smoking. He said he had a phobia about things placed in his mouth because the therapy taught him to imagine he was breathing in battery acid when he smoked.
The magistrate analysed the actions taken by the police officer and concluded that the police officer acted appropriately at all times, giving the appellant the appropriate warnings and directions.
Grounds of appeal
The appellant filed his own grounds of appeal and put forward eleven grounds of appeal in the notice of appeal. Those eleven grounds were condensed into seven points by Mr Hall in his oral submissions, including one ground of appeal on penalty.
The seven points argued by the appellant were:
1.     The learned magistrate erred in his finding that the direction to submit to a breath analysis test was reasonably and lawfully given by the police officer.
2.     The learned magistrate erred in his finding that the breath analysis machine was operating properly, and being operated properly by the police officer.
3.     The learned magistrate erred by failing to find that the appellant’s request for a blood test, as an alternative to a breath analysis test, was made in the appellant’s honest and reasonable belief that he was complying with a police direction.
4.     The learned magistrate failed to, or failed to adequately, take into account the appellant’s honest and reasonable belief that by his conduct he was fulfilling all obligations to the law and not committing an offence.
5.     The learned magistrate erred by accepting the evidence of an expert, Dr Raeside, and further erred by not granting a stay of proceedings.
6.     The learned magistrate failed to, or failed to adequately, consider that the police officer acted unreasonably in not informing the appellant of the legal consequences of refusing to submit to a breath analysis test, which resulted in the commission of an offence by him.
7.     The penalty imposed by the learned magistrate was manifestly excessive in all the circumstances.
The appellant’s arguments on appeal
I will elaborate on the points made by Mr Hall. His first point is that there was no proper procedure laid down in relation to the alcotest given at the roadside and that therefore the procedure applicable to the taking of a sample of breath analysis should be followed. He argued therefore that more than one sample of breath should have been taken during the alcotest procedure. In short, because nothing is prescribed in the Breath Analysis Manual (“BAM”), the same procedure should be followed. Therefore, he argues, because he was not asked to provide more than one sample for the alcotest he should never have been required to provide a breath analysis when taken to the police station.
His second point is that it was not proved that the breath analysis machine was operated properly. He referred to the BAM again. He argued that the time and date shown on the breath analysis certificate which he was given at the time was wrong and that therefore the machine was not operating properly. The certificate he referred to was exhibit P5 which was in fact the certificate provided after he refused to provide a sample for breath analysis. He referred to the decisions of the court that these procedures must be strictly adhered to.
In relation to his third point, he argued that his refusal to provide a sample for breath analysis and his request for a blood test was done in the mistaken belief that he was complying with a police direction. He said he was told by the police officer that if he had a physical or medical condition that could be used as a defence for refusing to blow, but only if he went for a blood sample. He said he believed that he had a medical condition and that is why he requested a blood sample be taken.
His fourth point, related to the third point, was that the magistrate failed to take into account his honest and reasonable belief in relation to the taking of a blood test. He said he believed he had a good cause because he believed he had a medical condition related to what he called negative visualisation which was a means by which he was able to quit smoking. He said he had a genuine belief that if he blew he would endanger his health because he had quit smoking by convincing himself that it was the inhaling of a toxic substance.
His next point also related to the alleged medical condition. Dr Raeside had provided an opinion based on a video of the procedures relating to the request to submit to a breath analysis, but not all of the video had been provided because it had been taped over. He argued that as a result Dr Raeside’s opinion was unreliable. He also argued that Dr Raeside had erred in making mistakes within his report, including his misinterpretation of information from two other medical practitioners.
Finally, on the question of liability, Mr Hall argued that the police officer acted unreasonably in failing to properly inform him of the consequences of his refusal to submit to a breath analysis. He said he was misled as to the consequences of a failure to comply. In short, it is said by Mr Hall that he did not understand that the consequences of refusing to blow were an immediate suspension of licence. This was significant to him because of his work. He said once he realised this, he stated to the police officer that he would take the breath analysis. He said the police officer failed to prevent him from committing the crime of refusing to provide a sample for breath analysis.
On the question of penalty, Mr Hall argued that the combination of the court fees, plus prosecution costs, plus Dr Raeside’s fees, totalling approximately $6,000, together with the licence disqualification for 17 months, was manifestly excessive. Mr Hall had previous convictions in relation to alcohol and driving. He had been convicted for driving with excess blood alcohol, driving under the influence (three times), and other traffic matters, including driving unlicensed, driving without due care, failing to stop after an accident and driving unregistered and uninsured.
He argued that even if the matters argued by him, which he said showed that he was wrongly convicted, were not accepted as relevant to his conviction, they were nevertheless relevant in relation to penalty.
The respondent’s arguments on appeal
The respondent in its written outline of argument deals with each one of the grounds of appeal. The outlines were comprehensive in their detail and it is not necessary to repeat many of them here.
Because I finally conclude that the appeal should be dismissed, it is sufficient to say that generally I agree with the written submissions of the respondent.
Ms Halliday for the respondent answered Mr Hall’s arguments both specifically and generally. She pointed out that Mr Hall’s confusion between the procedures relevant for the initial alcotest and those relevant for the later breath analysis have characterised the submissions of Mr Hall. She submitted that the certificate, exhibit P5, was a red herring because it was related to the refusal to submit to the breath analysis. That is made clear from an examination of the document. Mr Hall attempted to convert the contents of that document into support for the fact that the breath analysis instrument was defective. His arguments may have been relevant if a sample had actually been provided. There are apparent errors on the face of the document regarding the date and time. In short, Ms Halliday argued that Mr Hall failed to distinguish at all times between the two separate procedures and the consequences which followed from each of the respective procedures.
In relation to Mr Hall’s reliance on the breath analysis manual, Ms Halliday pointed out that it was a training manual only and an internal working document. It had no legislative relevance. The sections of the Road Traffic Act to which Mr Hall addressed argument related to offences for exceeding the prescribed concentration of alcohol after having submitted to a breath analysis, and these were irrelevant in this matter.
Mr Hall’s second point was covered in Ms Halliday’s general submission in relation to the argument about the necessity for accuracy of the instruments.
In relation to Mr Hall’s third point, Ms Halliday referred to the evidence showing that the choice of a blood test was in fact nominated by Mr Hall, as the evidence makes clear.
His fourth point, namely, that he believed he was fulfilling his legal obligations, related to his belief that he had a medical condition and to the evidence of Dr Raeside.
In relation to Dr Raeside’s evidence, which was Mr Hall’s fifth point, Ms Halliday pointed out that the submission made by Mr Hall to the magistrate was different from the one made in this Court. She pointed out that the police officer had to form a view about whether he accepted what was put to him by Mr Hall in relation to his alleged aversion to taking the test. In relation to the fact that some of the video was missing did not affect the evidence given by the police officer relating to what was discussed about good cause for refusing the test. The magistrate accepted that evidence.
Ms Halliday pointed to the discrepancies in Mr Hall’s own evidence. First, he had no aversion when he took the initial alcotest. Secondly, after he realised that he had lost his licence by refusing to blow, he then offered to blow. Hardly, Ms Halliday submitted, consistent with an aversion. I agree.
On the final ground of the appeal relating to conviction, Ms Halliday pointed to the evidence and the compliance by the police officer with the advice which was required under the regulations. Again the magistrate accepted the evidence and found that there was compliance with the regulations.
On the issue of penalty, Ms Halliday referred to the suggested defence, namely, the aversion, and referred to the bad record of Mr Hall in relation to drink driving which I have detailed earlier in these reasons.
Conclusion
Ms Halliday submitted that Mr Hall’s points are all confused by his use of procedures relating to the breath analysis requirements as distinct from the alcotest requirements. She submitted that is clearly a wrong path which Mr Hall has chosen to go down. I agree.
His aversion, that is, his good cause for refusing to blow, is exposed by the fact that he took one test and then offered to take another. Those facts, together with Dr Raeside’s evidence, do not support any medical condition to legally justify Mr Hall’s refusal to submit a sample of his breath.
The magistrate made important findings against the position contended for by Mr Hall. These findings were based on his acceptance of the police officer’s evidence.
The magistrate found that Mr Hall was properly advised and directed in relation to the request for Mr Hall to submit samples of his breath. He found that Mr Hall was advised properly about the consequences of refusing to provide a breath sample, and in particular that he was advised that he could lose his licence for 12 months or more for the refusal.
The magistrate found that the police officer properly advised Mr Hall of a defence available in the event that he was suffering from a physical or medical condition, and in particular the magistrate found that Mr Hall answered “yes” when asked if he understood what he had been told by the police officer.
In my view, there is no reason to interfere with any of those findings. They were all based on the evidence before the magistrate and he was entitled, as he did, to accept the evidence of the police officer. In most respects there was no contrary evidence from Mr Hall. Mr Hall tended to argue more from a matter of principle than in relation to disputing what actually happened.
As to the consequences of refusal to submit to a breath analysis, Mr Hall knew that he could lose his licence but he says he was not aware it would be an immediate suspension. The findings of the magistrate indicate that it was accepted that the police officer did make the consequences clear.
Finally the magistrate found that Mr Hall did not have good cause for his refusal to comply with the direction given by the police officer and that there was no physical or mental condition which played any part in his refusal.
I agree with the magistrate’s findings and with the conclusions he draws from those findings.
On the question of penalty, given his prior record of driving and drink/driving offences, the licence suspension of 17 months was not manifestly excessive. It was not manifestly excessive in itself, and even taken together with the fine of $800 and the court costs of about $6,000, in my view, given the antecedents of Mr Hall, the total penalty was not manifestly excessive.
I therefore dismiss the appeal.