Harradine v Police
[2014] SASC 154
•20 October 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HARRADINE v POLICE
[2014] SASC 154
Judgment of The Honourable Justice Gray
20 October 2014
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN BLOOD - GENERALLY
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE - BREATH TEST AND ANALYSIS
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE - STATUTORY PRESUMPTION
POLICE - INTERNAL ADMINISTRATION - DELEGATION OF POWERS
Appeal against conviction. The defendant was convicted of an offence of driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol. At trial, the Police tendered a certificate of authority pursuant to what is now section 47K of the Road Traffic Act 1961 (SA) signed by the Commissioner of Police authorising the relevant police officer to operate the breath analysing instrument. The defendant tendered a Gazette extract which indicated that, prior to the offence, the identity of the Commissioner of Police had changed.
Whether the person that authorises the operator of a breath analysing instrument must be the Commissioner of Police in office at the time of the alleged offence, or merely at the time when the authorisation is given.
Held (dismissing the appeal):
1. The interpretation of section 47K of the Road Traffic Act propounded by the defendant does not promote the section's object or purpose of road safety.
2. The person that authorises the operator of a breath analysing instrument need not be the Commissioner of Police in office at the time of the alleged offence.
Road Traffic Act 1961 (SA) s 46A, s 47B, s 47G and s 47K; Police Act 1998 (SA) s 67; Acts Interpretation Act 1915 (SA) s 22, referred to.
Evans v Sparrow (1973) 6 SASR 519; Benwell v Gottwald [1978] VR 253; Police v Short (2012) 112 SASR 463; Gray v Liddy (1984) 34 SASR 569, considered.
HARRADINE v POLICE
[2014] SASC 154Magistrates Appeals: Criminal
GRAY J.
This is an appeal against conviction.
Background
The defendant and appellant, Joseph Paul Harradine, was charged that on 17 August 2013 at Penneshaw, he drove a motor vehicle while there was present in his blood the prescribed concentration of alcohol, as defined in section 47A of the Road Traffic Act 1961 (SA), contrary to section 47B(1)(a) of that Act. It was alleged that the concentration of alcohol was 0.179 grams in 100 millilitres of blood. Following a trial before a Magistrate, the defendant was convicted.
The prosecution led evidence from Robert Matthew Scurrah, a sergeant of police stationed on Kangaroo Island. Sergeant Scurrah gave evidence that, at about 11.55 pm on 17 August 2013, he was on duty on North Terrace, Penneshaw, when he observed a Ford utility travelling west. He activated the police dome lights with a view to having the vehicle stop as he wished to conduct a mobile random breath test. The vehicle stopped and Sergeant Scurrah then had a conversation with the driver, the defendant in the proceedings. The defendant submitted to an alcotest which returned a positive reading. The defendant was then taken to the Kangaroo Island Police Station, where he underwent a breath analysis test. A video recording was made of the testing procedure. As a result of the testing, a breath analysis printout was obtained. That printout was tendered in evidence. The defendant was handed the breath analysis statement, a copy of a document detailing his rights and a copy of a document used to request the taking of a blood sample. Following his request, the defendant was handed a blood test kit. The defendant was conveyed to the Kingscote Hospital and, while at the hospital, the defendant informed Sergeant Scurrah that he did not wish to exercise his rights to have a blood test taken.
Several documents were tendered in evidence, including:
-a certificate pursuant to section 47K(3a) and (3b) of the Road Traffic Act;
-a Gazette extract declaring the Alkolizer 5 Series to be an approved apparatus for the purpose of conducting alcotests;
-a Gazette extract dated 23 May 2002 declaring Drager Mark 5 as an approved breath analysing instrument for the purposes of the Road Traffic Act;
-a certificate of authority pursuant to section 47G of the Road Traffic Act authorising Sergeant Scurrah to operate the breath analysis instrument;
-a certificate pursuant to section 47K(3)(b) of the Road Traffic Act;
-the tickertape printout recording the results of the breath analysis; and
-the video disk of the breath analysis and interview of the defendant.
The certificate authorising Sergeant Scurrah to operate the breath analysis instrument was the subject of objection and was admitted over that objection.
The defendant gave evidence and, in addition, tendered a Gazette extract of 25 June 2012. The relevant extracts from the Gazette are as follows:[1]
HIS Excellency the Governor in Executive Council has been pleased to revoke the appointment of Gary Thomas Burns as the Deputy Commissioner of Police, effective from 21 July 2012, on the basis of Mr Burns’ appointment to the role of Commissioner of Police, pursuant to the Police Act 1998 and Section 36 of the Acts Interpretation Act 1915.
…
HIS Excellency the Governor in Executive Council has been pleased to appoint Gary Thomas Burns to the position of Commissioner of Police for a period of three years commencing on 21 July 2012 and expiring on 20 July 2015, pursuant to Part 3 of the Police Act 1998.
…
I, Jay Weatherill, the Premier, hereby declare pursuant to Section 40 of the Public Sector Act 2009, that Gary Thomas Burns will have the powers and function of Chief Executive in relation to South Australia Police for dates consistent with his appointment under the Police Act 1998.
The apparent significance of this exhibit is that, prior to the alleged offence, the identity of the police Commissioner changed, with Gary Thomas Burns being appointed to the position of Commissioner of Police for a period of three years commencing on 21 July 2012, pursuant to Part 3 of the Police Act 1998 (SA).
[1] South Australia, Gazette, No 45, 25 June 2012, 2864.
The Magistrate, following the hearing, found the charge proved and gave ex tempore reasons. It is convenient to set out those reasons in full:
In this matter I give my reasons ex tempore. I reserve the right to expand upon them should the need arise.
The defendant, Mr Harradine, is charged with driving a motor vehicle on North Terrace at Penneshaw while there was present in his blood the prescribed concentration of alcohol, namely 0.179 grams in 100 millilitres of blood. There is no dispute that he was the driver of a motor vehicle, and that he was driving on North Terrace. In fact, he admits as much in his recorded interview with Sergeant Scurrah.
The police have tendered a number of certificates in relation to this matter as is prescribed by s 175 of the Motor Vehicles Act, and pursuant to s 47 of the Road Traffic Act. Those certificates establish, in the absence of proof to the contrary, firstly, that the breath analysis instrument that was used is prescribed and approved for its purpose; secondly, that Sergeant Scurrah is approved to operate such a breath analysing instrument; thirdly, that the instrument was in proper order and properly operated, and also that the provisions of the Act and the Regulations with respect to breath analysing instruments were complied with.
A sample of breath was analysed and shown to have a reading of 0.179 grams of alcohol in 210 litres of breath. I am satisfied that Mr Harradine was afforded his appropriate rights to have a blood test, that the police attempted to facilitate the taking of blood by taking him to the hospital, and Mr Harradine there expressed a change of mind and that he would be decline his rights to have blood taken and analysed. In the circumstances the reading produced by the breath analysing instrument of 0.179 is presumed to have been the reading present in his blood at the time of driving, given that the time period had not elapsed.
In the circumstances I find the charge proved.
The Appeal
The parties agreed that the question to be determined on the appeal was whether the Magistrate was correct in finding that Sergeant Scurrah was a person authorised to operate the breath analysing instrument by the Commissioner of Police. In particular, the question that arises is whether the person that authorises the operator of the breath analysing instrument must be the Commissioner of Police in office at the time of the alleged offence, or merely at the time when that authorisation is given.
The impugned certificate is in the following terms:
CERTIFICATE OF AUTHORITY
PURSUANT TO SECTION 47G(3)(a) OF THE ROAD TRAFFIC ACT, 1961
I, Malcolm Arthur Hyde Commissioner of Police, do hereby certify that on the 19th day of January, 1997, The Commissioner of Police authorised Robert Matthew SCURRAH, Senior Constable of Police 3624/5, to operate from that date breath analysing instruments as defined by the Road Traffic Act, 1961.
Dated at ADELAIDE on the 2 day of February 2001.
[signed]
Commissioner of Police
This certificate was prepared as an evidentiary aid having regard to the terms of the then section 47G of the Road Traffic Act. That section has since been replaced by section 47K(1) of the Road Traffic Act, which appears in relevantly similar terms and provides:
Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis and throughout the preceding period of 2 hours.
[Emphasis added.]
Section 47K(3)(a) addresses a certificate designed to provide proof of authorisation to operate the breath analysing instrument. That subsection is in the following terms.
(3) A certificate—
(a) purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments; or …
…
is, in the absence of proof to the contrary, proof of the matters so certified.
It was not in dispute that the Drager Mark 5 was an approved breath analysing instrument, having been approved by the Governor for this purpose.
The Submissions of the Parties
Counsel for the defendant on the appeal submitted that it was necessary for the prosecution to establish that the Commissioner of Police in office at the time of the alleged offence had authorised Sergreant Scurrah to operate the breath analysing instrument and that the authorisation that had been given by the former Commissioner did not continue past the termination of his appointment. Counsel submitted that this interpretation would support what was said to be the evident purpose of section 47K of the Road Traffic Act, namely, that there must be an ongoing belief in the mind of the person presently occupying the position of Commissioner of Police that the relevant police officer remains a suitable and competent person to be authorised to operate a breath analysing instrument. Counsel emphasised that no evidence had been provided by the prosecution as to the difficulty or infeasibility of an incoming Commissioner of Police reviewing and, if deemed appropriate, confirming all existing authorisations of police officers to use breath analysing instruments. In these circumstances, it was submitted that the Court should not speculate as to the practical difficulties and administrative burden that would result from the defendant’s suggested construction of the Act.
A submission similar to that being advanced by the defendant in the present proceeding was given short shrift by Sangster J in Evans v Sparrow, where his Honour observed:[2]
Ground 5 proceeds on the basis that Constable Nixon's authorisation by the Commissioner of Police to operate a breath analysing instrument, which had been made by Brigadier McKinna whilst he was Commissioner of Police, terminated by the retirement of that gentleman and ought to have been replaced by a fresh authorisation signed by Mr. Salisbury on his appointment as Commissioner of Police. I am happy to say that in my opinion the law has not yet descended to such an absurd result being attributed to a change of persons holding public office and authorised by statute to discharge public duties.
[Emphasis added.]
Notwithstanding this sentiment, his Honour granted permission to appeal in respect of this complaint. However, on the hearing of the appeal by the Full Court, there was no consideration of this complaint.
[2] Evans v Sparrow (1973) 6 SASR 519, 525-6.
In Benwell v Gottwald,[3] the Full Court of the Supreme Court of Victoria considered a similar provision to section 47K(1), being section 80F(1) of the Motor Car Act 1958 (Vic). The terms of that section were as follows:
[3] Benwell v Gottwald [1978] VR 253.
Where the question of whether any person was or was not under the influence of intoxicating liquor or where the question as to the percentage of alcohol in the blood of any person at the time of the alleged offence is relevant –
…
(c) upon the hearing of an offence against section 80A, …
…
Then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given of the percentage of alcohol indicated to be present in the blood of that person by a breath analysing instrument operated by a person authorized in that behalf by the Chief Commissioner of Police…
Crockett J, with whom the other members of the Court agreed, expressed the view that the question that had arisen for adjudication was as without substance as it was devoid of merit. His Honour supported this conclusion on several grounds. His Honour reasoned that it was plain that the authorisation of which the section spoke was not an authorisation for the purpose of conferring an agency. His Honour considered that the term “authorise” means “to appoint”, rather than to establish a relationship of principal and agent. Crockett J also considered that on the correct interpretation of the section, the power authorised to be conferred was a general power and that, as a consequence, support was provided for the conclusion that it was the Commissioner at the time of the conferring of the authorisation to which the section referred. Crockett J saw no need for a temporal co-existence between the occupancy of the office of Chief Commissioner of Police by the grantor of the relevant authority and the period of due authorisation to the grantee of that authority. His Honour concluded that the relevant question was whether the grantor of the authority was, at the time of its grant, empowered so to act, and not whether, at the time of the exercise of the authority by the grantee, the grantor was still in office.
Counsel for the defendant submitted that the decisions in Evans v Sparrow[4] and Benwell v Gottwald,[5] should not be followed and that, in the present case, the conclusion should be reached that the authorisation given by the Commissioner to operate breath analysing instruments is for the purposes of conferring an agency that would necessarily terminate upon the cessation of the Commissioner’s appointment. It was suggested that a review of the provisions of the Police Act allowed the conclusion that the operation of breath analysing instruments and the performance of breath analyses are not acts that the Commissioner would ordinarily or necessarily perform.
[4] Evans v Sparrow (1973) 6 SASR 519.
[5] Benwell v Gottwald [1978] VR 253.
Attention was drawn to section 67(1) of the Police Act, which provides:
If a person ceases for any reason to be a member of SA Police, all powers and authorities vested in the person by or under this or another Act or any law as a member of SA Police or constable are divested from the person.
The defendant submitted that the effect of this provision is that any authorities granted by the Commissioner ceased to have effect as and from the cessation of his appointment as Commissioner of Police. It was argued that the new Commissioner of Police is then vested with those powers and authorities and is, as a consequence, required to issue fresh authorisations for specified officers to conduct breath analyses.
The police contended that the question of whether an authorisation by the Commissioner of a person to operate a breath analysing instrument as contemplated by section 47K(1) of the Road Traffic Act survives the appointment of a new Commissioner is governed by the principles of statutory interpretation. It was said that the application of those principles leads to the conclusion that the authorisation does so survive. The police submitted that the authorisation of a person to operate a breath analysing instrument does not create a situation of agency between the Commissioner and the person authorised. In this respect, it was submitted that the Court should follow the decisions of Evans v Sparrow[6] and Benwell v Gottwald.[7] In particular, it was submitted that the former cannot be said to be clearly wrong.
[6] Evans v Sparrow (1973) 6 SASR 519.
[7] Benwell v Gottwald [1978] VR 253.
Consideration
The adoption of a purposive construction is the usual or general approach to be taken to issues of statutory interpretation. Such an approach is also prescribed by section 22 of the Acts Interpretation Act 1915 (SA). A construction which promotes the object or purpose of the Act is to be preferred over a construction which does not so promote the object or purpose, regardless of whether the object or purpose is expressly stated.
The purpose of drink driving legislation is intrinsically connected with road safety. Section 47K of the Road Traffic Act sets up a system which provides for a scientific impossibility to be treated as a fact; that is that a particular blood alcohol level will be presumed to have remained constant over a two hour period. This aspect of the legislation is concerned primarily with road safety. However, the section has another purpose, which is to provide safeguards to ensure that breath analysis is carried out efficiently, accurately and transparently, and that the accuracy of a breath analysis may be challenged by means of a blood test.
The requirement that a person be “authorised” by the Commissioner to conduct breath analyses appears to be aimed at ensuring that a person so authorised has a sufficient level of competence and expertise.
The Police Act provides further context to an authorisation pursuant to section 47K of the Road Traffic Act. Notably, the defendant ascribes significance to the operation of section 67 of the Police Act. Section 67 refers to powers “vested in the person” who ceases to be a member, and it provides that those powers will lapse upon such a cessation. The defendant interprets section 67 as meaning that if one person, the Commissioner, who is the repository of the power to appoint another person to a position of authority, ceases to be a member of the police force, then the person whom the Commissioner has appointed will be automatically deprived of the powers accompanying the appointment.
In my view, the interpretation of section 67 propounded by the defendant cannot be sustained. The Commissioner is given the power to appoint members of the police force pursuant to sections 20 and 21 of the Police Act. The defendant’s interpretation taken to its logical conclusion would mean that upon a Commissioner resigning, dying or being dismissed, the commissioned officers, sergeant and constables that the outgoing Commissioner appointed, possibly over many years, would no longer hold those offices.
While the point was not specifically argued before it, this Court has interpreted an authorisation under section 47K of the Road Traffic Act as meaning that the authorisation continues from the date of the initial authorisation until the authorisation is withdrawn or the officer ceases to be employed as a police officer.[8]
[8] Police v Short (2012) 112 SASR 463, [21].
The construction advanced by the defendant would have the effect that upon the sudden resignation, dismissal or death of a Commissioner, every authorised person in the state would immediately lack the qualification to conduct breath analyses. To restore the situation, the Deputy Commissioner would have to re-authorise every formerly authorised person in the State, presumably extending back over many years. In the interim, drivers could disobey with impunity directions by police officers to exhale into a breath analysis instrument. In the situation of a Commissioner’s extended absence, every person authorised by a Deputy Commissioner would automatically become disqualified upon the Commissioner’s return to duty, necessitating the Commissioner making a fresh authorisation.
This construction would not promote the object of road safety, or promote any greater certainty that a person operating a breath analysing instrument has sufficient competence and expertise. The Commissioner has responsibility for the control and management of the police force generally, including the ongoing training of its members. Parliament entrusted the authorising of breath analysis operators to the Commissioner. In doing so it can be taken to have assumed that a Commissioner would only authorise properly trained operators.
What is contemplated by section 47K of the Road Traffic Act is not an agency. The section contemplates that only someone authorised by the Commissioner may operate a breath analysing instrument for the purposes of section 47K. This does not mean that by such an authorisation the Commissioner of Police is acting through an agent to carry out a function and is thereby deemed to act in person. As Bollen J said in Gray v Liddy,[9] the authorising of an officer to operate a breath analysing instrument is an “act or thing” contemplated by section 35 of the Acts Interpretation Act, which provides:
Words directing or empowering any Minister of the Crown or any public officer or functionary to do any act or thing, or otherwise applying by reference to his or her office will be construed as applying to the person for the time being acting in the office or discharging the duties of the office.
Such an act or thing is analogous to the appointment of a constable pursuant to the Police Act. A constable, upon being appointed by the Commissioner, becomes the repository of all of the powers of a constable. However, the constable is not thereby an agent of the Commissioner. While the constable may exercise police powers generally, he or she is not the repository of the powers of the Commissioner of Police.
[9] Gray v Liddy (1984) 34 SASR 569.
The interpretation of section 47K of the Road Traffic Act propounded by the defendant does not promote the section’s object or purpose of road safety. Nor does it add to an already existing safeguard. The interpretation, if accepted, has the potential to lead to a chaotic disruption of the activities of police in enforcing drink-driving legislation with a corresponding adverse impact on the safety of the public.
Conclusion
The appeal is dismissed.
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