Harradine v Police - [2014] SASC 154

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 154
Magistrates 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] SASC 154
Decision Date: 20 October 2014

CaseChat Overview and Summary

In the matter of Harradine v Police, the defendant Joseph Paul Harradine was convicted of driving a motor vehicle while having an alcohol concentration in his blood that exceeded the prescribed limit, as defined by the Road Traffic Act 1961 (SA). The conviction arose from a mobile random breath test conducted by Sergeant Robert Matthew Scurrah on 17 August 2013. Following a trial, the defendant appealed the conviction, raising questions about the validity of the breath test results and the authorisation of the police officer conducting the test.

The court was tasked with determining whether the authorisation of a police officer to operate a breath analysis instrument under section 47K(1) of the Road Traffic Act survives the appointment of a new Commissioner of Police. This legal issue hinged on the principles of statutory interpretation and whether the authorisation constitutes a delegation of the Commissioner's power. The defendant argued that the appointment of a new Commissioner would invalidate the authorisation, whereas the police maintained that such authorisation is a matter of competence and expertise and does not depend on the identity of the Commissioner.

The court found that a purposive construction of the statute, which promotes the object or purpose of the Act, should be adopted. The purpose of the Road Traffic Act, particularly in relation to drink driving legislation, is intrinsically connected with road safety. The court concluded that the authorisation of a police officer to operate a breath analysis instrument does not create an agency situation between the Commissioner and the authorised person. It held that the authorisation is not dependent on the identity of the Commissioner and thus survives the appointment of a new Commissioner. The court further determined that the defendant's interpretation, if accepted, could lead to significant disruptions in police enforcement activities, adversely affecting public safety. Therefore, the appeal was dismissed, upholding the conviction.

Consequently, the court dismissed the appeal and affirmed the conviction, meaning that Joseph Paul Harradine remains convicted of driving with a blood alcohol concentration above the prescribed limit.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J

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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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.