Harvey v Police No. Scgrg-98-1330 Judgment No. S6958

HARVEY v POLICE
[1998] SASC 6958

Magistrates Appeal: Criminal

OLSSON J. This is an appeal against the conviction of the appellant by a stipendiary magistrate of an offence, pursuant to s47B of the Road Traffic Act 1961, of driving a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol.
The appellant pleaded not guilty to the charge against him and the matter went to trial on oral evidence. In essence, the learned magistrate preferred the evidence of the police witnesses to that given by the appellant and his wife, with the result that he recorded a conviction against the appellant.
The appellant originally sought to challenge the finding of the learned magistrate on the following grounds:-

.That he erred in finding that proof beyond reasonable doubt of "substantial" compliance with the provisions of s47G(2a) of the Road Traffic Act 1961 was sufficient to enable the prosecution to rely on the presumption in subsection (1) of that section to prove the charge;
.That, in the alternative, the learned trial magistrate erred in failing to exercise his discretion to exclude the result of the breath analysis; and
.That the learned trial magistrate erred in refusing to exercise his discretion to exclude the evidence of the breath analysis test on the basis that it had been unlawfully obtained.

At the conclusion of the trial the learned magistrate made various findings of fact in the course of what is said, on the face of it, to be an ex tempore judgment.
He found that, at about 9.50 p.m. on 4 December 1997, two police officers named Devitt and Wentriro were on duty at a random breath testing station set up on Sudholz Road at Windsor Gardens. Devitt was monitoring traffic travelling in a north-westerly direction, whilst Wentriro was operating breath analysis equipment in that so-called “booze bus”.
The position of the station was about 40 metres north-west from Lagonda Drive. Devitt was testing drivers of vehicles as they were required to enter the random breath testing station. He was in police uniform.
At the time in question, a Magna sedan driven by the appellant entered the random breath testing parking bay and stopped next to Devitt. The latter approached the appellant and had a conversation with him. He required the appellant to provide a sample of his breath by breathing into a hand-held Alco-test unit. The appellant complied with the request. Devitt testified that the Alco-test equipment indicated a positive result and that he said so to the appellant. He told the learned magistrate that he then required the appellant to alight from his vehicle, which the appellant duly did.
In the course of his sworn evidence the appellant denied that version of events. He claimed that, after he had breathed into the Alco-test equipment, Devitt said to him that the test was negative. He conceded, however, that Devitt also asked him to turn off the engine and step out of the car. The appellant said that he was a "a bit confused and thought maybe negative means that it is not good". He did as he was directed to do. Devitt then accompanied him to a position just outside of the booze bus, where he was asked a number of questions.
Ms Sweet, the de facto wife of the appellant, also gave sworn evidence. She told the learned magistrate that Devitt said to the appellant "you're negative, switch off the engine and step out of the car please". Ms Sweet said that, at a later time, she was also asked to breathe into the Alco-test to ascertain whether she was in a fit state to drive the vehicle away. She was informed that she was in the same condition as her husband. Accordingly, she contacted her son to come and drive the vehicle home.
The appellant said that, after he had been spoken to by Devitt outside the booze bus, he was then introduced to Wentriro. This was about 20 minutes after the original Alco-test. As the learned magistrate put it, certain information was then given by Devitt to Wentriro. The latter thereafter required the appellant to submit to a breath analysis in the booze bus. It was the prosecution case that the breath analysis produced a reading of 0.118 grams in 100 millilitres of blood.
During the course of the hearing the prosecution tended various documentary exhibits, including a certificate of the breath analysis result. These were admitted.
It is not disputed that, immediately following the printout of the breath analysis result, Wentriro read out an oral advice to the appellant in the prescribed form. The form prescribed is expressed as follows:
“The breathalyser reading just taken shows that you had a prohibited level of alcohol in your blood.
Therefore, it appears that you have committed an offence against section 47B of the Road Traffic Act (driving under the influence of

liquor), it will be presumed that the breathalyser accurately indicated your blood alcohol level at the time of the reading and for the preceding two hours. However, the Road Traffic Act allows for contrary evidence based on the results of a blood test.

If you want to have such a blood test you will have to make your own arrangements and follow certain procedures using a special blood test kit. This blood test kit will be supplied to you on your signing a written request.
If you obtain a blood test kit and want to have your blood tested, you should take the kit promptly to a hospital or medical practitioner in order to have a sample of your blood taken.
You must not consume any more alcohol before having a sample of your blood taken and must not open the blood test kit before delivering it to a medical practitioner.
Under the blood test procedure, the sample of blood is divided and sealed in two containers. You will have to sign a form that will be given to you by the medical practitioner.
One of the sealed containers will be given to you and you may make your own arrangements to have the blood in that container analysed.
In any event, the blood in the other container will be analysed by State Forensic Science and you will be given written notice of the results of the analysis.
Further information as to these matters is contained in the written notice which will be delivered to you shortly."

It is also beyond question that, following the making of the oral statement, the appellant indicated that he did not want a blood test kit.
After the appellant had given that indication, Wentriro completed and handed to the appellant a written notice in the form prescribed by PtB of the Breath Analysis and Blood Test Regulations 1994.
That form reads as under:

“WRITTEN NOTICE FOR THE PURPOSES OF SECTION 47G(2a)(a) OF ROAD TRAFFIC ACT 1961
OPERATION OF ROAD TRAFFIC ACT IN RELATION TO RESULTS OF BREATH ANALYSIS
1...... Offence
A person commits an offence against section 47B(1) of the Road Traffic Act 1961 if the person -
(a).... drives a motor vehicle: or
(b) attempts to put a motor vehicle in motion,
while there is present in his or her blood the prescribed concentration of alcohol (as defined in section 47A of the Act).

2. Breath analysis
Your breath has just been analysed by means of a breath analysing instrument which indicated that the prescribed concentration of alcohol was present in your blood.
Accordingly, it appears that you have committed the offence described above.

3. Legal effect of breath analysis result
In proceedings for the offence described above or an offence against section 47(1) of the Road Traffic Act 1961 (driving under the influence of liquor), the result of the breath analysis will be presumed to accurately record the concentration of alcohol in your blood at the time of the analysis and throughout the preceding 2 hours (section 47G(1), (1ab)).
In any proceedings against you for such an offence, you will be able to challenge the accuracy of the breath analysis reading -
·...... if you have a sample of your blood taken and analysed as described below

AND
·...... if the result of analysis of the blood sample shows that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in your blood (section 47G(1a)).

PROCEDURES FOR OPTIONAL BLOOD TEST
1...... You may have a sample of your blood taken and analysed if you wish.
2...... For that purpose, you must request the breath analysis operator to supply you with an approved blood test kit (you must sign a written request form for the kit and should retain a copy of the signed request form).
3...... You should then proceed promptly to a hospital or a medical practitioner [*or registered nurse] of your choice and request that a sample of your blood be taken (using the blood test kit).
4...... Do not consume any further alcohol before the sample is taken.
5...... Do not open the blood test kit.
6...... The medical practitioner [*or registered nurse] taking the sample of your blood will divide it and place it into two containers and seal the containers. One container will be delivered to you - do not break the seal on this container.
7...... Sign the form presented to you by the medical practitioner [*or registered nurse] - the original of the form will be given to you which you should retain.
8...... You may, if you wish, have the blood sample (in the container delivered to you) analysed at a laboratory to determine the concentration of alcohol present in the blood.
9...... The other blood sample container will, in any event, be sent to State Forensic Science where the blood will be analysed. The result so this analysis will be sent to you at your address (as indicated on the form presented to you by the medical practitioner [*or registered nurse] who took the blood sample).
*...... The alternative of a registered nurse applies only if the breath analysis was conducted outside Metropolitan Adelaide.”

The appellant says that he did not read it at the time. He simply took it and went home. The net effect of his evidence appears to be that it was not until then that he fully realised the legal effect of his not electing to have a blood test.
I pause to comment that this is not surprising. When one compares the content of the oral advice with that of the written notice it is obvious that the former does not make entirely clear that which is fairly explicit (albeit by implication) in the latter, ie that if there is no election to have a blood test, there is no means of challenging the breath analysis result.
In the course of the appellant’s evidence the learned magistrate questioned him at some length concerning the level of his understanding at the conclusion of receipt of the oral advice. I agree with Mr Edwardson, his counsel, that this was really irrelevant to the issues to be decided. However, it seems to me that, when the whole of the appellant’s evidence on that topic is considered, his responses were more than a little equivocal.
It only remains to recite that, in cross examination, Wentriro testified that it was not his normal practice to afford an alleged offender an opportunity of reading the prescribed notice before asking whether that person wished to have a blood kit. The obvious response to that evidence is, of course, that one wonders what is the point of giving the notice if the recipient is not given an opportunity to read it before making an election. It is, of course, no answer to such a rhetorical question to respond, as Mr Hinton, of counsel for the respondent sought to do, that, in any event, a recipient might not be able to read and understand it in any event - due to language difficulties, inability to read and so on. These problems merely serve to underscore the draconian and, at times, potentially unfair provisions of this legislation in our multi-cultural society; in which it is well on the cards that an alleged offender might not be able either to understand or comprehend both oral advice or the written notice, due to language and/or reading and comprehension difficulties.
Two principal lines of contention were advanced before the learned magistrate on behalf of the appellant. First, it was argued that, when Devitt allegedly said to the appellant that the Alco-test result was negative, there was simply no basis upon which he could have required the appellant, thereafter, to submit to a breath analysis. What followed was, accordingly, illegal; and the certificate of breath analysis was inadmissible.
In the course of his reasons the learned magistrate said that he had given that aspect careful consideration but, in the end, had concluded that Devitt's evidence was reliable. He did not accept that Devitt had indicated that the reading was negative; and went on to say that, where there was inconsistency between Devitt's evidence and that of the appellant and/or his wife as to that issue, he preferred the evidence of Devitt. He said that he found that both the Alco-test had produced a positive result and also that Devitt had informed the appellant of that fact.
In the arriving at that conclusion the learned magistrate said:-
“The defendant in the giving of his evidence, was marginally discredited. For example, I questioned him in relation to his statement that he shared a bottle of beer with his friend's father. He conceded in fact, each of them, the father, his friend and himself had an echo of beer. Further, I determine that in respect of the defendant's estimates of time, although the defendant asserts that he is reliable on that topic, it is clear by virtue of the phraseology by which the defendant indicated a time range, that he was not that certain of times. I have also noted, the various errors which were apparently made by Senior Constable Devitt. I note that his procedures generally are subject to the criticism of being sloppy. There is also evidence of reconstruction. Nevertheless I do not draw adverse inference by virtue of this.”
It is further obvious from the reasons of the learned magistrate that the conduct of the appellant immediately following the Alco-test was simply inconsistent with what he asserted at trial. In my view this is a most telling point. Had the appellant being of the understanding that he had returned a negative result it seems inconceivable that he would, without further protest, have got out of the vehicle and then submitted himself to a breath analysis. Moreover, there was ample time between the point at which he left the vehicle and ultimately submitted to the breath analysis, in which to voice some protest. The learned magistrate pointed out that, if the appellant had genuinely believed that he had provided a negative result, then one would have expected that he would have insisted on leaving the area and would not have remained, as he did.
It is stating the obvious to say that the finding made by the learned magistrate in the above regard was a finding of fact made having regard to his assessment of the relative credibility of the various witnesses. On well settled principle there was simply no basis upon which I could properly have overturned such a finding, particularly as it drew force from the very actions of the appellant himself at the time and was fairly open on the evidence.
Having made the foregoing assessment of credibility and the findings of fact referred to, it was only a short step to specific findings that the Alco-test returned a positive result; and that Devitt was justified in requiring the appellant to submit to a breath analysis. It follows that there was no basis upon which the learned magistrate could properly have exercised a discretion to exclude the result of the breath analysis on the ground contended for.
On the hearing of the appeal Mr Edwardson at once recognised the reality of that situation and did not press the third ground of appeal.
The second and principal argument developed was that the evidence disclosed that Wentriro had failed to comply with the express requirements of s47G(2a) of the Road Traffic Act 1961, with the consequence that the certificate of analysis ought not to have been admitted in evidence.
Oddly enough, in giving judgment, the learned magistrate initially confined his attention to the first issue and seems to have overlooked the second. It was only when counsel drew his attention to the fact that he added the following remarks, having already found the appellant guilty of the charge:
“A second challenge by the defendant, was in relation to the issue of the blood rights. The defendant asserted that Constable Wentriro had read to him the prescribed statement. The defendant also agrees that he was handed a copy of that statement and further following questions I put to him, indicated that he understood his position. The evidence of Constable Wentriro was that the defendant declined to have a blood sample taken. That is also corroborated by Senior Constable Devitt. I accept the evidence of each of those officers in relation to that. In any event, Ms Fuller has submitted that if there was not strict compliance with the statutory provision, that I ought to exercise my discretion and exclude evidence on the basis that there had not been strict compliance, but as I have indicated, I believe there was substantial compliance.
For that reason I am not able to accept Ms Fuller’s submission in respect of that matter.”
Section 47G(2a) is expressed in these terms:
(2a).. Where a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument shall forthwith -
(a).... give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person’s blood;
and
(b).... at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.”
As Mr Edwardson submitted, because the absolute deeming provisions of the statute have draconian consequences, this court has always insisted on strict compliance with the requirements of subsection (2a), failing which certificates of breath analysis ought not to be admitted.
The subsection clearly requires the oral advice to be given first and then the written notice to be handed to the alleged offender - in that sequence. It is only then that the alleged offender is to be asked to elect whether or not he or she will have a blood test kit. All of these successive steps are to be taken forthwith after completion of the blood analysis process - that is to say, in the shortest time which is reasonably practicable in the circumstances (The Queen v Conley (1982) 30 SASR 226 at 240).
The issue in this case is not whether all of these things were done “forthwith”. Rather, it is whether a failure to follow the sequence envisaged by the subsection reasonably amounted to a fatal non-compliance with the statutory provisions, which attracted the strictures expressed by King CJ in Ujvary v Medwell (1985) 39 SASR 418 at 420.
Mr Hinton sought to dismiss Mr Edwardson’s complaint by saying - as did the learned magistrate - that there had been substantial compliance; and that was enough. He went so far as to assert that the subsection did not even impose on a police officer any obligation to allow the recipient any opportunity of reading the notice before asking an alleged offender to elect. He, somewhat lightly, brushed aside what had here occurred by commenting that it might well be that, in any event, particular offenders, for reasons earlier averted to, could not read and understand the notice in any event. He inferred, but did not actually say, that it was all a mere formality in any event.
I unhesitatingly reject that line of argument.
In the first place the legislation, in making this provision in the context of a very draconian overall evidentiary regime, clearly intended that the procedure stipulated was to be the absolute minimum protection afforded to alleged offenders. This is so, even if, in individual circumstances, it is the situation that an alleged offender might not comprehend either the oral or the written communication.

In the second place, the legislature would surely not have intended to countenance the type of charade which here occurred - of the appellant being called upon to elect prior to having been given the written notice which renders it clear that the declining of a blood test kit sets an irretrievable evidentiary situation in train, adversely to him. The Rubicon had, in practical terms, been crossed. The appellant could have been pardoned for believing that the notice did no more than confirm what he had been told - an advice which he may, or may not, clearly have understood.
Finally, I reject the proposition that it would have been proper simply to have handed the written notice to the appellant and then, immediately, have called on him to elect, without giving him an opportunity of first reading it. Once again, a failure to invite him to read it, or at least afford him an opportunity of doing so, would have the practical effect of making a parody of the whole process.
To say that what here occurred was “substantial” compliance with the statutory requirements in this case, is to fail to recognise the essential concept of the subsection and the minimum level of protection which it sets out to confer. The fact that, in other individual cases, the whole process might, in practical terms, be a ludicrous charade (in which a meaningless ritual is performed in front of an uncomprehending citizen who does not understand what is being said or put to him or her) is quite beside the point. That is a quite separate and different point.
In the instant case a fundamental requirement of the statute was not observed. That was a prerequisite to the operation of the provisions of s47G(1).
In my opinion the learned magistrate fell into error in the manner which he approached what was not a mere trivial technicality, but a fundamental right which had not been allowed the appellant. The certificate of the result of the breath analysis ought not to have been admitted.
The appeal must be allowed. The conviction and penalty will be set aside. In lieu there will be an order of dismissal of the charge against the appellant.

[1998] SASC 6958

18 November 1998