Hooper v McLean
[2013] WASC 169
•18 APRIL 2013
HOOPER -v- McLEAN [2013] WASC 169
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 169 | |
| Case No: | SJA:1154/2012 | 18 APRIL 2013 | |
| Coram: | EM HEENAN J | 18/04/13 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GRAHAM VICTOR HOOPER SHAUN AARON McLEAN |
Catchwords: | Criminal law Road traffic Blood alcohol analysis Calculations back |
Legislation: | Criminal Appeals Act 2004 (WA) Road Traffic Act 1974 (WA) |
Case References: | Casson v Johnston, (Unreported, WASC, Library No 950061, 21 February 1995) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
SHAUN AARON McLEAN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE PA ROTH
File No : SC 143 of 2012
Catchwords:
Criminal law - Road traffic - Blood alcohol analysis - Calculations back
Legislation:
Criminal Appeals Act 2004 (WA)
Road Traffic Act 1974 (WA)
(Page 2)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms S Young
Solicitors:
Appellant : Marc G Saupin Pty Ltd
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Casson v Johnston, (Unreported, WASC, Library No 950061, 21 February 1995)
(Page 3)
1 EM HEENAN J: By an appeal notice dated 18 December 2012 Graham Victor Hooper seeks leave of this Court to appeal against his conviction in the Magistrate Court at Southern Cross on 20 November 2012 of the offence that on 17 May 2012 at Southern Cross he drove a motor vehicle of a certain registration number on a public road, namely Spica Street, with a blood alcohol content exceeding 0.08 grams of alcohol per 100 millilitres of blood. His blood alcohol content was calculated as being 0.098 grams of alcohol per 100 millimetres of blood.
2 His application for leave to appeal was referred to this Court by directions of Hall J on 14 February 2013 which, as well as providing for the usual procedural preparations, directed that the application for leave to appeal should be heard at the hearing of the appeal in the event that leave were granted. I therefore have to consider whether or not leave to appeal should be granted and, if so, whether or not the appeal should succeed.
3 It is provided by the Criminal Appeals Act 2004 (WA)that for leave to appeal to be granted the Court must give leave on each ground sought to sustain the appeal and that leave should not be granted unless the proposed ground has reasonable prospects of success. The requirements for leave to appeal have been considered in this Court on many occasions. In this case the only proposed ground of appeal is that the learned Magistrate erred when he misdirected himself as to a defence available to the appellant pursuant to the Road Traffic Act 1974 (WA)that arose from the manner his sample was obtained - the back calculation.
4 The circumstances leading to the offence and the conviction can be shortly stated. They are referred to by the learned Magistrate in the oral reasons which he gave immediately following the trial. They are that on 17 May 2012 two police officers, Officers McLean and Mora, were doing traffic control and general duties in the Southern Cross area.
5 They were travelling down Spica Street in a southerly direction when they noticed a vehicle travelling in a northerly direction. They turned their vehicle around and pursued this other vehicle and pulled it over for the purposes of a random breath test. They went through the usual steps of examining the driver's licence. The driver was the accused, the present applicant, Graham Victor Hooper.
6 He was then required to undergo a preliminary breathalyser test which returned a positive result. In consequence the police took him to the police station to undergo a full breathalyser test there. The applicant accompanied the police to the police station. He was given all the
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- necessary information that he was entitled to receive and he submitted to and participated in a breathalyser test which obtained a sample of his breath for analysis.
7 That sample returned a reading of 0.102 grams of alcohol per 100 litres of blood. Pursuant to the provisions of the Road Traffic Act that was calculated back on the basis that at the material time, that is, when he was driving and stopped, it was 9.12 pm and that the analysis was conducted at 9.32 pm - a 20-minute time gap.
8 As the test result retuned a reading in excess of 0.08, he was charged with the present charge. He pleaded not guilty. Evidence was given before the learned Magistrate by the police officers. They confirmed the events which I have described. Requisite proof of the authenticity and compliance with regulations of the breath analysis equipment and of the method of testing were given. The applicant did not himself give or adduce any evidence.
9 At his trial the only issue of significance which arose was whether or not the blood alcohol analysis test conducted by the breathalyser equipment at the police station occurred 20 minutes or 18 minutes after the material time, being the time when the applicant was stopped by the police.
10 The reason for this controversy was that the evidence from the police officers who stopped the applicant was that they had stopped him at 9.12 pm, as I have already stated, yet the breathalyser analysis certificate indicated that the test was conducted at 9.30 pm, that is, 18 minutes later, whereas the police officers say that it was conducted at 9.32 pm.
11 The reason for this discrepancy was a lack of concordance between the times on the officers' watches and the time on the internal clock or timing mechanism and the breathalyser machine. It is clear that the time at which the applicant was stopped was recorded by reference to the wrist watches of the two police officers involved. There was no suggestion that that time was wrong or that the wrist watches were wrong.
12 The 18-minute interval is reached by comparing that time with the timing on the internal mechanism of the breathalyser machine. That, of course, was not the timing device which was used to fix the time when the applicant was driving. Yet the police officers say, again by reference to their watches, that the timing of the test at the police station was 9.32 pm. They stood by that evidence at the trial and that was the finding by the learned magistrate, that 20 minutes had elapsed.
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13 It was submitted to the learned magistrate that if less than 20 minutes had elapsed between the material time and the final test, the test result should be rejected because of an alleged practice, acknowledged by one of the police officers to be followed in like circumstances, whether correctly or not, that 20 minutes had to elapse to ensure that the test was conducted and followed fairly. It has been inferred that the reason for this is to eliminate the possibility of contamination of the test result by residual alcohol in the mouth of the person being sampled.
14 There is no statutory basis for a 20-minute or any other minimum interval to elapse between the material time and the final testing. That was acknowledged between the prosecutor and the learned Magistrate and that was his Honour's finding. There has been no suggestion in the present case that there is any such minimum period and there is certainly nothing to that effect in the Road Traffic Act or the regulations.
15 There was a suggestion put by counsel for the applicant based on some obiter dicta by Pidgeon, Franklyn and Scott JJ in the case of Casson v Johnston, (Unreported, WASC, Library No 950061, 21 February 1995) where Pidgeon J observed, in relation to the method of taking breath analysis tests and the passage of time between such tests and the time of driving, the following:
What I have just outlined appears to be recognised to an extent in practice. One of the outside sources can be alcohol remaining within the mouth. It is generally known, although not the subject of evidence in this case, that to ensure a true reading the mouth should be washed out or that 10 minutes or so should elapse since the last drink to ensure the dissipation of alcohol in the mouth. We were informed that the more sophisticated breath testing equipment will reject tests that contain breath from this source by reason of this source showing an irregular reading and such an irregular reading is not accepted by the machine.
16 Whether the assumed reasons for this practice are scientifically valid or not is not a question that needs to be addressed in the present case. A requirement for any lapse of time is not embodied in the legislation or in the regulations. There was no challenge before the learned Magistrate to the validity of the test based on the risk of contamination. There was no evidence to support any suggestion that there had been a recent drink which might contaminate the result.
17 The submissions in this case were that, notwithstanding the absence of any provision for a minimum period to elapse between the material time and the eventual breath analysis test, that was necessary in order to ensure the fairness and accuracy of the testing and that this could be
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- inferred from the provisions of s 71 of the Road Traffic Act themselves which by subs (1), (2) and (3) provide for a system of calculating the blood alcohol content at the material time by reference to a presumption that after a person's latest drink containing alcohol a person's blood alcohol content increases at the rate of 0.016 grams of alcohol per 100 mls of blood per hour for a period of two hours and after that period decreases at the rate of 0.016 grams of alcohol per 100 mls of blood per hour.
18 That is a statutory, irrebuttable presumption and it means that in any given case if there is uncertainty about the time of the last drink of the person subjected to the test, the officers conducting the test will make the assumption most favourable to the person being tested, namely, that the last drink was at or immediately before the material time, that is, the time of the driving, because on that assumption the person has the longest period, two hours, of assumed increase in the blood alcohol concentration according to that formula.
19 The consequence of this is that if a test is conducted at any time within a period of two hours after the material time, the test result will be reduced by the product of the application of the statutory formula. If it goes beyond two hours, that is, if the first drink was more than two hours, the reduction will be less.
20 There is no doubt in the present case that whether it was 18 minutes or 20 minutes or some slight variation of those two estimates of the time which had elapsed between the occasion when Mr Hooper was stopped by the police, the material time, and the breath test, were within the first two-hour period so that the calculation which was conducted would reduce the blood level concentration reading delivered by the machine itself.
21 That reduction would have been slightly more if the period had been 20 minute rather than 18. The calculation in that respect was put before the learned Magistrate and examined in his reasons but the difference is very small and even on the smaller result the applicant would be regarded as being well over the 0.08 per cent level. His Honour did not base his decision on that consideration, accepting the unchallenged evidence of the police officers that it was, according to their watches, 20 minutes between the material time and the test and he proceeded to impose the conviction.
22 For those reasons I do not see any reasonable prospect of success for the ground of appeal proposed in the present case and I therefore refuse
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- leave to appeal with the consequence that the appeal is deemed to be dismissed.
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