Humzy v Police
[2009] SASC 50
•27 February 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HUMZY v POLICE
[2009] SASC 50
Judgment of The Honourable Justice David
27 February 2009
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - PRESUMPTIONS - AS TO SCIENTIFIC INSTRUMENTS
Appellant convicted of driving vehicle while prescribed concentration of alcohol was present in his blood – whether time of breath analysis in written statement provided to appellant pursuant to s 47G(2) of the Road Traffic Act 1961 (SA) was accurate - whether presumption pursuant to s 47G(1) of the Road Traffic Act 1961 was available to prosecution.
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
Magistrate found time of breath analysis in written statement provided to appellant pursuant to s 47G(2) of the Road Traffic Act 1961 (SA) was accurate, despite inconsistencies and errors on evidence - whether verdict unreasonable - whether magistrate's findings and evidence supported verdict - whether magistrate's reasons were adequate.
Held: dismissing the appeal - verdict was not unreasonable - findings were supported by evidence - reasons were adequate.
Road Traffic Act 1961 (SA) s 47B, s 47G, s 47EB; Road Traffic (Miscellaneous) Regulations (1999) SA reg 8A(3), referred to.
R v Sweeny [2008] SASC 300 (Unreported, Gray, Sulan and David JJ, 5 November 2008); Semmens v Police (1999) 202 LSJS 272; Taylor v Daire (1982) 30 SASR 453, applied.
Burton v Police (2004) 88 SASR 152; Eubel v Martin (1992) 57 SASR 290; Lloyd v Police (2004) 89 SASR 383; Mercorella v Police (2004) 88 SASR 575; Police v Harvey (1999) 73 SASR 534; Police v Jervis (1998) 70 SASR 429; Police v Mott (2005) 93 SASR 257; Police v Stevenson (2008) 255 LSJS 443; Saade v Police (2005) 242 LSJS 481, considered.
HUMZY v POLICE
[2009] SASC 50Magistrates Appeal
DAVID J. This is an appeal against conviction.
Introduction
The appellant was charged on Complaint alleging that he was driving a vehicle on Payneham Road at Felixstow in South Australia on 6 October 2005 while there was present in his blood .081 G of alcohol in 100 Ml of blood, being the prescribed concentration of alcohol for the purposes of s 47B of the Road Traffic Act 1961 (SA) (“the Act”). A magistrate found the appellant guilty of the charge and recorded a conviction. As mandated by the Act, he then fined the appellant the sum of $500 and disqualified him from driving for six months.
Background
A trial with respect to the charge commenced in the Adelaide Magistrates Court on 13 December 2007. At the outset of the prosecution case, a number of exhibits were admitted into evidence, over objection, de benne esse. Two of those exhibits were the transcript of interview between the appellant and police (exhibit P8(a)) and the audio tape recording of the interview (exhibit P8(b)). The prosecution then called Senior Constables David Gardner and Nello Matizicciani to give evidence. Following their evidence, the prosecution closed its case and counsel made submissions as to the admission of the exhibits into evidence.
On 8 February 2008, the magistrate delivered a ruling declining to exercise the public policy discretion to exclude the exhibits from evidence. He found that Senior Constable Gardner’s conversation with the appellant did not have “the capacity to dilute the effectiveness of the statutory prescribed oral and written advice and to lead to ambiguity and uncertainty”.[1]
[1] Burton v Police (2004) 88 SASR 152, 159; [2004] SASC 85 [33].
The prosecution was aided in proving the charge pursuant to s 47B of the Act, by s 47G of the Act, which relevantly reads as follows:
47G—Evidence etc
(1)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.
(1a)No evidence can be adduced in rebuttal of the presumption created by subsection (1) except—
(a) evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I or in accordance with the procedures prescribed by regulation; and
(b) evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.
(1ab)If it is proved in proceedings that a concentration of alcohol was present in the defendant’s blood at the time of a breath analysis, it must be conclusively presumed that that concentration of alcohol was present in the defendant’s blood throughout the period of two hours immediately preceding the analysis.
…
(2)As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying—
(a) the reading produced by the breath analysing instrument; and
(b) the date and time of the analysis.
(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 must 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.
…
The presumption that the concentration of alcohol indicated by the breath analysing instrument was present in the blood of the appellant at the time of the analysis, as well as throughout the period of two hours immediately preceding the analysis, is facilitated by s 47EB of the Act, which reads as follows:
47EB—Concentration of alcohol in breath taken to indicate concentration of alcohol in blood
Where a person submits to an alcotest or a breath analysis and the alcotest apparatus or the breath analysing instrument produces a reading in terms of a number of grams of alcohol in 210 litres of the person’s breath, the reading will, for the purposes of this Act and any other Act, be taken to be that number of grams of alcohol in 100 millilitres of the person’s blood.
It is now well established that unless there is compliance, particularly with s 47G(2) and s 47G(2a) of the Act as demanded by s 47G(1) of the Act, the prosecution would be unable to rely on the operation of the presumption.[2]
[2] See eg Taylor v Daire (1982) 30 SASR 453, 463, 473; Eubel v Martin (1992) 57 SASR 290, 299; Semmens v Police (1999) 202 LSJS 272; [1998] SASC 176 [14]-[16], [26]; Police v Jervis (1998) 70 SASR 429, 437; Police v Harvey (1999) 73 SASR 534, 539; [1999] SASC 233 [10]; Lloyd v Police (2004) 89 SASR 383, 388, 402‑403; [2004] SASC 278 [8], [71]‑[75]; Mercorella v Police (2004) 88 SASR 575, 579; [2004] SASC 180 [13]; Police v Mott (2005) 93 SASR 257; [2005] SASC 474; Saade v Police (2005) 242 LSJS 481; [2005] SASC 437 [8]; Police v Stevenson (2008) 255 LSJS 443; [2008] SASC 143 [31].
In the magistrate’s ruling delivered on 8 February 2008, he found that there was compliance with s 47G(2a) of the Act, in that the person operating the breath analysing instrument, Senior Constable Matizicciani, had given the appellant the prescribed oral advice and had delivered to the appellant the prescribed written notice. Upon the appellant’s request, he had also provided him with an approved blood test kit. Despite that compliance and the consequent availability of the presumption, the appellant nevertheless sought, as he was entitled, the discretionary exclusion of the evidence of the breath analysing instrument. I note that the ruling of the magistrate, declining to exercise the public policy discretion to exclude the exhibits from evidence, is not the subject of this appeal.
On 21 February 2008, counsel for the appellant conceded a prima facie case, but sought a Prasad direction. The magistrate refused to make the direction sought and adjourned the proceedings.
The appellant gave evidence when the trial continued on 12 August 2008.
At the end of the trial, the only issue that remained in dispute related to whether the prosecution had proven compliance with s 47G(2) of the Act, as required by s 47G(1) of the Act, beyond a reasonable doubt. In Semmens v Police,[3] Mullighan J made the following comments on point:[4]
The purpose of s 47G(2), in context, is to ensure that a driver who has failed a breath analysis test is given accurate and timely information in a permanent form. Given the limited circumstances in which a driver may contest the allegation as to the concentration of alcohol in the blood, this information assumes great importance. Parliament has acknowledged that the date and time of the breath analysis as well as the result of the breath analysis must be recorded in this way accurately and provided to the driver promptly. Also, Parliament has acknowledged that each of these matters is of equal importance. The driver must have accurate information about all of these matters in order to test the result of the breath analysis in the only permissible manner by means of analysis of a sample of blood. It cannot be expected that the driver will necessarily know or remember any of these pieces of information if the required statement is not given to him. Consequently, the presumption is only to apply if there is compliance with s 47G(2). The onus is cast upon the relevant police officer to provide accurate information. If not, the presumption does not apply, whatever the reason for the inaccuracy.
[3] (1999) 202 LSJS 272; [1998] SASC 176.
[4] Ibid 279; [26].
Without the aid of the presumption, the evidence of the breath analysing instrument may still be admissible, but alone insufficient to prove the charge.[5]
[5] Lloyd v Police (2004) 89 SASR 383, 403; [2004] SASC 278 [76]; Semmens v Police (1999) 202 LSJS 272, 275‑276; [1998] SASC 176 [16]‑[17]; Taylor v Daire (1982) 30 SASR 453, 463.
As can be seen, s 47G(2) of the Act required that the person operating the breath analysing instrument, Senior Constable Matizicciani, deliver to the appellant a statement in writing specifying the reading produced by the breath analysing instrument and the date and time of the analysis. The issue in dispute was whether the written statement Senior Constable Matizicciani delivered to the appellant accurately recorded the time at which the breath analysis was taken.
The magistrate found that he was “not left with any uncertainty” as to the accuracy of the time of the breath analysis in the written statement and, upon the consequent availability of the presumption, convicted the appellant.
The appellant appeals against his conviction on two grounds. Firstly, that the verdict is unreasonable and cannot be supported by the findings of the magistrate or the evidence. Secondly, that the magistrate failed to provide any or adequate reasons for his conclusion that, despite the inconsistencies and errors he noted, he was “not left with any uncertainty” as to the accuracy of the time of the breath analysis in the written statement. These grounds of appeal require an overview of the relevant evidence at trial, to which I now turn.
Evidence at Trial
Neither of the constables had an independent recollection of relevant events and their timing. They therefore relied on both their normal practice and notes. Much of their evidence concerned compliance with s 47G(2a) of the Act. As to the issue still in dispute at the end of the trial, namely that of time, both constables gave evidence that they normally refer to their wristwatches.
Senior Constable Matizicciani gave evidence that while he is operating the breath analysing instrument he normally refers to both his wristwatch and the screen of, or print-out from the instrument. At all other times, when not operating the instrument, he normally refers to his wristwatch. He acknowledged there was potential for human error when the time of the instrument is inputted or adjusted, for example, for daylight savings. He also said, however, that the instrument was not adjusted on 6 October 2005, and any anomaly would have been apparent. As far as his proforma notes were concerned, he said he normally completed them chronologically in their proper order alongside the breath analysis process.
The appellant gave evidence that he had been at the Adelaide Casino with a friend between approximately 5.00 pm and 10.00 pm on 6 October 2006. He said he left the casino to return home some time after 10.00 pm that evening, and was driving for about 10 minutes before he reached the breath testing station.
A number of exhibits were tendered and ultimately accepted into evidence.
Exhibit P1 was a certificate pursuant to s 47G(3c) of the Act. It was proof, in the absence of proof to the contrary, that a breath testing station was established on Payneham Road in Felixstow on 6 October 2005 between 9.00 pm and 10.30 pm. Exhibit P2 was a certificate pursuant to s 47G(3b) of the Act. It was proof, in the absence of proof to the contrary, that the appellant submitted to an alcotest which indicated the prescribed concentration of alcohol may have been present in his blood on 6 October 2005 at approximately 9.55 pm. The appellant, in evidence, disputed the accuracy of the time stated on exhibit P2.
According to exhibit P9, the Breath Analysis Statement (“BAS”), Senior Constable Matizicciani received exhibit P2 from Senior Constable Gardner at 10.15 pm. The BAS and exhibit P7 (which was comprised of certificates setting out the type of breath analysing instrument used and that the prescribed advice and notice pursuant to s 47G of the Act was given) state that the appellant submitted to a breath analysis test furnishing a sample of breath at 10.22 pm. It is clear from previous decisions of this Court, and it was not disputed by the appellant, that the time on the certificates constituting exhibit P7 need not be the time of the breath analysis relied upon for the purposes of s 47B of the Act.[6]
[6] Police v Mott (2005) 93 SASR 257, 264-265, 272; [2005] SASC 474 [33]-[34], [69].
Exhibit P5, constituting the written statement pursuant to s 47G(2) of the Act, was a printout from the Dräger Alcotest 7110. It indicates:
·the location of the breath analysis test;
·the name of the appellant;
·the name of the reporting member, Senior Constable Gardner;
·the name of the operator, Senior Constable Matizicciani;
·the test commenced at 10.16 pm on 6 October 2005;
·the first breath analysis sample was taken at 10.22 pm producing a reading 0.086 G of alcohol in 210 L of breath;
·the second (insufficient) breath analysis sample was taken at 10.25 pm; and
·the third breath analysis sample was taken at 10.26 pm producing a reading of 0.081 G of alcohol in 210 L of breath.
Regulation 8A(3) of the Road Traffic (Miscellaneous) Regulations 1999 (SA) provides that the result of the breath analysis, for the purposes of the Act, will be the lower of the two readings produced by the breath analysing instrument.
Exhibit P12 recorded that after submitting to the reading at 10.26 pm, the appellant formally requested an approved blood test kit. Consistently, according to the BAS, the testing was complete at 10.26 pm, the appellant was advised of the results at 10.28 pm and was provided with a blood test kit at 10.36 pm.
The appellant gave evidence that he could not now challenge the times that were recorded on the written statement during the breath analysis process:
Q.When the police have come and given evidence and said that you were subjected to that initial alcotest at about 5 to 10 they’re wrong.
…
A.Definitely yes I reckon yes the time was wrong, I don’t think it was that time.
Q.It was not 5 to 10.
A.No.
Q.Do you disagree also then that your first breath analysis result was at about 10.22 pm.
A.I can’t agree or disagree with that.
Q.So that could be quite correct, 10.22 pm you furnished a reading from the breath analysis machine in the van.
A.Yes.
Q.You do recall there being two blows and two readings as a result in the van.
A.Yes.
Q.And the second one was at 10.26 pm wasn’t it, 4 minutes after the first.
A.I can’t be sure of that.
Q.You can’t say it’s wrong though, can you.
A.No I can’t say it’s wrong neither.
He also gave evidence that he could not then challenge the times:
Q.Looking at exhibit P5. You said a few minutes ago that you recall the police officer going through that with you.
A.Yes.
Q.You didn’t dispute the time of your sample with him at that particular time, did you.
A.No.
Q.He’s quoted to you times, or in particular the time of 10.26 pm and you haven’t challenged him on that at that particular time.
A.Oh, no I couldn’t, it was basically – It wasn’t sinking in, I wasn’t really listening to him. I was more worried about the general consensus of the situation.
Q.Because I imagine not being someone whose been involved with the police before you were feeling quite stressed.
A.Yes.
Q.And overwhelmed by the whole thing.
A.Yes, it was very intimidating indeed.
Q.Probably a little bit lost for words and a little bit shocked.
A.Yes.
Q.He’s discussed this time with you in this reading but you haven’t challenged it.
A.No.
There were three time discrepancies on the evidence. These discrepancies did not relate to the time the breath analysis was taken. They related to the time the appellant submitted to the initial alcotest conducted by Senior Constable Gardner, the time the BAS was completed and the time the process concluded.
I have already outlined the first discrepancy. I will now outline the others.
Into the appropriate space on the BAS, Senior Constable Matizicciani inserted the completion time of 10.32 pm. However, as noted above, he recorded elsewhere within the BAS that the approved blood test kit was provided to the appellant at 10.36 pm. Senior Constable Matizicciani conceded in evidence that he must have made an error as to the completion time he inserted on the BAS.
In the transcript of interview, exhibit P8(a), the appellant referred to the time as 10.58 pm. In evidence at trial, he said he was concerned about the time and referred to it after having looked at his own JAG wristwatch, which had a large digital display. He said it was never adjusted and was always accurate. However, Senior Constable Matizicciani purportedly concluded the interview at 10.43 pm – a time 15 minutes before the time stated by the appellant. There are no other times referred to elsewhere within the transcript. Shortly following the provision of the blood test kit, which according to the BAS was at 10.36 pm, the audio recording of the process cut out for an unknown period of time.
Counsel for the appellant at trial submitted that if the appellant’s assertion as to the time was accurate, the breath analysis simply could not have been taken at the time asserted. A premise for the submission was put to Senior Constable Matizicciani in cross-examination, in reference to the time he noted on the BAS as having provided the appellant with a blood test kit, and the transcript of interview, as follows:
Q.But you do accept this don’t you, that if when Mr Humzy looked at his watch in the course of this discussion described in the transcript and it was in fact 10.58 pm then the breath analysis reading could not have been taken between 10.22 and 10.26 pm.
HIS HONOUR: Just before you answer that question I think you need to explain why you say that it couldn’t have been taken at that time because I don’t understand.
MR DADDS: Yes.
XXN
Q.I’m suggesting to you that if when Mr Humzy looked at his watch and it was in fact 10.58 pm.
HIS HONOUR: Assume it was 10.58 pm when he mentioned it was 10.58 pm.
XXN
Q.Yes. There had not been a lapse of time within the order of half an hour between when he looked at his watch and when the breath analysis was conducted, had there.
A.I’m sorry if I’m getting confused and not following all this with these times but I am getting a little bit confused, what I’m trying to say here, Mr Humzy if he says it’s 10.58 pm.
Q.Yes.
A.If he says I think 10.58 pm and I did the test at 10.26 pm what’s the problem with that.
HIS HONOUR: Less than half an hour.
A.Well, it’s probably alright, seems alright to me because 10.36 I gave him the blood test kit and that’s discussing the blood rights with me and he has a look at his watch and him states a time of 10.58 , well from 10.40 to 10.58, well from 10.40 to 10.58 is only about 10 or 15 minutes and I don’t know how accurate his watch is or whatever –
XXN
Q.I’ll just take you back to over what I’ve been over for the last 15 minutes. You conducted a breath analysis which resulted in the reading. You notified Mr Humzy of that reading according to the notes in your breath analysis brief at 10.28 pm.
A.Yes I told him he blew whatever he blew.
Q.Yes and at 10.36 pm.
A.The blood test comes in.
Q.At 10.36 pm you completed a Schedule 2.
A.For the blood test kit.
Q.For the blood test kit.
A.10.36, yes.
Q.What I’m suggesting to you is that between 10.28 and 10.36 there was discussion about the blood rights during which time Mr Humzy looked at his watch and said it was 10.58 pm That must be the case I suggest to you.
A.It depends whether he read the right time, I don’t know I can’t make a comment.
Q.I’m simply asking you this.
A.No trying to work it out too, if you know what I mean.
Q.Perhaps try and focus on this if you would.
A.Yes.
Q.Mr Humzy looked at his watch between the time that you told him what the reading was and the time you gave him the completed Schedule 2 to sign.
HIS HONOUR: Wouldn’t that have been after he’d been given the completed Schedule 2.
XXN
Q.I’m assuming.
A.That’s after he’s been given, he tells me that after he’s been given the paper not between it.
Q.Can you tell us how you draw that conclusion because let me just put this to you. Surely he wouldn’t be signing a document requesting a blood test kit while he’s still asking you questions about whether he should have one.
A.If you look at p 10 at the top, it says “I’m going to give you a blood test kit”, so I’m in the process of dealing with a blood test kit and as I’ve given the blood test kit because on question 97 it says “So you can see the blood test kit is sealed and has an expiry date of such and such”. I’ve given him the blood test kit that time.
Q.Just before you tell us about that, that’s something you’re assuming from what you are reading, is that right.
A.That’s actually what happened, because that’s what I read from the transcript.
Q.Well where does it say that you gave him the blood test kit at that point.
A.On p 10 right.
Q.Yes.
A.Question 97.
Q.Yes.
AIt says there “So as you can see the blood test kit is sealed and has an expiry date of 11.10 whatever on 6” so I’m giving it to him, telling him that it’s sealed and then it’s not until the next page after I’ve given a blood test kit that he mentions this time factor. So it would have been after 10.36 that he mentioned the time factor, not between 10.28 and 10.36.
In the transcript of interview, at a point before the appellant’s assertion of the time, Senior Constable Matizicciani in conversation with the appellant said:
Q 90.I’m going to give you a blood test kit.
A.Yes sir.
Q 91.And then just got to sign for it that’s all.
A.Yes.
…
Q 94.Just sign for it there.
…
A.Okay no worries. (…) and a blood test kit serial number, yeah. Signature.
Q 96.I’ll get you to read all this after in a minute.
A.No worries.
Q 97.So as you can see the blood test kit is sealed and has an expiry date of the eleventh, ten, two o six, okay. That’s yours.
Another premise for the submission was again put to Senior Constable Matizicciani in cross-examination, in reference to the completion time he noted on the BAS, as follows:
Q.At 10.32 I suggest to you, you completed your notes is that right, according to document P9.
A.That’s correct, 10.32, that’s P9.
…
Q.So the notes are completed at 10.32 pm you however it seems hand over a request pursuant to Schedule 2 relating to a blood test kit at 10.36 pm.
A.That could just be an error, so I just made an error on this looking at that. If I put – I’ve obviously made an error in writing 10.32 because on my transcript I say the test is completed at, well I was finished talking at 10.43 and at 10.36 I go back to the because the actual blood test kit says it was delivered at 10.36. All I can say is that time of 10.32 is a mistake on my behalf.
Q.So you concede you made a mistake in regarding at least one time on the document.
…
A.That’s all I can say is 10.32 is an error and in fact probably it was meant to be 10.52 or something like that.
…
Q.What I want to suggest to you, and you may not be able to answer it and if you can’t say so, the times recorded in relation to when the breath samples were provided are not correct, so I’m referring specifically to 10.22 pm and 10.26 pm.
A.All I can say is those times are indicated by the instrument and would not be out …
None of this evidence supported the submission that the breath analysis could not have been taken at the time asserted on the written statement.
Appeal
The appellant appeals the finding of guilt by the magistrate on the following grounds:
The verdict is unreasonable and/or cannot be supported by the findings of the learned magistrate (“the magistrate”) or the evidence.
Particulars
1.1The magistrate found the appellant credible (judgment pgh 6);
1.2The magistrate found that there were inconsistencies in the times identified by the prosecution witnesses and exhibits (eg judgment pgh 10);
1.3In the face of the above findings, the magistrate found beyond reasonable doubt that s 47G(2) of the Road Traffic Act had been complied with, in that the time nominated on the s 47G(2) notice in writing was in fact correct (judgment pghs 11 & 13).
2.The magistrate failed to provide any or adequate reasons for his conclusion that, despite the inconsistencies and errors he noted, he was “not left with any uncertainty” as to the correctness of the time stated on P5, the s 47G(2) notice in writing.
(Emphasis in original.)
Mr Dadds, on behalf of the appellant, argues that the verdict is unreasonable having regard to the findings and the evidence. He further argues that the reasons of the magistrate were materially inadequate such that they do not allow a conclusion that proper regard was had to relevant evidence, the burden of proof and risks and weaknesses arising on the prosecution case.
Ms Dellit, on behalf of the respondent, argues that the evidence supported the findings of the magistrate and his reasons were adequate. If I find to the contrary, she argues that any inaccuracy of time noted on the written statement, would not be such as to amount to non‑compliance with s 47G(2) of the Act.[7]
[7] See, in particular, regarding compliance required in terms of the accuracy of time: Police v Mott (2005) 93 SASR 257; Saade v Police (2005) 242 LSJS 481; [2005] SASC 437.
Magistrate’s Reasons
The magistrate addressed the appellant’s argument that there was a reasonable possibility the time of the breath analysis as noted on exhibit P5, the written statement, was inaccurate. In his reasons, he stated the following:
The problem arises because P8, the transcript of interview between police and the defendant at p 11, Q. 101 the defendant replies in one of his answers that it was then 10.58 pm. He referred to this in his evidence in chief and explained how it was that he was able to pinpoint the time, by reference to a particular watch he was wearing at the time, and relying on his memory.
I should say that I have no problem with his credibility on this point in that I don’t believe that he is lying about his evidence concerning how he recollects the time being 10.58 pm. The police, in the record of interview, don’t challenge the assertion that he made concerning his statement of what he says the time was.
Although the magistrate found the appellant credible as to how he recollected the time, he did not necessarily find the appellant’s wristwatch accurate. He notes that there was no challenge to the time he stated, but does not infer its accuracy.
The magistrate refers to other arguments put by the appellant as to matters of reliability, including the discrepancy as to the completion time of the BAS.
In his reasons, he summarises the submissions of counsel as follows:
Mr Dadds submitted that those times indicate a problem with the issue of time, which indicate that Mr Humzy’s assertion that it was indeed 10.58 pm would indicate that it would be impossible for the breath analysis to have been conducted at 10.26 and therefore the time stated on P5 is incorrect. He therefore submitted there has not been compliance with s 47G (2).
…
Ms Corbett pointed out that the police officer’s evidence (which I accept as truthful) was that he used his watch throughout the process checking his watch against the time displayed against his machine up to the point where the print-out occurs, although there was no specific recollection about this. Ms Corbett conceded and pointed out that this witness had conceded that there is an error in the notes, P9 where it is stated that the notes were completed at 10.32 because indeed the notes state that the test was handed over at 10.36; at a time he would have still been writing.
As can be seen, the magistrate accepted Senior Constable Matizicciani’s evidence that, as per his normal practice, he would have used his wristwatch to determine the time throughout the breath analysis, checking his wristwatch against the time displayed on the Dräger Alcotest 7110, until it printed out the written statement. Indeed, the magistrate appears to accept Senior Constable Matizicciani’s evidence more generally, including his concession that he erroneously recorded the time he completed the BAS.
The magistrate concluded that despite the inconsistencies and errors on the evidence regarding the issue of time, he was not left with any uncertainty as to the accuracy of the time of the breath analysis noted on exhibit P5, the written statement. The magistrate therefore proceeded to convict the appellant.
Although the magistrate makes no finding regarding the accuracy of the appellant’s assertion of the time towards the end of the breath analysis process, it is clear from both his reasons and the evidence, that even if accurate, it would not preclude the accuracy of the time of the breath analysis on the written statement.
In support of the submission that the magistrate’s reasons were inadequate, Mr Dadds cited the decision of R v Sweeny[8] in which the Court of Criminal Appeal said:[9]
It is important that a judge presiding alone in a criminal trial should give adequate reasons for the verdict. Those reasons should provide a clear explanation for the verdict and be sufficient to allow an appellate court to review the verdict. It might be expected that the reasons would demonstrate that the trial Judge had proper regard to the relevant legal principles to be applied. The reasons should demonstrate an appropriate awareness of the burden of proof and the need for that burden to be satisfied in regard to each of the elements of an offence. The reasons should also allow the conclusion that proper regard was had to particular risks, for example, the dangers of convicting in the absence of supporting evidence, the weaknesses and the risks attaching to identification and recognition evidence and the significance of prior inconsistent out-of-court statements. These are but examples of difficulties that need to be addressed in particular circumstances. The reasons in appropriate cases should explain the way in which such issues have been addressed. There is no fixed formula for how this should be done. It is a matter for the individual judge. Some judges may choose to demonstrate their awareness in the language of a warning or direction. Other judges may choose to demonstrate their awareness by their process of reasoning.
(Footnotes omitted.)
[8] [2008] SASC 300 (Unreported, Gray, Sulan and David JJ, 5 November 2008).
[9] Ibid [14].
It is clear that the magistrate had proper regard to the applicable legal principle, namely the need for compliance with s 47G(2) of the Act, and the burden of proof. In his reasons, the magistrate said:
There is no doubt that prosecution must prove beyond reasonable doubt that s 47G(2) was complied with.
The fact that the magistrate, later in his reasons, refers to himself as having no “uncertainty” regarding the element requiring proof is of no moment. It is also clear that the magistrate had proper regard to particular risks and weaknesses arising on the prosecution case, namely the time discrepancies on the evidence, when it is noted that most of his reasons are devoted to those discrepancies. Indeed, the magistrate chose to demonstrate his awareness in this case by referring to the particular evidence he accepted and the submissions of counsel.
The evidence supports the magistrate’s finding as to compliance with s 47G(2) of the Act, making the presumption in s 47G(1) of the Act available.
In light of my conclusions, it is unnecessary for me to consider the alternative argument put on behalf of the respondent, namely that if there were any inaccuracy, it would not amount to non‑compliance with s 47G(2) of the Act.
Conclusion
I dismiss the appeal.
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