Humzy v Police

Case [2009] SASC 50

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 50

Magistrates Appeal

  1. DAVID J.               This is an appeal against conviction.

    Introduction

  2. 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

  3. A trial with respect to the…

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AGLC
Humzy v Police [2009] SASC 50
Case
[2009] SASC 50
Decision Date

CaseChat Overview and Summary

The appeal was brought by the appellant, Humzy, against his conviction for driving a vehicle while there was present in his blood the prescribed concentration of alcohol,.081 G of alcohol in 100 Ml of blood. The conviction was made by a magistrate in the Adelaide Magistrates Court, following a trial that began on 13 December 2007. The appellant was fined $500 and disqualified from driving for six months.

The primary legal issue in this case was whether the magistrate's findings, particularly regarding the accuracy of the time of the breath analysis provided to the appellant, were supported by the evidence. Another issue was whether the presumption under s 47G(1) of the Road Traffic Act 1961 (SA) was available to the prosecution. This presumption is contingent upon compliance with certain statutory requirements, including the accurate recording of the time of the breath analysis as per s 47G(2) of the Act.

The court found that the magistrate's decision was not unreasonable and that the evidence supported the magistrate's findings. The court emphasised that any inconsistencies or errors in the evidence did not undermine the overall reliability of the breath analysis results. The court also held that the magistrate's reasons for the decision were adequate and did not reveal any error of law. The appeal was dismissed as the verdict was reasonable and adequately supported by the evidence.

Orders

Orders of the court

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Background

Background to the litigation

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 bloodWhere 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].

Evidence

Evidence Before The Court

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 bloodWhere 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].

Decision

Reasons for decision

DAVID J
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.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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