James Kingsley Fauser v Brian William Boyle No. 4103 Judgment No. SCGRG 93/706 Number of Pages 6 Vehicles and Traffic Offences

[1993] SASC 4103

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DUGGAN J

CWDS
Vehicles and traffic - offences - Drink driving charge - based on breath analysis reading - delay of eight minutes between reading showing on instrument and respondent being advised of his rights under Road Traffic Act, s.47g(2a) - operator testing machine during this period to ensure accuracy of reading - held that rights were communicated to respondent 'forthwith' as required by s.47g(2a) - meaning of word 'indicated' as used in the section discussed. Finding of no case to answer not justified - dismissal set aside and matter remitted for rehearing.

HRNG ADELAIDE, 2 August 1993 #DATE 7:9:1993
Counsel for appellant:     Mr S McEwen
Solicitors for appellant:    Crown Prosecutor
Counsel for respondent:     Ms S Holmes
Solicitors for respondent: Reilly Basheer Downs
   and Humphries

ORDER
Appeal allowed.

JUDGE1 DUGGAN J The respondent was charged with two breaches of the Road TrafficAct, 1961, namely, failing to give right of way and driving while there was present in his blood the prescribed concentration of alcohol. He pleaded guilty to the first charge and not guilty to the drink driving charge. At the conclusion of the prosecution case the learned magistrate found that the respondent had no case to answer on this charge and dismissed it. The appellant now appeals against that decision which was based on the learned magistrate's view that the prosecution could not rely on the presumption provided for in s.47g of the Act as to the concentration of alcohol indicated on the breath analysing instrument because the operator of the instrument did not forthwith inform and warn the respondent as to his rights in accordance with s.47g (2a) of the Act. 2. The respondent was apprehended by Constable Kennedy whilst driving along Davenport Street, Millicent. He was taken to the Millicent Police Station and breath tested by Kennedy. A reading of .090 grams of alcohol per 100 millilitres of blood was recorded. Kennedy said that when the instrument showed this reading he complied with a standing instruction to test the instrument so as to ensure that it was operating correctly. This involved flushing fresh air through it followed by a standard alcohol solution. The time taken for this test was eight minutes. As soon as it was completed the respondent was handed the statement in writing required by s.47g(2) specifying the concentration of alcohol and the date and time of the analysis and informed of his rights pursuant to s.47g(2a). 3. The learned magistrate accepted the argument that the delay of approximately eight minutes between the registering of the reading on the instrument and the giving of the advice required by s.47g(2a) resulted in a failure to advise the respondent of his rights "forthwith". 4. Insofar as it is relevant s.47g provides as follows:
    "47g. (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 against
    this Act, of the concentration of alcohol indicated as being
    present in the blood of the defendant by a breath analysing
    instrument operated by a person authorized 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 and throughout the
    period of two hours immediately preceding the analysis.
    (1a) In any proceedings for an offence against this Act, no
    evidence can be adduced in rebuttal of the presumption created by
    subsection (1) except 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 47f or
    47i.
    (1b) In any proceedings for an offence against this Act, no
    evidence can be adduced as to a blood alcohol reading obtained
    from a coin-operated breath testing or breath analysing machine
    installed in any hotel or other licensed premises.
    (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 concentration of alcohol indicated by the analysis to
    be present in the blood expressed in grams in 100 millilitres of
    blood; 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) inform that person of the right pursuant to section 47f to
    have a sample of blood taken by a medical practitioner; and
    (b) warn that person that, if he or she does not exercise that
    right, it may be conclusively presumed for the purposes of
    proceedings for an offence against this Act that the
    concentration of alcohol in the blood during the period of two
    hours preceding the analysis was the concentration as indicated
by the breath analysing instrument." 5. The first argument advanced by Mr McEwen, for the appellant, was that the instrument did not "indicate" the concentration until it was checked for accuracy. He relied upon the following passage from the judgment of King CJ in Evans v Benson (1986) 46 SASR 317 at 325:
    "The onus of proving a charge of a drink driving offence,
    whether a charge of driving under the influence of liquor in
    contravention of s 47(1) or a charge of driving while there is
    present in the blood the prescribed concentration of alcohol in
    contravention of s 47b(1), is on the prosecution. Such proof may
    be aided by the presumption as to blood alcohol concentration
    created by s 47g(1). To avail itself of this presumption, the
    prosecution must prove, in addition to compliance with the
    requirements and procedures under the Act, that the breath
    analysis instrument 'indicated' a particular concentration. To
    establish that the instrument 'indicated' a particular
    concentration, it is necessary to prove that the instrument was
    in proper order and was properly operated, and that the indicator
    pointed on the dial to that concentration. These matters may be
    proved by appropriate certificates pursuant to subss (3) and (5)
    of s 47g, but may also be proved by other means." 6. The learned Chief Justice was focusing attention in this passage on what must be proved by the prosecution in order for a conviction to be recorded. Mere proof that the indicator pointed to a particular concentration on the dial would be insufficient. However I do not think his Honour intended to provide a definition of the word "indicated" as it is used in s.47g to describe a step in the procedure laid down by the legislation. 7. The meaning of the term "indicated" in s.47g was considered by Cox J. in Fingleton v Richardson (1980) 23 SASR 297. It had been argued in that case that the evidence of an expert to establish the possibility of inaccuracy in the breath analysis reading was relevant and in the course of argument it was suggested that there was a distinction between what the machine appears to indicate and what, to the expert aware of its in-built susceptibility to error, it really does indicate. In rejecting the argument Cox J. said (p.303):
    "It refers, in my opinion, to the reading shown on the dial
    and purporting to give the defendant's blood alcohol level at
    that time. Not only is this the ordinary meaning of 'indicate'
    (see S.O.E.D. definition - "to point out, point to, to make
    known, show (more or less distinctly)"; cf. Maurice Binks (Turf
Accountants) Ltd v Huss (1971) 1 WLR 52, but any other
    interpretation of the sub-section would introduce an uncertainty
    that would be subversive of the statutory presumption and make it
    largely pointless. I consider, therefore, that the Special
    Magistrate was right when he held that the evidence of Mr. Lokan
was not admissible at the hearing of this charge." 8. This interpretation was upheld on appeal. (Richardson v Fingleton (1980) 24 SASR 510 at 517.) I suppose the question remains as to whether a faulty instrument can indicate anything at all (ibid at 517), but in the present case there was no suggestion that the instrument gave any indication of being faulty and I think that the reading was "indicated" as soon as it was shown on the instrument. 9. The next argument advanced by Mr McEwen was that, in any event, there had been compliance with the requirement that the respondent be advised of his rights "forthwith". 10. The effect of a statutory obligation to comply with a requirement forthwith will depend upon the particular enactment. However it has been held in the case of some statutes that the use of the word does not require compliance immediately without the occurrence of any intervening event. 11. In R v Conley (1982) 30 SASR 226 the Court of Criminal Appeal considered the effect of s.78(1) of the Police Offences Act, 1953 which required that a person apprehended without warrant under the Act "shall be forthwith delivered" into the custody of the police officer in charge of the nearest police station. 12. The Chief Justice said (p.240):
    "The requirement of s.78(1) that the person apprehended be
    forthwith delivered into the custody of the member of the police
    force is undoubtedly strict and intended by parliament to be
    strict. As was said by the Full Court in Drymalik v Feldman
(1966) SASR 227, at p.234, the obligation imposed on arresting
    police officers must be understood reasonably. Nevertheless the
    word 'forthwith' cannot be ignored. No matter how reasonably the
    obligation is interpreted, the word 'forthwith' leaves little
    latitude. It means that the arrested person must be taken to the
    police station in the shortest time which is reasonably
    practicable in the existing circumstances. Some delay may be
    necessitated by the circumstances and may therefore be consistent
    with the obligation to deliver 'forthwith'. There is a competing
    obligation to keep the peace, to investigate the commission of
    crime, and to collect evidence. It may be imperative to put some
    questions to the arrested person without delay in order to
    clarify some aspect of the situation. It may be necessary to
    obtain the names and addressed of witnesses at the scene or to
    take steps to preserve evidence, perhaps even to conduct a quick
    search of the locality. It may be necessary to cope with an
    emergency situation. For example, a suspect may be able to lead
    immediately to a victim who is being held captive, or to money or
    other property which is in danger of dissipation or destruction,
    or to accomplices who might otherwise escape. Deviations from
    the direct route to the police station in order to identify
    objects or places, or to collect articles from the arrested
    person's place of residence, place of business or motor vehicle
    may be regarded as permissible provided that the delay involved
    is brief. It is not possible to specify exhaustively the
    examples of delay which may be consistent with compliance with
the requirements of the section." 13. Although I am of the view that there is less scope for holding that there has been compliance with the obligation to advise forthwith of the rights referred to in s.47g despite the occurrence of an intervening event or events, nevertheless I have reached the conclusion that the respondent in the present case was advised of these rights forthwith. Although the blood alcohol level was indicated before the checking procedure, the steps which were taken as soon as the reading appeared were intended to verify that reading and were, therefore, directly related to it. Although certificates may be used to prove that the instrument used is in proper order and was properly operated, these matters may be proved by other means (Evans v Benson supra at p.326.) Furthermore the fact that certificates might be used as aids to proof of these matters in no way relieves the operator of the obligation (to be inferred from the legislation) of being satisfied that the apparatus is in proper working order and is properly operated. It is my view that if this can be achieved by a process lasting eight minutes which is performed immediately after the reading appears then it can still be said that the communication of the person's rights was given forthwith after the indication of the concentration of alcohol. 14. In reaching this view I have not forgotten those cases which emphasise the necessity for strict compliance with the provisions of the Act if the presumptions provided for in the section are to be relied upon. However the fact that the information referred to in s.47g(2a) was conveyed on the same occasion that the test was done; that only eight minutes separated the indication and the communication; and that during that time the accuracy of the machine and therefore the reading were being verified, all persuade me that the section, insofar as it requires communication forthwith, was complied with. 15. I think it can be inferred from the learned magistrate's reasons that he was of the view that the statement in writing referred to in s.47g(2) had been delivered to the respondent "as soon as practicable" after the analysis. In my view this opinion was correct (cf. Creely v Ingles (1969) VR 732.) The learned magistrate may also be correct in his view that the use of the word "forthwith" in the same section would suggest that a stricter approach should be taken as to the time within which the obligation under s.47g(2a) is to be performed. However, for the reasons which I have given, I remain of the view that the latter subsection was complied with in the present case. I allow the appeal, set aside the order of dismissal and remit the matter to the learned magistrate to be dealt with according to law.