John Douglas Grant v Michael John O'Leary No. SCGRG 92/2634 Judgment No. 3800 Number of Pages 7 Criminal Law and Procedure Driving Offences

[1993] SASC 3800

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law and procedure - driving offences - Appeal from conviction for driving with prescribed concentration of alcohol - appellant gave .09 per cent reading on breathalyser, and asked for blood sample to be taken under s.47f of the Road Traffic Act - taken to Queen Elizabeth Hospital where blood sample obtained and appellant given sealed container with half of the sample of blood - placed in refrigerator over the ensuing weekend - when presented on the following Monday to a pathologist for analysis, the sample was congealed and could not be analysed - corresponding sample given to the police was successfully analysed and contained .09l per cent blood alcohol - what caused the degradation of the appellant's sample remained unexplained at the end of the trial - held that there was no reason to exclude the evidence of the breath analysis by reason of the condition of the appellant's sample at the time it was presented for analysis - argument that the onus was on the prosecutor to prove that the sample given to the appellant was fit for analysis rejected - held that if the appellant sought the exercise of the discretion to exclude evidence, the onus was on him to prove, in this case, that there had been a departure by the medical practitioner or the police officers from the procedures laid down in s.47f - no such departure was proved, but on the contrary, the evidence established that the requirement of the section had been carried out in every respect - held, however, that the certificate tendered to prove the authority of the operator of the breath analyser to administer a breath analysis was dated subsequently to the date of the alleged offence - although the point had not been taken before the Magistrate - held that the appeal should be allowed on that ground and the case remitted for retrial.
Road Traffic Acts.47f and s.47g. Harrison v Woitasik 147 LSJS 379, (1988) 8 MVR 377; Pacillo v Hentschke (1988) 47 SASR 261, 7 MVR 244; Shearer v Hills
(1989) 9 MVR 555; Tann v Schild (1991) 13 MVR 199; Eubel v Martin (unreported) Bollen J, 30.4.92,Judgment No. 3379 and R v Lee (1950) 82 CLR 133 at 151, considered.

HRNG ADELAIDE, 13 January 1993 #DATE 19:2:1993
Counsel for appellant:         Mrs M Shaw
Solicitors for appellant:     Elston Gilchrist
Counsel for respondent:        Mr A Wainwright
Solicitors for respondent:     B M Selway, Crown
   Solicitor's Office $NORDER Appeal allowed

JUDGE1 PERRY J. The appellant appeals against his conviction in the Magistrates Court at Port Adelaide on a charge that on 17 January 1992 at Ethelton he drove a motor vehicle while there was present in his blood the prescribed concentration of alcohol as defined in s.47a of the Road Traffic Act ("the Act"), contrary to s.47b of the Act. The concentration of alcohol found proved was .090 grams per 100 millilitres of blood. 2. The appellant was apprehended while driving a Ford station wagon at about 7.50 pm on the evening in question at Hart Street, Ethelton. The result of an alco-test was positive, with the result that it was required of him that he subject himself to a breath analysis. Breath analysis was performed using a breathalyser at 8.35 pm. The analysis indicated a concentration of alcohol in the blood of the level to which I have referred. 3. The appellant was then asked whether he wished to have a sample of his blood taken. When he said that he did wish to do so, he was taken to Queen Elizabeth Hospital where a sample of blood was extracted by a medical practitioner. The certificate subsequently furnished by the medical practitioner indicates that the sample was taken at 9.20 pm. In accordance with his obligation under s.47f(3) of the Act, the medical practitioner divided the sample into two equal portions, and placed them in sealed containers, giving one to the appellant. He gave the other sample to a police officer. On subsequent analysis, that sample indicated a level of blood alcohol of 0.091 grams per 100 millilitres of blood. The day on which the offence was alleged to have been committed was a Friday. The appellant placed his half of the sample in a refrigerator over the weekend and took it to a pathological laboratory on the following Monday. Subsequently he obtained a report from the laboratory which indicated that the specimen was congealed, and unsuitable for analysis. 4. At the hearing, the respondent's case was presented by the tender of various certificates pursuant to s.47g of the Act, an affidavit of the police officer in charge of the breath testing station, and a statement tendered by consent, furnished by the medical practitioner who took the blood sample. 5. The appellant gave evidence upon which he was not cross examined, in which he confirmed that he had done nothing to interfere with the integrity of the sample he had been given, and in particular he had followed exactly the instructions of the doctor who had taken the example, and had kept it in a refrigerator until he took it to the pathologist. At no time while it was in his possession was it subjected to extreme heat or other conditions likely to interfere with its suitability for analysis. 6. By consent, the appellant tendered a statement from the pathologist agreeing with the following propositions which had been put to him by letter by the appellant's solicitors:
    "1. On the 20th January, 1992 our client deposited a blood
    sample reference number 246225 at your Goodwood Road office.
    2. The sample was received apparently intact in the container
    in which it had been placed by the medical practitioner who took
    the sample.
    3. The blood sample was congealed (viscous) and unsuitable for
    analysis.
    4. The blood sample may have become congealed and thus rendered
    unsuitable for analysis because:-
    (a) The container was incorrectly sealed (which was not evident
    in this case), or
    (b) The sample was exposed to extreme heat, for example, direct
    sunlight, the dashboard of a car, microwave exposure, or
    (c) An inappropriate amount of anti-coagulant may have been
    added to the sample when taken at the Queen Elizabeth Hospital,
    or
    (d) By virtue of the sample ageing (samples are usually capable
    of analysis for up to six months if not affected as indicated in
    a, b and c above).
    5. It is not usual for a blood sample to congeal within three
days." 7. The appellant contended before the learned trial Magistrate that the certificate furnished pursuant to s.47g(5) of the Act as to the result of the breath analysis was not admissible, by reason of the fact that the sample of blood given to the appellant proved unsuitable for analysis. The learned trial Magistrate rejected that argument and held that the certificate be admitted. It is clear from his reasons that although the question was regarded as a question of admissibility, in reality he was being asked to exercise a discretion to exclude the certificate. Be that as it may, he found no ground upon which he could properly exercise a discretion to do so. He held that on the evidence all of the relevant provisions of the Act had been complied with, and he went on to hold: "In those circumstances, the question of my discretion does not really arise." 8. He also dismissed an argument that, in the circumstances, to allow the prosecution to proceed was an abuse of process. After convicting the appellant, he imposed a fine of $500, together with court fees, and imposed a licence disqualification for six months. 9. As originally filed, the Notice of Appeal complained that the learned Magistrate erred in finding that the evidence of the appellant's blood alcohol concentration was admissible, or in the alternative that he erred in failing to exercise his discretion to exclude the evidence on the ground of unfairness. In the further alternative, the notice complains that the learned Magistrate erred in failing to stay the proceedings as an abuse of process. 10. At the commencement of the hearing before me, I allowed an amendment to the Notice of Appeal to add a ground in the following terms: "1A. That the Learned Supervising Magistrate erred in admitting into evidence the evidence of the Appellant's blood alcohol concentration as the prosecution had failed to prove that the operator of the breath analysing instrument, Constable Eagle, was authorised by the Commissioner of Police to operate that instrument on the 17th day of January 1992, as required by Section 47g(1) of the RoadTraffic Act 1961." 11. At this stage it is convenient to set out the relevant part of s.47g of the Act. S.47g(1) reads: "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." 12. Ss.(5) reads:
    "Subject to subsection (6), in proceedings for an offence under
    section 48(1) or 47b(1), a certificate purporting to be signed
    by a person authorized under subsection (1) and to certify that-
    (a) a sample of the breath of a person named in the certificate
    was furnished for analysis in a breath analysing instrument;
    (b) a concentration of alcohol expressed in grams in 100
    millilitres was indicated by that breath analysing instrument as
    being present in the blood of that person on the day and at the
    time stated in the certificate;
    (c) a statement in writing required by subsection (2) was
    delivered in accordance with that subsection; and
    (d) the person named in the certificate was informed and warned
    of the matters referred to in subsection (2a) in accordance with
    that subsection, is, in the absence of proof to the contrary,
proof of the matters so certified." 13. In this case, the certificate given pursuant to s.47g(5) was as follows:
"CERTIFICATE PURSUANT TO SUBSECTION (5) OF SECTION 47g OF THE
ROAD TRAFFIC ACT 1961 I, Constable Eagle, being a person
authorised under Subsection (1) of Section 47g of the Road
    Traffic Act, 1961, to operate Breath Analysis Instruments, do
    hereby certify:
    1. that on the 17th day of January 1992 at 8.39 pm I analysed a
    sample of breath furnished by John Douglas Grant, Industrial
    Relations Officer, of 11 Drysdale Court, Westlakes Shore at Hart
    Street, Glanville, into a Breath Analysing Instrument, and
    2. that on the 17th day of January 1992 at 8.39 pm the
    instrument indicated that the concentration of alcohol present
    in the blood of the abovenamed person whose breath was analysed
    was 0.090 grams in a hundred millilitres of blood, and
    3. that on the 17th day of January 1992 at 8.48 pm a statement
in writing as required by Subsection (2) of Section 47g of the
    Act was delivered to the abovenamed person whose breath was
    analysed.
    4. that on the 17th day of January 1992 at 8.52 pm I, in
accordance with Subsection (2a) of Section 47g of the Act,
    informed and warned the abovenamed person forthwith of the
matters referred to in Subsection (2a) of Section 47g of the
Act." 14. In my opinion, the first ground of appeal, namely, that the learned Magistrate erred in finding that the evidence (that is, the abovementioned certificate given pursuant to ss.(5)) of the appellant's blood alcohol concentration was admissible, is not made out. The certificate in question complied with ss.(5) and was, therefore, proof of the matters certified in the absence of proof to the contrary. Pursuant to s.47g(1), subject to the question of proof of the authority of the person operating the breath analysing instrument, where the requirements and procedures in relation to breath analysing instruments and breath analysis under the Act, including ss.(2) and (2a), have been complied with, it must be presumed "that the indicated blood alcohol level was present for the two hours immediately preceding the analysis". (The emphasis is mine.) There was no ground upon which the tender of the certificate under ss.(5) could have been held inadmissible, and once in evidence, the presumption referred to in s.47g follows as a matter of law. 15. It is true that if there has been a failure to comply with the procedures as to a blood test under s.47f, which may properly be said to result in unfairness to the defendant, evidence of a preceding breath analysis may be excluded in the exercise of a discretion. (See Harrison v Wojtasik (White J) 18.11.88 147 LSJS 379, (1988) 8 MVR 377, Pacillo v Hentschke (1988) 47 SASR
261, 7 MVR 244, Shearer v Hills (1989) 9 MVR 555, Tann v Schild (1991) 13 MVR
199 and Eubel v Martin (unreported) Bollen J 30.4.92 Judgment No. S.3379). 16. Here, however, it seems to me that there was a compliance with all that was required of both the police officer and the medical practitioner, pursuant to s.47f. The reason why the sample given to the appellant congealed remains, on the evidence, unexplained. Certainly, it was not proved that the congealing of the appellant's sample was occasioned by any failure to follow the procedures set out in s.47f. Indeed, the appellant consented to the tender at the hearing of a statement by the medical practitioner, a Dr Christopher Sexton, which proved the regularity of the procedures adopted by him. His statement reads:
    "On the 17th January 1992, I was on duty at the Queen Elizabeth
    Hospital. At about 9.15 pm, I obtained a blood sample from John
    Douglas GRANT. I used the standard pack provided for the
    routine taking of blood. The pack was sealed and contains a
    10ml syringe, a needle, two 5ml sample bottles, two numbered
    labels and a skin cleansing swab. I extracted 10ml of blood and
    placed 5mls in each sample bottle. I screwed the lid on each of
    the bottles, then placed the stick on labels around the top of
    each bottle, so that it covered the lid. I then completed the
    necessary paperwork, in triplicate. I placed one copy with one
    sample into an envelope, gave it to GRANT and asked him to sign
    for it. I placed the other sample together with the two other
    copies into a clear plastic bag, sealed it and gave it to the
    Police Officer. GRANT left the Hospital at 9.30pm. I always
    advise people to refrigerate their blood sample if they intend
having it analysed." 17. It follows that this is not a case where there was some deliberate or inadvertent non-compliance by the authorities with the exercise of their statutory powers, which could give rise to the exclusion of evidence in the exercise of what has become known as the Bunning v Cross discretion. It is doubtful also whether the separate "fairness" discretion is of application where there has been no irregularity on the part of the authorities. See R v Lee (1950) 82 CLR 133. Cases such as Harrison v Wojtasik (supra) and the other cases to which I have referred, all involved some irregularity on the part of the police or other authorities. 18. Furthermore, I do not accept the proposition, put by Mrs Shaw of counsel for the appellant, that "the onus is on the prosecution to prove my client was handed a sample that was capable of analysis". If the prosecution does not tender the result of the blood analysis, there is no requirement that the prosecution prove anything about it. If the defendant suggests that there was an irregularity in the taking of a blood sample, the onus is on the defendant to prove the irregularity if he seeks the exercise of a discretion to exclude another item of evidence, that is, the breath analysis certificate, by reason of the irregularity in the taking of the blood sample. But where, as is the case here, the defendant consented to the tender of a statement which, together with other evidence, shows that there was no such irregularity, and that in fact, s.47f was fully complied with, the defendant has not proved a basis upon which the "fairness" discretion could be invoked. Putting it another way, the fact that the appellant's blood sample congealed, did not prove that there was a non-compliance with s.47f. "Unfairness" does not mean unfairness at large. "Unfairness" gives rise to a discretion to exclude evidence only when it is based upon some impropriety or unfair conduct on the part of the police: see McDermott 76 CLR 501 per Dixon J at 513 and Lee (1950) 82 CLR 133 at 151. 19. It follows that there would be no reason to disturb the conviction on the grounds to which I have referred so far. 20. However, it seems to me that the appeal must succeed on the amended ground, namely, the alleged failure to prove that the operator of the breathalyser had the requisite authority. 21. Two certificates of authority, ostensibly signed by the Commissioner of Police, were tendered by consent. The first was dated 11 March 1992, and the second 29 May 1992. The earlier of the certificates read as follows:
"CERTIFICATE OF AUTHORITY PURSUANT TO SECTION 47g OF THE ROAD
    TRAFFIC ACT, 1961, AND PURSUANT TO SECTION 30f OF THE BOATING
    ACT, 1974 1, David Alexander HUNT Commissioner of Police do
    hereby authorize Tracy Fay EAGLE First Class Constable of Police
    No. 5156/5 to operate breath analysing instruments pursuant to
    Section 47g of the Road Traffic Act, 1961 and pursuant to
    Section 30f of the Boating Act, 1974. Issued at ADELAIDE on the
11th day of March 1992 D. Hunt (signed) Commissioner of Police. 22. The second certificate was in exactly the same form except that the surname of Ms Eagle was changed to Kingham, and the date to 29 May 1992. It will be seen that the certificates are in the present tense, namely, "do hereby authorize". In that form, the certificates could not have any retrospective operation. The date of the alleged offence in question being 17 January 1992, there was no evidence before the learned Magistrate of the requisite authority. 23. It is true that the certificate furnished pursuant to s.47g(5) contains the words, after referring Constable Eagle:
    "being a person authorized under subsection (1) of section 45g
    of the Road Traffic Act 1961 to operate breath analysing
instruments, do hereby certify -" 24. But the certificate given pursuant to ss.(5) is only proof of the matters set out in sub-paragraphs (a)-(d) (inclusive) of the sub-section. None of those matters refer to the authority of the operator of the breath analyser. It follows that although the certificate contained the words to which I have referred, it did not operate as proof of authority. 25. The question of the authority, or lack of authority, of the operator was not raised before the learned Magistrate. In some cases, where, had the point been taken on the hearing of the complaint, the complainant might have been permitted to supplement his case by calling further evidence, the defendant may not be permitted to raise the point in appeal (see Riera v Gore (1981) 28 SASR 228). However, in the circumstances of this case, it would be wrong to allow the conviction to stand having regard to the lack of proof of authority. 26. Accordingly, the appeal will be allowed, and the matter remitted to the Magistrates Court for a re-hearing. 27. Before parting with the matter, I should say that, as I have said, the Notice of Appeal included as a ground of appeal that the learned Magistrate erred in declining to stay the proceedings. Mrs Shaw did not address on the point, although it was in her outline of argument. It is sufficient for me to observe that, were it necessary to deal with the matter, no grounds were made out upon which it would have been proper for the learned Magistrate to order a stay. 28. Finally, I observe that it may well be that, having regard to the relatively low level of blood alcohol concentration, and the other circumstances of the case, including the fact that the appellant's sample turned out to be unfit for analysis, those responsible for dealing with the matter may see fit not to prosecute the charge further.