Johns v Police - [2013] SASC 122

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JOHNS v POLICE
[2013] SASC 122
Judgment of The Honourable Justice David
2 August 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - EVIDENCE AND COURSE OF TRIAL - QUESTIONS OF ADMISSIBILITY
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
Appeal against conviction. The appellant pleaded not guilty to one count of aggravated driving without due care, one count of driving whilst so under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle, and one count of driving with a prescribed blood alcohol concentration. The appellant was convicted of all three counts and now appeals against those convictions on the grounds that the Magistrate erred by (1) finding that the breath analysing instrument was in proper working order and (2) by finding that the appellant was the driver of the vehicle.
Held: Appeal dismissed.
1. The Magistrate did not err in accepting the certificate under s 47K(3) of the Road Traffic Act 1961 (SA) as proof that the breath analysing instrument used on the appellant was in proper working order. On the evidence it remains unclear as to whether the particular instrument used on the appellant was a standard model or a later series model instrument. Despite the fact that the certificate may have described the incorrect model of instrument used on the appellant, it nevertheless clearly identifies the particular instrument used on the appellant by a range of other details. Therefore, there remains no reason why the certificate should not be used for evidentiary purposes in relation to that particular instrument as provided for under s 47K(3).
2. The Magistrate did not err in finding that the appellant was the driver of the vehicle. The Magistrate was satisfied that the appellant had made admissions to this effect to a police officer and that the appellant’s subsequent denials of these admissions were lies. The Magistrate was not required to direct himself as to the dangers of accepting evidence of the appellant’s admissions as reliable evidence as, it is clear from his reasons, that evidence of the appellant’s admissions was only one of the many factors he considered to arrive at his finding that the appellant was the driver. Further, the Magistrate was not required to direct himself as to the use of an accused’s lies as a consciousness of guilt as it is evident from his reasons that he did not rely on the appellant’s denials of his admissions as evidence of his guilt.
Road Traffic Act 1961 (SA) s 45, s 47(1)(a), s 47B(1)(a), s 47EB, s 47H, s 47K(1), s 47K(3), s 47K(5), s 47K(7), s 175(1), referred to.
McKinney v The Queen (1991) 171 CLR 468; Edwards v The Queen (1993) 178 CLR 193, considered.

JOHNS v POLICE
[2013] SASC 122
Magistrates Appeal: Criminal

DAVID J: The appellant was charged with the following offences on complaint:
1.On the 11^th day of December 2011 at WHYALLA in the said State, drove a vehicle namely a motor vehicle registration number WVE786 on road namely Lockwood Crescent without due care.
Section 45 of the Road Traffic Act 1961.
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that there was present in his blood a concentration of .08 grams or more of alcohol in 100 millilitres of blood.
This is a summary offence.
2.On the 11^th day of December 2011 at WHYALLA in the said State, drove a vehicle namely a motor vehicle registration number WVE786 on a road namely Lockwood Crescent whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the said vehicle.
Section 47(1)(a) of the Road Traffic Act 1961.
This is a summary offence.
3.On the 11^th day of January 2012 at WHYALLA in the said State, drove a motor vehicle registration number WVE786 on a road namely Lockwood Crescent while there was present in his blood the prescribed concentration of alcohol as defined in Section 47A of the Road Traffic Act 1961.
Section 47B(1)(a) of the Road Traffic Act 1961.
This is a summary offence.
It is further alleged that the concentration of alcohol was 0.227 grams in a hundred millilitres of blood.
The appellant pleaded not guilty and, following a trial before a Magistrate, was convicted of all three counts. He now appeals against those convictions.
Trial
At trial, there was no dispute that shortly after 1:00am on 11 January 2012 a white Toyota utility vehicle, registration number WVE786, collided with the rear of a Ford sedan that was parked on Lockwood Crescent, Whyalla Stuart. The utility vehicle was a work vehicle used by the appellant, registered to his employer. The driver of the utility vehicle fled the scene following the collision and the primary issue at trial was the identity of the driver of the utility vehicle at the time of the collision.
The prosecution called five witnesses; Leslie Adamson, Catherine Mackenroth, Adam Mackenroth, Constable Luke Watts and Constable Linda Moyse.
Ms Adamson and Mr and Mrs Mackenroth were all Lockwood Crescent residents who were awoken by the noise of the vehicle collision and subsequently witnessed a male fleeing the area. Ms Adamson, the owner of the Ford sedan, observed from her bedroom window the driver alight from the utility vehicle, look over his left shoulder and run in an easterly direction towards Abraham Drive. Ms Adamson told the Court that her vantage point at her bedroom window was approximately five to seven metres away from the vehicles.
Mr and Mrs Mackenroth gave evidence that the sound of the vehicle collision woke them and caused them to go out the front of their residence. From this position, they both witnessed a male running down Lockwood Crescent from left to right in front of them. They called out to the male, to which the male did not respond and kept running.
Constable Watts gave evidence that he was on mobile patrol with Constable Moyse on the evening of 11 January 2012 when they were tasked to attend a “hit and run” vehicle collision on Lockwood Crescent. Whilst Constable Moyse was driving en route to Lockwood Drive, Constable Watts sighted a male on the side of the road on Abraham Drive. After Constable Moyse stopped the vehicle, Constable Watts alighted from the vehicle to speak with the male. Constable Moyse continued to Lockwood Crescent to attend at the scene of the vehicle collision. On her evidence, the scene of the vehicle collision was approximately 400 metres away from where she left Constable Watts.
Constable Moyse told the Court that, at the scene, she inspected the vehicles, recorded the details of witnesses and obtained a description of the male seen fleeing the scene. Within five minutes of leaving Constable Watts on Abraham Drive, she communicated over the radio to Constable Watts and other local patrol members a description of the male seen fleeing the scene as provided to her by the witnesses.
Constable Watts told the Court that the male he remained speaking to on Abraham Drive identified himself as William Johns. After he had received the information from Constable Moyse regarding the brief description of the male seen fleeing the scene along with the registration number of the utility vehicle and the company to which it was registered, his conversation with the appellant continued as follows:
Watts:Who do you work for, mate? Are you responsible for the Toyota Ute registration WVE786?
Johns:Yeah, why?
Watts:That’s the one in the crash about 100m away, mate, with the keys in it and a pair of thongs in the driver’s side foot well.
Johns:I don’t know what you are talking about.
Watts:You are required to tell me who was driving otherwise I will be arresting you for failing to truly answer.
Johns:When was this?
Watts:About 10 minutes ago.
Johns:Well, yeah, it was me.
On Constable Watts’ evidence, he then advised the appellant that he would need to attend at the police station to participate in a breath analysis test as he appeared to Constable Watts to be clearly intoxicated. The appellant agreed and he was conveyed to Whyalla Police Station by other officers. Constable Watts joined Constable Moyse at the scene of the collision and they both briefly inspected the vehicles. They made similar observations, including damage to the front windscreen on the driver’s side of the utility vehicle which appeared to have been cause by impact from the inside.
Upon their return to Whyalla Police Station, Constable Watts conducted a breath analysis test on the appellant in the presence of Constable Moyse. This procedure and the subsequent questioning of the appellant was video recorded (Exhibit P6). Two breath samples were taken from the appellant, with the lower reading adopted as the appellant’s formal reading. Relevantly, the appellant’s formal reading was 0.227 grams of alcohol per 210 litres of breath. The appellant was provided with a notice of licence disqualification (Exhibit P7) and a Breath Analysis Statement (Exhibit P8).
During the breath analysis procedure and the subsequent questioning of the appellant, the appellant repeatedly denied any involvement in the vehicle collision on Lockwood Drive, contrary to his earlier admission to Constable Watts at Abraham Drive.
Following the procedure, the appellant’s jumper was seized for analysis as Constable Moyse had noticed small glass fragments in the appellant’s hair and on the appellant’s shoulders. Constable Watts gave evidence that the appellant was wearing a white t-shirt under his jumper. The Court received a report of the analysis of the glass fragments (Exhibit P9) as compared to a sample of glass from the windscreen of the utility vehicle. The results “strongly support[ed] the proposition that…[the appellant’s jumper] was close (within 1-2 metres) to the glass from the vehicle windscreen…when it broke.”
The Court received evidence to establish that the appellant’s blood alcohol concentration was 0.227g/100ml[1] at the relevant time. To this end, the prosecution tendered evidence of Constable Watts’ authority to conduct the breath analysis procedure on the appellant (Exhibit P10), evidence of the appellant’s two breath analysis readings (Exhibit P12), evidence that the breath analysis instrument used was in proper working order and evidence that the testing of the appellant was conducted in accordance with proper procedure (Exhibits P11 and P13). Exhibits P12 and P13 were certificates pursuant to s 47K of the RTA and therefore invoked the evidentiary presumptions provided for under s 47K, namely that the contents of the certificates were proof of the facts stated therein in the absence of any evidence to the contrary.
[1] That is, the appellant had a concentration of alcohol in his breath of 0.227g/210L, which is taken to be a concentration of alcohol in his blood of 0.227g/100ml, pursuant to s 47EB of the Road Traffic Act 1961 (SA).
Counsel for the appellant objected to one of the s 47K certificates (Exhibit P13) being admitted on the ground that it did not correctly identify the particular breath analysing instrument used to test the appellant and that such uncertainty should therefore preclude the certificate from being admitted and relied upon as evidence of the proper operation of the instrument used on the appellant. The basis for this objection was a discrepancy between descriptions of the particular model of instrument that was used on the appellant in various documents received by the Court; the s 47K(3) certificate (Exhibit P13) describes the instrument as a standard model “Drager Alcotest 7110”, as does a printed docket attached to the breath analysis statement (Exhibit P8), whereas a calibration report (Exhibit P11) describes the particular instrument as a later model “Drager Alcotest 7110 Mk V”.
The learned Magistrate was satisfied that the description of the breath analysing instrument used on the appellant as a “Dräger Alcotest 7110” in the certificate (Exhibit P13) was not fatal to the admissibility of the certificate, even though it remained unclear as to whether the particular instrument used to test the appellant was in fact a standard model “Dräger Alcotest 7110” or a later series “Dräger Alcotest 7110 Mk V”.
The appellant chose not to give evidence at trial.
Magistrate’s reasons
The Magistrate was required to be satisfied beyond reasonable doubt as to the blood alcohol concentration of the appellant so as to find counts 1 and 3 proved against him. Under the legislative framework of the RTA, this merely required the Magistrate to be satisfied as to the admissibility of the s 43K certificates tendered by the prosecution (Exhibits P12 and P13) in order to invoke the evidentiary presumptions regarding the relevant instrument, the testing procedure and the ensuing results that are provided for under s 47K of the RTA. As already stated, despite objection to the admissibility of the s 47K(3) certificate (Exhibit P13), the Magistrate received the certificate into evidence along with Exhibit P12 and was thereby satisfied that the appellant had a blood alcohol concentration of 0.227g/100ml at the relevant time.
Further, the Magistrate was required to find that the appellant was the driver of the utility vehicle at the time of the collision to make out all three counts against him. I take this opportunity to note that the Magistrate erred in his approach of this task by stating in his reasons that he was required to be satisfied beyond reasonable doubt that the appellant was the driver, without having regard to s 175(1)(i) of the RTA, which provides:
175—Evidence
(1)In proceedings for an offence against this Act, an allegation in a complaint that—
…
(i)    a specified person was the owner, operator, person in charge or driver of a specified vehicle,
is proof of the matters so alleged in the absence of proof to the contrary.
However, this error favoured the appellant as the Magistrate placed the onus of proof upon the prosecution at a higher level than was required and, nevertheless applying that onus, the Magistrate found that it had been proved beyond reasonable doubt that the appellant was the driver of the vehicle at the time of the collision for the following reasons:
(a)All three witnesses consistently identified the driver as wearing a light coloured t-shirt and shorts and the appellant was in fact wearing shorts and a white t-shirt, albeit with a light coloured jumper over the t-shirt when located by police;[2]
(b)None of the three witnesses noticed any other person in the vicinity of the collision immediately after the impact;[3]
(c)A pair of thongs were located in the foot well of the utility vehicle, the appellant admitted to owning thongs and the appellant was barefoot when he was located by the police;^[4]
(d)The appellant had glass on his person consistent with the glass from the broken windscreen of his vehicle;[5] and
(e)The defendant admitted that he was the driver of the vehicle involved in the collision when speaking to Constable Watts at Abraham Drive and only later repeatedly and falsely claimed he was not the driver when at the police station “as he realised his predicament and the consequences of his previous actions.”[6]
[2]    Police v Johns, judgment of Mr J. Harry ASM, 22 April 2013, at [24-25].
[3]    Police v Johns, judgment of Mr J. Harry ASM, 22 April 2013, at [26].
[4]    Police v Johns, judgment of Mr J. Harry ASM, 22 April 2013, at [27].
[5]    Police v Johns, judgment of Mr J. Harry ASM, 22 April 2013, at [26].
[6]    Police v Johns, judgment of Mr J. Harry ASM, 22 April 2013, at [28].
Having found that the appellant was driving the utility at the time of collision and that he had a blood alcohol level of 0.227g/100ml at that time, the learned Magistrate was able to find count 3 proven against the appellant. The Magistrate further found count 1 proved as he concluded that the appellant’s act of driving the utility vehicle into a parked vehicle was a departure from the standard of care reasonably expected from a normally prudent driver. He further found count 2 proved as a reasonable objective observer would have adjudged that at least one of the appellant’s physical and mental faculties was so impaired by intoxicating liquor that it rendered him incapable of exercising effective control of his vehicle at the relevant time.
Appeal
I set out the grounds of appeal as amended:
1.The Learned Stipendiary Magistrate erred in finding that the Police had proved that the breath analysing instrument used for the appellant to provide a sample of breath was in proper working order at the time the sample was furnished and therefore that the appellant had a case to answer on count three and that the aggravating factor had been proved for count one.
Particulars
(a)     Elements for count three - 47B(1) of the Road Traffic Act 1961 (The Act)
(i)Prosecution must prove the appellant drove the relevant motor vehicle on the occasion in question.
(ii)At the time of driving, or the preceding two hours prior to providing a breath sample the appellant had the prescribed concentration of alcohol alleged, namely 0.227.
(b)     Method of proof
(i) Section 47K(1) of The Act provides the matters to be proved.
(ii) This can be by strict proof or with certificates as allowed under The Act.
(c) The relevant certificates to prove the offence under section 47B(1) of The Act are allowed under Section 47K(3)(b), 47K(5) and 47K(7).
(d) In this case the 47K(3)(b) certificate does not prove that the relevant breath analysing instrument (as defined in section 47A and 47H of The Act namely Dräger Alcotest 7110 Mk V that was used was in proper working order at the time of operation. (Exhibit P13 paragraph 3).
(e)     All other certificates filed prove every other element of the offence necessary for count three.
(f) The fact that the Governor approved a separate type of Dräger instrument in 2002 must mean that there is a difference in the machines from previous Dräger gazetted approvals in 1990 and 1994, otherwise there would be no point making a further approval/ declaration. (See section 47H referring to apparatus of a specified kind.) The 47K(3)(b) certificate does not refer to the correct breath analysing instrument and therefore provides no proof on this topic.
(g)     The method of proof therefore fails to prove the offence charged and also fails to prove the aggravating factor for count one.
(h)     This issue was raised at trial by counsel at T24 lines 13/20.
(i)    The authority of Police v Hemsley [1994] SASC 4699 is distinguishable because there were no further apparatus’ approved by the Governor under section 47H of The Act at the time of that appeal
(j)    The calibration certificate (P11) does not prove the matters sought to be proved in the 47K(3)(b) certificate.
2.The Learned Special Magistrate erred in two matters of law in considering the issue of whether the appellant was the driver of the vehicle namely
(a)     The acceptance of a disputed admission by the appellant that he was the driver as the admission was not reliably recorded and he failed to properly warn himself in those circumstances.
(b)     The finding that the appellant lied when he denied being the driver as being based on a consciousness of guilt.
I deal with each ground of appeal in turn.
I note that a further issue arose during submissions in connection to the duplicitous nature of the basis of the aggravating factor of count 1 and the facts which are the basis of count 3, namely driving with a blood alcohol concentration of 0.227g/100ml. As no grounds of appeal regarding penalty are currently before me, I am not required to consider this issue any further. However, as I understand it, this matter has been addressed by the Magistrate as reflected by the fact that he has refrained from imposing any penalty on the appellant in respect to count 3.
Ground 1

In order to understand the appellant’s argument it is important to set out the relevant legislation. Subsections 47K(1) and (3) of the RTA provide:
47K—Evidence
(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 and throughout the preceding period of 2 hours.
…
(3)A certificate—
(a) purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments; or
(b) purporting to be signed by a person authorised under subsection (1) and to certify that—
(i)the apparatus used by the authorised person was a breath analysing instrument within the meaning of this Act; and
(ii)the breath analysing instrument was in proper order and was properly operated; and
(iii)the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with,
is, in the absence of proof to the contrary, proof of the matters so certified.
On the same basis as the original objection against the admissibility of the s 47K(3) certificate (Exhibit P13) at first instance, Mr White, counsel for the appellant, argues before me that Exhibit P13 does not sufficiently identify the particular instrument used to test the appellant and therefore should be precluded from invoking the evidentiary presumptions as to the proper working order of the instrument and its proper use on the appellant as provided for under s 47K(3).
Mr White argues that, because Exhibit P13 describes the instrument used to test the appellant as a “Dräger Alcotest 7110”, whereas a calibration report of that instrument used on the appellant otherwise states that the particular instrument is a later model “Dräger Alcotest 7110 Mk V”, Exhibit P13 fails to correctly identify the instrument that was used on the appellant, and therefore it cannot be used as evidence as provided for under s 47K(3) in relation to that particular instrument.
I reject that argument. On the documentation before the Magistrate, it remains unclear as to whether the instrument used on the appellant was a “Dräger Alcotest 7110” or a “Dräger Alcotest 7110 Mk V”. Exhibit P13 states that it is a standard model, as does a printed docket from the instrument that is attached to P8, whereas P11 states that it is a “Mk V” model. There is no reason why the calibration report (Exhibit P11) should be favoured over Exhibits P13 and P8 to conclude that the instrument used on the appellant was in fact a “Mk V” model. At best, Exhibit P11 casts doubt as to which model of instrument was used on the appellant. It follows that the description of the instrument as the standard model in P13 is not necessarily inaccurate. In my view, the mere uncertainty as to whether or not P13 correctly describes the instrument used on the appellant as a standard model “Dräger Alcotest 7110” is not fatal to the certificate’s use pursuant to s 47K(3). The certificate clearly identifies the particular instrument that was used on the appellant by a range of details such as the date and time at which the instrument was used, the fact that it was used on the appellant and the details of the authorised officer who used the instrument, set out as thus:
CERTIFICATE PURSUANT TO SUBSECTION (3)(B) OF SECTION 47K OF THE ROAD TRAFFIC ACT, 1961
I, LUKE ROSS WATTS being a person authorised under Subsection (1) of Section 47K of the Road Traffic Act, 1961, to operate breath analysing instruments, do hereby certify:
1.that on the 11^th day of January 2012 at 0219 hours a sample of breath was furnished for analysing by William Kyle JOHNS of 9 Casuarina Court, WHYALLA STUART into a breath analysing instrument - Dräger Alcotest 7110 and,
2.that the apparatus used by me was a breath analysing instrument within the meaning of the Act; and
3.that the said breath analysing instrument was in proper working order and was properly operated; and
4.the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with.
The fact that the certificate labels the instrument as a standard model when it may have been a “Mk V” model does not create sufficient doubt that the certificate refers to an instrument other than the particular instrument used on the appellant. Rather, there was clear evidence that the certificate was referring to the particular machine that was used on the relevant occasion and there remains no reason that it should not be used for evidentiary purposes in relation to that particular instrument as provided for under s 47K(3).
I dismiss that ground of appeal.
Ground 2
Mr White argues that in considering the question of identity, the Magistrate has erred in accepting the evidence of Constable Watts which details an initial conversation with the appellant during which the appellant admitted to being the driver of the vehicle involved in the collision. Mr White argues that because this conversation was recorded by Constable Watts some 24 hours after it had occurred, the Magistrate should have warned himself of the dangers of accepting that evidence as being reliable and using that conversation as part of the process of finding that the appellant was the driver. In support of this argument, Mr White relied upon the case of McKinney v The Queen.[7] In this case, the majority held that in circumstances where a confessional statement is allegedly made by an accused whilst in police custody which is subsequently disputed by the accused and evidence of the statement is not reliably corroborated, a Judge should, as a rule of practice, warn the jury of the danger of convicting on the basis of that evidence alone. Mr White argues that in the present case the Magistrate should have expressed in his reasons that he had warned himself to this effect.
[7] (1991) 171 CLR 468.
I reject that argument. It is to be noted that during the course of the trial there was no cross-examination of Constable Watts challenging the contents of that conversation. The appellant did not give evidence, nor was he required to do so. There was clear evidence from the police officers that, at a later stage, the appellant denied being the driver. All of those factors were set out and obviously considered by the Magistrate. It is further to be noted that the appellant’s initial admission that he was the driver was a relatively small part of the prosecution case. The greater part of the case against him was of a circumstantial nature as set out above.
Mr White further argues that the Magistrate erred by finding that the appellant’s subsequent denials of being the driver were lies based on a consciousness of guilt. In the Magistrates reasons, he stated:
[28]The [appellant] admitted of his own free will that he had been the driver of the Toyota 10 minutes beforehand and that he was responsible for the vehicle. While conversing with Watts at the Police Station, the [appellant] repeatedly and falsely claimed he was not the driver as he realised his predicament and the consequences of his previous actions.
Mr White submits that the Magistrate should have gone further and directed himself in relation to the use of an accused’s lies being used as a consciousness of guilt as set out in Edwards v The Queen.[8] However, in my view, the comments by the Magistrate did not amount to reliance upon the appellant’s denials to the police as evidence of his guilt, but were in fact a conclusion reached by the Magistrate that the appellant was lying to the police, based upon the entirety of the evidence.
[8] (1993) 178 CLR 193 at 210-211.
As I have indicated, the Magistrate erroneously dealt with the question of proof that the appellant was the driver in a way favourable to the appellant. Even if further self-direction on the appellant’s admissions and lies was required, looking at the matter afresh, its absence could not have made any difference to the Magistrate’s decision. As already stated, there was an overwhelming circumstantial case that the appellant was the driver, let alone any proof from the appellant to the contrary.
I would dismiss that ground of appeal.
Conclusion
I dismiss the appeal.