Lawton v Commissioner of Police - [2025] SASC 76

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
LAWTON v COMMISSIONER OF POLICE
[2025] SASC 76
Judgment of the Honourable Justice Stanley
23 May 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN BLOOD
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE - BREATH TEST AND ANALYSIS
This is an appeal against conviction. On 31 October 2020 the appellant was stopped by police while driving and underwent a random breath analysis test which returned a blood alcohol concentration reading of 0.124. The breath analysis instrument used by the police officer was a Lion Intoxilyzer 8000. The appellant was convicted of one count of driving a motor vehicle with a prescribed concentration of alcohol in his blood contrary to s 47B of the Road Traffic Act 1961 (SA) (RTA). At trial the prosecution relied upon certificates pursuant to s 47K(3)(b), s 47K(5) and s 47K(7) of the RTA as proof of the results of the breath analysis of the appellant.
The appellant contends that the police officer was not authorised to operate the Lion Intoxilizyer 8000. He submits the authorisation under s 47K(1) was specific to the Drager 7110 Mark V breath analysis instrument. Further, he submits that in the absence of the officer having undergone a course of education and training and having experience in the use of the specific breath analysing instrument he was certifying, he could not validly operate it.
The applicant also contends that the magistrate erred in finding that the s 47K(3)(b) certificate proved, beyond a reasonable doubt that the breath analysing instrument was in proper working order and properly operated in the given circumstances which included inter alia the fact that the police officer had not completed training specific to the Lion Intoxilyzer 8000; that there were material differences between it and the Drager 7110 Mark V and that it was an agreed fact that SAPOL did not and had not possessed user manuals for the Lion Intoxilyzer 8000.
Held (dismissing the appeal):
1.The authorisation given by the Commissioner of Police to authorise officers to operate breath analysing instruments as defined in and for the purposes of the RTA is a general authorisation. It does not require the Commissioner of Police to authorise the person named in a certificate issued under s 47K to operate a specific type of breath analysis instrument. Once the Lion Intoxilizyer 8000 was approved pursuant to s47H(a) it became a “breath analysing instrument” within the meaning of s 47(A)(1).
2.There is no requirement under the RTA that an authorised police officer must undergo a course of education and training and also be experienced in the use of the particular breath analysing instrument they are making certifications about.
3.To displace the presumption inherent in s 47K(3)(b) of the RTA the appellant was required to prove, on the balance of probabilities, the contrary of what the certificate asserted. It was not sufficient to challenge some aspect or another of the certificate itself. The appellant was required to adduce evidence that the Lion Intoxilyzer 8000 was not working properly, or was not operated properly, such that a proper analysis was not conducted.

Road Traffic Act 1961 (SA) ss 47B, 47H(a), 47K(1) 47K(3)(b), 47K(5), 47K(7), 47K(19), referred to.
Saade v Police [2005] SASC 437; Police (SA) v Owens [2007] SASC 118; Police v Butcher (2014) 119 SASR 509; Police v Dunstall (2015) 256 CLR 403, applied.
Police v Short (2012) 112 SASR 463, discussed.

LAWTON v COMMISSIONER OF POLICE
[2025] SASC 76
Single Judge Appeal
STANLEY J:
Introduction

This is an appeal against conviction. After a trial before a magistrate the appellant was convicted of one count of driving a motor vehicle with a prescribed concentration of alcohol in his blood contrary to s 47B of the Road Traffic Act 1961 (SA) (RTA).
The magistrate accepted evidence of the appellant’s blood alcohol level from a police officer, Brevet Sergeant Andrew Haydn Smith, who performed a breath analysis utilising a breath analysis instrument. That instrument was the Lion Intoxilyzer 8000. The magistrate rejected a submission made by the appellant that certificates issued pursuant to s 47K(3)(b), s 47K(5) and s 47K(7) of the RTA ought not to be admitted into evidence as proof of the results of the breath analysis of the appellant utilising the Lion Intoxilyzer 8000. That submission was founded upon the contention that it was not proved Brevet Sergeant Smith was authorised pursuant to s 47K(1) of the RTA to operate the Lion Intoxilyzer 8000 or, in the alternative, that the certificates should be excluded in the exercise of the Court’s discretion.
The trial
There were two issues for determination by the magistrate, namely, was Brevet Sergeant Smith authorised under s 47K(1) of the RTA to operate the breath analysing instrument; and could he certify a breath analysis instrument as being in proper working order and properly operated, in the absence of undergoing any training for that particular instrument.
At trial the following facts were agreed:[1]
(i)On 31 October 2020 at about 4:30 p.m. the appellant drove a motor vehicle on Bundeys Road, North Adelaide;
(ii)At that time, he was stopped by police for the purpose of a random breath analysis test which produced a positive result;
(iii)A subsequent breath analysis test was conducted at the Hindley Street police station commencing at about 4:57 p.m; and
(iv)SAPOL does not and has not previously possessed user manuals or technical specifications produced by Lion Breathalysers for the Lion Intoxilyzer 8000.
[1] Exhibit P1.
At trial the respondent tendered an extract from the South Australian Government Gazette dated 9 April 2015[2] by which former Police Commissioner Burns certified, that on 1 April 2015 Brevet Sergeant Smith was authorised to operate breath analysing instruments “as defined in and for the purposes of” the RTA. Further exhibits tendered by the respondent at trial included the printout[3] from the relevant Lion Intoxilyzer and the video recording of Brevet Sergeant Smith conducting the breath analysis procedure.[4] The respondent also tendered evidentiary certificates to establish that:
(i)the appellant submitted to an alcotest which indicated that a prescribed concentration of alcohol may have been in his blood;[5]
(ii)that the Lion Intoxilyzer used by Brevet Sergeant Smith was in proper working order and was properly operated;[6]
(iii)a reading of 0.124g in 210 litres of breath was produced and that a statement in writing as required by s 47K(2) was provided;[7] and
(iv)the requisite oral advice, and an approved blood test, was given to the appellant.[8]
[2]     Exhibit P7.
[3]     Exhibit P8.
[4]     Exhibit P9.
[5]     Pursuant to s 47K(3b) of the RTA.
[6]     Pursuant to s 47K(3)(b) of the RTA.
[7]     Pursuant to s 47K(5) of the RTA,
[8]     Pursuant to s 47K(7) of the RTA.
On 14 January 2016 the Lion Intoxilyzer was approved as a breath analysing instrument by the Governor in Executive Council.[9] The South Australian Police (SAPOL) subsequently commenced use of the Lion Intoxilyzer 8000 in July 2018. It was not in dispute at trial that SAPOL did not provide any operations manual for the Lion Intoxilyzer and that SAPOL officers were not required to undertake formal training in the use of that instrument.
[9] Exhibit D1.
Evidence before the magistrate established that Commissioner Burns certified on 1 April 2015 that Brevet Sergeant Smith was authorised to operate breath analysing instruments as defined in and for the purposes of the RTA. This followed advice dated 26 March 2015 from Senior Constable Mark Smith to the Commissioner that Brevet Sergeant Smith had successfully completed the breath analysis course conducted between 23 and 25 March 2015 and that it was recommended the Commissioner authorise Brevet Sergeant Smith to operate breath analysis instruments as defined in and for the purposes of the RTA.
At trial the appellant also tendered an email dated 2 April 2018 authorised for distribution by Assistant Commissioner Linda Fellows to all SAPOL staff concerning the Lion Intoxilyzer 8000 stating that only qualified breath analysis operators were authorised to use it. The Assistant Commissioner advised there was no requirement for formal training to be conducted, noting that the operation of the Lion Intoxilyzer 8000 differed only slightly from the Drager 7110 Mark V (Drager). Up to that time SAPOL officers had been using the Drager for breath analysis for the purposes of the RTA.
At trial Brevet Sergeant Smith gave evidence that he had never been formally trained to operate the Lion Intoxilyzer 8000. When he underwent his breath analysis operator’s course in 2015, the only approved instrument was the Drager. The course included specific training on the components and use of the Drager as well as its function but there was no equivalent training in the Lion Intoxilyzer 8000.
At trial the appellant also called former Commissioner Burns who had authorised Brevet Sergeant Smith to operate instruments as defined in and for the purposes of the RTA. Mr Burns gave evidence that it was one of the duties of the Commissioner to approve courses for certain things and he remembered approving breath analysis courses but had no specific recollection of the number of courses he approved. He said that when granting an authorisation he would have done so for the instruments that were in use by SAPOL at that time and which were referenced within the course.
The magistrate’s reasons
In a pre-trial ruling[10] the magistrate considered submissions made by the appellant in reliance on the dissenting judgment of Peek J in Police v Short[11] (Short). The appellant submitted that the decision of Peek J in Short supported the proposition that the authorisation made under s 47K(1) needs to be specific to the actual instrument being used to conduct the test. The magistrate rejected the appellant’s contentions. The magistrate held he was bound by the reasons of the majority in Short and the reasons of Debelle J in Saade v Police (Saade).[12]In Short the relevant officer was authorised to “conduct breath analysis.”[13] The majority held that the Commissioner had authorised the officer to “operate breath analysing instruments” being “any apparatus approved as a breath analysis instrument by the Governor.[14] Citing the earlier judgment of this Court in Police (SA) v Owens,[15]the majority in Short held that such an authorisation operates prospectively until withdrawn or the officer ceases to be a police officer.[16]
[10] Police v Lawton (Reasons) dated 22 December 2022.
[11] [2012] SASCFC 27, (2012) 112 SASR 463.
[12] [2005] SASC 437.
[13] [2012] SASCFC 27 at [7], (2012) 112 SASR 463 at 467.
[14] [2012] SASCFC 27 at [24], (2012) 112 SASR 463 at 473.
[15] [2007] SASC 118.
[16] Police v Short [2012] SASCFC 27 at [21], (2012) 112 SASR 463 at 472.
Statutory background
Section 47H of the RTA provides:
The Governor may, by regulation, for the purposes of this Act—
(a) approve apparatus of a prescribed kind as breath analysing instruments; or
(b) approve apparatus of a prescribed kind for the purpose of conducting alcotests; or
(c) approve apparatus of a prescribed kind for the purpose of conducting drug screening tests; or
(d) declare a kit of a prescribed kind to be an approved blood test kit.
Section 47K of the RTA as at the time of the offence provided:
47K—Evidence
(1) Without affecting the admissibility of evidence that might be given otherwise than under 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.[17]
[17] Pursuant to s 54 of the Statutes Amendment (Transport Portfolio) Act 2021 the preceding period in s 47K(1) and s 47K(1ab) has since been amended to 3 hours.
(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 and Schedule 1 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, in any proceedings for an offence, it is proved—
(a)     that the defendant drove a vehicle, or attempted to put a vehicle in motion; and
(b)     that a concentration of alcohol was present in the defendant's blood at the time of a breath analysis performed within the period of 2 hours immediately following the conduct referred to in paragraph (a),
it must be conclusively presumed that that concentration of alcohol was present in the defendant's blood at the time of the conduct referred to in paragraph (a).
(1b) No evidence can be adduced as to a breath or 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 reading produced by the breath analysing instrument; and
(b)     the date and time of the analysis.
(2a) If 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.
(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) a breath analysing instrument used by the person was in proper order and was properly operated; and
(ii)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.
(3a) A certificate purporting to be signed by a police officer and to certify that—
(a)     a sample of oral fluid for the purposes of an oral fluid analysis was taken on a specified day and at a specified time from a person named in the certificate; and
(b)     the provisions of this Act with respect to the taking of samples of oral fluid for such purposes were complied with, is, in the absence of proof to the contrary, proof of the matters so certified.
(3b) A certificate purporting to be signed by a police officer and to certify that a person named in the certificate submitted to an alcotest on a specified day and at a specified time and that the alcotest indicated that the prescribed concentration of alcohol may then have been present in the blood of that person is, in the absence of proof to the contrary, proof of the matters so certified.
(3c) A certificate purporting to be signed by a police officer and to certify that a driver testing station had been established in accordance with section 47DA at a place and during a period referred to in the certificate is, in the absence of proof to the contrary, proof of the matters so certified.
(4) Subject to subsection (17) a certificate purporting to be signed by an analyst, certifying as to the concentration of alcohol, or any drug, found in a specimen of blood identified in the certificate expressed in grams in 100 millilitres of blood is, in the absence of proof to the contrary, proof of the matters so certified.
(5) Subject to subsection (17) a certificate purporting to be signed by a person authorised under subsection (1) and to certify that—
(a)     a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument on a day and at a time specified in the certificate; and
(b)     the breath analysing instrument produced a reading specified in the certificate; and
(c)     a statement in writing required by subsection (2) was delivered in accordance with that subsection, is, in the absence of proof to the contrary, proof of the matters so certified.
(7) A certificate purporting to be signed by a person authorised under subsection (1) and to certify—
(a)     that, on a date and at a time specified in the certificate, a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument; and
(b)     that the prescribed oral advice and the prescribed written notice were given and delivered to the person in accordance with subsection (2a)(a); and
(c) that—
(i) the person did not make a request for an approved blood test kit in accordance with the regulations; or
(ii) at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subsection (2a)(b),
is, in the absence of proof to the contrary, proof that the requirements of subsection (2a) were complied with in relation to the person.
…
(19)   In this section—
proceedings for a driving-related offence means proceedings for an offence where the conduct with which the defendant is charged involves driving a vehicle or attempting to put a vehicle in motion.
Grounds of appeal
The appellant appeals on two grounds. First, that the magistrate erred in finding that Brevet Sergeant Smith was authorised pursuant to s 47K(1) of the RTA to operate the Lion Intoxilyzer 8000. Second, that the magistrate erred in finding that the s 47K(3)(b) certificate proved, beyond a reasonable doubt, that the breath analysing instrument was in proper working order and properly operated, in circumstances where there was evidence to diminish the weight that could be placed on that certificate, displacing the statutory presumption in s 47K(1).
Ground 1

The appellant submits that Brevet Sergeant Smith was not authorised to conduct a breath analysis test using the Lion Intoxilyzer 8000 as he did not receive formal training in the use and operation of that instrument. The appellant submits that the effect of being “authorised” allows that authorised officer to certify facts that the prosecution would otherwise be required to prove strictly by expert evidence. He submits that if it is accepted the effect of authorisation under s 47K(1) is that it enables the officer to certify matters which would otherwise have to be proved by expert evidence, then it must follow that the officer has some level of “expertise” in the operation of the particular scientific instrument that he or she is making averments about.
He submits that in the absence of the officer undergoing a course of education and training and having experience in the use of the breath analysing instrument that they are certifying, in this case the Lion Intoxilyzer 8000, they cannot validly operate it. He submits that if an officer is not trained or not authorised, then the prosecution cannot make use of the evidentiary aides to proof that exist in s 47K and would need to call expert evidence to prove the accuracy of the device, and its proper working order and operation.
There are two propositions inherent in the appellant’s first ground of appeal. The first is that Brevet Sergeant Smith was not authorised to conduct a breath analysis test using the Lion Intoxilyzer because the authorisation afforded to him under the RTA was specific to the Drager. As a result the appellant contends that the certificates, admitted at trial as aides to proof pursuant to s 47K(3)(b), s 47K(5) and s 47K(7) of the RTA were inadmissible as those sections required that Brevet Sergeant Smith had been authorised pursuant to s 47K(1) to operate the particular breath analysing instrument he had used on this occasion. The second proposition is that Brevet Sergeant Smith was not authorised pursuant to s 47K(1) of the RTA as he had not received training in the proper working order and operation of the Lion Intoxilyzer 8000.
The respondent submits that the appellant’s proposition fails as a matter of construction and that an authorisation made under s47K(1) is not instrument specific. I accept the respondent’s submission. The authorisation under s 47K(1) applies to instruments at large, including those approved as such pursuant to s 47H(a) after an officer is authorised.
Section 47K(1) empowers the Commissioner of Police to authorise Brevet Sergeant Smith, to operate the relevant breath analysis instrument, which at the time of the appellant’s breath analysis was the Lion Intoxilyzer 8000. That authorisation gave rise to a presumption, upon the requirements of s 47K(2) and (2a) being satisfied, that the concentration of alcohol indicated by the instrument operated by Brevet Sergeant Smith was present in the appellant’s blood at the time of the analysis and for the preceding two hours. Accordingly, the terms of the authorisation as reflected in the certificate was not limited to a particular instrument or those instruments in use by SAPOL at the time of the authorisation.
Subsequently, the Lion Intoxilyzer 8000 was approved as a breath analysis instrument for the purposes of the RTA by the Governor pursuant to s 47H(a).[18] Section 47H(a) provides that the Governor may “approve apparatus of a prescribed kind as breath analysing instruments”. Once the Lion Intoxilyzer 8000 was approved it became an instrument defined in and for the purposes of the RTA.[19]
[18] That approval was granted pursuant to s 47H(a).
[19] Section 47A(1).
This analysis is consistent with the text of s 47K(1). It provides that a person “authorised to operate the instrument by the Commissioner of Police”; may operate a “breath analysing instrument”; and that the concentration of alcohol present in a defendant’s blood shown by an instrument, operated by such an officer, will be presumed in the absence of proof to the contrary. What is conspicuously absent from the terms of s 47K(1) is any limitation or condition on the type of instrument to be used or the experience or training of the officer using it. Rather, it is left to the Commissioner of Police to determine which officers are to be authorised to operate instruments that are approved by the Governor by exercise of the separate statutory power in s 47H(a). Once the Governor granted approval to a particular instrument, that instrument became a “breath analysing instrument” within the meaning of s 47A(1). Accordingly, the expression “breath analysing instruments” in the certificate issued to Brevet Sergeant Smith therefore must have had the same meaning as it had and has in the RTA at any particular time. What constitutes a “breath analysing instrument” under the RTA must equally constitute such an instrument for the purposes of the certificate issued to Brevet Sergeant Smith by the Commissioner. I accept the respondent’s submission that it would be unrealistic to expect the Commissioner to issue a new certificate each time a new instrument is approved by the Governor and, if the appellant’s submission was to be accepted, the Commissioner would have to be satisfied in each instance that appropriate training was provided.
This reasoning is consistent with the approach taken in Saade.[20] In Saade Debelle J held that the terms of s 47G(3)(a)[21] required no more than that the person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments.[22] It is a general authorisation. It does not require the Commissioner to authorise the person named in the certificate to operate a particular kind of breath analysing instrument. While Debelle J observed that it was implicit in the statutory scheme that police officers will be trained to operate each new kind of breath analysing instrument to be used for detecting offences against s 47 that observation was plainly obiter and does not imply any statutory obligation on the part of the Commissioner to ensure that police officers will be trained to operate each new kind of breath analysing instrument. Having said that, it is to be expected that the Commissioner would do so where necessary. That is a matter of common sense. However, if the Parliament intended to impose such an obligation on the Commissioner as a matter of law it would have done so expressly.
[20] [2005] SASC 437.
[21] The equivalent provision in 2005 to s 47K(3).
[22] Saade v Police [2005] SASC 437 at [24].
Further, the RTA does not require that Brevet Sergeant Smith, or any other approved police officer, have specific training. The purpose of the certification scheme in s 47K is to allow proof by the issue of a certificate, of various matters that could not, typically, be the subject of a police officer’s evidence. Any attempt to limit the effect of certification that an officer have training as to particular machines defeats the very purpose of the certificates that may be issued under s 47K. Subsections 47K(3)(b), (5) and (7) create, upon certification by an authorised officer, a statutory presumption without regard to the facts such that the relevant police officer need not be satisfied of the matters he or she is certifying.[23] The appellant’s submission that it would require training or expertise on the part of the police officer is an attempt to read into the scheme of the RTA something that is not there. Given the purpose of the certificates in s 47K(3)(b) and s 47K(5), those provisions should be given effect notwithstanding that they abrogate the usual manner in which opinion evidence is admissible. In Police v Dunstall[24] Nettle J said:[25]
[T]he notion that the breath analysis test certificate was given a weight exceeding what it would naturally bear is misplaced. As Kourakis CJ said, rightly, the presumptive effect of the breath analysis test certificate is Parliament’s response to the notorious difficulties which beset the common law means of proof. For that reason, it is not to be excluded merely “because the Court holds the view that the method of proof prescribed by the Parliament is inferior to common law proofs”. If, as here, Parliament decrees that a particular means of proof be given a specified evidential effect then, subject to very limited exceptions which are not here engaged, it must be given that effect.
[23] See Police v Butcher [2014] SASC 85 at [65], (2014) 119 SASR 509 at 520-521.
[24] [2015] HCA 26; (2015) 256 CLR 403.
[25] [2015] HCA 26 at [82]; (2015) 256 CLR 403 at 435.
I am not persuaded by the appellant’s submissions that in order for the authorised officer to certify the facts that the prosecution would otherwise be required to strictly prove by expert evidence the officer must have undergone a course of education and training and also be experienced in the use of the particular breath analysing instrument they are making certifications about. There is no proper constructional foundation to support these submissions. They are so vague that they are not capable of being distilled to a clear implied legislative precondition. Further, there is an obvious flaw in the submission that an authorised person cannot validly operate a breath analysis instrument without experience operating that device. If this contention were to be accepted, logic dictates that an officer would never acquire the requisite experience such that they were able to validly operate the device.
On the contrary, the Commissioner’s power in s 47K(1) is unconditional, except insofar as it must be exercised for a proper purpose and is subject to the constraints on administrative decision making that arise on a proper construction of the RTA. Further, there is no relevant precondition applying to the individual officer issuing a certificate under s 47K(3)(b) and (5). Parliament having intervened to modify the strictness of the law in relation to proof by prescribing the preconditions as to how facts can be proved in certain circumstances, no proper basis exists to construe the express obligations so as to frustrate what was clearly intended. The certificate provisions expressly enable a non-expert to aver certain facts. To permit a challenge to the statutory scheme of certification on the basis that the officer granting the certification is not an expert would be to construe the relevant provisions of the RTA in a way Parliament did not intend.
I accept the respondent’s submission that it is for the Commissioner to determine whether in order to be authorised particular training is required. In this case the text, context and purpose of the scheme of certification does not support the appellant’s contention that only officers with particular training or expertise in the operation of the Lion Intoxilyzer 8000 are permitted to operate that instrument in the same way they had been authorised to operate the predecessor instrument the Drager.
The appellant sought to rely on the evidence of former Commissioner Burns that in granting an authorisation he would only have done so for the instruments that were in use by SAPOL at that time which were referenced in any course conducted by SAPOL for officers who were intended to undertake the operation of breath analysis instruments. To the extent that this evidence was directed to the issue of the proper construction of the statutory scheme, it did not assist the appellant’s argument. Evidence of Commissioner Burns’ subjective belief or understanding of the effect of the certificate and the operation of the statute is irrelevant. Whether he considered he would not have granted authority to any SAPOL officer who had not been trained in the operation of a particular breath analysis instrument is not determinative of the proper construction of the scheme established by Division 5 of Part 3 of the RTA.
For these reasons I would dismiss ground 1 of the appeal.
Ground 2
Ground 2 contends that the magistrate erred in not finding the existence of reasonable doubt given the negligible evidentiary weight to be given to the terms of the certificate in the given circumstances. Those circumstances are alleged to be that:
(i)Brevet Sergeant Smith had only been trained on the Drager. He had no equivalent training on the Lion Intoxilyzer 8000;
(ii)There is evidence[26] that there are material differences between the Drager and the Lion Intoxilyzer 8000;
(iii)It was an agreed fact that SAPOL did not and had not previously possessed user manuals for technical specifications produced by Lion breathalysers for the Lion Intoxilyzer 8000;
(iv)The evidence of former Commissioner Burns that when signing the authorisation for Brevet Sergeant Smith, he would have been signing for the instruments that were in use by SAPOL and that were referenced in the course he undertook i.e. the Drager only; and
(v)While in Saade Debelle J found a general authorisation, he also observed in obiter that it was implicit in the scheme of authorisation that police officers would be trained to operate each new kind of breath analysing instrument to be used for detecting offences against s 47. Debelle J did not contemplate a scenario where police officers operated breath analysis instruments without being trained to do so.
[26] Exhibit D2 (Email authorised by Assistant Commissioner Linda Fellows to all SAPOL staff).
The appellant submits that the magistrate erred in finding that the certificate made pursuant to s 47K(3)(b) was sufficient to prove beyond reasonable doubt the certifiable fact that the instrument was in proper working order and properly operated. The appellant submits that on the evidence before the magistrate he should have found that the s 47K(3)(b) certificate did not prove proper order and proper operation beyond a reasonable doubt.
I do not accept these submissions. On the contrary, I accept the submission of the respondent that any challenge to the facts as certified had to be mounted on the basis that the appellant had to prove, on the balance of probabilities, the contrary of what the certificate asserted.[27] The certificate certifies that the instrument was in proper order and properly operated and that the provisions of the RTA in respect of breath analysing instruments, and the conduct of tests, were complied with. The evidence relied on by the appellant does not directly contradict the facts certified.
[27] Crawford Earth Movers v Fitzsimmons (1972) 4 SASR 116 per Hogarth J at 150 and Walters J at 158; Police v Hicks [2010] SASC 136 at [8].
Accordingly, this ground of appeal fails at the first hurdle. To displace the presumptive effect of s 47K(3)(b) expert evidence is required. In Coleman v Police[28] Lovell and David JJA, with whom Doyle JA agreed, said that proof to the contrary of certified facts is not provided by challenging some aspect or another of the certificate. The certificate has the effect of establishing a statutory presumption without regard to the facts such that proof to the contrary is not achieved by submitting the police officer could not, as a matter of fact, have been satisfied of the matters certified in the document.[29] Therefore given the absence of evidence that the Lion Intoxilyzer 8000 was not working properly, or was not operated properly, such that a proper analysis was not conducted, the presumptive effect of the s 47K(3)(b) certificate was not displaced. Certainly none of the matters identified by the appellant under this ground were really capable of rationally bearing on the performance and operation of the Lion Intoxilyzer 8000.
[28] [2024] SASCA 30 at [41].
[29] Coleman v Police [2024] SASCA 30 at [58].
In any event, that Brevet Sergeant Smith had only been trained on the Drager instrument and not the Lion Intoxilyzer 8000 does not establish that the Lion Intoxilyzer used by him on this particular occasion was not in proper working order or not properly operated. Any suggestion to the contrary is pure speculation. There is nothing to suggest that specific training was needed for the proper working order and operation of the Lion Intoxilyzer 8000. Neither was there any evidence that anything Brevet Sergeant Smith did on this occasion impaired the proper working order or operation of the instrument. Further, the mere fact that SAPOL did not hold a user manual for the Lion Intoxilyzer 8000 does not contradict a finding that the instrument was in proper working order and operated on this occasion in accordance with the certificate. Finally, as I have addressed earlier, I am not persuaded by the appellant’s reliance on the evidence of former Commissioner Burns and the obiter remarks of Debelle J in Saade.
For these reasons I would dismiss ground 2.
Conclusion
I would dismiss the appeal. I would hear the parties as to costs.