Laycock v Police - [2006] SASC 351

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
LAYCOCK v POLICE
[2006] SASC 351
Judgment of The Honourable Justice Debelle (ex tempore)
15 November 2006
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE
Appellant charged with offence of driving a motor vehicle on a road while there was present in his blood a prescribed concentration of alcohol contrary to s 47B of Road Traffic Act - whether police officer complied with statutory duty under s 47G(2a) of Road Traffic Act to advise how quickly blood sample should be taken - police officer informed appellant that blood sample should be taken as soon as practicable - whether the words "as soon as practicable" qualify use of word "promptly" in oral advice - nothing said or done by police officer which altered the effect of the oral or written advice - appeal dismissed.
Road Traffic Act 1961 (SA) s 47B and s 47G; Road Traffic (Miscellaneous) Regulations 1999 (SA) r 9(1) and Sch 1 Part A, referred to.
Bunning v Cross (1978) 141 CLR 54; Police v Hall [2006] SASC 281; R v Swaffield (1998) 192 CLR 159, considered.

LAYCOCK v POLICE
[2006] SASC 351
Magistrates Appeals: Criminal

DEBELLE J. The appellant was charged with the offence of driving a motor vehicle on a road while there was present in his blood a prescribed concentration of alcohol contrary to s 47B of the Road Traffic Act 1961. It was alleged that on 10 April 2005 the appellant had driven on South Terrace, Adelaide, with a concentration of alcohol in his blood of 0.090 grams per 100 millilitres of blood.
The appellant pleaded not guilty. After a hearing before a magistrate, he was convicted and fined $500. He was disqualified from holding or obtaining a driving licence for a period of six months. The appellant appeals against the conviction. There is no appeal against penalty.
The issues in this appeal are whether a police officer properly complied with a statutory duty under s 47G(2a) of the Road Traffic Act to advise how quickly the blood sample should be taken and, if so, whether that failure has the consequence that it was not possible for the prosecution to rely on the statutory aid to proof in s 47G(1) of the Act in the form it stood in April 2005. The magistrate held that the police officer had not failed to comply with s 47G(2a) of the Act.
Shortly after midnight on 10 April 2005 the appellant was stopped at a random breath testing station on South Terrace, Adelaide. He submitted to an alcotest and returned a positive reading. He then submitted to a breath analysis test. That test recorded a reading of 0.09 grams of alcohol per 100 millilitres of blood.
The police officer operating the breath analysis instrument was Senior Constable Corbin. Sergeant Sparrow was the police officer in charge of the random breath testing station.
Once the breath analysis instrument had detected a prescribed concentration of alcohol in the appellant’s blood, Senior Constable Corbin was required to comply with s 47G(2) and (2a) of the Act. For present purposes it is necessary to consider only sub-s (2a) which provides:
Where a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith –
(a) give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person’s blood; and
(b) at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.
Regulation 9(1) and Part A of Schedule 1 of the Road Traffic (Miscellaneous) Regulations 1999 prescribe the terms in which the oral advice shall be given. That oral advice informs the person who has returned a breath test in excess of the prescribed level of alcohol in the blood that the only means of challenging the breath test result is by having a blood sample taken promptly. It is also necessary for the police officer to hand to that person a written advice in similar but not identical terms to the oral advice. That written advice also informs the relevant person that the blood test must be obtained promptly. I set out the terms of the oral advice:
The breathalyser reading just taken shows that you had a prohibited level of alcohol in your blood.
Therefore, it appears that you have committed an offence against section 47B of the Road Traffic Act.
In any court proceedings for that offence, or for an offence against section 47 of the Road Traffic Act (driving under the influence of liquor), it will be presumed that the breathalyser accurately indicated your blood alcohol level at the time of the reading and for the preceding two hours. However, the Road Traffic Act allows for contrary evidence based on the results of a blood test.
If you want to have such a blood test you will have to make your own arrangements and follow certain procedures, using a special blood test kit. This blood test kit will be supplied to you on your signing a written request.
If you obtain a blood test kit and want to have your blood tested, you should take the kit promptly to a hospital or medical practitioner in order to have a sample of your blood taken.
[*Alternatively, you may have the sample taken by a registered nurse.]
You must not consume any more alcohol before having a sample of your blood taken and must not open the blood test kit before delivering it to a medical practitioner [*or registered nurse].
One of the sealed containers will be given to you and you may make your own arrangements to have the blood in that container analysed.
In any event, the blood in the other container will be analysed by State Forensic Science and you will be given written notice of the results of the analysis.
Further information as to these matters is contained in the written notice which will be delivered to you shortly.
*Advice as to the alternative of a registered nurse is to be given only if the breath analysis was conducted outside Metropolitan Adelaide.
As the only means of challenging the result of a breath analysis is by means of a breath test, the Court will carefully scrutinise the conduct of police officers in discharging the obligations under s 47G of the Act and the Regulations. That has been established in a number of decisions of this Court. Police Officers should not say or do anything which might qualify the meaning of the oral and written advice.
The undisputed evidence was and the magistrate found that Senior Constable Corbin read to the appellant the oral advice word for word from the text of the prescribed terms. The terms of the oral advice were set out on the cover of Senior Constable Corbin’s breath analysis book.
After he had read the oral advice to the appellant, Senior Constable Corbin handed him a copy of the written advice. The magistrate found that Senior Constable Corbin watched the appellant read the written advice. Senior Constable Corbin then gave the appellant the breath testing kit. The appellant contended that after receiving the breath testing kit Senior Constable Corbin spoke further with him.
The appellant had a female passenger in his car. She had her breath tested by an alcotester. It showed an alcohol level above the prescribed limit. Sergeant Sparrow, therefore, arranged for a taxi to take both the appellant and his passenger home.
Sergeant Sparrow and Constable Corbin both gave evidence at the hearing. Sergeant Sparrow gave his evidence first. In his evidence he said that the only conversation that he had with the appellant, which was not recorded in his notebook, concerned the arrangements for a taxi to take the appellant and his female passenger home. He said that he did not have any conversation with the appellant other than on formal matters.
Senior Constable Corbin’s evidence was that Sergeant Sparrow was standing near him when he gave the oral advice to the appellant. He conceded that, after the appellant had appeared to read the written advice, it was possible that there had been some further conversation as to where the appellant would need to go to have his blood tested and as to the time when it should be tested. He had no precise recollection of the conversation, because he had conducted many subsequent breath tests.
The appellant’s evidence was that he had asked the police officer, who had administered the breath test (plainly Senior Constable Corbin), where he could get a blood test. He said that he was told that he could go to a general practitioner or a hospital. He said that he asked if he could go to the Ashford Hospital and received an affirmative answer. He said that he then asked if he could have the test in the morning and was told that he should have it as soon as practicable. He said that he was told more than once that he should have the test as soon as practicable.
In cross-examination, the appellant admitted that he had understood the oral advice read to him by Senior Constable Corbin. The appellant also gave evidence that he did little more than glance over the written advice, he did not read it line by line. Plainly, had he done so, he would have seen that it was incumbent upon him to have the breath test conducted promptly if he sought to challenge the results of the breath analysis.
The appellant explained his understanding of the position in these terms:
My understanding was that I could go home and relax for a few hours, get up very early in the morning, get down to Ashford at 7.30 or 8 o’clock and get the blood test done then and that thought was reinforced in the further conversation when Sergeant Sparrow offered to call a taxi for me to go home and he in fact asked me where I lived because he had to tell the taxi firm where he is or where I am and the destination and that was further reinforcement for me that he was expecting me to go home and not to go to the hospital for the test or to a doctor.
The appellant did not have his blood tested until next day. He went first to Ashford Hospital and then to the Emergency Ward at the Royal Adelaide Hospital. After waiting for there several hours, he went to his general practitioner and the blood sample was taken a little after noon. By that time there was no detectable element of alcohol in his blood.
The appellant submitted to the magistrate that the police officers misinformed him of his obligations and acted in a way which led him to believe he could have the blood test taken the following morning.
On the appellant’s own account of the subsequent conversations, there was nothing which the police officers said or did which justified the appellant’s purported understanding of his position. According to the appellant’s own evidence, the police officers who spoke to him did not say anything more than that he should get the blood sample taken by a medical practitioner or at a hospital and should do so as soon as practicable. The fact that the police arranged a taxi to take him home does not justify the conclusion that he could go home, have a sleep and wait until morning for the blood sample to be taken.
The words “as soon as practicable” do not materially qualify the use of the word “promptly” in the oral advice. In this case the appellant admits that the oral advice was given to him. In his cross-examination, he admitted that he understood the sense of the oral advice. He therefore would have understood that it was necessary for the blood sample to be undertaken promptly. The repeated use of the expression “as soon as practicable” does not, I repeat, materially qualify the effect of the word “promptly”. The position might have been otherwise if the police officer had not correctly recited the terms of the oral advice.
In addition, the evidence of the appellant that he believed that he could go home, have a sleep and wait until morning before having a blood sample taken strains credulity to breaking point. The appellant’s evidence shows that he was aware of the fact that as time passed the level of alcohol in his blood would diminish. There was, therefore, every likelihood that by the morning he would have little or no alcohol in his blood. It is not necessary to rely on this fact but it does demonstrate the fact that he could not have been misled by what he had been told by the police officers.
The magistrate made the following finding of fact at the end of his reasons:
Mr Laycock was a credible witness and a person of good character. I have no reason to disbelieve his clear evidence of the later conversation. My finding here is that even if I accept that he subsequently received advice that what he had to do with the obtaining of a blood sample was to get it taken as soon as practicable, and that the police obtained a taxi and said it was for the home address, that in the face of the clear oral and written advice, clarifying that ‘as soon as practicable’ means ‘promptly’, is no reason to exercise any discretion that I might have to throw the evidence out, or prevent if (sic) being received. Simply, the Act has been complied with. Presumptions are in place and I find the charge proven.
These were ex tempore reasons and must be considered in that light. In my view the magistrate has found that, given that the oral advice was given, the use of the expression “as soon as practicable” did not qualify the word “promptly” in such a way as to mislead the appellant. In my view, there is every reason why the magistrate would have reached that conclusion. There was nothing which was said or done by either police officer which altered the effect of the oral or written advice. In my view it reinforced that advice.
Given his view that the police officers had complied with the Road Traffic Act, the magistrate found that it was unnecessary to exercise either the public policy discretion since there was no evidence of improper or unlawful, unfair conduct on the part of the police see Bunning v Cross (1978) 141 CLR 54, or the general discretion to exclude evidence which is unfair to the accused: see R v Swaffield (1998) 192 CLR 159. See also the discussions of those discretions in R v Lobban (2000) 77 SASR 24 and in Police v Hall [2006] SASC 281. For the reasons above, I agree with the magistrate’s finding that the evidence showed that the two police officers had complied with the obligations imposed by s 47G(2) and (2a) of the Road Traffic Act. There was nothing which enlivened either discretion.
The appellant’s appeal is founded on the submission that the magistrate had found the appellant to be a credible witness and a person of good character and on the magistrate’s additional finding that he had no reason to disbelieve the appellant’s clear evidence of the later conversations. However, for the reasons already expressed, that finding does not assist the appellant in that his evidence does not rise any higher than that he was repeatedly told that he should have the test as soon as practicable, a statement which has to be read with his evidence that he understood the effect of the oral advice. The balance of the appellant’s submissions depend on that initial submission. For the reasons expressed above, this submission fails with the consequence that it is unnecessary to consider the other submissions.
The appellant has failed to demonstrate any error on the part of the magistrate. The appeal will therefore be dismissed.