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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Laycock v Police

Details

AGLC: Laycock v Police [2006] SASC 351
Case: [2006] SASC 351
Decision Date: 15 November 2006

CaseChat Overview and Summary

The appellant in this case was charged with driving a motor vehicle on a road while there was present in his blood a prescribed concentration of alcohol, contrary to section 47B of the Road Traffic Act. The dispute before the court centred on whether the police officer complied with the statutory duty under section 47G(2a) of the Road Traffic Act to advise the appellant on how quickly a blood sample should be taken. The police officer informed the appellant that a blood sample should be taken as soon as practicable, and the court had to determine whether the phrase "as soon as practicable" qualified the use of the word "promptly" in the oral advice given.

The primary legal issue before the court was whether the police officer's advice to the appellant that a blood sample should be taken "as soon as practicable" was in line with the statutory requirement to provide advice on how quickly the blood sample should be taken. The court had to consider whether the words "as soon as practicable" altered the effect of the advice to be given under section 47G(2a) of the Road Traffic Act. The appellant argued that the advice was not sufficiently prompt and therefore did not comply with the statutory requirement, which could potentially invalidate the subsequent blood test results.

The court found that there was no indication that the police officer's words or actions altered the effect of the advice given. The court held that the phrase "as soon as practicable" was consistent with the statutory requirement for prompt advice and did not invalidate the blood test results. The court dismissed the appeal, finding that the police officer's advice met the statutory requirements, and thus, the charge against the appellant was valid.

The court's decision resulted in the dismissal of the appeal, affirming the conviction of the appellant for driving under the influence of alcohol. The court did not make any further orders beyond dismissing the appeal.

Orders