Lester v Police - [2013] SASCFC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Criminal)
LESTER v POLICE
[2013] SASCFC 123
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Stanley)
21 November 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE - BREATH TEST AND ANALYSIS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - PURPOSIVE APPROACH
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - MISCHIEF TO BE REMEDIED AND PREVIOUS STATE OF LAW
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - LEGISLATIVE HISTORY OF ACT
The appellant was charged on Complaint with refusing to comply with all reasonable directions of a member of the police force to submit to an alcotest, contrary to s 47E(3), Road Traffic Act 1961. The appellant was stopped while driving by Constables Gitsham and Hawyes for the purpose of administering a random breath test. Gitsham pointed the straw attached to an alcometer at the appellant's lips and directed him to provide a breath sample. The appellant refused and re-entered his vehicle and closed the door. Before he could lock the door, Hawyes gained entry and prevented the appellant taking a drink from a flask. The appellant was then told he was under arrest. He appeared to the police to be feigning unconsciousness and was taken to the Royal Adelaide Hospital. The examining doctor opined he was feigning unconsciousness. Gitsham then proceeded to read to the appellant the prescribed oral advice required by s 47E(4)(ab) and gave him a final opportunity to submit to an alcotest. The appellant made no response and Gitsham took that as a refusal. It appears that Gitsham did not then have the alcometer with him.
At trial, the Magistrate dismissed the Complaint. He found that Gitsham had informed the appellant at the roadside that he was required to submit to an alcotest and had given a specific and reasonable direction to the appellant; this engaged the requirement that the appellant be given an opportunity to comply with that direction after having received the prescribed oral advice. The Magistrate found that the s 47E(4)(ab) obligations were not discharged as neither Gitsham nor another police officer in the immediate vicinity had an alcometer in their possession at the time the prescribed oral advice was given at the Royal Adelaide Hospital.
On appeal to the Supreme Court, the single Judge allowed the appeal and set aside the dismissal. The Judge held that the s 47E(4)(ab) obligations were never engaged as the roadside directions amounted only to a preliminary statement to the appellant that he was required to submit to an alcotest, and a specific direction to submit to that alcotest was never given, having been frustrated by the behaviour of the appellant;…

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 Lester v Police

Details

AGLC: Lester v Police [2013] SASCFC 123
Case: [2013] SASCFC 123
Decision Date: 21 November 2013

CaseChat Overview and Summary

The appeal concerned the interpretation and application of provisions within the *Road Traffic Act 1961* (SA) relating to roadside breath testing. The appellant, Lester, was stopped by police for a random breath test and subsequently arrested. The central dispute revolved around whether the police had lawfully required Lester to submit to an alcotest and whether the subsequent procedures, including the provision of prescribed oral advice, were conducted in accordance with the Act. The matter came before the Supreme Court of South Australia.

The court was required to determine several legal issues. These included whether the police had the power to give preliminary directions to a motorist for the purpose of conducting an alcotest, and whether non-compliance with such directions constituted an offence. The court also had to consider whether the police had sufficiently informed the appellant of the requirement to submit to an alcotest, and whether the directions given to provide a breath sample were valid and reasonable. Furthermore, the court needed to assess the significance of the appellant's behaviour, including feigning unconsciousness, on the police's obligations. Finally, the court had to interpret the requirements of section 47E(4)(ab) of the Act, particularly concerning the possession of approved apparatus when discharging obligations under that section and the necessity of providing prescribed oral advice.

The Supreme Court, in dismissing the appeal, reasoned that police possess the power to give preliminary directions to motorists to facilitate an alcotest, and non-compliance with subsequent lawful directions constitutes an offence. The court found that the police had adequately informed the appellant of the requirement to submit to an alcotest and that the direction to provide a breath sample was valid and sufficiently specific. The appellant's refusal to comply with the direction to exhale into the alcometer enlivened the obligations under section 47E(4)(ab). The court held that the appellant's disruptive behaviour, including feigning unconsciousness, justified the police in taking him to the hospital and providing the prescribed oral advice there. Crucially, the court determined that while an approved apparatus must be possessed when making the initial requirement for an alcotest, this is not a statutory requirement when discharging the obligations under section 47E(4)(ab). The court emphasised the importance of providing clear advice regarding the consequences of non-compliance, but noted that this obligation does not apply where a driver's positive action frustrates compliance. The court concluded that the police had discharged their obligations under section 47E(4)(ab) at the hospital, and the appellant had failed to comply, leading to the conviction.

Orders

Orders of the court

Held (Peek J, Kourakis CJ and Stanley J agreeing, dismissing the appeal):

The Judge was correct in allowing the appeal for reasons other than as expressed by his Honour. [42], [44], [90]

(1) Under s 47E(2), police have power to give certain preliminary directions to a motorist for the purpose of bringing about the situation where police are in a position to make a requirement under s 47E that the motorist undergo an alcotest. Once such a requirement is made, s 47E(3) empowers police to give reasonable directions to a motorist for that purpose. Non-compliance with such directions is an offence under s 47E(3). [48]-[58]

(2) The police here sufficiently informed the appellant that he was required to submit to an alcotest. [59]-[66], [67]-[71], [74]-[76]

(3) The direction to provide a breath sample given at the roadside was a valid and reasonable direction given under s 47E(3) in that:

(i) by directing the appellant to provide a breath sample by blowing into the proffered straw attached to the alcometer, Gitsham had given directions associated with the performance of the physical acts required by the appellant in order for the test to be carried out. [67]-[71]

(ii) the direction was sufficiently specific as to how the exhalation should be performed. [27], [74]-[76]

(4) It is clear that the appellant elected to refuse to comply with the direction to exhale into the alcotest. That refusal to exhale into the alcotest enlivened the s 47E(4)(ab) obligations. [28]-[29], [77]-[78], [89]

(5) The fact that the police could have given the prescribed oral advice to the appellant at the scene, while he was feigning unconsciousness, did not in the particular circumstances of the case disentitle the police from later giving that advice to the appellant at the Royal Adelaide Hospital. The appellant's behaviour produced a disruptive and confusing situation and the police acted reasonably in taking him to the Emergency Department where they received medical advice that the appellant was feigning unconsciousness and in determining to then give the prescribed oral advice. [30]-[31]

(6) While a police officer must have possession of the relevant apparatus when making the original direction that a motorist submit to an alcotest, there is no such statutory requirement when discharging the s 47E(4)(ab) obligations. [34]-[42]

(7) The interpretation of s 47E(4)(ab) is governed by the following considerations:

(i) The Road Traffic Act 1961 recognises that it is both desirable and important that drivers who may be unenthusiastic about complying with a peremptory direction given by police when they may have done nothing wrong, and may be ignorant of the precise consequences of failing to do so, should be given: very clear advice as to those consequences; a final chance to calmly consider their position; and a final opportunity to comply with the direction. [83]

(ii) The obligation to give the prescribed oral advice does not apply to refusals to comply with a direction where positive action is taken by a driver which produces irreversible consequences frustrating compliance with the direction. [84]

(iii) Where s 47E(3) has been engaged, the mandatory penalties (including licence disqualification) apply no matter what direction is disobeyed and it is equally important in relation to all directions that the driver be made aware of the consequences of disobedience. [85]

(8) Here, the s 47E(4)(ab) obligations were discharged by Gitsham at the Royal Adelaide Hospital; the appellant eschewed the opportunity to repent. The Judge was correct to set aside the dismissal and convict the appellant. [34]-[42], [78], [89]

Background

Background to the litigation

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Evidence

Evidence Before The Court

I will refer to these two obligations as “the s 47E(4)(ab) obligations”.Summary of the evidence On 1 November 2011, Melbourne Cup day, Constables Gitsham and Hawyes were on mobile patrol and followed the appellant when he left a hotel in his motor vehicle. They observed his vehicle swerve and stopped him at about 10:00pm for the purpose of administering a random breath test. Gitsham gave evidence that, in line with his general practice, he intended to have the appellant perform an alcotest while still in his vehicle and that he walked up to the appellant who remained seated in his vehicle. Gitsham carried in his hand a Lion Alcometer which was proven at trial to be an approved device for the purpose of s 47EA(1)(c) and will be referred to as “the alcometer”. The following conversation (“the first roadside conversation”) then occurred at the driver’s side window of the appellant’s vehicle:QI have stopped you for a random breath test. Have you been drinking today?AYes.QHow long ago was your last drink?AI just had one glass of champagne five minutes ago.QWe need to wait five more minutes before we can conduct an alcotest. If you’d like to stay with me on the side of the road until we’re ready.AI have had a champagne so I am going to be hot. The two police officers then decided to wait until a further period of five minutes had expired.[1] During that five minute period, the appellant alighted from his vehicle. At the end of that period the appellant was standing near Gitsham, a little way from the appellant’s vehicle. At this time, Gitsham pointed the straw of the alcometer at the appellant’s lips at a distance of only 50 centimetres (or 20 inches) and the following conversation (“the second roadside conversation”) ensued:QI now require you to provide a sample of your breath.AHow about I just get a taxi and forget about this?QSir I am now directing you to provide a breath sample.AI am going to be hot because I have just had a champagne.QFor the third time, I am directing you to provide a sample. I am warning you it is an offence to fail to provide a breath sample and the penalty is severe.AI am not doing this. (Emphasis added)[1] The “ten minute period” is of general significance but has no relevance to the present appeal and need not be discussed. The appellant then walked off towards his vehicle, opened the passenger side door, got into the passenger seat and closed the door. He then attempted to lock the door, but before he could do so Hawyes gained entry into the vehicle. The appellant then grabbed a bottle from the centre console of his vehicle but before he could drink from it, Hawyes threw it onto the road. At about 10:12pm, while still in his vehicle, the appellant was told that he was under arrest. He placed his arms behind his head and refused to answer any questions. He then appeared to be unconscious, not moving and with his eyes closed. Constable Gitsham considered that the appellant was feigning unconsciousness and therefore applied a pain stimulus to his earlobe to ascertain whether it was genuine unconsciousness. The appellant winced. He was rolled into the recovery position and was again told he was under arrest.

Decision

Reasons for decision

KOURAKIS CJ PEEK J STANLEY J (dissent)

The Magistrate was not satisfied beyond reasonable doubt that this requirement was discharged and accordingly the s 47E(4)(ab) defence was not negated beyond reasonable doubt. Thus, his Honour stated:[17]Mr Burtt argues that the evidentiary onus having been displaced, it is incumbent upon the prosecution to demonstrate that the requirement was ‘lawfully made’. He argues that it is essential for the prosecution, given that it is acknowledged to have been a random stop, to prove compliance with s 47EA(1)(c) on each occasion the direction was repeated. He says that this is a mandatory requirement. I agree with that submission. Section 47EA(1)(c) uses the expression ‘must’ and I can not envisage that what was contemplated was anything but a positive requirement essential to the exercise of the power. Mr Burtt says that I cannot be satisfied beyond reasonable doubt that an approved device was in Constable Gitsham’s possession, or that of another police officer in the immediate vicinity, when he made the direction at the Royal Adelaide Hospital. As I have said, I am in doubt on this fact. I think there is force to Mr Burtt’s argument. I am in doubt as to whether the direction given at the Royal Adelaide Hospital was lawfully made. That being so I am bound to return a verdict of not guilty.[18]Mr Burtt’s separate argument relates to the operation of s 47E(4)(ab) and, in particular, that (sic) has not been shown beyond reasonable doubt that the defendant was allowed the opportunity to comply after having been given the prescribed oral advice. Clearly from P1 the words were spoken by Constable Gitsham as follows, ‘I now give you a final opportunity to submit to an alcotest’. However, Mr Burtt’s point is that unless I can be satisfied beyond reasonable doubt that an approved device was in fact available in compliance then I cannot be satisfied this was a genuine opportunity. I agree also with this argument. I am not satisfied the prosecution have demonstrated compliance with s 47E(4)(ab) beyond a reasonable doubt and I would acquit on this basis also.(Emphasis in original)Conclusion as to the judgment of the Magistrate It is only at the Magistrate’s final step in his reasoning that I respectfully differ. I consider that it was not necessary for Gitsham or another police officer in the immediate vicinity to have an approved device in his possession at the time of discharging the s 47E(4)(ab) obligations at the Emergency Department. I consider that s 47EA(1)(c) had no bearing upon that process of discharging the s 47E(4)(ab) obligations. Section 47EA(1)(c) provides: (c)a police officer must not make such a requirement relating to an alcotest unless he or she has in his or her possession, or a police officer in the immediate vicinity of the place at which the requirement is made has in his or her possession, an apparatus of a kind approved by the Governor for the conduct of alcotests.(Emphasis added) A review of the early cases on s 47E shows that a significant area of concern was the matter of undue delay being caused to drivers when requiring them to stop for a random breath test. It was decided that although longer delay was justified for the purpose of obtaining access to a breath analysis machine (for example when a positive alcotest had occurred), only minimal delay should be tolerated when drivers were being stopped for random alcotesting.

Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ, PEEK J,

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