Lester v Police
[2013] SASCFC 123
•21 November 2013
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; the appellant thereby refused to submit to an alcotest. The appellant appealed.
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]
Road Traffic Act 1961 (SA) ss 47E, 47E(1), 47E(2), 47E(2a), 47E(2d), 47E(3), 47E(4)(ab), 47EA, 47EA(1)(c), 164A; Road Traffic (Miscellaneous) Regulations 1999 Sch 1AA; Statutes Amendment (Drink Driving) Act 2005 s 9(1); Statutes Amendment (Drink Driving) Act (Commencement) Proclamation 2005 s 2; Statutes Amendment (Transport Portfolio - Penalties) Act 2011 s 34(1); Statutes Amendment (Transport Portfolio - Penalties) Act (Commencement) 2011 s 2, referred to.
Police v Spitzer (2003) 85 SASR 431, distinguished.
Gaskin v Police [2009] SASC 351, not followed.
Police v Lester (2013) 63 MVR 67; Chirgwin v Trittinger (1981) 96 LSJS 445; Bormann v Coldwell (1986) 43 SASR 297; Schild v Rees (1990) 158 LSJS 285, discussed.
WORDS AND PHRASES CONSIDERED/DEFINED
"reasonable directions", "requirement", "direction", "direction to exhale", "alcotest", "prescribed oral advice"
LESTER v POLICE
[2013] SASCFC 123Full Court: Kourakis CJ, Peek and Stanley JJ
KOURAKIS CJ. I agree that the appeal should be dismissed for the reasons given by Peek J.
PEEK J. Mr Lester (the appellant) was charged on Complaint with the offence of 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 (SA) (the Act). The charge is in the following terms:
On the 1st day of November 2011 at (sic) in the said State, being a person who was required under Section 47E of the Road Traffic Act 1961, to submit to an alcotest refused to comply with all reasonable directions of a member of the Police Force in relation to the requirement Section 47E(3) of the Road Traffic Act 1961.
This is a summary offence.
The Magistrate found the appellant not guilty and dismissed the Complaint. The prosecution appealed and the Supreme Court Judge set aside the dismissal and convicted the appellant. The appellant further appeals to the Full Court of the Supreme Court seeking to have the original dismissal restored.
The relevant legislation
Section 47E of the Act now relevantly provides (and did so at the time of the subject incident):
47E—Police may require alcotest or breath analysis
(1)Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person—
(a) is driving, or has driven, a motor vehicle; or
(b) is attempting, or has attempted, to put a motor vehicle in motion; or
(c) is acting, or has acted, as a qualified supervising driver for the holder of a permit or licence,
the police officer may require the person to submit to an alcotest or a breath analysis, or both.
(2)A police officer may direct a person driving a motor vehicle to stop the vehicle and may give other reasonable directions for the purpose of making a requirement under this section that a person submit to an alcotest or a breath analysis.
(2a) A person must forthwith comply with a direction under subsection (2).
Maximum Penalty: $2900.
…
(2d)The performance of an alcotest or breath analysis commences when a direction is first given by a police officer that the person concerned exhale into the alcotest apparatus or breath analysing instrument to be used for the alcotest or breath analysis.
…
(3)A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a police officer.
Penalty:
(a) for a first offence—a fine of not less than $1 100 and not more than $1 600;
(b) for a subsequent offence—a fine of not less than $1 900 and not more than $2 900.
(4) It is a defence to a prosecution under subsection (3) that—
(a) the requirement or direction to which the prosecution relates was not lawfully made; or
(ab) the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to—
(i)the consequences of refusing or failing to comply with the requirement or direction; and
(ii)the person's right to request the taking of a blood sample under subsection (4a); or
(b) there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction.
…
47EA—Exercise of random testing powers
(1) …
…
(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;
There are several aspects of the legislative history of the Act (and particularly s 47E sub-ss 47E(2) and 47E(3)) which will be dealt with below.
The s 47E(4)(ab) obligations
It can be seen that there are two obligations under s 47E(4)(ab). The first obligation is to read out the prescribed oral advice which appears in Schedule 1AA to the Road Traffic (Miscellaneous) Regulations 1999 (SA) as follows:
It is a criminal offence to refuse or fail to provide a breath sample without good cause. You could be fined and lose your licence for 12 months or more.
It is a defence if you have some physical or medical condition that prevents you from providing a breath sample, but only if you ask for a sample of your blood to be taken instead or can show that your condition also prevents the taking of blood.
If you want a blood sample taken because of your condition, you should ask for that and the police will help you to have the sample taken at Government expense.
The second obligation is to then explain to the driver that, having been given the prescribed oral advice, he or she now has a further opportunity to comply with the direction with which he had previously refused to comply.
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.
Upon arrival of the cage car, the appellant was carried from the pavement to the cage car and was seen by the police officers to be lifting his feet, apparently to avoid his shoes being damaged.
The appellant was conveyed to the City Watch House where he was read his arrest rights but remained silent. He was taken into an observation cell where he appeared to be unconscious. After having been presented to the Charging Sergeant, an ambulance was called and the appellant was taken to the Royal Adelaide Hospital to be examined by a doctor. He had been at the City Watch House for approximately 30 minutes and no further procedures under the Act had been carried out during this time.
The attending doctor in the Emergency Department of the Royal Adelaide Hospital, Dr Hill, examined the appellant and informed the police officers that in his opinion the appellant was feigning unconsciousness. Dr Hill gave evidence during the trial and stated that he checked the appellant for trauma and found none, and that he then placed him on a electrocardiogram which was found to be normal. Dr Hill further stated that the appellant resisted his efforts to open his eyes which in his opinion positively indicated that the appellant was in fact conscious since an unconscious patient cannot resist such an effort.
At the Emergency Department, Gitsham proceeded to discharge the s 47E(4)(ab) obligations. He read to the appellant the prescribed oral advice which was reproduced on a pro forma document in his possession. That document was received in evidence at trial as exhibit P1.
Gitsham then further read from exhibit P1: “I now give you a final opportunity to submit to an alcotest” and directed the appellant to exhale into the alcometer. Gitsham then continued to read the rest of exhibit P1 which commenced with a standard caution and included a number of questions and some further advice. Throughout the whole of this period, the appellant continued to keep his eyes closed and gave no response. Constable Gitsham therefore circled “refused” on exhibit P1.
In cross-examination at trial, Gitsham was asked whether he had actually presented the alcometer to the appellant at the hospital. He responded that he had not and explained:[2]
The accused was laying unconscious – well, apparently unconscious with his eyes closed. It – had he sat up I would have got the device out and proceeded with the test.
[2] T49.
He was further asked by the Magistrate whether he had had the alcometer with him at that time and responded:[3]
I think so. I would have – normally – I don’t recall specifically but I don’t see the point in going through this (meaning the oral advice) if I didn’t.
[3] T49.
The Magistrate’s findings of fact
At paragraph [14], the Magistrate made the following findings of fact:
1.That on 1 November 2011 at approximately 10 pm the defendant drove his motor vehicle on various roads before being stopped by Constables Gitsham and Hawyes.
2.That Constables Gitsham and Hawyes were in an unmarked police vehicle. That they were both in uniform and that prior to the vehicle stop red and blue flashing lights attached to their vehicle had been activated to signal the defendant to stop.
3.That Constable Gitsham had a conversation with the defendant as stated by him in his evidence and that during that conversation he proffered a Lion Alcometer to the defendant and requested the defendant provide a sample of his breath. This conversation concluded with the defendant announcing that he was ‘not doing this’ and returning to his motor vehicle, getting inside and attempting to lock the door.
4.That at the time of making the request to provide a sample of his breath at the initial stop, Constable Gitsham had been in possession of a Lion Alcometer and that was an approved device for the purpose of s 47EA(1)(c). I pause to note that a Lion Alcometer is a device approved by the Governor for such purposes in the SA Government Gazette published on 21 July 2005 at p 2430.
5.The defendant was arrested and conveyed to the city watch-house and, thereafter, conveyed to the Royal Adelaide Hospital where he was examined by Dr Adrian Hill. And further that it was Dr Hill’s conclusion, with which I agree and accept, that the defendant was feigning unconsciousness.
6.That at about 23.44 hours Constable Gitsham read the questions contained on P1 the document Road Traffic Act Alcotest For Alcohol Oral Advice On Refusal Or Failure To Comply to the defendant and received no reaction from him.
7.I am not satisfied beyond a reasonable doubt that Constable Gitsham had an approved alcometer in his possession or that such a device was in the possession another police officer in the immediate vicinity of the Royal Adelaide Hospital resuscitation room at the time the contents of P1 were read to the defendant and, specifically, when the direction contained in the second question was given. When asked whether he had the device with him at the time the witness, Gitsham, conceded he had no specific memory but said that he could not see the point of asking the questions unless he did. He said his usual practise when walking was to loop the device to his belt but that he had no specific memory of doing so on this occasion. There is some force to the suggestion that questions such as those contained in P1 would have no point unless such a device was available. However, it seemed to me that Constable Gitsham was not expecting answers from the defendant, and was simply asking questions from the proforma as a matter of routine. So much to me is apparent from the very specific questions at questions two and three which suggest that the actual presentation of a device to the subject. Of course no such device was presented to the defendant. Constable Gitsham’s uncertainty, coupled with this artificiality, leaves me in doubt whether a device was, in fact, in his possession or in the possession of another police officer in the immediate vicinity. It may have been but I can not say so beyond reasonable doubt.
The Magistrate’s reasons for dismissing the Complaint
The Magistrate adopted the following process of reasoning in dismissing the Complaint.
A reasonable direction to provide a sample of breath into the alcometer
The first step in his Honour’s reasoning was that he found that Gitsham had given the appellant reasonable directions at the roadside with which the appellant had refused to comply (the second roadside conversation). His Honour stated:
[9]… [Gitsham] directed the defendant to give a sample of his breath and when he had done so he had been pointing the alcotest device at the defendant’s lips. He had it in his hands and was proffering it to the defendant. …
His Honour then made the finding 3 reproduced above:
[14]…3. That Constable Gitsham had a conversation with the defendant as stated by him in his evidence and that during that conversation he proffered a Lion Alcometer to the defendant and requested the defendant provide a sample of his breath. This conversation concluded with the defendant announcing that he was ‘not doing this’ and returning to his motor vehicle, getting inside and attempting to lock the door.
His Honour later further stated:
[15]Mr Burtt contends that the direction to provide a breath sample was not a ‘reasonable’ direction for the purpose of s 47E(3) of the Road Traffic Act. He says the direction should have been more specific. In this regard I refer to para 7(c) of his written submissions. He contends the defendant should not have to guess what is required of him. I do not accept that, in the circumstances, the direction contained ambiguity. The giving of a breath sample to a police officer at the roadside is now a common and well publicised practise. It has been so for at least two decades. Constable Gitsham gave a clear direction and was holding an alcometer. Plainly it was his direction that the defendant remain and submit to an alcotest. Clearly the direction was understood by the defendant given his responses. I am satisfied the direction was ‘reasonable’ in the circumstances.
(Emphasis in original)
It may be that the Magistrate’s third finding would have been better expressed as “directed” rather than “requested” but I am sure that this is no more than a slip and that his Honour meant “directed”; his Honour used the term “directed”/“direction” when dealing with the same conversation at paragraphs [9] and [15]. However, obviously the most important point is that Gitsham did in fact use the mandatory words “require” and “direct”. Thus, the evidence accepted by the Magistrate clearly established that Gitsham in fact directed the appellant three times in the second roadside conversation to provide a sample of his breath into the alcometer which was ready to operate and which the police officer was then holding and proffering to the appellant.
I respectfully agree with the Magistrate that Gitsham gave specific (and reasonable) directions to the appellant to then and there provide a sample of breath by blowing into the alcometer proffered to him at that time; and that the appellant clearly refused to do so (the roadside refusal).
The giving of the direction by Gitsham engaged the requirement to negate the s 47E(4)(ab) defence
The second step in his Honour’s reasoning was that the roadside refusal to exhale into the alcometer engaged the requirement to negate the s 47E(4)(ab) defence. In other words, the roadside refusal did not constitute a completed offence until police had read to the appellant “the prescribed oral advice” in relation to the consequences of refusing or failing to comply with the direction (together with the appellant’s right to request the taking of a blood sample under sub-s (4a)) and the appellant had been afforded the opportunity to comply with the direction after having received that prescribed oral advice.
I agree that this is so and it was common ground that the reading of the prescribed oral advice did not occur at the roadside.
I note that the Magistrate, at least inferentially, accepted that 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 here disentitle the police from later giving that advice to the appellant at the Emergency Department.
Again, I agree with the Magistrate. Of course, usually the situation will be that the police will discharge the s 47E(4)(ab) obligations shortly after a driver has refused to comply with a relevant direction but the present facts were far from usual. The appellant, by abruptly going to his car, attempting to lock himself in and then feigning unconsciousness deliberately produced a disruptive and confusing situation. I consider that the police behaved in a reasonable fashion, including in taking the appellant to the Emergency Department to get medical advice as to his condition. They there received medical advice that the appellant was feigning unconsciousness (as they had suspected) and they determined in the light of that advice to then discharge the s 47E(4)(ab) obligations. In the circumstances, this was not unreasonable and did not invalidate the proceedings.
Were the s 47E(4)(ab) obligations discharged at the Emergency Department?
The third step in his Honour’s reasoning was that while the s 47E(4)(ab) obligations could have been discharged at the Emergency Department, in fact they were not. The Magistrate considered that the correct interpretation of the legislation was that in order for the required opportunity to be given under s 47E(4)(ab) it was necessary to make a further requirement to the driver to furnish a breath sample and, in order to do that, it was necessary to comply with s 47EA(1)(c) and for Gitsham or another police officer in the immediate vicinity to have an approved device in his possession.
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.
Section 47EA(1)(c) was enacted to address this matter of concern in a robust fashion. The provision makes it very clear that it is not acceptable to stop a driver for an alcotest without then having within very close proximity the required apparatus ready to administer the test. So it is that the emboldened words “such a requirement” refer, and refer only, to an initial direction to a driver to undergo an alcotest, in the present case being the original roadside direction which the Magistrate held to be the subject of the refusal to comply.
The above interpretation is confirmed when one notes the words in s 47E(4)(ab) “allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice …”. Again, the emboldened words “the requirement” refer, and refer only, to the roadside direction that had already been given but not yet complied with. Similarly, the words “allowed the opportunity to comply” refer to a fresh opportunity to comply with that direction in the light of the driver having now been informed (by the giving of the prescribed oral advice) of the serious consequences of failing to comply.
Thus, while the police officer (or a police officer in the immediate vicinity) must have possession of the relevant apparatus when making the original direction to a driver to undergo an alcotest, there may occur unexpected developments and movements of the parties subsequent to the initial refusal to comply. Such developments may lead to the unusual result that, at the time of the later discharge of the s 47E(4)(ab) obligations, the apparatus is no longer in such immediate possession. The present case is a very good example of exactly that factual scenario occurring.
In summary, in discharging the s 47E(4)(ab) obligations, an opportunity to comply must be afforded to the recalcitrant driver. It is then a matter of the driver indicating whether or not he wishes to take advantage of that opportunity. If he still refuses to comply (or if he refuses to say anything), he will have declined the opportunity which has been afforded to him and a prosecution may proceed. If, on the other hand, the driver indicates that he does now wish to comply, it is simply a matter of the police, within a reasonable time,[4] bringing the apparatus to the driver, or taking the driver to the apparatus, and expressly affording him the opportunity to comply with the previous direction(s) which are to be repeated to him. Of course, as such a process of compliance proceeds, further reasonable directions may need to be given to the driver (and in turn complied with by the driver).
[4] The question of what might be a reasonable time simply does not here arise. The finding that the appellant was feigning unconsciousness at the relevant time stands unchallenged and the consequence is that he unequivocally determined to forego the opportunity that was afforded to him.
It follows from the above analysis that there is no statutory requirement that a police officer (or a police officer in the immediate vicinity) must have possession of the relevant apparatus when discharging the s 47E(4)(ab) obligations.
For the above reasons, I consider that the Magistrate erred in his decision to dismiss the Complaint. His Honour should have found the offence proven.
The appeal Judge’s reasons for allowing the prosecution appeal and convicting the appellant
The prosecution appealed from the decision of the Magistrate and the grounds of appeal were as follows:
1.The learned Magistrate erred in dismissing the complaint in that all of the elements necessary to constitute the offence charged had been proven.
2.The learned Magistrate erred in dismissing the complaint in that the respondent had not made out a defence to the offence charged.
As appears from the discussion above, I consider that those grounds of appeal were made out and accordingly I agree with the orders made by the Judge allowing the appeal and setting aside the dismissal. However, it is necessary to say something about his Honour’s reasons. As I understand it, the Judge proceeded in the following stages.
First, that the three directions by Gitsham repeated seriatim during the second roadside conversation amounted only to a preliminary statement to the appellant that he was required to undergo an alcotest. Second, that before Gitsham could proceed to the next stage of giving a specific direction to the appellant to perform a particular physical act, the appellant announced that he would not cooperate in any way and attempted to positively frustrate any test by going to his car, attempting to lock himself inside, and attempting to drink from a flask in the car. Third, that by those actions the appellant thereby “in the terms of s 47E refused to submit to an alcotest”.[5] Fourth, that in the above circumstances the s 47E(4)(ab) obligations were not engaged. His Honour considered this to be so for the following reasons:[6]
[77]The prescribed oral advice under s 47E(4)(ab) in my view is only contemplated if a reasonable direction is given, then refused by the motorist, but who remains present and conscious. It seems unnecessary in the present case to give the prescribed oral advice when the respondent was clearly refusing to co-operate or listen to Constable Gitsham by feigning unconsciousness. In my opinion motorists who behave in this manner should not be acquitted on the basis of their inappropriate behaviour to avoid submitting to an alcotest. It means that the police officer is placed in an impossible position.
[78]Mr Grant submitted that the direction to exhale into the apparatus pursuant to s 47E(2d) had commenced but the process was unilaterally stopped because of the respondent’s behaviour. I would prefer to say that the preamble to the process required by s 47E(2d) was in place. Constable Gitsham did not get as far as getting to the exhale direction, which I have referred to as stage 2, because the respondent’s behaviour interrupted the sequence of directions. It did not get to the point where the obligation to exhale had begun.
[79] Doyle CJ in Gaskin v Police at paragraph [40] stated:
[40] The terms of the prescribed oral advice … indicate that it relates to the performance of the breath analysis or alcotest, and in particular it relates to the obligation to exhale. The performance of the alcotest or breath analysis “…commences when a direction if first given by a police officer that the person concerned exhale …”: s 47E(2d).
[80]As I have stated, Constable Gitsham did not get to this direction because he was thwarted in his attempts.
[5] Police v Lester (2013) 63 MVR 67, 80 [72].
[6] Police v Lester (2013) 63 MVR 67, 80-81.
His Honour therefore concluded that it was unnecessary to consider the later events at the Emergency Department since the s 47E(4)(ab) obligations were never engaged and did not have to be discharged.
With respect, I substantially disagree with this approach. In order to explain why, a slightly broader view of the history and development of the legislation needs to be taken.
The structure and development of the Road Traffic Act 1961 (SA)
Much has been written about the societal merits and demerits of random breath testing and I do not intend to add to that literature unnecessarily. I will briefly refer to the development of the current Road Traffic Act 1961 (SA) provisions[7] applicable to the making of a requirement of a driver to submit to an alcotest[8] with particular emphasis on the police powers under s 47E and the s 47E(4)(ab) obligations.
[7] These were all in operation at the time of the subject incident.
[8] I do not include a consideration of breath analysis since that was not involved in the present case.
Road Traffic Act 1961 (SA) sub-ss 47E(1) and 47E(3) as they presently appear
Section 47E(1) as it presently appears confers a power upon a police officer (who satisfies the condition precedent of holding a particular belief on reasonable grounds) to subject a person to a requirement to submit to an alcotest or a breath test or both (the requirement). The exercise of that power engages the operation of s 47E(3) which has two consequences. First, it enables the police officer to give reasonable directions to the person subject to the requirement and, in particular, to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of the police officer. Second, it creates an offence constituted by refusing or failing to comply with those reasonable directions and, in particular, by refusing or failing to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with such reasonable directions.
Since the offence originally created by s 47E(3) was a new offence involving significant inroads into traditional civil liberties, the legislation was highly specific in delineating the offence. It was constituted by a refusal to obey a particular reasonable[9] direction made by a police officer to the driver to do (or refrain from doing) a particular physical act after it had been made known to the driver that he or she was a person required to submit to an alcotest.
[9] The legislation has always required that the direction be a reasonable direction. Indeed in Bormann v Coldwell (1986) 43 SASR 297, 303-304, Von Doussa J rejected a prosecution submission that the word “direction” in s 47E(3) (appearing without the word reasonable) meant any such direction and held that the requirement that the direction be reasonable extended to all directions.
This particular direction was to be distinguished from the broader and more amorphous requirement of submitting to an alcotest. The evident policy of the legislation was that there was to be as little potential confusion for the driver as possible; the driver was to be provided with a clear (reasonable) direction from a particular police officer to do a particular thing rather than having to guess what was expected of him.
In 1981, both the trial Magistrate and Commissioner Bollen (as he then was) on appeal in Chirgwin v Trittinger[10] emphasised the importance of the distinction between a requirement and a direction. Thus, Commissioner Bollen observed that the Magistrate had correctly stated:[11]
… A person who repudiates a requirement does not commit an offence unless and until he receives a direction in relation to that requirement and refuses or fails to comply with that direction. The offence charged was that the appellant “refused to comply with all reasonable directions”.
[10] (1981) 96 LSJS 445.
[11] Chirgwin v Trittinger (1981) 96 LSJS 445, 446.
Commissioner Bollen later elaborated as follows:[12]
Section 47e(3) contemplates a requirement to submit to an alcotest or breath analysis. That requirement must be made pursuant to s 47e(1). Parliament envisages that something will be done about the requirement. That “something” is the giving of directions. No doubt it would have been possible for Parliament to have made it an offence to refuse or fail to comply with the requirement. It is easy enough to imagine difficulties that might then have arisen. Arguments that the requirement was not sufficiently pointed, that a defendant was left in doubt about what he was to do would, I think, have beset the courts.
[12] Chirgwin v Trittinger (1981) 96 LSJS 445, 447-448.
Similarly, in Bormann v Coldwell[13], von Doussa J stated:[14]
… it is apparent that the “reasonable directions” comprehend directions by the member of the police force to perform physical acts necessary to carry out the required test. The “reasonable directions” would deal with such matters as a direction to wait until a breath analysis instrument arrived, a direction not to drink alcohol in the meantime, a direction to walk to the police car so that the test could be conducted, and directions about exhaling into the apparatus.
[13] (1986) 43 SASR 297.
[14] Bormann v Coldwell (1986) 43 SASR 297, 303-304.
The legislative history of s 47E sub-ss 47E(2) and 47E(2a)
Sub-sections 47E(2) and 47E(2a) were enacted in the current form by s 9(1), Statutes Amendment (Drink Driving) Act 2005 (SA) (the Drink Driving Amendment) which came into force on 1 June 2005.[15] This amendment replaced cause based testing with a discretionary police power to test any driver. In introducing the Drink Driving Amendment Bill, the Minister informed the House that the Road Safety Advisory Council had recommended to the government the introduction of unrestricted mobile random breath testing and continued:[16]
Unrestricted mobile random breath testing will enhance static random breath testing. … Stationary random breath testing is effective when it is highly visible, well publicised, and conducted sufficiently frequently to create a public perception that drink drivers have a good chance of being caught. This serves to deter individuals from drinking and driving.
However stationary testing is resource intensive and compared to mobile random breath testing, detects relatively few drink-driving motorists.
[15] Statutes Amendment (Drink Driving) Act (Commencement) Proclamation 2005 (SA) s 2(1).
[16] South Australia, Parliamentary Debates, House of Assembly, 28 October 2004, 683 (Patricia White, Minister for Transport).
Thus, the power to give directions for the purpose of making a requirement to submit to a breath analysis under the extended police powers is now conferred by ss 47E(2) and 47E(2a).[17] The actual making of the requirement to the driver enlivens the power of a police officer to give reasonable directions (including to exhale into the apparatus by which the alcotest or breath analysis is to be conducted) to that person under s 47E(3).
[17] In the Act, as it stood immediately before this amendment, random breath tests could only be conducted from a breath testing station established pursuant to s 47BA or during a prescribed period (defined to mean any long weekend and any period of school holidays): see the previous ss 47E(2a) and 47E(2ab). The enactment of the former s 47E(2a) and (2ac) was necessary to confer power to administer random breath tests since the power under s 41 of the Act was not wide enough to support random breath testing. Section 47E(2ab) and (2ac) were retained as s 47E(2) and (2a) and provide statutory authority to stop a vehicle whose driver a police officer wishes to subject to a requirement pursuant to the expanded s 47E(1) of the Act without suspicion of the commission of an offence.
The purview of the powers under s 47E(2)
The allocation of powers as between s 47E(2) and s 47E(3) is both confirmed and made the more stark by the fact that the offence created by s 47E(3) prescribes substantial minimum fines and (via s 47E(6)) substantial minimum periods of licence disqualification whereas, in the case of an offence under s 47E(2a) relating to non-compliance with a direction under s 47E(2), the penalty is limited to a fine only with no minimum fine and no provision for licence disqualification, let alone minimum licence disqualification periods.[18]
[18] When s 47E(2) was originally inserted in the Act (by s 9(1), Statutes Amendment (Drink Driving) Act 2005) (SA) it was accompanied by s 47E(2a) in the form: “A person must forthwith comply with a direction under subsection (2)”. Thus, s 47E(2a) did not have a specific penalty provision but the introduction of s 47E(2a) in that form did create a new offence by virtue of s 164A(1), Road Traffic Act 1961 (SA) which provided, inter alia, that “a person who contravenes or fails to comply with … a provision of this Act … is guilty of an offence”. Since no penalty was specified, the penalty was that then generally provided by virtue of s 164A(2), namely a penalty not exceeding $1250. The Legislature subsequently decided to increase the maximum penalty for breach of s 47E(2a) and did so by amending s 47E(2a) by simply adding the words “Maximum Penalty: $2900”. This amendment was inserted by s 34(1), Statutes Amendment (Transport Portfolio – Penalties) Act 2011 (SA) which came into force on 30 June 2011: see Statutes Amendment (Transport Portfolio - Penalties) Act (Commencement) Proclamation 2011 (SA) s 2.
The purview of s 47E(2) is relatively narrow; it authorises the initial direction to a driver to stop (made by the police officer for the purpose of requiring the driver to undergo an alcotest) and further directions associated with the stopping of the vehicle (for example, precisely where the driver is to park). The whole purpose of s 47E(2) is to enable a police officer to notify the driver as soon as possible that he or she is required to submit to an alcotest. Once that information has been conveyed to the driver, all further directions will be taken to be made pursuant to s 47E(3) (with disobedience being subject to the more stringent penalties under that sub section).
Application of the legislative provisions to the present case
In the present case, Gitsham validly directed the appellant to stop pursuant to s 47E(2) and the appellant obeyed that direction. Gitsham obviously considered that it was appropriate to leave the appellant’s vehicle in the position in which it had come to rest and gave no further directions along those lines.
I emphasise that is debateable whether the first roadside conversation reproduced above (“I have stopped you for a random breath test…. If you’d like to stay with me on the side of the road until we’re ready”) was sufficient to notify the appellant that he was a person required to submit to an alcotest. However, the appellant did wait for the five minutes and accordingly no point as to this arises (and nor was it argued).
The prosecution contentions as to the nature and validity of Gitsham’s roadside “direction”
At the end of the five minute waiting period, Gitsham was holding the alcometer which was ready for immediate use and the appellant was standing next to Gitsham. The prosecution contends that the second roadside conversation that then ensued (reproduced above) made very plain both that the appellant was a person who was required to submit to an alcotest and that mandatory directions were then being given pursuant to s 47E(3).
The appellant’s contentions as to the nature and validity of Gitsham’s roadside “direction”
On the hearing of this appeal, the appellant’s primary contention was that the Judge had erred in his approach and that Gitsham in the second roadside conversation did require the appellant to submit to an alcotest and did give specific reasonable directions pursuant to s 47E(3). This approach was obviously designed to lead to a conclusion that the s 47E(4)(ab) obligations were therefore enlivened (consistently with the view of the Magistrate and contrary to the view of the Judge) with the appellant then seeking to support the ultimate conclusion of the Magistrate that the obligations were not discharged. I will revert to this matter below.
However, the appellant also put an argument (referred to as “the fall back position”) which was virtually the opposite of his primary position. It was that Gitsham in fact gave no valid direction at the roadside at all. It seemed to me that this argument was sought to be put at two slightly different levels (although they became conflated from time to time).
The first level of argument – Police v Spitzer
On the first level, the argument was that no “direction to exhale” was given to the appellant during the second roadside conversation because the words used by Gitsham[19] were no more than a general intimation that he was directing the appellant to undergo an alcotest as distinct from giving him the required “direction to exhale”. The appellant sought to rely on the decision of Duggan J in Police v Spitzer (Spitzer) and particularly his Honour’s following statements:[20]
[6]In the event that a police officer believes on reasonable grounds that one of the conditions referred to in s 47E(1) of the Act is present, the police officer may require the driver of the vehicle to submit to an alcotest or breath analysis, or both.
[7]The section contemplates that directions in relation to this requirement will then be given and s 47E(3) creates the offence of refusing or failing to comply with all reasonable directions given in relation to the requirement.
[8]The legislation draws a distinction between the concept of requiring the driver to submit to the alcotest or breath analysis and the giving of directions which are required in order to direct the carrying out of that requirement. I agree with the comments made by von Doussa J in Bormann v Coldwell (1986) 43 SASR 297 at 304:
In my view when subs (3) of s 47e is read with subss (4) and (5) it is apparent that the “reasonable directions” comprehend directions by the member of the police force to perform physical acts necessary to carry out the required test. The “reasonable directions” would deal with such matters as a direction to wait until a breath analysis instrument arrived, a direction not to drink alcohol in the meantime, a direction to walk to the police car so that the test could be conducted, and directions about exhaling into the apparatus.
[19] “I now require you to provide a breath sample”; and “Sir I am now directing you to provide a breath sample’; and “For 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”.
[20] (2003) 85 SASR 431, 433.
After considering the conversation between the police officer and the driver in that case, Duggan J concluded:[21]
[13]There is no doubt that the police officer advised the respondent that he was required to submit to a breath test. However, I agree with the magistrate’s view that there was insufficient proof of a direction of the type envisaged by s 47E(3).
[21] Police v Spitzer (2003) 85 SASR 431, 434.
With respect, that decision was obviously correct on the facts in Spitzer but it simply does not apply to the present facts. In Spitzer, the police officer had no specific recollection as to whether he was holding an alcotest apparatus when he spoke to the respondent and it was not proven that he did. Thus, Spitzer proceeded on the basis that the driver was told that he was required submit to an alcotest but no instrument was produced to him and no specific directions were given in relation to a particular apparatus.
The situation in Spitzer was very different from the present case. Here Gitsham’s statements had to be interpreted in the context of the proven facts that he was then proffering the straw of the alcometer (which was ready to operate) for the appellant to take into his mouth, pointing the straw at the appellant’s lips (at a distance of only 50 centimetres). In my view, Gitsham was clearly requiring the appellant to take that straw into his mouth and to “blow”/“exhale” into it forthwith. Equally clearly, the appellant refused to obey those clear directions.
The validity of that basis of distinction between Spitzer and the present case is confirmed when one has regard to Duggan J’s concluding remarks in Spitzer:[22]
[14]The directions must be “in relation to the requirement” to submit to the test. They are concerned with doing or refraining from doing some physical act associated with the test. However, the conversation set out above goes no further than notifying the respondent in general terms that he is obliged to submit to the test, coupled with an intimation by the respondent that he does not intend to submit to the test. It does not appear from the evidence that the stage had been reached at which directions were being given in relation to the actual test.
[15]It is not necessary for a police officer to employ the terminology of the section, although the use of the phrases “I require you to submit” and “I now direct you to” might well be employed to draw the distinction between the two stages contemplated by the section. In this case the police officer advised the respondent that he was required to submit to the test and that he was being directed to submit to the test. However, on the evidence led before the magistrate, the respondent was not given any directions associated with the performance of the physical acts required by him in order for the test to be carried out. In these circumstances, it cannot be said that he refused to carry out reasonable directions in relation to the requirement to submit to the test.
[22] (2003) 85 SASR 431, 434-435.
Thus, at paragraph [14], his Honour emphasises the lack of a direction to do a physical act which in turn leads to a conclusion that the stage had not been reached at which directions were being given in relation to the actual test. By contrast, in the present case there was a direction to do a physical act, namely to provide a breath sample by blowing into the straw which in turn leads to a conclusion opposite to that reached in Spitzer, namely that the stage had been reached at which directions were being given in relation to the actual test.
Again, by contrast to what his Honour said at paragraph [15], in Spitzer, Gitsham had indeed given “directions associated with the performance of the physical acts required by (the driver) in order for the test to be carried out” and accordingly the result opposite to that in Spitzer is reached.
I therefore reject the first level of argument.
The second level of argument – inadequate specificity
As I followed the second level of the appellant’s argument, it was to the effect that what has to be proven beyond reasonable doubt is not just a general direction by a police officer to exhale into the apparatus but rather specific directions as to the way in which the driver is to exhale into the apparatus. In other words, even if, contrary to the first level of argument, a direction to exhale had been made by Gitsham, the direction was insufficiently specific in that directions were required as to how such exhalation had to be performed.
The situation here is quite similar to that considered by Duggan J in Schild v Rees,[23] a decision not cited on the appeal. The police officer there handed the mouthpiece of a breath analysing instrument to the driver and directed: “Please blow into those and keep blowing until I tell you to stop”. In essence, it was argued that such a direction was incomplete and open-ended and therefore invalid for want of specificity. Duggan J rejected that contention, stating:[24]
… There is nothing in the evidence to suggest that the police officer’s expectations exceeded the achievement of this goal or that he was insisting on the respondent doing anything which was going to involve him in discomfort to an unreasonable level. Mr Tilmouth has argued that the direction is incomplete and open ended. It certainly did not cater for every contingency which might have arisen, but it is to be expected that in many cases compliance with such a direction would result in the breath test being carried out effectively. If difficulties arise after a direction such as this then further directions can be given as they were in this case. I do not think that the suggestions raised by the learned magistrate concerning an explanation as to the type of breath needed or the query as to the capacity to provide a breath sample, are necessary in order to make the request reasonable, however useful mention of the first of these matters might be.
[23] (1990) 158 LSJS 285.
[24] Schild v Rees (1990) 158 LSJS 285, 289.
I note that in the present case the direction was more clearly mandatory in nature than that given in Schild (“Please blow…”) and the proffer of the instrument here was much the same.
I therefore also reject this second level of argument.
Conclusion as to the validity of the roadside directions by Gitsham
I conclude that the prosecution contention is correct. In the second roadside conversation, Gitsham required the appellant to submit to an alcotest and gave valid and reasonable directions under s 47E(3). It is quite clear that the appellant elected to refuse to comply with those directions.
The s 47E(4)(ab) obligations to give the prescribed oral advice and a further opportunity to comply with the original direction
As noted above, the primary contention of the appellant was that the Judge had erred in his approach and that the directions of Gitsham were valid directions with the result being that the s 47E(4)(ab) obligations were therefore enlivened (consistently with the view of the Magistrate but contrary to the view of the Appeal Judge). The appellant then sought to support the ultimate conclusion of the Magistrate that the s 47E(4)(ab) obligations were not discharged.
There is no doubt that where, as in the present case, the direction relied upon by the prosecution is a direction to exhale into a presented apparatus, this obligation to give the prescribed oral advice under s 47E(4)(ab) will apply and I have already indicated that the Magistrate was correct in concluding that the s 47E(4)(ab) obligations were enlivened. I differed with the Magistrate only on the question as to whether they were discharged.
However, in light of the importance of the s 47E(4)(ab) obligations generally it is appropriate to say something further about them.
The decision in Gaskin v Police
In Gaskin v Police,[25] (Gaskin) Doyle CJ considered the application of s 47E(4)(ab) in the following situation. Police had directed the defendant to stop her vehicle and then required her to submit to an alcotest which returned a positive result. She was then told that she would have to accompany the officers to a nearby police station for further testing. She subsequently took refuge in the back of a police cage car with her dog. Police then gave her a direction to come out of the cage car. This direction was clearly given pursuant to s 47E(3) and its purpose was to take her to be breath tested. However, she refused to come out; when she did eventually emerge after some delay she was arrested for her initial refusal to come out. The defendant did subsequently undergo a breath analysis test. She was charged with an offence against s 47E(3) solely on the basis of the refusal to emerge promptly from the cage car.
[25] [2009] SASC 351.
It is clear that the basis of his Honour’s conclusion that the s 47E(4)(ab) obligations did not apply was that the direction to come out of the cage was not a direction of the type addressed by the terms of the prescribed oral advice. His Honour was of the view that the direction to come out of the cage was different from, and preliminary to, “directions and requirements made when an alcotest or breath analysis is about to be undertaken”. Thus, his Honour stated:[26]
[37]The obligation to give the prescribed oral advice is created in an odd backhand way. Nowhere in s 47E or elsewhere does the RTA impose an affirmative obligation to give the prescribed oral advice. The obligation arises by inference and indirectly from the existence of a ground of defence which assumes the existence of an obligation to give the prescribed oral advice. It is this that gives rise to uncertainty as to the circumstances in which the obligation to give the prescribed oral advice arises.
…
[40]The terms of the prescribed oral advice, set out above, indicate that it relates to the performance of the breath analysis or alcotest, and in particular it relates to the obligation to exhale. The performance of the alcotest or breath analysis “… commences when a direction is first given by a police officer that the person concerned exhale …”: s 47E(2d).
[41]The terms of the prescribed oral advice are relevant when considering whether and when the obligation to give the prescribed oral advice arises. If there is no prescribed oral advice in relation to refusing or failing to comply with a requirement or direction, there can be no obligation to give that advice. One must examine the terms of the prescribed oral advice to decide whether or not it relates to a refusal or failure to comply with the relevant requirement or direction. If, for example, the only prescribed oral advice was to the effect that “… before exhaling into the apparatus you must take three deep breaths …”, one would readily conclude that there was no prescribed oral advice in relation to, for example, a refusal or failure to comply with a direction to stop the driver’s motor vehicle, a direction not to consume fluids, or with a direction to remain in the presence of the relevant police officer. In other words, s 47E(4)(ab) leaves it to the drafter of the prescribed oral advice to determine, through the content of the prescribed oral advice, which requirements and directions under s 47E(2) attract the obligation to give the prescribed oral advice, if there is a failure or refusal to comply.
[42]This is not a case of using a regulation to interpret or affect the meaning of the RTA. The RTA itself directs the reader to the Regulations to determine whether the refusal or failure to comply is one that attracts the obligation to give the prescribed oral advice. The question is whether the prescribed oral advice (having regard to the contents) relates to the refusal or failure in question.
[43]The terms of the prescribed oral advice, set out above, make it clear that the prescribed oral advice is not in relation to the failure to comply with the direction that Constable Johnson gave to Ms Gaskin to get out of the cage car. It is not necessary to determine the directions and requirements to which the prescribed oral advice does relate. It appears to be directed towards directions and requirements made when an alcotest or breath analysis is about to be undertaken.
[44]Accordingly, I do not accept Mr Tremaine’s submission. However, his submission highlights a deficiency in the drafting of the relevant provisions, which should be remedied by legislation. As things stand there is scope for uncertainty about the obligation to give the prescribed oral advice. (Emphasis added)
[26] Gaskin v Police [2009] SASC 351.
Although I accept that certain aspects of the application of s 47E(4)(ab) may remain unclear, I consider the position to be as follows.
First, the legislation recognises that random breath testing has the potential to bring drivers into contact with police when the majority of those drivers will have committed no substantive offence and may have had little experience in being accosted by police and being given peremptory orders when they have done nothing wrong. It is therefore both desirable and important that drivers who may be unenthusiastic about complying in such circumstances, and 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. The provision of the s 47E(4)(ab) advice is calculated to achieve that result.
Second, 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. For example, say a police officer directs the driver to exhale into an alcotest device but the driver then suddenly produces a hipflask from his pocket and gulps down some brandy exclaiming, “This will mess up your test!”. In such a situation, there is clearly no point in giving the prescribed oral advice because the forbidden act has been performed in contravention of a direction and the damage has already been done. A successful prosecution may follow.[27]
[27] I should perhaps specifically mention what should be obvious. If a recalcitrant driver has himself put it out of his power to hear the police perform the s 47E(4)(ab) obligations (for example, if the driver were to run from the scene and make good his escape before the police officer is able to perform those obligations) the officer is not required to recite a pro forma to the wind and a successful prosecution may follow if the driver is later located. Of course, matters of degree immediately may arise. If the fleeing driver runs only a short distance and is then apprehended, a police officer should then perform the s 47E(4)(ab) obligations. It is unnecessary to further consider such matters here.
Third, however, where (as in both Gaskin and the present case) s 47E(3) has been engaged, the mandatory penalties (including licence disqualification) apply no matter what direction is disobeyed. There is no logical distinction to be made between a “preliminary” direction pursuant to s 47E(3) and the “final” direction to exhale made pursuant to s 47E(3) if disobedience to either is to be met with the same mandatory penalty. It is equally important in both cases that drivers be warned so as to be able to properly consider their position.
In my view, despite the problematic drafting of s 47E(4)(ab), the legislative intent can be discerned and may be expressed in the following steps. First, s 47E(4) is directed to all prosecutions for offences against s 47E(3). Second, 47E(3) treats disobedience to all directions equally seriously having regard to the uniform mandatory penalties applicable. Third, it is of equal importance in relation to all directions that the driver be aware of the consequences of disobedience. Fourth, there is no hint of a legislative intention to make a distinction between the various directions that may be given under s 47E(3). Fifth, the reason for legislating for the precise wording to be provided by Regulation was to provide a mechanism whereby precise wording could be readily updated and not to abnegate legislative responsibility as to when such oral advice would be required to be given, and when it would not be, in cases with equally serious consequences for the drivers.
Doyle CJ held to the contrary in Gaskin. His Honour stated:[28]
[41]…In other words, s 47E(4)(ab) leaves it to the drafter of the prescribed oral advice to determine, through the content of the prescribed oral advice, which requirements and directions under s 47E(2) attract the obligation to give the prescribed oral advice, if there is a failure or refusal to comply.
[42]This is not a case of using a regulation to interpret or affect the meaning of the RTA. The RTA itself directs the reader to the Regulations to determine whether the refusal or failure to comply is one that attracts the obligation to give the prescribed oral advice. The question is whether the prescribed oral advice (having regard to the contents) relates to the refusal or failure in question.
[28] Gaskin v Police [2009] SASC 351.
With the greatest respect, I am unable to accept that reasoning of Doyle CJ. However that may be, I consider that if the police intend to charge an offence contrary to s 47E(3), then it is safest for the police, and fairest to the driver, that they always fully perform the s 47E(4)(ab) obligations (unless the circumstances involve a situation such as described above of a driver having deliberately performed a positive act that cannot be undone).
However, it is unnecessary to pursue this matter any further since the present case involved a prosecution on the basis of the clear initial roadside refusal to exhale into the apparatus and accordingly the obligation to give the prescribed oral advice pursuant to s 47E(4)(ab) undoubtedly applied. The prescribed oral advice was in fact later given and the appellant eschewed the opportunity to repent; now he must pay the forfeit.
Conclusion
For the above reasons, I agree with the orders made by the Judge that the decision of the Magistrate be set aside and that the appellant be convicted. I would therefore dismiss the present appeal.
STANLEY J. I would dismiss the appeal. I agree with the reasons of Peek J.
3
1