Liney v Police No. Scciv-03-446

LINEY v POLICE
[2003] SASC 211
Magistrates Appeal
Gray J

This is an appeal against conviction.
The appellant Paul Graham Liney was charged on complaint with driving under the influence and failing to indicate a change of direction[1]. He was convicted of both offences following a trial before a magistrate at Roxby Downs. Mr Liney has appealed against his conviction for driving under the influence. He was represented on the hearing of the appeal.
[1] On the 23^rd day of February, 2002 at Roxby Downs in the said State being the driver of a vehicle namely a motor vehicle on a road namely Burgoyne Street, who changed direction to the right by turning right into Burgoyne Street, you did not before changing direction, give a chance of direction signal in accordance with rule 49 of the Australian Road Rules for long enough to give sufficient warning to other drivers and pedestrians
The appeal raises issues arising from the malfunction of a breath analysis instrument. It was said that notwithstanding the malfunction Mr Liney had a statutory right to request a blood kit and have a blood test taken. As this right had not been respected it was contended that the trial should have been stayed. Alternatively it was said that evidence of police observations should have been excluded as a matter of discretion. It was also contended that the conviction was unsafe.
Proceedings before the Magistrate’s Court
Mr Liney was unrepresented at trial. The magistrate discussed the issue of representation but Mr Liney informed him that he wanted to represent himself. The transcript reveals that the magistrate assisted Mr Liney appropriately during the hearing. When Mr Liney was encountering difficulty in putting his case the magistrate assisted. No application was made by Mr Liney to have any police evidence excluded as a matter of discretion. No application for a stay of the proceedings was made. Mr Liney did not seek an adjournment to obtain legal advice.
The Crown called two police witnesses who recounted their observations of Mr Liney’s driving at Roxby Downs on 23 February 2002. The police officers formed the opinion that Mr Liney had driven in contravention of the Australian Road Rules and had been driving under the influence of alcohol. Mr Liney accompanied the officers to the Roxby Down police station and agreed to undertake a breath analysis test. The breath analysis instrument malfunctioned on a number of occasions.
Mr Liney gave evidence and called a witness. Steven Robert Cox. Mr Liney recounted that he had spent some time at a Roxby Downs hotel but had only consumed three stubbies of beer. Mr Cox gave an account which suggested Mr Liney may have drunk more than three stubbies of beer at the hotel.
The magistrate accepted the evidence of the police officers and rejected that of Mr Liney where the evidence conflicted:
The prosecution called two police officers as witnesses, they being Constable Cheers and Senior Constable Griffin. Their evidence is substantially consistent with each other’s evidence, but not identical. There are some slight differences. They are not crucial but they are the sorts of differences one would expect to hear when witnesses recount things which have happened a year ago. They are also the sorts of differences which tend to negate any suggestion of them having concocted a story. I regard them as reliable witnesses.
…
My impression overall of the defendant’s evidence is that he has reconstructed some aspects of events. He has not been supported by his witness, Mr Cox, as to the amount of beer that he consumed on the night. The defendant said that he drank only three beers. Cox said that he, himself, arrived at the hotel about 10 o’clock. The defendant said that he had arrived there about 9 o’clock. Cox said that the defendant was already there when Cox arrived. The defendant had a stubby of full strength draught beer in his hand partly consumed when Cox arrived. Together, according to Cox, the three men drank three stubbies of beers of the same type and size. Cox seemed quite clear on that and I would accept his evidence as to the amount consumed. Otherwise Cox’s evidence had little bearing on the issues in this case as it was limited to general opinion evidence as to the defendant’s capacity as a driver and as to his drinking habits.
Having regard to my impressions of the defendant and the officers and to Cox’s evidence I reach the position where I conclude that in the event of conflict between the evidence of the defendant and the officers Cheers and Griffin, I should accept the evidence of the officers and reject the evidence of the defendant and that is my decision in assessing the evidence. I accept Cox’s evidence where it conflicts with the defendant’s evidence and reject the defendant’s evidence.
The magistrate’s findings included:
That at about 2.05 am on the 23 February 2002 the defendant was driving a Jeep Cherokee vehicle west along Sunset Drive and proceeded to turn right into the portion to the north of that road.
That he failed to indicate a right hand turn and as he turned into that road a police car driven by Cheers with Griffin in the passenger seat in the front, was approaching in a southerly direction, that junction and the defendant’s vehicle narrowly missed the vehicle driven by the police officer.
That Cheers turned left into Sunset Drive and then reversed across the junction and turned left again into the portion of Sunset Drive out of which he had come and pursued the vehicle driven by the defendant.
That he saw either brake or tail lights on a vehicle in the driveway of Lot 19 at the end of that portion of Sunset Drive when the police vehicle was adjacent to Lot 30/31 boundary.
That Cheers thereupon drove directly to Lot 19, arriving there between five and ten seconds after making the last mentioned observation and upon arrival there the defendant was getting out of the driver’s door of the vehicle. There was no other person in the vehicle. The defendant was unsteady on his feet, that he leant on the door of the vehicle for support.
That the defendant’s speech was slurred. That the defendant’s eyes were watery. That the defendant smelt noticeably of alcohol.
That Cheers formed the opinion that the defendant was affected by alcohol and had been driving under the influence of alcohol.
That Griffin made similar observations except for the watery eyes and that he also reached a similar conclusion. Griffin is a very experienced officer, having been working in traffic matters for some sixteen years and he had handled at least 100 drink driving cases, including at least 30 DUI cases.
He then concluded:
I am satisfied having regard to those findings that the defendant was so affected by intoxicating liquor as to be incapable of exercising effective control of his vehicle. I so find beyond reasonable doubt.
In relation to the breath analysis machine the magistrate observed:
…The breathalyser machine failed. Three more attempts, including one on override, were made but none was successful. The defendant supplied an adequate sample of breath but the machine malfunctioned and failed to record any reading.
…
…the defendant raised the question of a blood sample…Griffin concluded he was not obligated to make arrangements for same.
I consider further the question of the blood sample request by the defendant. On my reading of the legislation it does not contemplate a malfunction of the breathalyser machine. The provisions imposing obligations for police officers to expedite the taking of blood samples and to provide blood kits are consequent and complementary to the provisions relating to the taking of a breath sample. The obligations arise when the reading has been obtained from the breathalyser machine. The legislation provides the police with the option of proceeding under Section 47 with the charge of driving under the influence rather than proceeding in all cases with a charge under Section 47B, prescribed concentration of alcohol. In the case where the police decide that a person has driven under the influence of alcohol and decide to proceed under Section 47, the same obligations as to blood samples do not arise. I consider therefore that in the circumstances of this case there has been no unfairness to the defendant arising from the decision of the police not to expedite a blood sample being taken. I do not consider there has been any unfairness or injustice to the defendant arising from the malfunction of the breathalyser.
Extension of Time
Mr Liney sought an extension of time within which to appeal. Apparently the provision of the sentencing remarks was delayed as a result of the magistrate being on circuit. Further it was said that the fact that Mr Liney resided at Roxby Downs had caused difficulties in obtaining legal advice about an appeal. The Crown accepted that it had not been prejudiced by the delay. In the circumstances, particularly having regard to difficulties that arise in rural areas, it is appropriate to extend time[2].
[2] Police v Warren [2000] SASC 285 at [16-17]
The Legislative Scheme
Section 47G (1) of the Road Traffic Act 1961 (SA) provides:
(1) Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis.
(1a) No evidence can be adduced in rebuttal of the presumption created by subsection (1) except—
(a) evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I or in accordance with the procedures prescribed by regulation; and
(b) evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.
(1ab) If it is proved in proceedings that a concentration of alcohol was present in the defendant's blood at the time of a breath analysis, it must be conclusively presumed that that concentration of alcohol was present in the defendant's blood throughout the period of two hours immediately preceding the analysis.
(1b) No evidence can be adduced as to a breath or blood alcohol reading obtained from a coin-operated breath testing or breath analysing machine installed in any hotel or other licensed premises.
In order to address the imbalance brought about by the statutory presumption the legislative scheme provides safeguards to protect the rights of persons who may be dissatisfied with the breath testing regime or the procedures that have been followed. The scheme provides those persons with the opportunity to have a portion of the blood sample tested independently. The legislative safeguards have been described as critical. They form an integral part of the legislative scheme. Sections 47G (2) and 47A address these safeguards and provide:
47G(2) As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying—
(a)     the reading produced by the breath analysing instrument; and
(b)     the date and time of the analysis.
(2a) Where a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith—
(a)     give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person's blood; and
(b)     at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.
…
47FA. (1) Where—
(a)     a person submits to a breath analysis conducted under this Act at a place outside Metropolitan Adelaide; and
(b) the person requests a blood test kit as referred to in section 47G(2a); and
(c) it appears to a member of the police force that the person has failed or will fail, despite reasonable endeavours, to make safe and appropriate transport arrangements within the period of two hours after the conduct of the breath analysis to attend at a place at which a sample of the person's blood may be taken and dealt with in accordance with the procedures prescribed by regulation for the purposes of section 47G(1a); and
(d)     the person requests of a member of the police force that a member of the police force transport the person, or arrange for the transport of the person, to such a place,
a member of the police force must transport, or arrange for the transport of, the person to such a place.
It is to be observed that the safeguards provided by section 47G(2a) are predicated on the assumption that the breath analysis instrument discloses a result, namely that there is present in a person’s breath sample the prescribed concentration of alcohol. Once that circumstance occurs the statutory safeguards operate. The person providing the sample is entitled to the protection of the statutory scheme including, if requested the provision of a blood kit. The statutory obligations arising from section 47FA are also predicated on a number of matters including a request for a blood kit having been made pursuant to section 47G(2a). It follows that the obligations set out in section 47FA can only arise when a breath analysis test has been performed and a reading of the prescribed concentration of alcohol obtained.
Issues on Appeal
Unfairness
Counsel for Mr Liney submitted that if the breath analysis instrument functioned correctly and if a blood alcohol reading disclosing the prescribed concentration had been obtained then Mr Liney would have been entitled to oral advice, a written notice of his rights and if requested, a blood kit. It was said that pursuant to the statutory scheme he could have then requested that the police arrange for transport to the nearest hospital to facilitate a blood test. It was contended that Mr Liney should not have been put in a worse position because the breath analysis instrument malfunctioned. It was claimed that Mr Liney had lost the opportunity to obtain the results of a blood test against which to test the police officers “subjective” observations.
The statute does not impose a duty upon investigating officers to undertake a breath analysis in every case. The statutory scheme does not impose any general obligation on investigating officers to facilitate the taking of blood tests. The statutory obligation to provide oral advice, a written notice, and a blood kit on request only arise when a breath analysis instrument produces a recording disclosing the prescribed concentration of alcohol. There is no suggestion in the legislation that in the event of the instrument malfunctioning any obligations arise. The statutory rights provided to a defendant are conditioned on the breath analysis process disclosing the prescribed concentration of alcohol.
The investigating officer’s obligation to provide oral advice, a written notice, and a blood kit on request do not arise if the breath analysis instrument produces a reading showing less than the prescribed concentration of alcohol. This supports the view that no obligation arises in the event of a breath analysis instrument malfunctioning.
In the present case the Crown did not seek to rely on any breath analysis evidence. It did not seek to invoke any statutory presumption. The statutory safeguards were not required to protect Mr Liney against any unfairness that might arise through the application of the statutory presumption.
Mr Liney was at liberty to arrange for his own blood test. He could have made contact with a hospital or medical practitioner and sought to have his blood analysed for the purposes of challenging the police officer’s observations. Had he been prevented from following such a course by police activity then some unfairness might possibly arise. However this did not occur in the present case.
As the magistrate observed the legislation provides the police with an option of proceeding under section 47 with the charge of driving under the influence rather than proceeding with a charge under section 47B of driving with the prescribed concentration of alcohol. The same obligations as to blood samples do not arise with proceedings under section 47. The magistrate was correct in his analysis of the legislation and in his conclusions with respect to the breath analysis instrument malfunction.
For these reasons no unfairness arose in the circumstances of the present case. No grounds for a stay existed. No grounds for the exercise of the discretion to exclude evidence of police observations had been established. There was no need for an adjournment to allow legal advice to be taken.
Further Evidence
On the hearing of the appeal counsel for Mr Liney sought to introduce further evidence. The proposed evidence addressed the circumstances giving rise to him being unrepresented at the trial and his understanding of the breath analysis instrument malfunction.
The proposed evidence established that Mr Liney had attempted to obtain legal representation. However he encountered difficulty because of the unavailability of solicitors and the costs involved. He received some legal advice but then made a decision to proceed unrepresented.
The proposed evidence does not advance the issues on appeal and does not demonstrate that any injustice arose. To the contrary as earlier observed the transcript reveals that considerable care was taken by the magistrate to assist Mr Liney as an unrepresented litigant.
Counsel for Mr Liney disclaimed any challenge to the magistrate’s finding that the breath analysis instrument malfunctioned. The proposed evidence about the breath analysis instrument process was said to establish Mr Liney’s state of mind at the time. It was said that Mr Liney had understood that the breath analysis instrument had produced a negative result and that the investigating officers had suggested that they would not transport him to the nearest hospital for the purposes of a blood test. Mr Liney’s state of mind is not relevant to issues raised in this appeal. The material does not support the suggestion that any unfairness arose. This court has a discretion to receive further evidence in the interests of justice[3]. No injustice has been demonstrated. The application to receive further evidence is rejected.
[3] CDJ v VAJ (1998-1999) 197 CLR 172, Van Den Heuvel v Tucker [2003] SASC 110 at [11-14] and [121-124].
Unsafe to Convict
As earlier observed the magistrate made a number of factual findings beyond reasonable doubt. He prefaced these findings by assessing the credibility and reliability of the witnesses. It was open to the magistrate to accept and act on the evidence of the police officers. No error in his approach has been identified. It has not been suggested that the magistrate overlooked any relevant consideration or had regard to any irrelevant material[4]. The magistrate was entitled to conclude on the evidence before him that Mr Liney was affected by alcohol when driving.
[4] House v R (1936) 55 CLR 499

No error has been demonstrated. There is no basis on which to disturb his acceptance of witnesses and his findings of fact. No basis for overturning the conviction has been identified.
Conclusion
For these reasons the appeal is dismissed.
JUDGMENT CITATIONS LISTED IN ORDER OF APEARANCE IN JUDGMENT
1 On the 23^rd day of February, 2002 at Roxby Downs in the said State being the driver of a vehicle namely a motor vehicle on a road namely Burgoyne Street, who changed direction to the right by turning right into Burgoyne Street, you did not before changing direction, give a chance of direction signal in accordance with rule 49 of the Australian Road Rules for long enough to give sufficient warning to other drivers and pedestrians
Rule 48(2) of the Australian Road Rules.
This is a summary offence.
On the 23^rd day of February, 2002 at Roxby Downs in the said State drove a vehicle namely a motor vehicle on a road namely Burgoyne Street whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the said vehicle.
Section 47 of the Road Traffic Act, 1961.
This is a summary offence.
2 Police v Warren [2000] SASC 285 at [16-17]
3CDJ v VAJ (1998-1999) 197 CLR 172, Van Den Heuvel v Tucker [2003] SASC 110 at [11-14] and [121-124].
4 House v R (1936) 55 CLR 499

Rule 48(2) of the Australian Road Rules.
This is a summary offence.

On the 23^rd day of February, 2002 at Roxby Downs in the said State drove a vehicle namely a motor vehicle on a road namely Burgoyne Street whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the said vehicle.
Section 47 of the Road Traffic Act, 1961.
This is a summary offence.

[2003] SASC 211

4 July 2003