Llewellyn v Police - [2005] SASC 160

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LLEWELLYN v POLICE
Judgment of The Honourable Justice Gray
28 April 2005
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
EVIDENCE - ADMISSIBILITY AND RELEVANCY - RES GESTAE
Appeal against conviction - appellant convicted by magistrate of driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol - identity in issue - appeal on grounds the magistrate: erred in allowing prosecution to rely on section 175(1)(i) of the Road Traffic Act 1961 (SA); erred in declining to exclude evidence of breath analysis reading.
Consideration of statutory presumption created by section 175 of the Road Traffic Act 1961 (SA) - discussion of res gestae doctrine - discussion of evidence of conduct - discussion of effect of an accused's decision not to give evidence - consideration of section 47E(2b) of the Road Traffic Act 1961 (SA).
Appeal dismissed.
Road Traffic Act 1961 (SA) s 5, s 47B, s 47E and s 175; Road Traffic (Road Rules) Amendment Act 1999 (SA) s 54(a), referred to.
Bunning v Cross (1978) 141 CLR 54; Mercorella v Police (2004) 88 SASR 575; Ellul v Fauser (1981) 28 SASR 300; Mancini v McCallum (1983) 33 SASR 582; Lamshed v Rigney (1987) 48 SASR 320; Police v Dodd (2004) 88 SASR 130; R v Hush ex parte Devanny (1932) 48 CLR 487; R v Billick and Starke (1984) 36 SASR 321; Wilson v Buttery [1926] SASR 150; May v O'Sullivan (1955) 92 CLR 654; Weissensteiner v R (1993) 178 CLR 217; Wright v Doe d Tatham (1837) 7 Ad & E1 313; 112 ER 488; Howe v Malkin (1878) 40 LTR 196; R v Ratten [1972] AC 378; R v Bedingfield (1879) 14 Fox CC 341; Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 515; R v Ratten [1971] VR 87; Walton v R (1989) 166 CLR 283; Teper v R [1952] AC 480; Kamleh v R [2005] HCA 2; R v Christie [1914] AC 545; R v Benz (1989) 168 CLR 110; R v Rice [1963] 1 QB 857; Sean Michael Lydon (1987) 85 Cr App R 221; R v Romeo (1982) 30 SASR 243; Re Gardner; Ex parte R J Gardner Pty Ltd (1967) 13 FLR 345; Myers v Director of Public Prosecutions [1965] AC 1001; Patel v Comptroller of Customs [1966] AC 356; Hays v Ministry of Transport [1982] 1 NZLR 25; Azzopardi v R (2001) 205 CLR 50; Williams v Bache (1982) 21 SASR 25; Lajos v Samuels (1980) 26 SASR 514, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Res Gestae"

LLEWELLYN v POLICE
[2005] SASC 160
Magistrates Appeal
GRAY J

This is an appeal against conviction.
On 15 December 2002 the appellant, Nicholas James Llewellyn, was convicted of driving a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol contrary to section 47B of the Road Traffic Act 1961 (SA).
The principle issue in this appeal concerns the proof of the identity of the driver of the motor vehicle subjected to a breath analysis test. The Crown contended that identity had been established in three ways, by the operation of a statutory presumption, by admissions by conduct, and by evidence admissible as part of the res gestae. Those contentions were challenged by the defendant.
The Trial
The prosecution called evidence from Constable Erik Jon Till and Sergeant Trevor Daryl Pfeiffer. Constable Till, who was on duty with Constable Andrew David McDonald, stopped a white BMW and requested the male driver to submit to an alcotest. He explained to the driver how the test was to be conducted. The driver complied with the officer’s request. The alcotest returned a positive result. This was the only positive result obtained by Constable Till that evening.
Constable Till recounted, that having obtained the positive alcotest from the driver of the white BMW, he then requested the driver to produce his full driver’s licence. The driver did so.
The driver was informed that a breath analysis test would be conducted and that he would be required to submit to any reasonable direction from Constable Till. Constable Till asked the driver to step out of the car and come to the footpath. The driver complied. At this point, Constable Till recorded in his notebook the details from the licence that had been produced and of the motor vehicle.
Constable Till recorded:
-        the name - Nicholas James Llewellyn;
-       date of birth - 12 December 1974 and
-       the address - 1 Finlayson St, Netherby 5062.
He recorded the licence number as S92826. He then recorded the registered number of the motor vehicle, AA 559C and noted that it was a white BMW sedan.
Constable Till inquired of the driver whether the licence produced was his and the driver replied, “Yes, that’s correct”. Constable Till gave evidence that the following interchange took place:
Constable Till      … I am now going to ask you some further questions you are not obliged to answer them, but anything you do say may be taken down and given in evidence. Do you understand?
Driver               Of course I understand. I speak English.
Constable Till       Where have you been tonight?
Driver               A lot of different places, why does it matter?
Constable Till       No, just a question. Where have you been drinking alcohol tonight?
Driver               I was at the Speegall [sic] Tent, The Garden of Unearthly Delights.
Constable Till       What have you had to drink tonight?
Driver               Um, okay honestly it is an inappropriate question to answer.
Constable Till       How many drinks have you had tonight?
Driver               That is a further inappropriate –
Constable Till with Constable McDonald then drove in the police vehicle with the driver of the white BMW from Anzac Highway to the Grenfell Street Police Station where Sergeant Pfeiffer conducted a breath analysis test. The test returned a positive result, indicating a blood alcohol concentration of 0.129.
Following the taking of the breath analysis reading and while still at the Grenfell Street Police Station, the following conversation between Constable Till and the driver took place:
Constable Till      … I am now going to remind you that you are still under caution you are not obliged to answer any questions anything you do say will be taken down and given in evidence. Do you understand?
Driver               I understand.
Constable Till      I previously ask [sic] if you had any alcoholic drinks tonight. I am now going to ask you what type of drinks have you had? What type of drinks have you had to [sic] tonight?
Driver               I am sorry those questions are difficult to answer.
Constable Till       Do you wish to answer any further questions?
DriverIf you have questions I am prepared to answer, yes I am prepared to answer them.
Constable Till      At about 2.38 A.M. 5 March 2002 were you the driver of the white BMW sedan registration SA AA559C on Anzac Highway.
Driver               That’s a well phrased question, yes.
Constable Till       Have you had anything to eat tonight.
Driver               The answer to that is actually no. I have not had anything to eat.
Constable Till      Do you have any medical conditions that may increase the effects of alcohol?
Driver               I don’t know. So I can’t answer that.
Constable Till       Are you currently on any medication?
Driver               No.
Constable Till      The results of the breath analysis test is [sic] positive. You will be reported for driving a motor vehicle while exceeding the prescribed concentration of alcohol. Do you understand?
Driver               Yes.
Constable Till      Do you wish to read and sign my notes to verify it is a true and accurate account of our conversation?
Driver               Yes.
During examination-in-chief, the following questions were asked of Constable Till:
Q.Looking at your notes there, next to the response ‘yes’ there appears to be a suggest [sic] [signature].
A.That’s correct.
Q.Who’s [sic] is that.
A.That was Nicholas Llewellyn’s or the defendant.
OBJECTION
His HonourWe understand it as a signature of the person who provided the sample.
A.So I’ll correct myself your Honour that was the person at the breath analysis test that signed my notes.
Q.Who had previously given his licence up to you.
A.Yes.
Q.Or a licence.
A.Yes.
This evidence established that the only driver returning a positive alcotest that night who had been stopped by Constable Till was the male driver of the white BMW. This person produced to Constable Till, on request, a driver’s licence disclosing the name Nicholas James Llewellyn together with a date of birth and address. The licence contained a licence number and the person informed Constable Till that it was his driver’s licence. When signing the notes to indicate that the person concurred with their contents, he did so by initialling the notes.
When Sergeant Pfeiffer completed the necessary paperwork associated with the breath analysis testing, he recorded the name of the person subjected to the test as being Nicholas James Llewellyn.
Following the test, the driver of the white BMW requested a blood test kit. This was provided and the driver was later taken by the police to the Royal Adelaide Hospital.
The appellant himself did not attend at the hearing. The defence led no evidence. The appellant was represented by counsel who argued before the Chief Magistrate that the evidence led by the prosecution did not prove beyond reasonable doubt that it was his client, Nicholas James Llewellyn of 1 Finlayson Street, Netherby who was stopped at a random breath testing station established on Anzac Highway on 5 March 2002.
At trial, counsel further submitted that the Chief Magistrate should exercise a Bunning v Cross[1] discretion to exclude evidence of the breath analysis on the basis that it was obtained in circumstances where there had not been strict compliance with relevant provisions of the Road Traffic Act.
[1] (1978) 141 CLR 54.
The Chief Magistrate rejected both submissions and convicted the appellant.
The Chief Magistrate found that early in the morning of 5 March 2002 the appellant was stopped at a random breath testing station. Having submitted to a positive alcotest conducted by Constable Till, the appellant was conveyed from Anzac Highway at Keswick to the Grenfell Street Police Station where he submitted to a breath analysis test by Sergeant Pfeiffer. The breath analysis test gave a reading of 0.129 grams of alcohol in a hundred millilitres of blood.
The Appeal
Issues on Appeal
Two submissions were advanced on appeal. The first question raised was whether the Chief Magistrate erred in allowing the prosecution to rely on the presumption created by section 175(1)(i) of the Road Traffic Act to prove the identity of the driver as the person named on the complaint.
The second addressed the question of whether the Chief Magistrate erred in declining to exclude evidence of the breath analysis reading having regard to a submission that the breath analysis operator was not authorised by section 47E of the Road Traffic Act to require the driver to submit to a breath analysis.
Statutory Presumption
Counsel for the appellant submitted that the magistrate erred in concluding that the prosecution were entitled to rely upon the presumption contained in section 175 of the Road Traffic Act. It was said that for the section to operate on its terms, the complaint had to specify the vehicle being driven at the time. It was said that this was the clear and plain meaning of the section.
By virtue of section 175(1)(i), the allegation that a specified person was the driver of a specified vehicle is proved in the absence of proof to the contrary. Counsel for the appellant submitted that the prosecution could not rely upon this presumption to prove its case in the present proceedings because the complaint failed to specify the vehicle alleged to have been driven by the appellant at the time of the offending. In the appellant’s submission, the specifications in the complaint relating to the vehicle must be particularised at least so as to include the registration number.
Section 175(1)(i) of the Road Traffic Act relevantly provides:
In proceedings for an offence against this Act, an allegation in a complaint that –
…
(i) a specified person was the owner, operator, person in charge or driver of a specified vehicle,
is proof of the matter so alleged in the absence of proof to the contrary.
Counsel for the appellant drew attention to the fact that section 175, in its present form, was the result of an amendment and that prior to the amendment the section was relevantly worded as follows:[2]
In proceedings for an offence against this Act, an allegation in a complaint –
…
that any person was, at a time specified in the complaint, the owner, the person in charge, or the driver or rider, of any vehicle or animal,
is proof of the matters so alleged in the absence of proof to the contrary.
[2] Section 175, Road Traffic Act 1961 (SA) as at 11 March 1999. Substituted for current wording by section 54(a), Road Traffic (Road Rules) Amendment Act No. 39 of 1999, which came into operation on 1 December 1999.
It was contended that Parliament deliberately introduced into the section the word “specified” to qualify the word “vehicle”. As a result, the specification of the vehicle was a statutory requirement that had to be complied with before the prosecution could call in aid the statutory presumption contained in section 175.
Counsel for the respondent submitted that section 175 had application in respect of a range of offences that may involve the use of a vehicle. It was pointed out that “vehicle” is defined by section 5 of the Road Traffic Act in the following terms:
vehicle includes—
(a)     a motor vehicle, trailer and a tram; and
(b)     a bicycle; and
(c)            an animal-drawn vehicle, and an animal that is being ridden or drawing a vehicle; and
(d)     a combination; and
(e)     a motorised wheelchair that can travel at over 10 kilometres per hour (on level ground),
but does not include another kind of wheelchair, a train, or a wheeled recreational device or wheeled toy;
As a result, it was submitted that a relevant specification for the purposes of the drink driving provisions of the Act was that a motor vehicle was involved. That was the necessary specification and that had been attended to.
The Chief Magistrate rejected the appellant’s submission. In his view, it was not and is not necessary for full and detailed particulars of a vehicle to be referred to within the complaint for section 175(1) to have application. He reasoned:
In my opinion the ‘specified vehicle’ referred to in s.175 here is the one [sic] and the ‘motor vehicle’ that is referred to in the complaint. In that manner in my opinion the prosecutor may rely on s.175 for the limited purposes to which it refers. In my opinion it was not and is not necessary for the full and detailed particulars of the registered number of the vehicle to actually be referred to as contained within the complaint. It follows that the prosecutor in my opinion is entitled to rely on s.175, and it would follow as a consequence of that that I should be and I record that I am satisfied beyond reasonable doubt that it was the person named in the complaint Llewellyn who was indeed the driver of this vehicle and not merely a person who produced a licence and then articulate [sic] to Pfeiffer that he was the person named on the driver’s licence.
The meaning of the word “specified” was discussed by Duggan J in Mercorella v Police[3] where he cited with approval the observation of Cox J in Ellul v Fauser:[4]
The cases show, then, as one would expect, that “specified” is a protean word, the requirements of which will vary according to subject matter and the evident policy of the legislative prescription. No doubt in many cases there will be a question of degree involved as well.
[3] (2004) 88 SASR 575 at [30].
[4] (1981) 28 SASR 300 at 303.
“Vehicle” is comprehensively defined in the Road Traffic Act and includes a motor vehicle. In the complaint before the Court below, it was alleged that Nicholas James Llewellyn drove a motor vehicle. This is sufficient “specifying” of the type of vehicle to enliven the statutory aid to proof provided by section 175 of the Road Traffic Act. One cannot commit an offence against section 47B of the Road Traffic Act unless driving a motor vehicle. A person riding a “bicycle” as defined, cannot offend against section 47B.
In this case, the particularisation in the complaint that the vehicle driven by the appellant was a “motor vehicle” was a sufficient specification to satisfy the requirements of section 175 of the Road Traffic Act.
The effect of the presumption
By virtue of the terms of section 175 of the Road Traffic Act, the matter alleged is taken to be proved unless displaced by positive evidence to the contrary.[5]
[5] Mancini v McCallum (1983) 33 SASR 582; Lamshed v Rigney (1987) 48 SASR 320.
The effect of section 175(1)(i) of the Road Traffic Act was discussed in Police v Dodd.[6] There it was held[7] that section 175(1)(i) should be construed in accordance with the analysis of a construction of a statutory aid to proof undertaken by Dixon J in R v Hush ex parte Devanny:[8]
Sec. 30R of the Crimes Act provides that in a prosecution of the present description the averments of the prosecutor contained in the information shall be prima facie evidence of the matter averred. It is to be noticed that this provision, which occurs in a carefully drawn section, does not place upon the accused the onus of disproving the facts upon which his guilt depends but, while leaving the prosecutor the onus, initial and final, of establishing the ingredients of the offence beyond reasonable doubt, provides, in effect, that the allegations of the prosecutor shall be sufficient in law to discharge that onus.
[6] (2004) 88 SASR 130 at [36]–[53].
[7] Police v Dodd (2004) 88 SASR 130 at [44].
[8] (1932) 48 CLR 487 at 507.
There is no suggestion in section 175(1)(i) that the legislature intended to reverse the ultimate onus of proof. As such, applying the words of Dixon J to the present case, the averment in the complaint that Nicholas James Llewellyn was the driver was prima facie evidence of that averment. The section does not place upon an accused the onus, initial and final, of disproving the facts upon which guilt depends. The prosecution is left with the onus of establishing the ingredients of the offence beyond reasonable doubt. However, section 175(1)(i) provides, in effect, that the averment of the prosecutor as to the identity of the driver shall be sufficient in law to discharge that onus.
Accordingly, in the present case the prosecution was entitled to rely upon section 175 of the Road Traffic Act to prove that the person named in the complaint, Nicholas James Llewellyn, was the person subjected to a breath analysis test on 5 March 2002.
Circumstantial Evidence
Counsel for the Crown submitted that in any event there was ample evidence before the Chief Magistrate to make out a prima facie case that the driver of the vehicle was Nicholas James Llewellyn.
Counsel submitted that the statements made by the driver to the police officers formed part of the res gestae and were admissible as probative and relevant evidence. It was further contended that the production of the licence was a relevant and probative item of circumstantial evidence. Finally it was said that the Chief Magistrate was entitled to have regard to the failure of the named defendant to give evidence. It was said that in the special circumstances of this case, that was a material matter to which regard should be had.
Case to Answer

The first step at the close of the prosecution case is to decide whether or not there is a case to answer. The case against the appellant was partly circumstantial, necessitating the drawing of inferences on the question of identity. The test for deciding the question of whether there is a case to answer was formulated by King CJ in Billick and Starke[9] as follows:[10]
Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question [is] … On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?
[9] (1984) 36 SASR 321.
[10] (1984) 36 SASR 321 at 337.
Applying the test formulated by King CJ, was there sufficient evidence to find a case to answer against the appellant – was the evidence capable of proving all of the elements of the offence beyond a reasonable doubt?
In the present case, there was no further evidence led after the finding of a case to answer. The main fact in issue was identity. Counsel submitted that in the absence of the statutory presumption, the prosecution would have to invite a fact finder to draw inferences adverse to the appellant - that he was indeed the person tested by Constable Till - in the absence of some answer or explanation to the contrary. It was said that the failure of the defendant to make an answer or provide an explanation permitted the fact finder to draw that adverse inference more readily. This was particularly so in the present case, where evidence to support a hypothesis consistent with innocence – a person unknown posing as the appellant – was not forthcoming from the appellant when that evidence, if it existed at all, was within his direct knowledge.[11]
[11] Wilson v Buttery [1926] SASR 150; May v O’Sullivan (1955) 92 CLR 654; Weissensteiner v R (1993) 178 CLR 217.
Counsel for the appellant contended that statements made by the driver concerning his identity to the police officers were hearsay. It was said that the mere fact that a driver may lay claim to a particular name does not prove that the driver is the person named. It was said that the statements made by the driver were not relevant or probative, were hearsay and were not admissible.
Res Gestae
There is an exception to the hearsay rule that would permit the fact that the driver of the vehicle in question provided a driver’s licence in the name and address of the appellant to be properly admitted into evidence. That fact could be used to draw a direct inference that the holder of the licence was the appellant following the implied assertion of identity by the person producing the licence. Its use in this way is acceptable pursuant to the principle of res gestae, which makes the fact of the production of the licence admissible in exception to the hearsay rule. The production of the licence was sufficiently connected to the commission of the offence in question to form part of the res. That being the case, the implied assertion of identity can be used as direct evidence that the person producing the licence was the person named in the licence.
In 1837 Parke B in Wright v Doe d Tatham[12] spoke of “proof of the quality and intention of acts by declarations accompanying them” as an exception to the rule against hearsay that has been recognised from very early times on the ground of necessity or convenience. In 1878 Grove J in Howe v Malkin[13] stated the rule to be that:[14]
[T]hough you cannot give in evidence a declaration per se, yet when there is an act accompanied by a statement which is so mixed up with it as to become part of the res gestae, evidence of such statement may be given.
[12] (1837) 7 Ad & El 313 at 384; 112 ER 488 at 515.
[13] (1879) 40 LTR 196
[14] (1879) 40 LTR 196 at 198.
Lord Wilberforce in Ratten[15] provided the following description of the doctrine:[16]
hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporanity) [sic] of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or disadvantage of the accused.
[15][1972] AC 378.
[16] [1972] AC 378 at 391.
Given that the reason underpinning the exception is that the statement sheds light on the nature of a relevant act because of its proximity to it, contemporaneity of the statement and the res is a requirement of the exception.
The requirement that out-of-courts statements, if they are to be admissible, must have been made contemporaneously with the res has been strictly applied in the criminal courts, at least since 1879 when in Bedingfield[17] Cockburn CJ refused to admit evidence of a remark made by a wounded woman a minute or so prior to her murder. However, what is considered to be contemporaneous has always been a matter for dispute.
[17] (1879) 14 Cox CC 341.
In Adelaide Chemical & Fertilizer Co Ltd v Carlyle,[18] Dixon J held that a statement, to be admissible pursuant to the res gestae exception, had to be an integral part of the transaction. Something that is “a mere narrative explaining an event that had occurred although only a minute or two before” is not admissible. Dixon J rejected the doctrine that spontaneous declarations are admissible to prove the truth of the matters asserted. He observed:[19]
Now, it is clear that the purpose of admitting a statement under the one head is entirely different from that of admitting it under the other. Under the first head, what the people say during the progress of the event is regarded as part of what they do. If what is said happens to include a reference to a fact or past occurrence, the circumstance that it is admissible under the first head makes it no proof of that fact or occurrence.
[18] (1940) 64 CLR 515.
[19] (1940) 64 CLR 515 at 531.
Starke J, the only other member of the Court to make a final determination with respect to the application of the res gestae rule, held that as the statement was substantially contemporaneous with, and part of, the transaction, it could be relied on to explain the accident.
The difference between the two views relates to how contemporaneous a statement must be with the res in order to fall within the res gestae exception. Starke J’s view is obviously the broader of the two. The Supreme Court of Victoria in Ratten[20] approved Starke J’s view and the dicta of Wilson, Dawson and Toohey JJ in Walton[21] accord with it. Their Honours observed:[22]
…as we have said, not all conduct involving an assertion, expressed or implied, is treated as hearsay and held to be inadmissible in evidence. If it were, the available evidence in many cases would be seriously depleted. The distinction to be drawn is that to which we have referred, namely, the distinction between evidence of conduct which, even though it may contain an assertion, is tendered as a relevant fact or a fact relevant to a fact in issue and is therefore admissible and evidence of conduct which has no probative value other than as an assertion and is therefore not admissible.
An assertion may be admitted to prove the facts asserted if it is part of the res gestae, but it is then an exception to the rule against hearsay: see Adelaide Chemical and Fertilizer Co Ltd v Carlyle. The justification for that exception is now said to lie in the spontaneity or contemporaneity of assertions forming part of the res gestae which tends to exclude the possibility of concoction or distortion: Ratten; Reg v Andrews; see also Adelaide Chemical and Fertilizer Co Ltd v Carlyle. Of course, the discussion in Ratten and Andrews was in the context of the res gestae rule. The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible: see Vocisano v Vocisano. But if sometimes there is an element of hearsay in evidence which is led of statements made by a person other than a witness for the purpose of founding an inference concerning that person’s state of mind, the justification for disregarding that element of hearsay may be thought to be of a similar kind. Such statements will rarely be purely assertive. Ordinarily they are reactive and are uttered in a context which makes their reliability the more probable. On the other hand, if a statement by a person about his state of mind is a bare assertion not amounting also to conduct from which a relevant inference can be drawn, then it ought to be excluded as hearsay.
[20] [1971] VR 87 at 93-4.
[21] (1989) 166 CLR 283.
[22] (1989) 166 CLR 283 at 304 (footnotes omitted).
Of the degree of contemporaneity required in criminal cases where identification is in issue, Lord Norman in Teper[23] observed:[24]
For identification purposes in a criminal trial the event with which the words sought to be proved must be so connected as to form part of the res gestae, is the commission of the crime itself, the throwing of the stone, the striking of the blow, the setting fire to the building or whatever the criminal act may be.
[23] [1952] AC 480.
[24] [1952] AC 480 at 488.
The problems that arise when a statement that is said to form part of the res gestae is not contemporaneous with the relevant act do not arise in this case. The statements made by the driver accompanying the production of the driver’s licence can be described as statements contemporaneous and directly concerning an event in issue.
This issue was recently reconsidered by the High Court in Kamleh.[25]The Court cast doubt over the reasoning in Walton but as the parties did not challenge Walton, the Court did not have to decide whether or not it had been correctly decided.
[25] [2005] HCA 2.
Lord Atkinson in Christie[26] observed that it is to be remembered that statements admissible under the res gestae exception: [27]
are not, as against the accused, affirmative evidence of the facts stated, but only of the knowledge of, or the belief in, those facts by the person who makes the statement, or of his intention in respect of them.
[26] [1914] AC 545.
[27] [1914] AC 545 at 553.
The justification of this exception to the hearsay rule is the probability of the truth of the statement due to the lack of time for invention. This raises an interesting point in the present case given that the very issue in dispute is whether the person who made those statements was indeed lying.
Out-of-court statements can also be received as original evidence where they form part of the res gestae. In such situations, the words themselves are relevant facts or verbal parts of relevant facts and are admissible accordingly. As Deane J observed in Benz:[28]
…whether statements are admissible as part of the res gestae is something which must be determined by reference to the particular facts of the particular case including the precise role played in the commission of the offence by the persons by and to whom the statement was made and the relationship between the statement and the acts constituting the offence. Even when they are part of the res gestae, statements which are not proved to have been made by or with the acquiescence of the particular accused may be so unfairly prejudicial and of such small legitimate probative value that they should, notwithstanding that they are strictly admissible, be excluded as a matter of discretion.
[28] (1989) 168 CLR 110 at 121.
The res gestae exception to the hearsay rule was examined by the High Court in Benz.[29] There the Court held that what would otherwise have been inadmissible as hearsay was admissible as part of the res gestae. Gaudron and McHugh JJ observed:[30]
We think that the evidence concerning the statement made to Mr. Saunders was admissible and could have been used against the respondents subject to an initial finding by the jury that the two women on the bridge were the murderers and were disposing of the deceased’s body when seen by Mr. Saunders. Upon making that finding the jury could use the statement as part of the res gestae. The case would then be analogous with the case of a robbery by masked persons where evidence would be admissible as to the names by which those persons called each other during the robbery. But, until there was a finding that what occurred on the bridge was part of the res gestae, the statement to Mr. Saunders could not be used as evidence against either of the respondents. Hence, the jury should have been directed that they could not use the statement unless they first found that the two women had killed the deceased and were disposing of his body when seen by Mr. Saunders. Thus, it would have been open to the jury to find that the evidence established that the deceased was killed on or in the vicinity of the bridge at or about the time that the two women were there and that whoever killed him later set fire to the Laser. The jury could then have concluded that the only reasonable hypothesis which explained the presence of the two women and their car at the bridge at such an unusual hour was that they had just killed the deceased and were in the act of disposing of his body when Mr. Saunders saw them. Upon making that finding the jury could then have used the statement in conjunction with the other evidence to identify the two women as Mrs. Murray and Miss Benz.
[29] R v Benz (1989) 168 CLR 110.
[30] (1989) 168 CLR 110 at 144.
In the present case, the statements of the driver at the time of the production of the driver’s licence, the signing of the notes and the subsequent breath analysis test all formed part of the res gestae.
Admissible Evidence of Conduct
An inference could be drawn that it was the appellant who produced the licence and not an impostor. The production of the licence in the name of the appellant is one factor in the relevant circumstances of the case which will be used to draw, ultimately, a conclusion as to identity.
In Rice,[31] the English Court of Criminal Appeal accepted into evidence an airline ticket displaying the name of the accused on the basis that its relevance and legal admissibility stemmed from the likelihood that a ticket with a name or names on it had been used on a flight by a person of that name or names on the ticket. It was held that the ticket could be used to infer that the accused had taken the flight to which the ticket applied. Winn J drew a distinction between the relevance and probative significance of the ticket itself as distinct from its contents:[32]
It is, however, essential, whether for the purposes of logical reasoning or for a consideration of the evidentiary effect in law of any such document, to distinguish clearly between its relevance and probative significance: the document must not be treated as speaking its contents for what it might say could only be hearsay. Thus a passport cannot say ‘my bearer is X’ nor the air ticket ‘I was issued to Y.’
[31] [1963] 1 QB 857.
[32] [1963] 1 QB 857 at 872.
In Sean Michael Lydon,[33] the English Court of Criminal Appeal held that the trial judge was correct to admit into evidence a piece of paper with the words “Sean Rules” written on it found next to a gun that was alleged to be the weapon used by the accused during an armed robbery. The Court[34] applied the following dictum of Cox J in Romeo,[35] a decision of the South Australian Court of Criminal Appeal, where Cox J built upon the distinction drawn by Winn J in Rice:
Sometimes it is possible to avoid the hearsay rule by showing that a statement made in a document is being used as an original and independent fact – for instance, that a person who made use of the document had certain information in his possession at a relevant time – and not as evidence of the facts stated. It is always important, therefore, whenever an objection is taken on hearsay grounds, to ascertain for precisely what purpose the evidence is being tendered. It may be hearsay for one purpose and not, and therefore admissible, for another.
…
It is clear that the airline ticket in Rice, in the absence of any other evidence, was being put forward as proof of the truth of the statement implicit in it, namely, that a man named Rice flew from London to Manchester on the flight mentioned in the ticket.
[33] (1987) 85 Cr App R 221.
[34] (1987) 85 Cr App R 221 at 224.
[35] (1982) 30 SASR 243 at 262.
In Re Gardner; Ex parte R J Gardner Pty Ltd,[36] the Federal Court of Bankruptcy held that two aircraft ledgers recording that a passenger named “Gardner” was carried from Sydney to Nadi, Fiji and from Nadi to San Francisco were “plainly inadmissible” in exception to the hearsay rule, as was an airline ticket which showed on its face that it was issued at Sydney on 24 June 1966, for a flight from Sydney to Nadi that day to “Mr R J Gardner”. Gibbs J reasoned:[37]
They are obviously put forward as hearsay and they do not come within the exception of the hearsay rule effect by Pt. IIA of the Evidence Act, 1989-1966 (NSW), which is application in these proceedings. … There is nothing, either in the evidence or in the form or contents of the [ledgers], which shows, or from which it may be inferred, that the conditions of admissibility laid down in s. 14B are satisfied. …
Similarly the ticket has not been brought within Pt II; it is not admissible within any exception to the hearsay rule, and cannot be used to prove when or where, or in exchange for what document, or at whose request it was issued.
[36] (1967) 13 FLR 345.
[37] (1967) 13 FLR 345 at 347.
In so deciding, Gibbs J cast doubt over the decision in Rice and in particular over the distinction drawn by Winn J. He observed:[38]
If the ticket does not speak of its contents, how can it have probative value? In the present case, the ticket bearing the name “R J Gardnier” [sic] only tends to prove that a man of that name used the ticket, if the entry on the ticket was accurate; in other words, the document is put forward as an assertion of the truth of something written on it by an unknown person. Unless it is shown that the debtor was in some way connected with the ticket, for example that he had applied for the issue of the ticket or had the ticket in his possession, it seems to me that it has no probative value as original evidence, and that its only probative value is as hearsay, and as such it is inadmissible.
[38] (1967) 13 FLR 345 at 349.
Gibbs J also found that, although it had not been expressly overruled, Rice was “impossible to reconcile”[39] with two subsequent decisions, one of the English Court of Criminal Appeal in Myers[40] and the other of the Judicial Committee in Patel v Comptroller of Customs.[41]
[39] (1967) 13 FLR 345 at 348.
[40] [1965] AC 1001 at 1003-1009.
[41] [1966] AC 356.
A decision of the High Court of New Zealand, a case of very similar factual circumstances to the present case, Hays v Ministry of Transport,[42] provides assistance on this point. In Hays, a traffic officer gave evidence of stopping a motor vehicle and of the driver giving his name, address and occupation and then producing a driver’s licence, which contained the same name and address. The defendant did not give or call any evidence. The traffic officer made an in-court identification of the defendant as the driver that he had stopped, but said that he could not be one hundred per cent certain, due to the lapse in time, that it was the same person. The Court held that the officer’s evidence as to the details contained on the licence and the statements made by the driver were relevant, probative and admissible:[43]
[42] [1982] 1 NZLR 25.
[43] [1982] 1 NZLR 25 at 29 and 30.
In the present case the learned trial Judge based his decision on an English case which does not appear to have been cited in any of the unreported New Zealand cases, but which has been followed in recent decisions in England. I prefer it to the Dolling v Bird approach. It is Marshall v Ford (1908) 72 JP 480. In that case a constable stopped a motorist for speeding (he was exceeding 20mph!) and from his driver’s licence recorded his name and address. An information was issued in that name and with that address. It appears that the person charged was in Court with counsel and the plea was made that there was no evidence that he was the driver of the car in question. Alverstone LCJ said at p 481:
“When in the course of his duty a constable acting under the Act gets the name of a person who afterwards appears in court, that is evidence on which the magistrates may act.”
…
In Creed v Scott [1976] Crim LR 381 the party charged was not present but was represented by counsel. The evidence was that the offender had given his name and address to the traffic officer. Counsel on the appeal sought to distinguish Marshall and Cooke because in those cases the details had been obtained from drivers’ licences. It was held on appeal (Lord Widgery CJ, Thompson and Kenneth Jones JJ) that no magic was attached to the production of a licence and the prosecution evidence that the offender said that his name and address were the same as the defendant’s was some evidence that the offender and the defendant were one and the same person. The Court went on to say that the evidence was not conclusive and the weight to be attached to it depended on the totality of the evidence. In Creed’s case it was the only evidence and the Court held that the Justices were justified in convicting.
Mr Guest’s basic submission was that because of the traffic officer’s inability to make a positive “in Court” identification the appellant should not have been convicted, in that identity had not been proved beyond reasonable doubt. He submitted that the offender’s production of a licence in the name and with the address of the appellant could not be used against him, but the authorities are clearly against that submission. He further submitted that the presence of the appellant in Court with counsel could not be taken into account. I agree that such presence is no more than an acknowledgment in the face of the Court that he is the person to whom the summons was addressed.
The decided cases are not particularly helpful because in every case it must be a question of whether identity has been proved beyond reasonable doubt on the totality of the evidence in that case.
In the present case, we have the “coincidence” of the offender producing a driver’s licence in the name, and of the address, of the appellant. Furthermore the identification evidence of the traffic officer had some residual value. He was not 100% sure, but the picture in his mind “fitted the description”. In Howe’s case Beattie J said “Defendant’s counsel cross-examined in such a form, in my opinion, as to prima facie identify his client”. The same could be said in this case.

As was the case with the airline ticket in Rice, the piece of paper in Lydon, and the driver’s licence in Hays, the driver’s licence of Nicholas James Llewellyn, produced to police on 5 March 2002 by a person who had undergone a positive breath analysis test, is relevant and probative evidence that that person was Nicholas James Llewellyn. Evidence of the production of the driver’s licence was relevant, probative and admissible.
The contention that the person who produced the driver’s licence was not an impostor is further supported by the conduct of that person throughout the testing process. At the conclusion of the breath analysis testing, the driver read the record of the conversation between himself and the police, made corrections to the record, signed the record, requested a blood test kit and requested that he be driven by the police to a hospital for the purpose of a blood test. These circumstances tend to suggest that it was not an impostor who produced the licence and underwent breath analysis testing. Why would an impostor so conduct himself? An impostor could be expected to minimise ongoing contact with the police. An impostor could be expected to seek to be on his way as soon as possible, leaving the police to pursue an innocent party.
The evidence in this case was such that, even without the statutory aid to proof provided by section 175 of the Road Traffic Act, the Chief Magistrate could have drawn the inference, beyond reasonable doubt, that the person who had been stopped by Constable Till and who had subsequently undergone a breath analysis was indeed the appellant.
Failure to Give Evidence
Counsel for the respondent raised the appellant’s decision not to give evidence at trial as a further factor to be considered when determining the appellant’s submission that the prosecution had failed to prove beyond reasonable doubt that he was the driver stopped at the breath testing station on 5 March 2002. Weissensteiner[44] is authority for the proposition that there are instances when the failure by an accused to give evidence may be taken into account when deciding whether the case is proved beyond reasonable doubt.
[44] (1993) 178 CLR 217.
In Azzopardi[45] the High Court cited the following passage from the joint judgment of Mason CJ, Deane and Dawson JJ in Weissensteiner: [46]
…it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge, which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of he accused.
[45] (2001) 205 CLR 50 at 60 (Gleeson CJ) and at 85 (McHugh J).
[46] (1993) 178 CLR 217 at 227-228 (Mason CJ, Deane and Dawson JJ). See also 235 (Brennan and Toohey JJ).
However, the majority in Azzopardi[47] emphasised that although there may exist circumstances where the failure of an accused to offer an explanation by reference to some matter peculiarly within his or her knowledge will permit comment to be made as to that failure, such cases would be rare. The effect of the majority judgment in Azzopardi[48] was to narrow the application of the principle in Weissensteiner:
There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused’s failure to provide evidence of those facts may be made. The facts which it is suggested should have been but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted the evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of the evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence. [original emphasis].
[47] Gaudron, Gummow, Kirby and Hayne JJ.
[48] (2001) 205 CLR 50 at [64].
The circumstantial evidence led by the prosecution was sufficient in itself to make out a case to answer. The driver’s conduct in producing the driver’s licence issued to Nicholas James Llewellyn, in his acknowledgment in words and writing that he was Mr Llewellyn, in continuing dialogue with the police and medical personnel, when considered at its strongest and when all inferences most favourable to the prosecution are drawn was capable of producing the result of proof beyond reasonable doubt of the guilt of the accused.
However, the statutory presumption could also be relied on by the prosecution. In the absence of any defence evidence identity was proved. The magistrate’s conclusion was open on the evidence. It was the correct conclusion.
The accused’s failure to give evidence also means that the presumption in section 175 of the Road Traffic Act has not been displaced.
Authorisation to conduct a breath analysis test
Section 47E(2b) provides:
Where an alcotest conducted under subsection (2a) indicates that the prescribed concentration of alcohol may be present in the blood of any person, a member of the police force may require that person to submit to a breath analysis.
Nothing in the words of section 47E(2b) requires a police officer conducting a breath analysis to know or believe that the person who submits to a breath analysis test is someone who has given a positive alcotest reading.[49] This is in contradistinction to section 47E(1) of the Road Traffic Act, which provides that the police officer must possess a certain mental state before conducting an alcotest or breath analysis test.[50] There was no requirement for Sergeant Pfeiffer to know anything about the circumstances that led to Constable Till presenting the subject for a breath analysis test.
[49] Williams v Bache (1982) 21 SASR 25 at 32-3; Lajos v Samuels (1980) 26 SASR 514 at 519.
[50] Section 47E. (1) Where a member of the police force believes on reasonable grounds that a person, while driving a motor vehicle or attempting to put a motor vehicle in motion—
(a)     has committed an offence of a prescribed class of which the driving of a vehicle is an element; or
* * * * * * * * * *
(c)     has behaved in a manner that indicates that his or her ability to drive the motor vehicle is impaired; or
(d)     has been involved in an accident,
that member of the police force may, subject to subsection (2), require that person to submit to an alcotest or breath analysis, or both.
Given that belief of the police officer who administered the breath analysis test is not necessary to be proved as an element of an offence pursuant to section 47B of the Road Traffic Act, the fact that Sergeant Pfeiffer may not have held that belief when he administered the test does not amount to police impropriety and accordingly does not give rise to a Bunning v Cross discretion.
In any event, it is clear on the face of the evidence that Sergeant Pfeiffer did know and believe that the person he was submitting to a breath analysis test was a person who had given a positive alcotest. The Chief Magistrate reasoned:
The evidence of Till is that he was in the company of the person who had been the driver from the time he was present at Anzac Highway constantly until he presented him to Pfeiffer and that he was present throughout that processes [sic] including the 20 minutes extra wait occasioned by the person having a sip of water. Pfeiffer’s evidence is that he asked questions of the person presented to him by Till. There is no reason to disbelieve that evidence. Indeed, it was not cross-examined on. I am satisfied that Pfeiffer made inquiries of the person presented to him and that the person presented to him gave him particulars which he recorded in his brief.
…
I am satisfied beyond reasonable doubt that the evidence shows that the person spoken to by Till and subjected to an alcotest by Till and that that person was produced to Pfeiffer and subjected themselves to a breath analysis that was conducted by Pfeiffer and that breath analysis gave a result which is contained in the complaint of 0.129. The evidence, …, establish [sic] that the subject the person presented by Till was indeed driving and was indeed stopped. That is the evidence of Till. So in short then the evidence satisfies me that the subject stopped by Till was in breach of S.47B.
On the basis of the documentation provided to him by Constable Till, Sergeant Pfeiffer must have known that the appellant had returned a “positive” alcotest after having been detained at a breath testing station by Constable Till, who had required him to submit to a breath analysis test and had conveyed him to Sergeant Pfeiffer for that purpose. This is clear from the evidence of Sergeant Pfeiffer:
Q.Have you seen documents similar to P3 and its severed portion now stapled in your book on other occasions other than this occasion at the Grenfell Street Police Station.
A.Yes, I would have similar documents stapled in my book in relation to similar events and I have seen those documents before.
Q.Are they documents in your experience that are generated by and appear to be the property of SAPOL.
A.Yes.
Q.Are they documents of the type to your understanding that are generated by and received by others in the ordinary course of the activities of SAPOL.
A.Yes and I recognise those documents as being associated with random breath testing as I’ve been responsible before to establishing random breath testing sites.
Q.You said in your evidence that you have seen those documents before in your experience.
A.Yes.
Q.I take it with what you’ve said is it the case that you were provided with those documents as a result of RBT and PCA breaches.
A.Yes and those documents indicate to me that the person is required to submit to a breath analysis test as a result of a random breath testing operation.
…
Q.After you received those documents from the police officers did you inspect them.
A.Yes.
Q.Did you make a note anywhere of who you received those documents from.
A.Yes, it was Officer Till who presented those documents to me and I believe it was in company with the [sic] Mr Llewellyn.
Q.After you received those documents from Constable Till, what did you do then.
A.I prepared the breath analysis instrument and later conduct a breath analysis test.
The Chief Magistrate was correct in rejecting the submission of counsel for the appellant that the appellant had submitted to an unlawful breath analysis.
Conclusion
This appeal is dismissed.