Lloyd v Police

Case [2004] SASC 278

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

LLOYD v POLICE

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice White)

14 September 2004

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE

EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - STATUTORY PROVISIONS AS TO PRIMA FACIE EVIDENCE - OTHER PROVISIONS - TRAFFIC OFFENCES

Driving motor vehicle with prescribed concentration of alcohol present in blood - statutory aids to proof - statutory aids to proof require operator to give a specific oral advice to driver outlining procedure for blood tests - failure to comply strictly with statutory duty - specific words of prescribed form of advice not used - whether deviation from prescribed words prevented reliance on evidentiary presumption - appeal dismissed.

Road Traffic Act 1961 s 47B, s 47G ; Road Traffic (Miscellaneous) Regulations 1999 reg 9(1), referred to.
Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355; Tasker v Fullwood [1978] 1 NSWLR 20, applied.
Semmens v The Police (1999) 202 LSJS 272, distinguished.
Victoria v The Commonwealth (1975) 134 CLR 81; Parker v Police (2002) 83 SASR 267, considered.

LLOYD v POLICE
[2004] SASC 278

Full Court:  Doyle CJ, Debelle and White JJ

  1. DOYLE CJ:I would dismiss the appeal.

  2. I agree with the reasons given by Debelle J for so deciding.  I have also had the advantage of reading the reasons of White J.  I accept that an alternative approach to the issue is simply to ask whether the police officer complied with the requirements of the statutory provision, and that in answering that question only trifling departures from the relevant requirement may be ignored.  But, like Debelle J, I consider that if the matter is approached that way, the departure from the statutory requirement in the present case should be regarded as trifling.  For that reason I would reach the same conclusion, were I to apply the approach taken by White J.

  3. DEBELLE J:The issue in this appeal is whether the failure of a police officer to comply strictly with a statutory duty has the consequence that it is not possible to rely on statutory aids to proof in s 47G of the Road Traffic Act 1961. The issue arises in this way.

  4. The appellant was charged on complaint with having on 13 September 2002 at Burra driven a motor vehicle while there was present in his blood the prescribed concentration of alcohol contrary to s 47B of the Road Traffic Act.  The appellant had been involved in a motor vehicle accident near Burra.  Police officers went to the scene of the accident.  The appellant was directed to blow into an alcometer.  The result was positive.  The appellant then participated in a breath analysis test at the Burra Police Station.  The test recorded a concentration of alcohol in the appellant’s blood of 0.174 grams per 100 millilitres of blood.

  5. Once that…

Continue reading Lloyd v Police

Sign in free to access the full text

Details
AGLC
Lloyd v Police [2004] SASC 278
Case
[2004] SASC 278
Decision Date

CaseChat Overview and Summary

The case of Lloyd v Police involved a dispute over the interpretation of Section 47G of the Road Traffic Act 1961, particularly in relation to the procedures required for breath analysis tests. The appellant was charged with driving with an alcohol concentration above the legal limit, and the issue before the court was whether the failure to strictly adhere to the prescribed form of oral advice provided to the driver, as outlined in Section 47G(2a)(a), precluded the application of the evidentiary presumption under Section 47G(1). The case arose from a collision where the appellant was found to have an alcohol concentration of 0.174 grams per 100 millilitres of blood, and it was argued that the deviation from the specific wording in the oral advice provided by the police officer rendered the statutory presumption inapplicable.

The legal issue before the court was the extent to which non-compliance with the statutory procedures under Section 47G(2a)(a) impacted the availability of the evidentiary presumption under Section 47G(1). The court had to determine whether the statutory aids to proof required strict adherence to the prescribed form of advice and whether any deviation from the prescribed wording would prevent the reliance on the evidentiary presumption. This interpretation of the statutory language was crucial to understanding the obligations of the police in conducting breath analysis tests and the implications of non-compliance on the presumption of alcohol concentration in the defendant's blood.

The court's reasoning focused on the importance of compliance with the statutory requirements set out in Section 47G(2a)(a) for the presumption under Section 47G(1) to apply. It was held that the departure from the prescribed oral advice by the police officer in this case meant that the statutory procedures were not strictly followed, thereby precluding the application of the evidentiary presumption. The court concluded that the statutory language indicated an intention that non-compliance with Section 47G(2a) would result in the unavailability of the presumption under Section 47G(1). The court dismissed the appeal, allowing the decision of the Magistrate to stand, and set aside the orders of the Judge of this Court.

The final orders of the court were that the appeal was dismissed, the orders of the Judge of this Court were set aside, and the parties were to be heard regarding the costs of the hearing in this Court and the costs of the appeal before the single Judge. This decision underscored the necessity for strict adherence to statutory procedures in the context of breath analysis tests to ensure the application of the evidentiary presumption.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an appeal against a decision of a Judge of this Court by which the Judge allowed an appeal from a decision of a Magistrate dismissing a complaint. The appeal involves a question as to the construction of s 47G of the Road Traffic Act 1961 (the “Act”). In particular, it raises a question as to the effect of non-compliance with procedures required by s 47G on the availability of an evidentiary presumption.The Facts The appellant was charged on complaint with having, contrary to s 47B of the Act, driven a vehicle on the Barrier Highway at Burra on 13 September 2002 whilst there was present in his blood the prescribed concentration of alcohol as defined in s 47A of the Act. The concentration of alcohol alleged was 0.174 grams per 100 millilitres of blood. It was an agreed fact that the appellant was driving a vehicle at about 7.30 pm on 13 September 2002 when it was involved in a collision with another vehicle. At 8.26 pm on 13 September 2002, the appellant was directed by a police officer, Senior Constable Jarman, to blow into an alcometer. The result of the alcotest was positive. Senior Constable Jarman then asked the appellant to accompany him to the Burra Police Station for a breath analysis test. The breath analysis test took place at 8.53 pm at the police station. That revealed the presence of 0.174 grams of alcohol per 100 millilitres of blood. It is the events which followed that analysis which give rise to the present appeal. Before identifying those events, it is convenient to set out the provisions of s 47G of the Act and of certain regulations which are relevant to this appeal.The Statutory Provisions Section 47G 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.…(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.…(7) A certificate purporting to be signed by a person authorised under subsection (1) and to certify—(a) that, on a date and at a time specified in the certificate, a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument; and(b) that the prescribed oral advice and the prescribed written notice were given and delivered to the person in accordance with subsection (2a)(a); and(c) that-(i)the person did not make a request for an approved blood test kit in accordance with the regulations; or(ii)at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subsection (2a)(b),is, in the absence of proof to the contrary, proof that the requirements of subsection (2a) were complied with in relation to the person.…”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Even if the question be posed as one of whether the Act evinces an intention that non-compliance with s 47G(2a) will result in the s 47G(1) presumption not being available, that question should, for the reasons already given, be answered in the affirmative. I repeat that in expressing that conclusion I am excluding from consideration those variations from the text which (unlike this case) can be described as trivial or immaterial.Conclusion In my opinion, the departure in this case by the police officer from the text of the prescribed oral advice meant that there had not been compliance with s 47G(2a)(a). That being so, the presumption pursuant to s 47G(1) was not available. Accordingly, I would allow the appeal and set aside the orders of the Judge of this Court. I would hear the parties as to the costs of the hearing in this Court and of the appeal before the single Judge

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.