Lloyd v Police
[2004] SASC 278
•14 September 2004
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 278Full Court: Doyle CJ, Debelle and White JJ
DOYLE CJ:I would dismiss the appeal.
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.
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.
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.
Once that result had been recorded, the police officer administering the test was required to comply with s 47G(2) and (2a) of the Road Traffic Act. For present purposes it is necessary to consider only s (2a) which provides:
“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.”
The issue in this case concerns the manner in which the police officer gave the appellant the prescribed oral advice referred to in s 47G(2a) (a).
Regulation 9(1) of the Road Traffic (Miscellaneous) Regulations 1999 prescribes the terms in which the oral advice shall be given. It provides:
“The oral advice required to be given for the purposes of s 47G(2a)(a) of the Act….must be as set out in Part A of Schedule 1.”
Part A of Schedule 1 is in these terms:
“The breathalyser reading just taken shows that you had a prohibited level of alcohol in your blood.
Therefore, it appears that you have committed an offence against section 47B of the Road Traffic Act.
In any court proceedings for that offence, or for an offence against section 47 of the Road Traffic Act (driving under the influence of liquor), it will be presumed that the breathalyser accurately indicated your blood alcohol level at the time of the reading and for the preceding two hours. However, the Road Traffic Act allows for contrary evidence based on the results of a blood test.
If you want to have such a blood test you will have to make your own arrangements and follow certain procedures, using a special blood test kit. This blood test kit will be supplied to you on your signing a written request.
If you obtain a blood test kit and want to have your blood tested, you should take the kit promptly to a hospital or medical practitioner in order to have a sample of your blood taken.
[Alternatively, you may have the sample taken by a registered nurse.]
You must not consume any more alcohol before having a sample of your blood taken and must not open the blood test kit before delivering it to a medical practitioner [*or registered nurse].
One of the sealed containers will be given to you and you may make your own arrangements to have the blood in that container analysed.
In any event, the blood in the other container will be analysed by State Forensic Science and you will be given written notice of the results of the analysis.
Further information as to these matters is contained in the written notice which will be delivered to you shortly.
*Advice as to the alternative of a registered nurse is to be given only if the breath analysis was conducted outside Metropolitan Adelaide.”
The police officer did not read the words in the sentence “Further information as to these matters is contained in the written notice which will be delivered to you shortly.” Instead, he used the following words, “Now John this is a notice which is similar to what I just read out to you.” At the same time the police officer handed the appellant the prescribed written notice as to the operation of the Road Traffic Act. It is the police officer’s failure to read the last sentence of the oral advice which gives rise to the issue in this appeal.
At the trial of the appellant for the offence of driving with the prescribed concentration of alcohol in his blood contrary to s 47B of the Road Traffic Act, the prosecutor relied on the evidentiary aids in s 47G and in particular those prescribed in s 47G(7) which provides:
“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.”
In reliance on s 47G(7) the prosecutor tendered a certificate to prove compliance with s 47G(2) and (2a). Counsel for the appellant objected to the admission of the certificate. The magistrate admitted the certificate subject to the objection. The prosecutor also called the police officer who admitted that he had not used the words in the prescribed oral advice and had used the words set out above.
Compliance with sub-s (2a) is also a prerequisite for reliance by the prosecution on the presumption in s 47G(1) of the Road Traffic Act that the concentration of alcohol as indicated by the breath analysis instrument was present in the blood of the defendant at the time of the analysis. Once it has been proved that a concentration of alcohol was present in the defendant’s blood at the time of the analysis, it must be presumed that that concentration of alcohol was present in the defendant’s blood for the period of two hours immediately preceding the analysis: s 47G(1ab).
Counsel for the appellant submitted to the magistrate that there was no case to answer. She submitted that the admitted departure from the terms of the prescribed oral advice constituted proof that the requirements of s (2a) had not been complied with and so was proof to the contrary of that fact within the meaning of s 47G(7).
The magistrate agreed with this contention and ruled the certificate inadmissible. The magistrate then held that, as there was no admissible evidence as to the blood alcohol concentration of the appellant at the time he was driving, there was no case to answer and dismissed the complaint.
The complainant appealed to a single judge of this Court who allowed the appeal holding that the departure from the text of the prescribed oral advice did not constitute a failure to comply with s (2a) of s 47G. From this decision, the appellant appeals to this court.
Compliance with s 47G(2a) is clearly a condition precedent to the ability to tender the certificate referred to in s 47G(7). The question for determination is whether the failure of the police officer accurately to read the terms of the prescribed oral advice has the consequence that there has been a failure to comply with s 47G(2a).
As already noted, compliance with s 47G(2a) is also a condition precedent to the ability of a prosecutor to rely on the presumption in s 47G(1) that the concentration of alcohol as indicated by the breath analysis instrument was present in a defendant’s blood at the time of the analysis. If the police officer’s failure to read the text of the prescribed oral advice constitutes non-compliance with s 47G(2a), the statutory presumption is of no force or effect.
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 and in particular at pars [91] – [93], the High Court considered the question whether failure to observe conditions precedent to the exercise of a statutory power will result in invalidity. The following principles can be extracted from that decision.
1.An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition: par [91]
2.The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects and the consequences for the parties of holding void every act done in breach of the condition: par [91]
3.The traditional and elusive distinction between conditions which are mandatory and those which are directory, and the division of directory acts into those which have substantially complied with the statutory command and those which have not, have outlived their usefulness: par [93]
4.A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid: par[93]
In that decision, the High Court followed and applied the reasoning of the Court of Appeal in New South Wales in Tasker v Fullwood [1978] 1 NSWLR 20. The principles identified in Tasker v Fullwood at 23 – 24 which are applicable in this case are (the citations are omitted):
1.The question of invalidity is to be determined by construction of the relevant statute;
2.The task of construction is to determine whether the legislature intended that a failure to comply with a stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance;
3.The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute; and
4.The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the pre-condition, its place in the legislative scheme and the extent of the failure to observe its requirement.
Thus, it is necessary to have regard to the object of the statutory provision and determine the importance of the condition in attaining that object. In some cases, a stipulation may be of such importance that its non-observance cannot be excused while, in others, non-compliance with the stipulation may not prejudice the objects of the legislation: see the discussion by Stephen J in Victoria v The Commonwealth (1975) 134 CLR 81 at 179 – 180.
The principles expressed in Tasker v Fullwood and in Project Blue Sky apply with equal force when considering whether a failure to comply with a condition precedent to the use of an evidentiary aid prescribed by statute results in an inability to rely on that evidentiary aid. I turn, therefore, to examine the objects of this legislation and the consequences of non-compliance.
The object of s 47G is to facilitate proof of the concentration of alcohol in the blood of a person at the time of driving a motor vehicle. For convenience I will refer to this person as “the driver”. Section 47G is part of the legislative scheme to aid the enforcement of road traffic laws intended to prevent persons with a prescribed blood alcohol content from driving motor vehicles. If compliance with the requirements and procedures spelled out in s 47G(2) and s 47G(2a) have been proved, it is presumed in the absence of proof to the contrary that the breath analysis test has correctly indicated the concentration of alcohol in the driver’s blood: s 47G(1).
Section 47G(1a) limits the means by which evidence can be led to rebut the statutory presumption created by s 47G(1) to evidence of an analysis of blood taken and analysed in accordance with the procedures identified in s 47G(1a). The manner in which a driver is informed of his right to challenge the result of the breath analysis is prescribed by s 47G(2) and (2a). Shortly stated, s 47G(2) and (2a) require the person operating the breath analysis instrument first to deliver to the driver a statement specifying the reading of the breath analysis instrument and the date and time of the analysis, and then to give the driver the prescribed oral advice, to deliver to the driver the prescribed written notice as to the operation of the Act and as to the procedures prescribed for the taking and analysis of a sample of blood, and to hand to the driver an approved blood test kit.
The plain object of this provision is to ensure that the driver is clearly informed of his rights. As the judge below said in par 41 – 42 of his reasons:
“41 Clearly enough, the evident purpose of s 47G(2a) is to ensure that in cases where the result of the breath analysis is to indicate that the concentration of alcohol is the prescribed concentration, the driver is fully informed as to the following matters:
(i)that the prescribed concentration of alcohol was present in his or her blood;
(ii)the legal effect of that circumstance;
(iii)the driver’s right to have a blood test taken; and
(iv)the procedures to be followed if the driver wishes to exercise that right.
42 The evident purpose of s 47G(7)(b) is to facilitate proof that the requirements of s 47G(2a) have been complied with, so as to avoid the delay and expense associated with strict proof of those matters.”
To like effect are the remarks of Bleby J, with whom Perry and Williams JJ agreed in Parker v Police (2002) 83 SASR 267 at 275:
“One of the purposes behind the elaborate provisions of s 47G of the Act and the supporting regulations is to ensure that a defendant who is required to submit to a breath analysis under s 47E of the Act is afforded every opportunity to dispute the breath reading analysis.”
Thus, the quid pro quo for the ability to rely on statutory presumptions is that the driver is to be clearly informed how he might challenge those presumptions. In other words, the ability to rely on the statutory presumptions depends, among other things, upon compliance with the procedures prescribed in s 47G(2a) for informing drivers how they may challenge the result recorded by the breath analysis instrument. One condition or stipulation for being able to rely on those statutory aids is the provision of information to the driver in compliance with s 47G(2a).
When considering the consequences of a failure to read correctly the text of the prescribed oral advice two factors must be examined. The first is that, subject to two qualifications, the oral advice and the written advice are to the same effect. The second is that on some occasions the departure from the prescribed text may be quite minor and of no consequence. I deal with each in turn.
When the oral advice and the written notice are compared, it is quite apparent that they are to the same effect. Often the same words are used. The oral advice informs the driver of the rights available to him and the manner in which he should discharge those rights. The written notice confirms the effect of the oral advice. As a general rule, the written notice is the more helpful and more useful document in that it is a convenient reminder to the driver of what has just been read out to him. It is a helpful aide-mémoire which will assist in recalling unfamiliar instructions which have just been read out. It will be particularly helpful to a driver who has failed for one reason or another to comprehend the precise terms of the oral advice. In addition, the written notice is a convenient checklist of each step which must be undertaken and the order in which those steps should be taken. However, there may be instances where the driver is unable to read and understand the written notice. Thus, the oral advice must be properly given.
There are two items of information in the written notice which are not mentioned in the oral advice. The first is an elaboration of how the taking of a blood sample might assist a driver. The oral advice is to the effect that the Road Traffic Act allows for evidence contrary to the reading made by the breath analysis instrument based on the results of a blood test. The written statement informs the driver that he may challenge the result of the breath analysis in a more detailed manner. It reads:
“In any proceedings against you for such an offence, you will be able to challenge the accuracy of the breath analysis reading –
.if you have a sample of your blood taken and analysed as described below
AND
.if the result of analysis of the blood sample shows that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in your blood.”
Although the second of those points elaborates on the basic message conveyed in the oral advice that a blood test is the only means by which the result of the breath analysis may be challenged, it does not add to the knowledge that the results of a blood test are the only means of possibly challenging the breath analysis. It is but a more detailed explanation.
The second difference between the oral advice and the written notice concerns an injunction in par 6 of the written notice to the driver not to break the seal of the container of blood delivered to him after the sample of blood has been taken. That injunction is not included in the oral advice. However, that injunction applies only if the driver chooses to have a blood sample taken.
In this case, for example, the police officer said towards the end of the oral advice “You’ll be given written notice of the results of the analysis” instead of “You will be given written notice of the results of the analysis”. That is plainly an unimportant and inconsequential deviation from the precise terms of the oral advice. It is not difficult to think of other slight departures from the text of the oral advice which will not in any sense affect its meaning and which, on any view are entirely inconsequential. For example, the police officer who has administered the test might say “The breathalyser reading taken a moment ago” instead of following the words of the prescribed text which are “The breathalyser reading just taken”. Or the police officer might say “You may, therefore have committed an offence” where the prescribed text reads “Therefore it appears that you have committed an offence.” Other inconsequential variations readily come to mind. Plainly, the sense and meaning of the oral advice has not been altered in any way in either of those two examples. In other cases a word might be transposed or a word omitted without in any way affecting the meaning.
Mr Edwardson, who appeared for the appellant, conceded that departures of a minor kind from the prescribed text of the oral advice would not constitute a failure to comply with sub-s (2a). The concession was correctly made. If strict compliance was required, any departure from the text of the prescribed oral advice, no matter how trivial or inconsequential, would have the consequence that neither the result of the breath analysis nor the presumptions in s 47G could be relied on. That would plainly bring the law into disrespect. This is not a case where there is either compliance or non-compliance. When the purpose of the legislation is examined, it is apparent that Parliament did not intend that a failure to read with complete accuracy each and every word of the prescribed oral advice, that is to say, where the departure from the text is minor or inconsequential, should result in non-compliance with sub-s (2a) and hence an inability to rely on the presumption in s 47G(7). Such a result would render largely useless the scheme of enforcement of road traffic laws designed to ensure that people with a prescribed blood alcohol content do not drive. It follows, therefore, that it is not necessary strictly to comply with the requirement in reg 9(1) that the oral advice “must be as set out in Part A of Schedule 1”. This is an instance of a stipulation that is capable of degrees of non-compliance without necessarily causing prejudice to the substantial object of the Act, namely, properly informing a driver of his rights. This conclusion is reinforced by the fact that the driver also receives the written notice which in the greater part repeats the effect of the oral advice and in certain instances spells out that advice in greater detail.
This is not, therefore, a case where the object of this legislation requires a complete or total observance of sub-s (2a) and reg 9 or, expressed another way, where any degree of non-observance cannot be excused. Instead, this is an instance of a stipulation that is capable of some degree of non-compliance without necessarily causing prejudice to the object of the Act, namely, properly informing a driver of his rights. It is sufficient if there is substantial compliance with the requirement to read the oral advice correctly. The question then to be determined is what constitutes substantial compliance.
It is not possible to prescribe a test of what constitutes substantial compliance which will have a universal application. Plainly, much will depend on the facts and circumstances of each individual case. In some cases, there may be a wholesale departure from the terms of the oral advice. In other cases, it might be no more than a minor or inconsequential omission from the text or variation of the text of the kind already indicated.
The substance and meaning of the oral advice must be correctly conveyed. The requirement to give both oral advice and written notice in the prescribed forms is an important stipulation. There are several reasons why Parliament would have decided that both oral and written advice must be given. As Parliament has prescribed that both must be given, the fact that the driver also receives a written statement cannot, therefore, excuse a substantial departure from the text of the oral advice which results in the driver not being correctly informed of the meaning of that advice. Thus, as a general rule, only minor and inconsequential departures from the prescribed text of the oral advice where the meaning of the prescribed text is correctly conveyed will be permitted. It will in every case be necessary to examine the extent of non-compliance to determine whether the driver has been correctly informed of the meaning and intent of the oral advice. The question is whether what was said amounts to such a change in the meaning of the oral advice that the driver did not receive the information contained in the oral advice. In other words, nothing in these reasons is a charter for police officers to do anything other than to read correctly each word of the prescribed oral text.
I turn to the question whether the police officer on this occasion substantially complied with sub-s (2a). The words used by him are plainly different from the prescribed text. However, when they are examined, it is apparent that they convey the same meaning notwithstanding the difference. The police officer handed the written notice to the appellant stating as he did so “Now John this is a notice which is similar to what I just read out to you.” He should have said:
“Further information as to these matters is contained in the written notice which will be delivered to you shortly.”
When the two are compared, it can be seen that the only departure of any substance from the terms of the oral advice was to say that the notice was “similar” to what had been said instead of saying that it contained “further information”. In all other respects, the meaning and intent of the last sentence of the oral advice was expressed. Given that the notice was handed to the driver, it was pointless for the police officer to say, “The notice will be delivered to you shortly.”
While there is a difference between the adjectives “similar” and “further”, the content of the written notice is, for the reasons already explained, similar to what had just been read out. The adjective “further” means “more” or “additional”. As already noted, the only piece of additional information in the written notice is the instruction not to break the seal of the container of blood and that is relevant only to the driver who decides to obtain a blood sample. What is more significant is that, although there is more information in the written notice in the sense that it provides more detail on topics about which information is given in the oral advice, what is contained in the written notice does not add any new piece of information as to the steps which must be undertaken which has been outlined in the oral advice. Thus, in this context, there is little difference between the words “similar” and “further”. The word “similar” does not mean identical but “having a marked resemblance to”. Clearly, the written notice is not identical to the oral advice but it has a close resemblance to it. I repeat, the one material respect in which it is different is of consequence only if the driver chooses to have a blood test. The meaning of the words “similar” and “further” in this context must not be considered in the abstract but must be considered with due regard to what is in fact contained in the two documents. So little is provided by way of additional information in the written notice that it does in fact have a marked resemblance to the oral advice and so is similar to it.
There is a further consideration. The clear intent of the last sentence of the oral advice is to inform the driver that the document he is about to receive contains information on the topics about which he has just had oral advice. The appellant’s contention might be tested this way. If the word “further” had been omitted when the police officer read the last paragraph, it could hardly be said that the essential meaning of that paragraph had not been conveyed to the appellant.
Mr. Edwardson contended that to permit substantial compliance would be inconsistent with the reasoning in Semmens v The Police (1999) 202 LSJS 272. I do not agree . The facts of that case are quite different and involved issues different from those under consideration here.
For these reasons, the police officer substantially complied with the statutory obligation to give the prescribed oral advice set out in sub-s (2a). The judge below was, therefore, correct in holding that the deviation from the text of the prescribed oral advice did not constitute proof that the requirements of s 47G(2a) had not been complied with.
Since drafting these reasons, I have had the advantage of reading the draft reasons of White J. It is an interesting question whether the issues in this appeal should be determined by considering whether there has been a trifling departure from the requirements of s 47G or by an application of the principles expressed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. In my view, it is unnecessary to resolve that question because the same decision is reached by either approach. In my view, the failure of the police officer to comply with s 47G(2a) was trifling. In reaching that conclusion I apply mutatis mutandis the reasons already expressed.
For these reasons, I would dismiss the appeal.
WHITE J:
Introduction
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.
…”
Section 47G is concerned generally with the admission into evidence, and the effect of the evidence once admitted, of the results of the testing for the presence of alcohol in the blood. It also contains, in sub-ss (2) and (2a) requirements for the provision of information to the person whose blood has been tested.
Section 47G(1) contains what might be called the principal statutory presumption within the section, which presumption is then supplemented by a number of the provisions which follow. Thus, sub-ss (1a) and (1b) limit the type of evidence which might be led in rebuttal of the sub-s (1) presumption. Sub‑section (1ab) extends the principal presumption by requiring it to be presumed conclusively that the concentration of alcohol indicated on analysis was present in the blood throughout the period of two hours preceding that analysis. Sub-section (7) facilitates proof of compliance with the requirements and procedures which is required for the operation of the sub-s (1) presumption.
Sub-sections (2) and (2a) contain some of the requirements necessary for the availability of the sub-s (1) presumption. In particular, sub-s (2a)(a) requires the breath analysis operator, where the analysis indicates the presence of the prescribed concentration of alcohol in a person’s blood, to give to the person “the prescribed oral advice” and to deliver to the person “the prescribed written notice”.
Regulation 9(1) of the Road Traffic (Miscellaneous) Regulations 1999 (“the Regulations”) provides that the oral advice “must be as set out in Part A of Schedule 1”. Part A of Schedule 1 is reproduced in the judgment of Debelle J. It is unnecessary for me therefore to reproduce it in these reasons.
“The prescribed written notice” to which s 47G(2a)(a) refers is provided for in Regulation 9(2) of the Regulations. Regulation 9(2) specifies that the written notice, for the purposes of s 47G(2a)(a), “must be as set out in Part B of Schedule 1”. That Schedule provides as follows:
“WRITTEN NOTICE FOR THE PURPOSES OF SECTION 47G(2A)(A) OF ROAD TRAFFIC ACT 1961
OPERATION OF ROAD TRAFFIC ACT IN RELATION TO RESULTS OF BREATH ANALYSIS
Offence
1.A person commits an offence against section 47B(1) of the Road Traffic Act 1961 if the person —
(a) drives a motor vehicle: or
(b) attempts to put a motor vehicle in motion,
while there is present in his or her blood the prescribed concentration of alcohol (as defined in section 47A of the Act).
Breath analysis
2.Your breath has just been analysed by means of a breath analysing instrument which indicated that the prescribed concentration of alcohol was present in your blood.
Accordingly, it appears that you have committed the offence described above.
Legal effect of breath analysis result
3.In proceedings for the offence described above or an offence against section 47(1) of the Road Traffic Act 1961 (driving under the influence of liquor), the result of the breath analysis will be presumed to accurately record the concentration of alcohol in your blood at the time of the analysis and throughout the preceding 2 hours (section 47G(1), (1ab)).
In any proceedings against you for such an offence, you will be able to challenge the accuracy of the breath analysis reading —
· If you have a sample of your blood taken and analysed as described below.
AND
· If the result of analysis of the blood sample shows that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in your blood (section 47G(1a)).
PROCEDURES FOR OPTIONAL BLOOD TEST
1. You may have a sample of your blood taken and analysed if you wish.
2. For that purpose, you must request the breath analysis operator to supply you with an approved blood test kit (you must sign a written request from for the kit and should retain a copy of the signed request form).
3. You should then proceed promptly to a hospital or a medical practitioner [*or registered nurse] of your choice and request that a sample of your blood be taken (using the blood test kit).
4. Do not consume any further alcohol before the sample is taken.
5. Do not open the blood test kit.
6. The medical practitioner [*or registered nurse] taking the sample of your blood will divide it and place it into two containers and seal the containers. One container will be delivered to you – do not break the seal on this container.
7. Sign the form presented to you by the medical practitioner [*or registered nurse] – the original of the form will be given to you which you should retain.
8. You may, if you wish, have the blood sample (in the container delivered to you) analysed at a laboratory to determine the concentration of alcohol present in the blood.
9. The other blood sample container will, in any event, be sent to State Forensic Science where the blood will be analysed. The results of this analysis will be sent to you at your address (as indicated on the form presented to you by the medical practitioner [*or registered nurse] who took the blood sample).
*The alternative of a registered nurse applies only if the breath analysis was conducted outside the Metropolitan Adelaide.”
Further Background Circumstances
The last sentence of the prescribed oral advice requires that the person being tested be told “further information as to these matters is contained in the written notice which will be delivered to you shortly.”. In the present case, instead of using those words, Senior Constable Jarman said: “Now, John, this is a notice which is similar to what I just read out to you” at the time of, or shortly before, handing to the appellant the prescribed written notice.
The Trial before the Magistrate
At the trial before the Magistrate, the prosecution sought to establish the presence of the prescribed concentration of alcohol in the appellant’s blood by tendering a duplicate of the written statement which had been provided by Senior Constable Jarman to the appellant pursuant to s 47G(2). In addition, the prosecution tendered, pursuant to s 47G(7), a certificate certifying the matters to which that sub-section refers. The prosecution sought to rely on the presumption contained in s 47G(1), viz., that the concentration of 0.174 grams per 100 millilitres of blood as indicated by the certificate was present in the blood of the appellant at the time of the analysis, and on the further presumption, provided for in s 47G(1ab) that that concentration was present in the appellant’s blood throughout the period of two hours immediately preceding the analysis and, therefore, when the appellant was driving his vehicle on the Barrier Highway.
The appellant submitted that the admitted departure by Senior Constable Jarman from the text of the prescribed oral advice had the consequence that there had not been compliance with the requirements and procedures in relation to breath analysing instruments and breath analysis under the Act. It was submitted that this meant that the certificate tendered pursuant to s 47G(7) was not admissible. The Magistrate accepted the appellant’s submission. He concluded that there had not been compliance with the provisions of s 47G(2a) and of Regulation 9 and he ruled the certificate tendered pursuant to s 47G(7) to be inadmissible. The Magistrate then concluded that in view of the non-compliance, the s 47G(1) presumption was unavailable. There being no other evidence of the appellant’s blood alcohol content at the relevant time, the Magistrate then found there was insufficient evidence to prove the charge. He ordered that the complaint be dismissed.
Appeal to the Single Judge
A prosecution appeal to a single Judge of this Court was successful. The Judge held that the issue arising in this case was to be determined by first enquiring whether the admitted failure to read verbatim the prescribed oral advice should lead properly to the conclusion that there had not been compliance with s 47G(2a), and secondly, by inquiring whether it was a purpose of the Act “that an act done in breach of the relevant provisions should be invalid”. The Judge found that the departure by Senior Constable Jarman in the present case from the text of the prescribed oral advice did not, having regard to the nature and extent of that departure, have the consequence that there had not been compliance with s 47G(2a). Accordingly, the Judge allowed the appeal.
Appeal to this Court
Compliance with sub-s (2a) is a condition precedent for the operation of the principal presumption contained in s 47G(1). By virtue of sub-s (7) that compliance may be proved by the tender of a certificate certifying to the matters identified in sub-s (7). However, that certificate will have the effect of proving those matters only in the event of absence of proof to the contrary. The question on this appeal is, therefore, whether the admitted departure by Senior Constable Jarman from the text of the prescribed oral advice constituted, for the purposes of sub-s (7), “proof to the contrary”. Put more shortly, did that departure constitute, for the purposes of the availability of the presumption, non-compliance with s 7G(2a)(a)? In the way that the appeal was argued, a further question arises in the event that there was non-compliance with the requirements of sub-s (2a): viz., whether the approach to determination of the validity of administrative decisions where there has been non-compliance with requirements conditioning the exercise of the power determined by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 has application in the context of s 47G so that the departure from the text of the prescribed oral advice did not make the s 47G(1) presumption unavailable.
Was there Compliance with Sub-s (2a)?
Division 5 of Part 3 of the Act (of which s 47G forms part) contains a number of provisions dealing with the use of motor vehicles whilst the driver is affected by alcohol or drugs. Section 47B makes it an offence to drive a vehicle on a road whilst there is present in the blood the prescribed concentration of alcohol. There follows a number of provisions directed to the detection and prosecution of those who drive vehicles whilst affected by alcohol.
Section 47G is an important part of that statutory scheme because it facilitates the successful prosecution of those who drive whilst there is present in their blood the prescribed concentration of alcohol. It does this in a number of ways. Aspects of the scheme relevant for present purposes have been summarised above and it is not necessary to repeat them. It is significant, however, that not only does s 47G create a presumption which is of assistance in the prosecution of offences; it restricts the means by which that presumption may be rebutted.[1] The combined effect of sub-ss (1) and (1ab) is a conclusive presumption (when available) that the concentration of alcohol indicated in the blood on analysis was present throughout the whole of the preceding two hours. Thus the driver is precluded from establishing some increase in the concentration of alcohol in the blood between the time of driving and the time of analysis.
[1] See in particular s 47G(1a) and (1b).
At the same time, Parliament has enacted certain safeguards for drivers. Those safeguards are the requirement that the driver be provided, at the conclusion of the analysis, with a written record of the analysis, and with advice, in both oral and written forms, of the limited means by which that result may be challenged. In the event that the driver wishes to invoke that means, the Act requires that the driver be provided with a test kit which is to be used when taking, and dealing with, the sample in the prescribed way.
This understanding of s 47G suggests that adherence by a police officer to the prescribed oral text is required. Furthermore, the language of Regulation 9(1) is plain. The prescribed oral advice “must be as set out” in Part A of Schedule 1. The Schedule contains a form of words. It could have, but has not, specified topics on which advice is to be given to the driver, leaving it to the police officer to use whatever language he or she thinks appropriate in the circumstances to address those topics. Alternatively, the Regulations could have specified that words to the effect of those contained in Part A of Schedule 1 should be used, thereby giving the police officer some discretion as to the choice of words.
As was pointed out during argument, Regulation 9(2), in relation to the prescribed written notice, uses the same words, viz., the prescribed written notice “must be as set out” in Part B of Schedule 1. It can hardly be supposed that it is open to a police officer to print out and deliver a written notice using different words from those contained in Part B of Schedule 1. This suggests that it is the words in Part A of Schedule 1 which must be spoken, and that the written text as set out in Part B of Schedule 1 should be the written notice provided. Further again, Part A of Schedule 1 is drafted in such a way as to make it appropriate to be read to a driver in the setting immediately after the breath analysis has concluded.
As part of the statutory safeguards, s 47G(1) requires simply that the relevant requirements and procedures “have been complied with”. Section 47G(1) should not be read as though it provided that the relevant requirements and procedures “have been strictly complied with” but nor should it be read as providing “have been substantially complied with”. What is required is compliance.
In my opinion, in determining whether there has been compliance in providing the prescribed oral advice, departures from the text which are trifling may be ignored. This is in keeping with the general principle that, unless the contrary intention appears, an enactment imports by implication the principle of the maxim de minimis non curat lex (the law does not concern itself with trifling matters)[2].
[2]Bennion “Statutory Interpretation” 4th Ed p 958; Williams v The Queen (1978) 140 CLR 591 at 602 per Murphy J; Farnell Electronic Components Pty Ltd v Collector of Customs (1996) 72 FCR 125.
There may always be room for debate as to whether a particular variation is trifling, and it may not be helpful to attempt to explain the concept by the use of synonyms. But in my opinion, in general, a departure from the prescribed text will not be trifling if it alters the meaning or the tenor of the text.
Where the only variation is one which is trifling and which is ignored there will be compliance with the terms of the statute. It does not mean that a concept of “substantial compliance” is being adopted. Trifling variations can be accommodated without it being necessary to conclude that Parliament must have intended that “substantial compliance” was sufficient for the purposes of the s 47G(1) presumption.
In the present case, the departure from the text of the prescribed oral advice was, in my opinion, more than trifling. The police officer’s statement that the notice “is similar to what I just read out to you” was not, for reasons I will give shortly, wholly accurate. Further, and perhaps more importantly, the words used by Senior Constable Jarman were likely to have the effect, in a way not contemplated by the prescribed words, of disarming, if not discouraging, the appellant from reading the notice. A police officer should not, when delivering the prescribed written notice pursuant to s 47G(2a)(a), say anything which may misrepresent the nature of the document, or its content, nor should the police officer say anything which might have the effect of inclining the person not to read the document. That is so in all cases, but particularly so where, as in this case, almost immediately after the prescribed written notice is delivered, the police officer asks the person whether he or she wishes to receive a blood test kit, and asks him to sign an acknowledgment that that offer has been made and declined.[3]
[3]Cf Taylor v Daire (1982) 30 SASR 453 per King CJ at 464-465; Eubel v Martin (1992) 57 SASR 290 per Bollen J at 297.
The adjective “further” used in the prescribed oral advice (“further information as to these matters is contained in the written notice which will be delivered to you shortly”) implies that there is additional or more extensive information in the written notice. The word “similar” used by the police officer in this case implied that the information in the written statement was no more than like that contained in his oral advice. In my view, that is not an accurate comparison of the two statements.
Whilst there are a number of similarities between the content of the prescribed oral advice and the prescribed written notice, there are also a number of dissimilarities. First, the prescribed written notice commences with a statement of the actual offence created by s 47B and goes on to indicate why it is thought that that offence has been committed. The prescribed oral advice merely states that it appears that an offence against s 47B has been committed.
Secondly, the prescribed written notice is clearer in stating the legal effect of the breath analysis result and more explicit in stating that the means of challenging the accuracy of the breath analysis reading is by proof of the analysis of a blood sample showing that the breath analysis instrument gave an exaggerated reading. The prescribed oral advice on this topic states simply, “However, the Road Traffic Act allows for contrary evidence based on the results of a blood test.”
Thirdly, the prescribed written notice contains a point by point statement of the person’s entitlements and the steps to be taken if the breath analysis result is to be challenged. Many persons are likely to find that point by point statement easier to understand and to follow than the prescribed oral advice.
Fourthly, the format of the oral advice is different from that of the written notice. This is probably a consequence of the former being drafted in a style suitable for oral delivery and the latter in a style suitable for written communication.
Finally, the prescribed written notice contains a direction that the seal on the test kit should not be broken before the kit is presented to the doctor taking the sample. There is no equivalent direction in the prescribed oral advice.
At least as important as those considerations, in my opinion, is that the prescribed oral advice concludes with words that not only inform the listener of the nature of the document being handed to him or her, but does so in a way which does not discourage the person from reading it. The person is to be told that “further information” is contained in the written notice, not the same or similar information. The listener is thereby alerted to the prospect of learning more about his or her rights and what may be done to protect them.
Section 47G(2a) requires that the driver be informed by two methods. Many persons, even when sober, have difficulty in absorbing quickly information conveyed orally. The written word is an important adjunct to understanding. The concluding words of the prescribed oral advice are drafted in such a way, it seems to me, to incline the listener to read the document. The use of different words by Senior Constable Jarman, in this case, was not only a departure from the text but a departure which conveyed a different meaning than that contemplated by the prescribed oral advice.
For these reasons, I regard the departure from the text of the prescribed oral advice as more than trifling. It is quite different from some of the examples canvassed in argument. For example, it was noted that instead of saying “You will be given written notice”, Senior Constable Jarman used the contraction “You’ll be given written notice”. On another occasion, Senior Constable Jarman repeated a word. I regard these departures as so trifling as to be able to be disregarded. They did not alter the meaning of the prescribed oral advice. It is undesirable to canvass, in these reasons, other examples which may be regarded as trifling. I agree with the single Judge that the Court should not encourage police officers to vary deliberately the words of the prescribed oral advice.
I do not consider the decision of the High Court in Project Blue Sky to be of assistance, in the circumstances of this case, in determining whether or not there had been compliance with s 47G(2a). The approach adopted by the majority in Project Blue Sky (to which I will refer in more detail shortly) is concerned with the effect, in certain situations, of non-compliance where it is found to exist; not with the prior determination of whether there has, or has not, been non-compliance. In particular, I do not regard the decision of the High Court as giving judicial sanction to a concept of “substantial compliance”.
The Effect of Non-compliance
Both the structure and manner of expression of s 47G(1), (2a) and (7) indicate that where there has not been compliance with sub-s (2a) the sub-s (1) presumption is not available.
Section 47G(1) has been considered by this Court on a number of previous occasions. Section 47G(1) has remained relevantly unchanged since 1979, although the requirements and procedures contained elsewhere within s 47G have changed from time to time. On several occasions, this Court has stated the need for compliance with the requirements and procedures in s 47G as a condition precedent for the operation of the sub-s (1) presumption. This case is not an occasion to depart from that position.
In Taylor v Daire (1982) 30 SASR 453, King CJ, with whom Jacobs J agreed, said:
“[w]hat is clear is that the operation of the statutory presumption as to the correspondence of the breath analysis reading with the concentration of alcohol actually present in the blood at the relevant time depends upon compliance with the prescribed procedures including the procedures as to blood tests prescribed in ss 47F and 47G(2a)” (emphasis added).
In the same case, at 473, Wells J said:
“In short, whether or not the prosecution will be able to rely on the presumption will depend exclusively on whether it can be proved that the police officers concerned obeyed the injunction laid on them by sub-s (1) of s 47G to comply with the requirements and procedures in relation to breath analysing instruments and breath analysis under the Act – in particular, sub-ss (2) and (2a). In my opinion, no question of judicial discretion arises when a court is determining whether the presumption is to be applied; if the foregoing conditions precedent for its successful invocation have been proved, the presumption ipso facto applies; if that proof fails, the presumption is lost.”
At the time Taylor v Daire was decided, s 47G(2a) contained a different requirement than it does presently, but that difference does not affect the construction of s 47G(1) adopted in that case.
Statements of similar effect to those in Taylor v Daire appear in Evans v Benson (1986) 46 SASR 317 at 325 - 326; Police v Jervis (1998) 70 SASR 429 at 437; Police v Harvey (1999) 73 SASR 534 at 539; Shearer v Hills (1989) 51 SASR 243 per King CJ at 245, per Jacobs J at 251; and in several decisions of single members of this Court, for example: Eubel v Martin (1992) 57 SASR 290 at 299 - 300; Semmens v Police (1999) 202 LSJS 272 at 275 [14]-[16], 279 [26];
It is also relevant, in my opinion, to note the consequence of concluding that the s 47G(1) presumption does not apply in the event of non-compliance with s 47G(2a). It does not mean that the driver may not be prosecuted for committing the offence established by s 47B, nor does it mean that evidence of the breath analysis is inadmissible. As has been said before, s 47G(1) is concerned with a presumption, not merely with admissibility.[4]
[4]Semmens v Police (1999) 202 LSJS 272 per Mullighan J at 275[17]. See also Taylor v Daire per King CJ at 463.
It was argued that the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 had the effect that the Court should determine this appeal by considering whether the departure by Senior Constable Jarman from the text of the prescribed oral advice affected in any way the achievement of the legislative purpose. It was submitted that one could not discern in s 47G a legislative intention that such a departure should render the oral advice given “invalid”.
In Project Blue Sky v Australian Broadcasting Authority at 390, the majority said:
“In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.” [References not included]
Thus it was argued that the question in this case was whether it was a purpose of the Act that an act done in breach of s 47G(2a) should render inapplicable the s 47G(1) presumption.
I rather doubt that the passage from the majority judgment in Project Blue Sky relied upon has any application at all in the present case. Project Blue Sky was concerned with the principles by which the validity of an act, the performance of which was made conditional upon compliance with some statutory requirement, may be determined. This Court is not concerned with the validity of any act, let alone one made conditional upon compliance with a statutory requirement. The validity of Senior Constable Jarman’s actions is not in question. No complaint is made about his administration of the alcotest, nor his administration of the breath analysis. It is not submitted that the directions he gave to the appellant were unauthorised. Nor is it submitted that the certificate produced by the breath analysis instrument could not be used in evidence. The obligation under s 47G(2a)(a) arises only after the breath analysis has been completed, and only where that analysis indicates the presence of the prescribed concentration of alcohol. That rather suggests that the power being exercised by the police officer was not conditioned upon compliance with the requirements of sub-s (2a).
Secondly, it is to be expected that different considerations will apply where what is being considered is an evidentiary presumption applicable only in the context of prosecution for an offence.
Furthermore, the approach in Project Blue Sky is necessary where the legislation being considered does not itself specify the consequence of non-compliance. That is commonly the case when the exercise of an administrative power or discretion is made subject to some condition. In this case, however, the Act establishes a presumption and identifies itself the conditions necessary for the operation of that presumption. Compliance with those conditions, as this Court has held many times, is necessary for the operation of the presumption.
However, this aspect of the possible application of Project Blue Sky was not fully argued before us and it is undesirable to express a concluded view.
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
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