Lyberopoulos v Police No. Scgrg-98-1562 Judgment No. S56

[1999] SASC 56

LYBEROPOULOS  v  POLICE
[1999] SASC 56

Magistrates Appeal
Nyland J

1. This is an appeal against conviction and sentence. The appellant was charged on complaint that on 14 August 1997 at Birdwood he drove a motor vehicle on a road, namely Main Street, while there was present in his blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961 (the Act), contrary to s 47B of the Act. It was further alleged that the concentration of alcohol was .089 grams in 100 millilitres of blood.

2. The matter came on for hearing before a stipendiary magistrate in the Holden Hill Magistrates Court on 1 July 1998.  The appellant, who was not represented by counsel, pleaded not guilty to the charge.  It was not disputed that the appellant had been pulled over by Constable Schwartz at a random breath testing station established at Main Street, Birdwood on 14 August 1997 and that he had been directed to submit to a breath test.  The test was conducted by Constable Schwartz, using a SD400 Lion Alcometer.  The result was positive, as a result of which the appellant was -required to submit to a breath analysis test which was carried out using a Drager Alcotest 7110.  This test indicated that the appellant had a blood alcohol concentration of .089.

3. The notice of appeal sets out a number of grounds which raise matters of a denial of natural justice and bias arising out of the manner in which the appellant was brought before the court and the refusal by the magistrate to transfer proceedings to the Adelaide Magistrates Court.  Those matters were raised by the appellant in separate proceedings by way of judicial review and are the subject of a separate judgment in which I dismissed the application.  The appellant conceded that he had never made any application to the magistrate to disqualify himself on the grounds of bias and there was nothing raised on the hearing of this appeal to suggest that he should have done so.  Essentially, the appeal is concerned with the factual dispute at trial which pertained to the oral advice given to the appellant regarding his right to have a blood test conducted.  Specifically there were discrepancies between the evidence of the prosecution witnesses and that of the appellant concerning the blood test kit, and whether police had offered to assist the appellant in obtaining a blood test by taking him to a hospital.

4. The latter matter was of importance as s 47FA imposes a statutory obligation upon the police to assist in arranging transport to a place where a blood test can be taken, where a person has submitted to the test outside metropolitan Adelaide and has requested a blood test.

5. Constable Schwartz was the officer assigned to stopping vehicles and requesting drivers to blow into the alcometer.  Constable Nuske was the breath  analysis operator.  Constable Schwartz said that a statement in relation to the result of the breath analysis test was handed to the appellant pursuant to s 47G(2) of the Act.  He said that oral advice concerning the appellant’s blood test rights was read to the appellant by Constable Nuske.  Constable Schwartz said that the appellant declined when asked if he would like a blood test kit.  He could not recall the appellant asking what a blood test kit was.  Constable Schwartz also said that the appellant was informed that if he wanted a blood test, police would assist him by either taking him to a hospital or if he wanted to call a doctor to the scene that he would ring for a doctor. 

6. Constable Nuske confirmed that she had conducted the test which indicated a reading of .089 and that she had handed the appellant the statement in relation to the result pursuant to s 47G(2).  She said that she read the provisions of Schedule 1 Part A to the appellant which related to the provision of the blood test kit and then gave him a written notice.  She then asked him whether he wished to have a blood test kit and he said “No”.  She said the appellant declined to read her notes or to sign them.  She noted that he was “slightly affected” by alcohol.  She did not recall the appellant asking her what a blood kit was. 

7. The appellant gave evidence on oath.  He said that on the night in question he had “four stubbies of stout” at the Hilton Hotel on the comer of South Road and Burbridge Road.  He was pulled over by a police officer at Birdwood and he, in due course, submitted to the breathalyser test.  He agreed that he was informed that he was “over the limit”.  He said that the police officer “told me something else but I can’t remember the exact words she told me”.  The appellant said that when he was informed about the blood test kit he asked the police officer what a blood test kit was and what he would do with it.  He said the police officer explained to him how the blood test was conducted and that if the appellant wished to submit to the test he would have to drive to a doctor to have his blood tested.  The appellant said that he then asked the police officer how he was going to get to a doctor and she said that it was “your business, we can’t do that”.  He said that he did not ask for the blood test kit because they had not offered transport to him.  He said if he had an opportunity he would have had a blood test.  He denied that the police officers had offered to transport him to Gumeracha. 

8. There was no direct evidence as to whether this station was established outside metropolitan Adelaide, but Constable Nuske said she believed it was, and the magistrate dealt with the matter on that basis.  He then referred-to the statutory obligation upon members of the police force posed by s 47FA to transport a person to a place at which a sample of the blood may be taken.  He found, however, that the provisions of s 47FA did not apply in this case because there was never any request by the appellant to be provided with a blood test kit.  He accepted that there was some discussion in relation to the availability of the kit and the means to facilitate it.  He accepted the evidence of Constable Schwartz that he had indicated to the appellant that because they were in Birdwood, the police would if necessary take him to a place to have his blood taken.  The magistrate found that the appellant was not dissuaded from having a blood test by the police officers and found that this was a matter of recent invention on the part of the appellant.  As all other relevant matters had been established, magistrate then found the charge proved.  This essentially was a dispute as to a factual matter which was resolved in favour of the prosecution based on the magistrate's assessment of the various witnesses.  The magistrate was in the best position to make that assessment.  In that circumstance, there was nothing put forth in argument by the appellant which would justify me interfering with the magistrate's finding as to the facts.  The appeal against conviction will therefore be dismissed. 

9. Having found the charge proved, the magistrate imposed the minimum penalty of a fine of $500 and disqualified his licence for a period of six months.  The appellant submitted that the magistrate should have dealt with the matter as if it were a trifling offence, but his argument was misconceived.  The appellant conceded that there was nothing special or unusual about the circumstances of his offence.  The only reason proffered by him for the offence to be found trifling was that his reading was just over that which is categorised by the Act as a Category 2 offence.  That matter was clearly taken into account by the magistrate.  He bore in mind that this was a random breath testing station, and that the reading was only marginally over .08 and fixed the minimum penalty.  The appeal against sentence is also dismissed.