Manetta v Police - [1999] SASC 232

MANETTA v POLICE
[1999] SASC 232

Full Court: Doyle CJ, Duggan and Debelle JJ

DOYLE CJ. The appeal should be dismissed for the reasons given by Debelle J. There is nothing that I wish to add to those reasons.
DUGGAN J. I agree that this appeal should be dismissed for the reasons given by Debelle J.
DEBELLE J. The appellant was convicted of the offence of driving whilst there was present in his blood the prescribed concentration of alcohol contrary to s 47B of the Road Traffic Act 1961. He had been stopped at a random breath testing station. A breath analysis showed that the concentration of alcohol in the appellant’s blood was 0.159 grams per 100 millilitres of blood. The appellant appealed against his conviction to a single judge of this court but his appeal was dismissed. The appellant now appeals by leave to this court.
The relevant facts are not in dispute. The question is whether the prosecution is entitled to rely on the presumption in s 47G(1) of the Road Traffic Act. That question turns on whether the police officer who administered the breath analysis had complied with the procedures required by the Act.

A Breath Analysis is Required

The appellant had been required to stop at a random breath testing station. After stopping, he was required to submit to an alcotest. He recorded a positive reading. The test was conducted at about 11.40pm. The appellant was then informed that he was obliged to undergo a breath analysis. After the procedure had been explained, the appellant asked that the breath analysis be conducted immediately. The request was refused. The appellant was directed to wait. The breath analysis was conducted at 12.08am, that is to say, some 28 minutes after the alcotest. The breath analysis revealed the concentration of alcohol in the appellant’s blood to be 0.159 grams in a hundred millilitres of blood.

The Statutory Provisions

The contention that the breath analysis was not conducted in accordance with the procedures prescribed in the Road Traffic Act is grounded on the terms of s 47DA and s 47E of the Act. The relevant provisions provide:
“47DA.(1) A breath testing station may be established by members of the police force at any time on or in the vicinity of any road for the purpose of enabling alcotests to be conducted in relation to persons driving motor vehicles on the road.
(2) A breath testing station must be established in such a way, and consist of such facilities and warning and other devices, as the Commissioner of Police considers necessary in order to enable vehicles to be stopped in a safe and orderly manner and the alcotests to be made in quick succession.
...
(4) The Commissioner of Police must establish procedures to be followed by the members of the police force performing duties at or in connection with a breath testing station, being procedures designed to prevent as far as reasonably practicable any undue delay or inconvenience to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Manetta v Police

Details

AGLC: Manetta v Police [1999] SASC 232
Case: [1999] SASC 232
Decision Date: 4 June 1999

CaseChat Overview and Summary

The case of Manetta v Police involves an appeal against a conviction for driving with an alcohol concentration in the blood above the prescribed limit, under section 47B of the Road Traffic Act 1961. The appellant was required to stop at a random breath testing station where he recorded a positive reading on an alcotest. Following this, he was required to undergo a breath analysis which revealed a blood alcohol concentration of 0.159 grams per 100 millilitres of blood. The key issue in this appeal is whether the prosecution can rely on the presumption in section 47G(1) of the Road Traffic Act, which hinges on whether the police officer who administered the breath analysis complied with the procedures required by the Act.

The court examined whether the police officer had complied with the procedures prescribed in the Act, particularly the requirement in section 47DA(4) of the Act that the Commissioner of Police establish procedures to prevent undue delay or inconvenience to persons stopped at the station. The court found that while the Commissioner had established procedures to prevent undue delay or inconvenience in the conduct of alcotests, these procedures did not extend to the breath analysis. The instructions for the breath analysis were contained in an operator's handbook, which required a 20-minute waiting period between the alcotest and the breath analysis. The court held that the delay of 28 minutes, including an additional 8 minutes due to the appellant's request for the alcotest result, did not constitute undue delay or inconvenience.

The court concluded that even if the breath analysis must be conducted without undue delay, the 28-minute delay in this case did not constitute undue delay or inconvenience. The delay was in accordance with the instructions of the manufacturer of the breath analysis equipment and was designed to ensure the effectiveness of the test by allowing time for alcohol and contaminants to clear from the mouth. The court further noted that the appellant had not demonstrated why the conclusion of the judge appealed from should be disturbed. The additional eight-minute delay was attributed to the appellant's request for the alcotest result, and therefore could not be regarded as compounding the waiting period.

The appeal was dismissed, and the conviction upheld.

Orders