MANETTA v Police No. Scgrg-98-473 Judgment No. S6799

[1998] SASC 6799

MANETTA  v  POLICE
[1998] SASC 6799

Magistrates Appeal

Nyland J

1. This is an appeal against conviction. The appellant was charged on complaint that on 21 March 1997 at Adelaide he drove a motor vehicle on a road, namely Hutt Road, while there was present in his blood the prescribed concentration of alcohol defined in s47A of the Road Traffic Act 1961 (the Act) contrary to s47B of the Act. It was further alleged that the concentration of alcohol was .159 g in 100 ml of blood.

2. On the evening of 21 March 1997, the appellant was stopped at a random breath testing station situated on Hutt Road.  He was directed to submit to an alcotest.  That test was conducted at about 11.40 pm and registered a positive reading.  The appellant was then informed that he was obliged to undergo a breath analysis test.  After the procedure was explained, the appellant requested that the breath analysis test be conducted immediately.  The request was refused.  The test was conducted at 12.08 am, that is, some 28 minutes later.  That test revealed the concentration of alcohol in the appellant’s blood as .159 grams. 

3. The appellant appeared before a stipendiary magistrate in the Magistrates Court at Adelaide on 5 March 1998 and pleaded not guilty to the charge.  The facts were not in dispute.  The appellant argued that the delay in conducting the breath analysis test amounted to a failure to comply with the procedures established by the Commissioner of Police with respect to the obtaining of evidence of breath analysis.  As strict compliance with those procedures was a condition precedent for the admission of the evidence, the evidence so obtained should be rejected.  In the alternative, he argued, the evidence should be excluded pursuant to the discretionary principles referred to in Bunning v Cross[1]. 

   [1] (1978) 141 CLR 54

4. At the conclusion of the hearing the magistrate rejected both arguments.  He concluded that the request for the appellant to wait for 28 minutes prior to undergoing the breath analysis test was neither unlawful nor unjustified.  He also considered the police had not acted improperly in requesting that there be a delay.  He therefore found the charge proved. 

5. The appellant now appeals against his conviction on the following grounds:

   “1..... The learned magistrate erred in finding that there was no undue delay in the administration of the breath analysis the basis of the complaint.  On the whole of the evidence the learned magistrate ought to have found that the administration of the said test was unduly delayed.

   2The learned magistrate erred in attributing to the certificates tendered pursuant to s47G of the Road Traffic Act 1961 the conclusive evidentiary effect set forth in s47G(1) of the Act. The learned magistrate ought to have found that, by reason of the said undue delay, a requirement and procedure of the Act in relation to breath analysis had not been complied with within the meaning of s47G, and that, as a consequence, the said evidentiary effect could not be attributed to the said certificate and that the complaint was not otherwise proved.

   3..... Alternatively, if the said evidentiary effect was properly to be attributed to the said certificate (which is denied) then the learned magistrate erred in failing to exercise his discretion to exclude the said certificates according to the principle in Bunning v Cross.”

6. At the trial the prosecution called evidence from Julian Mark Snowdon, the police officer who conducted the alcotest, Senior Constable Thompson, the breath analysis officer, and Senior Sergeant Laslett, a qualified breath analysis operator.  Sergeant Laslett belonged to committees of the Standards Association in relation to breath analysis, evaluating instruments for the South Australian Police and also the national Police Research Unit. One of his duties was the training of breath analysis operators.  In addition to the usual evidentiary certificates the court admitted through Sergeant Laslett, the Drager Alcotest 7110 Operators Manual (Exhibit P12) and Breath Analysis Operator’s Handbook (Exhibit P13).

7. The defence also tendered a folder containing the South Australian Police Department’s Random Breath Testing Operating Instructions, described as General Order 8760 (D1).  It was an agreed fact at trial that General Order 8760 set out the procedures established by the Commissioner of Police pursuant to s47DA(4) of the Act, to be followed by members of the police force performing duties at or in connection with the breath testing station, and the procedures designed to prevent, as far as reasonably practicable, any undue delay or inconvenience to persons stopped at the station.  It was also agreed that the general order was in force at the time of the alleged offence.

8. The effect of the evidence for the prosecution was that the delay in administering the breath analysis test had not been occasioned by any practical impediment, but rather was based on an established procedure of waiting for a period of 20 minutes between tests which the police used as a safeguard to ensure that alcohol and any foreign contaminating substances such as inhalers or other medicines were removed from the mouth.  This was, to some extent, based on the operational instructions contained in P12, that is the Drager Alcotest 7110 Operator’s Manual, which provided that:

   “It is essential to allow at least 15 minutes from the last intake of alcohol to the time of provision of the breath sample for analysis.  This waiting also applies after the use of mouth sprays, lozenger medications containing alcohol and medications applied by aerosol.  The 15 minutes waiting period is also necessary after vomiting or belching.  Rinsing the mouth with water does not reduce the time needed before the person can be tested.  It is also necessary to ensure that the person being tested has not smoked within the previous five minutes.”

9. Senior Sergeant Laslett also gave evidence that as a result of experiments he had carried out in the early 1990’s, substances such as asthmatic spray and repellent remained in the breath for greater than 15 minutes.  As a result of these matters, it was customary to allow 20 minutes between the alcotest and the breath analysis and the police operating the breath analysis machine were advised of that delay as part of their training.

10. In the course of argument the appellant referred to s47DA which in so far as it is relevant provides:

    “(1).. ...

    (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.

    (3)   ...

    (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 persons stopped at the station.” (emphasis added)

11. Section 47E of the Act, in so far as it is relevant provides:

    “(2a). A member of the police force may require the drive of a motor vehicle that approaches a breath testing station established pursuant to section 47DA to submit to an alcotest.

    (2b)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.

    (3).. A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a member of the police force in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a member of the police force.”

12. The argument advanced by the appellant was that s47DA established a requirement as to procedures to be followed by the members of the police force performing breath testing duties, such procedures being set out in General Order 8760.  The appellant referred in particular to Order 5.4 which is concerned with the procedure to be followed upon there being a positive alcotest.  Sub-paragraph 5.4.1 provides that:

    “If the alcotest proves positive, the driver must be further addressed in the manner recorded in the pro forma brief, PD281 and escorted to the breath analysis operator.”

13. In this case, the document PD281 (Exhibit P1), was tendered in the evidence of police officer Snowdon and was described as his statement of witness.  It simply records in pro forma form the conversation between him and the appellant.  It refers to the discussion between the appellant and Snowdon as to the need to wait for the period of 20 minutes.  The appellant pointed out, however, that the form itself does not include any reference to the need to delay for that period of time. 

14. The appellant also referred to paragraph 5.3.9 which relates to the alcotesting procedure.  It states that “Cigarette smoke may affect the results of the alcotest.  Members must ensure that the driver does not inhale cigarette smoke for at least one minute prior to the test and must inform the driver of the reason for the delay”.  The appellant therefore argued that the Commissioner had adverted to the possibility of the accuracy of an alcotest being affected by cigarette smoke and had in that case specifically authorised a delay of one minute.

15. The appellant referred to the second paragraph of the preamble to the General Order which stipulates that there be a strict compliance in relation to the operating procedures and instructions.  Those instructions do not authorise any delay between the administration of the alcotest and the submission to the breath analysis, nor is there any warrant for such a delay in the Act.  The appellant argued that the power to require a person to submit to breath analysis following a positive alcotest carried with it an implied right to detain a person for that purpose.  Accordingly, any power exercised in such circumstances should be construed narrowly.  Any delay not specifically authorised should be scrutinised carefully and should only be tolerated where there was no reasonable practical alternative. 

16. The appellant argued that in this case there was no practical impediment to the immediate administration of the test.  As there had not been strict compliance with the general order the test was invalid and hence the certificate inadmissible.  Alternatively, it created a Bunning v Cross public policy discretion to exclude the evidence on the basis that it had been illegally or unlawfully obtained, the illegality deriving from a breach of statutory intention as well as the unfairness in the admission of such evidence against the appellant.

17. True it is that neither the Act nor the general orders refer to the need for a 20 minute delay.  Section 47DA, however, clearly contemplates some delay as it refers to “procedures designed to prevent as far as reasonably practical any undue delay”.  In any event, as argued by the respondent, there is a fundamental difference between s47DA and s47E.  The respondent submitted that the obligations imposed on the Commissioner of Police by the virtue of s47DA did not apply to s47E as the former dealt with the establishment of breath testing stations where the alcotests were administered whereas the latter enforced the obligation to submit to an alcotest and thereafter a breath analysis test if the alcotest returned a positive reading.  Accordingly, the requirement pursuant to s47DA(2) that alcotests be made in quick succession does not apply to breath analysis, nor do the procedures established by the Commissioner, pursuant to s47DA(4), have any bearing on this aspect of the matter.

18. Section 47DA was discussed by Mullighan J in Plunkett v Liddy[2].  He said (at 456-7):

    “In my view, the purpose of ss47b, 47da and 47e(2a), (2b) and (2c) is to permit the random breath testing of motorists who have not contravened any provisions of the Act with a view to detecting those who have driven with the prescribed concentration of alcohol in the blood in order to promote safety on the roads.  In establishing this legislative scheme Parliament acknowledged that many law-abiding motorists would be obliged to submit to alcotests even though they had not consumed any alcohol.  Consequently there would necessarily be a substantial invasion of the rights of motorists to go about their affairs without interference from police officers.  The purpose of s47da(2) and (4) is to ensure that the extent of the invasion of those rights should be kept to a minimum by ensuring that breath testing stations are established in a way and with facilities and procedures which will achieve that objective.”

    [2] (1992) 162 LSJS 452

19. And (at 457-8):

    “Section 47da is not concerned with breath analysis.  It is concerned with establishing breath testing stations where alcotests are to be administered.  It is s47e(2a) and (3) which enforces the obligation to submit to an alcotest at a breath testing station and s47e(2b) and (3) which enforces the obligation to submit to breath analysis should the alcotest reveal that the prescribed concentration of alcohol may be present in the blood.”

20. Although that case was concerned with a different issue, I consider the reasoning is equally applicable to the present situation.  It is understandable that there be procedures in place to ensure that there is a minimum of inconvenience to drivers who are required to submit to an alcotest.  The alcotest is simply a screening test to be applied in a situation where there is not any suggestion of fault on the part of the driver.  Once there has been a positive alcotest reading, however, there is a condition precedent established which gives rise to the obligation of that driver to undergo a breath analysis test.  That analysis is carried out on a machine which in this case was the Drager Alcotest 7110.  It is therefore in accordance with good sense and also good practice to carry out that test in accordance with the manufacturer’s instructions.  In this case, those instructions provide for a minimum waiting period of 15 minutes.  A standard procedure allowing for a 20 minute delay is, in my view, not unreasonable.  On the other hand, if the police failed to comply with the manufacturer’s instructions and tested a driver immediately, one could readily accept as an argument that the test was flawed. 

21. In my opinion, the magistrate correctly found that there had not been any undue delay in the circumstances of this case.  Similarly, I do not think there was anything in the conduct of the police which would give rise to the Bunning v Cross discretion. 

22. In my opinion the appeal should be dismissed.