Mark James Stanton v SA Police (Appellant) No. SCGRG 95/1205 Judgment No. 5612 Number of Pages 6 Criminal Law (1996) 66 Sasr 263
[1996] SASC 5612
•16 May 1996
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL DOYLE(2) CJ, DUGGAN(3) AND WILLIAMS(1) JJ
CWDS
Criminal law - particular offences - driving offences - failing to submit to alcotest - not proven respondent was the driver - statutory construction - civil liberties. Road Traffic Act 1961s47E, referred to. McQuilkin v Barnard
(1979) Tas R 63; Ellis v Warner (1983) 1 MVR 177; Blake v Pope (1986) 3 All ER
185, discussed.
HRNG ADELAIDE, 6 March 1996 #DATE 16:5:1996 #ADD 4:7:1996
Counsel for appellant: Mr A. Moss
Solicitors for appellant: Crown Solicitor (SA)
Counsel for respondent: Mr J.A. Richards
Solicitors for respondent: Mr J.A. Richards
ORDER
Appeal dismissed.
JUDGE1 WILLIAMS J This is an appeal by SA Police against the decision of a single judge of this Court whereby he allowed an appeal by the present respondent, Stanton, against a decision of a Special Magistrate. The present appeal has been brought by leave of the Judge.
2. The question before the Court concerns the construction of s47E(1) of the Road Traffic Act 1961. Relevant extracts from s47E are as follows:
"(1) Where a member of the police force believes on
reasonable grounds that a person, while driving a motor
vehicle or attempting to put a motor vehicle in motion-
(a) has committed an offence against any provision of Part 3
of which the driving of a motor vehicle is an element; or
(b) has committed an offence against section 20, 111 or 122;
or
(c) has behaved in a manner that indicates that his or her
ability to drive the motor vehicle is impaired; or
(d) has been involved in an accident
that member of the police force may ... require that person
to submit to an alcotest or breath analysis, or both ...
(2a) A member of the police force may require the driver of
a motor vehicle that approaches a breath testing station
established pursuant to section 47DA to submit to an
alcotest.
(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 ...
(4) It is a defence to a prosecution under subsection (3)
that - ...
(b) there was, in the circumstances of the case, good cause
for the refusal or failure of the defendant to comply with
the requirement or direction."
3. The appellant seeks to rely upon par(a) of the abovementioned subs(1) in this case. Whilst it was not proved that the respondent was driving, there is no dispute that a member of the police force held a belief on reasonable grounds that the respondent had committed a driving offence against a relevant provision of Pt3. The question at issue is:
(a) whether the subsection applies only with respect to a
person who in fact has been driving a motor vehicle (or
attempting to put one in motion); or,
(b) whether (in the absence of proof that the relevant
person was driving) the subsection may be applied where a
member of the police force believes (on reasonable grounds)
that the person in question has been driving a motor vehicle
(or attempting to put one in motion).
4. The respondent was charged upon complaint in the Port Adelaide Magistrates Court that on 25th March 1994 at Royal Park, being a person who was required under s47E of the Road Traffic Act 1961 to submit to an alco test he refused to comply with all reasonable directions of a member of the Police Force in relation to that requirement.
5. The respondent pleaded not guilty; by way of defence, he asserted that he was not "driving a motor vehicle" on the occasion in question.
6. At about 2am on 25 March 1994, a police officer observed a motor car which (according to him) made a left hand turn without the driver having signalled his intention by trafficator. When the vehicle eventually stopped the police officer interviewed the respondent who emerged from the driver's side of the vehicle. The respondent was required by the police officer at the scene to submit to an alcotest but the respondent refused so to do. Arising out of the incident the respondent was charged with a number of offences against Pt3 of the Road Traffic Act including:
- driving without due care (contrary to s45);
- turning a motor vehicle without giving a signal (contrary
to s74);
- driving a motor vehicle on a footpath (contrary to s61) (I observe that all these charges are of a type to which I have given the label "driving offences" as discussed below).
7. These charges were heard concurrently with the charge under s47E of the Road Traffic Act with which the present appeal is concerned.
8. At trial in the Port Adelaide Magistrates Court an independent witness gave evidence that when the motor car pulled up he saw a man (not the respondent) emerge from the driver's side of the vehicle and run away into the nearby shrubbery. A man (not the respondent) also gave evidence that he was the driver. The charges relating to the alleged "driving offences" were eventually dismissed based on a finding that the identity of the respondent as the driver was not established.
9. However, the Learned Special Magistrate held that the charge under s47E was proved. Her Honour did not regard proof of the respondent as "driver" on the relevant occasion as being an essential ingredient of an offence based on the application of s47E(1).
10. In dealing with the charge under s47E of the Road Traffic Act the Learned Special Magistrate said:
"As I read the Road Traffic Act and I freely admit I could
be wrong, and no doubt an Appeal Court will address it if I
am, it does not have to be proved beyond reasonable doubt
that a person was a driver of a vehicle as a condition
precedent to the requirement. As I read the Act a
reasonable suspicion is sufficient. I have no doubt at all
that Constable Osterstock honestly believed on reasonable
grounds that the defendant had been driving the Ford vehicle
and he acted on that belief and required the defendant to
submit to an alcotest; and I have no doubt that the
defendant refused to comply with the reasonable directions
in relation to the alcotest."
11. Upon appeal Millhouse J disagreed with the Magistrate's construction of s47E. In the course of his reasons Millhouse J said:
"Whether the person was or was not the driver is a matter of
fact. The words "while driving a motor vehicle or
attempting to put a motor vehicle in motion" qualify the
word "person". Unless the person were in fact driving etc.
then it does not matter what the police officer's belief as
to other matters mentioned in sub-section (1) may be.
In this case it was not proved beyond reasonable doubt that
the appellant was the driver and he, of course, denied that
he was. That being so the sine qua non to the power to
require him to submit to the test was absent: he was
entitled to refuse."
12. I agree with the conclusion reached by Millhouse J.
13. Part 3 of the Road Traffic Act relevantly deals with two types of offences which for convenience I will call respectively "driving offences" and "miscellaneous offences". Using the language of s47E(1), in these reasons I have labelled "driving offences" those "in which the driving of a motor vehicle is an element" (e.g. driving without due care - see s45); I have labelled "miscellaneous offences" those offences which (within the framework of Pt3 of the Act) may be committed by any person irrespective of whether he or she is a driver (eg the offence of opening a vehicle door so as to cause danger - s93).
14. In my opinion, s47E has been enacted in aid of s47B(1) of the RoadTraffic Act. An offence is created by s47B(1) which relevantly reads as follows:
"A person must not -
(a) drive a vehicle; or
(b) attempt to put a vehicle in motion,
while there is present in his or her blood the prescribed
concentration of alcohol..."
15. The classes of persons who may commit an offence against s47B(1) are set out in pars(a) and (b) thereof. Just as s47B(1) is only concerned with this limited section of the public, so also, in my opinion is s47E. The relation between the two sections, and the function of s47E as being auxiliary to the operation of s47B(1), provides a guide to Parliament's intentions in enacting s47E.
16. The section of the Road Traffic Act now under scrutiny has its counterpart in other parts of Australia and England. No case to which I have been referred is directly in point due to slight (but significant) differences in drafting. For example, in McQuilkin v Barnard (1979) Tas R 63, in relation to the Tasmanian legislation it has been held that as a pre-requisite to the operation of the statute a person should in fact have been driving. This has to be distinguished from the Western Australian provision considered in Ellis v Warner (1983) 1 MVR 177 where it was sufficient that the police officer have a reasonable belief that the person concerned was driving a vehicle. The comparable English legislation is set out in Blake v Pope (1986) 3 All ER 185 at 190.
17. The South Australian s47E(1) is expressed in a manner which as an exercise in grammar, is capable of being fairly read in two different ways which are reflected in the opposing contentions of the parties to this appeal. In these circumstances I prefer to decide this case by reference to policy considerations.
18. The obligation to submit to an alcotest or a breath test is clearly something which impinges upon the civil liberty of the individual. It is something which Parliament has authorised in the course of imposing a responsibility upon drivers (and would-be drivers) of motor vehicles in order to facilitate the detection of offences (of a particular nature) by drivers, and as an aid to investigation of an accident in which the relevant person has been a driver. Hence, in drafting s47E(1) Parliament has shown an intention to keep the statutory power within bounds. The express exclusion of the miscellaneous offences (to which I have already referred) from the ambit of s47E(1) is significant in this regard.
19. A comparison between subs (1) and (2a) of s47E is useful. Section 47E(2a) confers a right on a member of the police force to conduct random testing of drivers - but not all drivers. Parliament in that instance has only authorised the testing on the basis of those who have a particular status, namely as a driver "of a motor vehicle that approaches" a properly established station. Likewise, in my opinion, s47E(1) is concerned with the authority of police with respect to another group of drivers - namely those drivers in respect of whom a police officer has formed a particular belief in accordance with the section.
20. In my opinion, par(a) of s47E(1) is concerned with those who are in fact drivers or those who (relevantly) have been drivers (or who have attempted to put a motor vehicle in motion). The obligation to comply is directed only against drivers and not other members of the community. Having regard to the classes of persons mentioned in s47E(1) what proper and relevant interest could a police officer have in breath testing a person who in fact was not a driver (or a would-be driver)? As I have already observed, s47E(1) is directed to aiding in detection of an offence against s47B(1) - which latter offence is itself one in which the driving of a motor vehicle (or an attempt) is an essential element.
21. In my opinion the objects of the Road Traffic Act and the intentions of Parliament are sufficiently achieved by attaching only to drivers the responsibility to submit to testing. If there is some evidence that a driver has behaved in a way as to create a "reasonable belief" of an incident as described in pars (a),(b),(c) or (d) of s47E(1) then the process of detection of crime or accident investigation requires that the police officer should have authority to administer the test. If the relevant person is not proved to be a driver, then there is no inconvenience if police power is absent. Section 47E(1) was enacted for a limited purpose. Unless a person is in fact the driver (as opposed to a person merely believed to be a driver) then I do not consider that, in any way now relevant, the operation of the Act will be advanced by requiring members of the public to submit to the breath testing process.
22. Accordingly, having regard to the civil liberties implications raised on this appeal I would give the section an interpretation which does not impinge upon the rights of persons other than drivers of motor vehicles.
23. In a passage which I have quoted from the reasons of the Learned Special Magistrate she refers to "reasonable suspicion" of the police officer and (in effect) "honest belief" as the basis for invoking power under s47E(1). However, the circumstance to which the language of the subsection actually refers is the police officer's "belief on reasonable grounds". No point was taken during the hearing of the appeal as to the Magistrate's terminology but the Court drew attention to this aspect of the matter. The appellant was content to argue the matter upon the footing that the Magistrate's finding reflected the language of the subsection. Accordingly, I have not explored differences in meaning between these various phrases.
24. There are, of course, some circumstances in which the police officer's belief is necessarily the basis of the officer's authority; s37 of the RoadTraffic Act (power to examine vehicles involved in suspected offences) and s41 (power to direct traffic) are examples. In practical terms, the operation of such sections is quite different from s47E(1) and not surprisingly, those sections are constructed in quite different ways from s47E. I am not persuaded that any disadvantage would result to the police by my interpretation of s47E(1); on the other hand I consider that the interpretation advanced by the Crown may result in unnecessary disadvantage to individual members of the public. I would be reluctant to interpret the statutory powers of the police in a way which would unduly restrict them in carrying out essential and difficult work. However, having carefully examined the statute I remain unconvinced that the police would be in any way inhibited in the proper performance of their duties by my acceptance of the respondent's argument.
25. Accordingly, I would dismiss this appeal.
JUDGE2 DOYLE CJ In my opinion this appeal should be dismissed for the reasons given by Williams J, to which reasons I have nothing to add.
JUDGE3 DUGGAN J I agree that the appeal should be dismissed for the reasons given by Justice Williams.
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