Maxwell v Police - [2005] SASC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MAXWELL v POLICE
Judgment of The Honourable Justice Gray
23 March 2005
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - FAILURE TO SUPPLY OTHER INFORMATION OR GIVING FALSE INFORMATION
Appeal against conviction - appellant convicted by magistrate of driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol and of failing to produce his driver's licence in circumstances where he was required to do so - appeal on grounds that magistrate: erred in finding that the relevant provisions of the Road Traffic Act 1961 (SA) had been complied with; and erred in finding that the elements of s 97A of the Motor Vehicles Act had been proved beyond reasonable doubt.
Discussion of Division 5 of the Road Traffic Act 1961 (SA) particularly sections 47DA, 47E and 47G - consideration of regulations 8A and 9(1) of the Road Traffic (Miscellaneous) Regulations 1999 (SA) - discussion of relevant authorities - consideration of section 45C of the Evidence Act 1929 (SA) - consideration of section 97A of the Motor Vehicles Act 1959 (SA).
Appeal dismissed.
Road Traffic Act 1961 (SA) s 47B, s 47DA, s 47E, and s 47G; Motor Vehicles Act 1959 (SA) s 97A; Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A and reg 9, Sch 1; Evidence Act 1929 (SA) s 45C, referred to.
French v Scarman (1979) 20 SASR 333; Police v Mercorella (2003) 87 SASR 218; Police v Modra (2000) 32 MVR 326; Lloyd v Police (2004) 89 SASR 383; Mercorella v Police (2004) 88 SASR 375, considered.

MAXWELL v POLICE
[2005] SASC 101
Magistrates Appeal
GRAY J

This is an appeal against conviction.
On 17 November 2004 the appellant, Duncan Fergus Maxwell, was convicted of two offences:
-driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol, contrary to section 47B of the Road Traffic Act 1961 (SA), the alleged concentration of alcohol being 0.085 grams of alcohol in a hundred millilitres of blood;
-failing to produce his driver’s licence in circumstances where he was required to do so, contrary to section 97A of the Motor Vehicles Act 1959 (SA).
Trial before the Magistrate
The prosecution alleged that at about 1.20am on 7 June 2003 the police stopped the appellant at a random breath testing station on Port Road at Hindmarsh. After undergoing an alcotest, which produced a positive reading, the appellant was required to submit to a breath analysis. The appellant supplied two samples of breath. The lower of the two readings obtained on analysis of the two samples was said to have been 0.085 grams of alcohol in 210 litres of breath.
Sergeant Stephen Grantley Richards gave evidence that on 7 June 2003 he was one of a number of police officers on duty at a random breath testing station on Port Road at Hindmarsh targeting motor vehicles travelling north west on Port Road. His evidence included the following:
Q.    Can you tell the court the vehicle that was stopped.
A.    Toyota sedan, UKE 339.
Q.    Upon the vehicle stopping, you spoke with the driver.
A.    Yes, I did.
Q.    Do you see the driver in court today.
A.    I don’t accurately remember the driver at this stage.
Q.    Did you speak to the driver.
A.    Yes, I spoke to him.
Q.    Can you tell the court of that conversation.
A.    I approached the vehicle. I said, ‘Good morning, this is a breath testing station.’.
Q.    Did you do anything upon saying that to the driver.
A.    I had an alcolmeter in my hand.
Q.    What sort of alcolmeter.
A.    It’s called an SD400 alcolmeter.
Q.    It had a unit number.
A.    Yes, it was 14561.
Q.    What did you do with that alcolmeter SD400.
A.I proffered it to the driver through the window and told the driver to blow into it in one long breath until I said stop.
Q.Did he do that.
A.Yes.
Q.Did it produce a reading.
A.Yes, it did.
Q.What reading did it produce.
A.It was 0.075.
Sergeant Richards then informed the appellant that as he had given a positive result to an alcotest, he was required to submit to a breath analysis test. He was required to give two samples of breath. The appellant did so.
The instrument used to conduct the breath analysis test produced one printout containing three identical records of the readings of the two samples of breath. Each identical record from the printout indicated the time of each test. Sergeant Richards testified that he separated the printout into three identical records, circled the lower of the two readings on each of the three records and then signed all three. The circled reading on each record was 0.085. At about 1.53am, Sergeant Richards delivered one of the records to the appellant and explained the significance of the information it contained. Sergeant Richards retained the other two identical records. One of the retained records was tendered at trial.
Sergeant Richards gave the following evidence:
A.‘I now direct you to take a deep breath and exhale steadily through the mouthpiece into the breath analysing instrument with one continuous breath until I tell you to stop, do you understand that?’
Q.Before you give his answer, what time did that occur.
A.Approximately 1.45 a.m. The answer was ‘yes, better this time’. I then proffered the tube of the BA machine instrument towards him. He exhaled and I said, ‘keep going, keep going, keep going, stop’. The instrument then times out for two minutes. At the end of that two minutes the instrument says ‘blow again’. I then put another mouthpiece on the instrument and went through the same procedure. This time I only had to say ‘keep going’ once and then ‘stop’. Both were good, steady, normal acceptable exhales. The instrument then gives printouts of the reading and I transposed from the printout to p.3 and p.2 the times that were on that printout and the reading. As a result of doing that, I say ‘the analysis shows you have a breath alcohol concentration of 0.085 grams of alcohol in 210 litres of your breath. This is over the legal limit. Do you understand that?’ The answer was ‘I do’.
Sergeant Richards then read aloud to the appellant the advice in accordance with the Road Traffic (Miscellaneous) Regulations 1999 (SA). He delivered to the appellant the written notice in the form prescribed by the regulations.
The appellant then requested a blood kit and signed a form that contained his details including his address, the location where the form was completed, the time of the breath analysis test and the date.
Following evidence of the testing and the provision of the oral advice and the written advice and the supply of the blood kit, Sergeant Richards gave further evidence as follows:
Q. Could you continue with any conversation you had with the driver.
A.Yes I said, ‘Your BA reading is 0.085 grams of alcohol in 210 litres of your breath. You will be reported with driving with a prescribed concentration of alcohol in your blood and for failing to produce your licence. You are not obliged to say anything unless you wish to do so. Anything you do say will be taken down and may be used in evidence. Do you understand that. The answer was, ‘I do’. I said, ‘Where have you been drinking?’ and the answer was ‘The Minkey Bar’. I said, ‘what time was your first drink’ ‘10.30/10.00’ so it was 10.30 or 10 o’clock. ‘What time did you finish your last drink?’ and answer ‘Just before I left’ five minutes ago’, ‘What were you drinking?’ ‘Beer – Stella’. ‘How many drinks did you have?’ ‘four’. ‘What size were the drinks?’ ‘normal – stubbie’. ‘When was your last meal and what did you have?’ ‘chicken Kiev 9.30’. ‘When did you last sleep and for how long?’ ‘Seven and a half hours’. ‘Do you wish to say anything in answer to the charge?’ ‘No, it’s all good’. ‘Do you wish to read these notes?’ ‘No mate’. ‘Do you wish to sign these notes?’ ‘nuh’. He was informed that he wasn’t allowed to drive for two and three-quarter hours and we had a discussion about how he was leaving and I made a note that he said he was going to get a taxi to the RAH regarding his blood.
The magistrate found Sergeant Richards to be a truthful and reliable witness and accepted and acted on his evidence.
The prosecutor tendered a number of certificates and documents, all of which were received de bene esse. They included:
-a section 47G(3c) certificate – certification of establishment of a breath testing station
-a section 47G(3a) certificate – certification of Lion alcometer SD 400
- a section 47G(3b) certificate – certification of positive alcotest
-the South Australian Government Gazette – 24 October 1996 pg 1455 – approval of Lion Alcometer SD 400
-a section 47G(3)(a) certificate – authorisation of Sergeant Richards to operate breath analysing instruments
-a section 47G(3)(b) certificate – certification of correct operation of a breath analysing instrument
-the South Australian Government Gazette – 24 March 1994 pg 787 – approval of dragger alcotest 7110
-an original printed report produced by the breath analysing instrument
- a section 47G(2a)(a) certificate - Schedule of prescribed oral advice
-a section 47G(2a)(a) certificate – Schedule of prescribed written notice
-a section 47G(2a)(b), reg.5 form – “Form of Request” for a blood test kit
-a section 47G(7) certificate – certification that a blood test kit was delivered to the appellant
- a copy of the complaint
The defendant did not give evidence himself and led no other evidence. The magistrate concluded:
None of the objections made before me raise matters of substance. I reject all of them, and I admit all of the exhibits are admitted [sic]. Cumulatively, and in combination with the oral evidence, the prosecution proves its case beyond reasonable doubt. I find the defendant guilty of both charges.
The Legislative Scheme
The Road TrafficAct is consolidating legislation relating to road traffic matters. Division 5 deals with persons driving motor vehicles whilst under the influence of liquor or drugs. Section 47B makes it an offence to drive whilst having a prescribed concentration of alcohol in blood and sets out the penalties for an offence against that section.
Section 47DA provides the police with power to establish breath testing stations to randomly test drivers. Section 47E obliges a person, in certain circumstances, to submit to an alcotest or breath analysis or both and relevantly provides:
(2e)The regulations may prescribe the manner in which an alcotest or breath analysis is to be conducted and may, for example, require that more than one sample of breath is to be provided for testing or analysis and, in such a case, specify which reading of the apparatus or instrument will be taken to be the result of the alcotest or breath analysis for the purposes of this and any other Act.
Regulation 8A of the Road Traffic (Miscellaneous) Regulations, introduced on 27 May 2002, requires the taking of two samples of breath for analysis and outlines the procedures to be followed:
In French v Scarman[1] King CJ observed that the legislature recognised that by requiring the citizen to submit to breath analysis tests, it had placed the citizen in a position in which their fate would be determined by the accuracy of the instrument and the honesty and reliability of the police evidence as to its results. This recognition led the legislature to provide a number of safeguards to protect the citizen. Those safeguards recognise the need to protect the citizen against the operation of statutory presumptions designed to facilitate proof of the offence.
[1] (1979) 20 SASR 333 at 339
Section 47G addresses the admissibility of evidence and provides for the operation of statutory presumptions:
(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 ... .
Section 47G(2) provides:
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[2].
[2] Section 47G(2) previously read:
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 who breath has been analysed a statement in writing specifying –
(a)the concentration of alcohol indicated by the analysis to be present in the blood expressed in grams of 100 millilitres of blood; and
(b)     the date and time of the analysis.
This sub-section is designed to ensure that the citizen is provided promptly with a copy of the breath analysis reading produced by the breath analysing instrument and the date and time of the analysis. The provision of the breath analysis reading provides the citizen with a record of relevant information. That information may assist the citizen in the making of a decision to request a blood kit and blood test.
In order to further redress the imbalance created by the statutory presumptions, the legislative scheme provides rigorous safeguards to protect the rights of drivers who may be dissatisfied with the breath-testing regime or the procedures followed. The scheme provides drivers with the opportunity to have a portion of a blood sample independently tested. Those results can then be compared with the results from the blood test conducted by the State. These legislative safeguards are built into and form an integral part of the legislative scheme. Legislative safeguards also include the provision of oral and written advice of the citizen’s rights including the right to request a blood kit and to then seek a blood analysis.
These safeguards were addressed in French[3] where King CJ observed:
This recognition finds expression in the provisions of s. 47f which provides a safeguard. This safeguard takes the form of an obligation on police officers to facilitate the taking of a blood test if the citizen requests it. The safeguard is illusory if the obligation on the part of the police to facilitate a blood test arises only if the citizen makes the request in the words of the section. The legislature cannot have supposed that a person requested to submit to a breath test would have the details of the section in his mind. It seems to me that where a person, who is requested to undergo an alcotest or a breath analysis, indicates a desire for a blood test, it is incumbent upon the police officer, not only to inform him that he may have a blood test taken by a doctor named by him and at his own expense, but also to indicate that if he desires the blood test to be taken upon that basis, arrangements will be made for that to be done.[4]
[3] (1979) 20 SASR 333 at 337-340
[4] Police v Mercorella (2003) 87 SASR 218 at [9]-[17].
The Appeal
There were a number of issues raised on appeal in relation to the blood alcohol offence.
Identity of the Appellant
The first complaint raised by the appellant was whether the magistrate had erred in finding that the appellant was the driver who had been subjected to the breath analysis test administered by Sergeant Richards on 7 June 2003. This ground, which had been a matter in issue before the magistrate, was abandoned during the hearing of the appeal.
Adequacy of the Section 47G(3c) Certificate
Counsel for the appellant submitted that the magistrate erred in concluding that the section 47G(3c) certificate established that the random breath testing station on Port Road on 7 June 2003 had complied with the requirement of section 47G(3c) of the Road Traffic Act. Section 47G(3c) provides:
A certificate purporting to be signed by a member of the police force and to certify that a breath testing station had been established pursuant to section 47DA at a place and during a period referred to in the certificate is, in the absence of proof to the contrary, proof of the matters so certified.
As earlier observed, the power to establish a breath testing station is conferred by section 47DA(1) of the Road Traffic Act which provides:
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.
Proof of the lawful establishment of a breath testing station may be established by the tender of a certificate pursuant to section 47G(3c) of the Road Traffic Act. The certificate completed pursuant to section 47G(3c) for the establishment of the breath testing station on Port Road at Hindmarsh on 7 June 2003 stated that a breath testing station “was established …on a road namely Port Road”. The certificate is a pro forma document which uses the words “on / in the vicinity of a road”. In completing the certificate, Sergeant Richards circled “on” but left the statement “in the vicinity of a road” uncompleted.
The magistrate made the following findings:
While the certificate may be criticised for lack of detail, the lack of detail is not fatal. A road within the meaning of the Act is specified on the face of the certificate. The defendant is not prejudiced in any way by the omission of any reference to a suburb, state, nation or hemisphere. The prosecution clearly specified on the face of the Port Adelaide Magistrates Court complaint that the “Port Road” referred to in these proceedings is Port Road at Hindmarsh
…
I am satisfied that there is no reason to exclude the certificate tendered as P1, pursuant to section 47G(3c). … I am satisfied that P1 proves the facts that section 47DA requires the prosecution to prove.

This ground of appeal should be rejected. Section 47DA permits a breath testing station to be established “on or in the vicinity of any road”. Section 47G(3a) requires a member of the police force to certify that the breath testing station “had been established pursuant to section 47DA at a place ...”. The certificate identified the road where the breath testing station had been established. This identification met the terms of the legislation. The certificate identified the place of the breath testing station on Port Road. This was adequate particularisation. The breath testing station on Port Road was the breath testing station at which Sergeant Richards was stationed and on which the appellant was stopped. There was no suggestion of there being any other breath testing station elsewhere on Port Road.
However, even if the certificate was inadequate this complaint must fail for another reason. In Police v Modra,[5] an appeal against a conviction of an offence against section 47B of the Road Traffic Act, Bleby J held that proof that the breath testing station had been correctly established pursuant to section 47DA of the Act was not among the matters that were necessary to be proved in order to make out the charge. He reasoned: [6]
In order to prove the offence it was not necessary to prove a great many other events which may have led to the obtaining of the necessary evidence. It was not necessary to prove:
·that a breath testing station had been established pursuant to s47DA for the relevant period;
...
None of those facts were necessary to be established in order to prove a breach of s 47B. I, too, agree with Martin J in Barber v Police (1999) 204 LSJS 399 at 404 and 405 that those matters are not of any evidentiary use in proving a breach of s 47B. It is significant that s 47G(1) only refers to the need to prove compliance with the requirements and procedures in relation to breath analysing instruments and breath analysis. An alcotest apparatus is not included in the definition of “breath analysing instrument” in s 47A, nor can it be used for “breath analysis” as defined in that section.
[5] (2000) 32 MVR 326.
[6] (2000) 32 MVR 326 at [72]-[73].
These remarks have direct application to the circumstances of the present appeal. The lawful establishment of a breath testing station is not an element of the offence. The prosecution is under no obligation to prove the lawful establishment of a breath testing station.
Adequacy of the Oral Advice
The appellant complained that the magistrate had erred in concluding that Sergeant Richards had delivered the prescribed oral advice. Section 47G(2a) of the Road Traffic Act 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.
Regulation 9(1) of the Road Traffic (Miscellaneous) Regulations prescribes the terms of the oral advice to be given:
The oral advice required to be given for the purposes of section 47G(2a)(a) of the Act … must be as set out in Part A of Schedule 1.
Part A of Schedule 1 reads as follows:
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.
Counsel for the appellant submitted that the prosecution had failed to prove compliance with the requirement and procedures in relation to breath analysing instruments and breath analysis under the Act and that the prosecution was therefore precluded from relying only on the statutory presumptions created by sections 47G(1) and (1b).
Proof of compliance may be established by a certificate tendered pursuant to section 47G(7). Section 47G(7) 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 evidence, Sergeant Richards acknowledged that he departed from the terms of the prescribed oral advice to be read to a driver returning a positive breath analysis test. He said that he omitted the words:
or for an offence against section 47 of the Road Traffic Act driving under the influence of liquor.
In cross-examination he explained what occurred:
Q.When you related to the court the prescribed oral advice that you say you provided to the subject, pursuant to the first schedule to the regulations Part A, is what you read to the court exactly what you read to the subject.
A.Yes, I read it from the inside cover of the statement booklet.
Q.That is the booklet produced in here.
A.Yes.
Q.I am not going to ask you to read through the whole thing again, but could you tell the court what you read in terms of the first three paragraphs.
A.The Breathalyser reading taken, just taken, shows you had a prohibited level of alcohol in your blood, therefore it appears you have committed an offence against s.47B of the Road Traffic Act. In any court proceedings for that offence it will be presumed that the Breathalyser accurately indicated your blood alcohol level.
Q.Stop you there. That’s not what is in the document, is it.
A.No, I left out the bit about driving under the influence.
Q.Why did you do that.
A.Because this person wasn’t charged with that offence, or going to be.
The magistrate concluded that this was not a departure sufficiently substantial to support the contention that the prosecution had failed to comply with the legislative provisions. Rather, the magistrate described the departure as understandable and acceptable in the circumstances.
A similar question arose in Lloyd v Police[7] where the court considered the question: [8]
... [W]hether the failure of a police officer to comply strictly with a statutory duty had the consequence that it was not possible to rely on statutory aids to proof provided by section 47G of the Road Traffic Act.
[7] Lloyd v Police (2004) 89 SASR 383.
[8] (2004) 89 SASR 383 at 386.
The court held that strict adherence to the wording of the prescribed oral advice set out in Part A of Schedule 1 to the Regulations was not required and that compliance with section 47G(2a) could still be achieved where there were departures from the prescribed wording. Debelle J concluded that substantial compliance was all that was required: [9]
This is not, therefore, a case where the object of this legislation requires a complete or total observance of subs (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, 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 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.
[9] Lloyd v Police (2004) 89 SASR 383 at [25]-27].
White J adopted a different approach. His Honour reasoned: [10]
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).
…
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.
[10] Lloyd v Police (2004) 89 SASR 383 at [55]-[59] (footnotes omitted).
The Chief Justice concluded that both approaches were legitimate: [11]
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.
[11] Lloyd v Police (2004) 89 SASR 383 at [2].
When applied to the facts of the present case, both tests are satisfied. The substantial compliance test is satisfied in that the oral advice read aloud to the appellant by Sergeant Richards substantially complied with the regulation. The omission was minor and inconsequential. The trifling test is also satisfied. The departure that Sergeant Richards made from the prescribed oral advice was de minimis. There is no substance to this complaint.
Adequacy of the s 47G(2) Statement in Writing
The final complaint raised on appeal in relation to the section 47B offence was whether the statement in writing, which comprised one of the three printouts produced by the breath analysis instrument upon completion of the analysis, complied with the terms of the statute. Section 47G(2) provides:
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.
Counsel for the appellant submitted that the prosecution could not prove beyond reasonable doubt that the statement produced to the court was a copy of the statement in writing delivered to the appellant. It was also contended that the statement failed to specify the “date and time of the analysis”.
The complaint raises a consideration of the best evidence rule. Counsel complained that the statement in writing delivered to the appellant had not been proved. The statement had not been produced or tendered and no notice to produce was delivered. There was no call for the production of the document from the defendant at the bar table.
This contention has no substance. The best evidence rule has been modified by statute. Section 45C of the Evidence Act 1929 (SA) provides:
(1)A document that accurately reproduces the contents of another document is admissible in evidence before a court in the same circumstances, and for the same purposes, as that other document (whether or not that other document still exists).
(2)In determining whether a particular document accurately reproduces the contents of another, a court is not bound by the rules of evidence and, in particular —
(a)     the court may rely on its own knowledge of the nature and reliability of the processes by which the reproduction was made;
(b    the court may make findings based on the certificate of a person with knowledge and experience of the processes by which the reproduction was made;
(c)     the court may make findings based on the certificate of a person who has compared the contents of both documents and found them to be identical;
(d)     the court may act on any other basis it considers appropriate in the circumstances.
(3)     This section applies to reproductions made —
(a)     by an instantaneous process; or
(b)     by a process in which the contents of a document are recorded (by photographic, electronic or other means) and the reproduction is subsequently produced from that record; or
(c)     in any other way.
As earlier observed, Sergeant Richards explained the process by which the copies of the record of the analysis came into existence. He described the process by which a continuous printout is produced by the breath analysis equipment and that printout contained three identical copies of the results. One copy was separated from the printout and delivered to the defendant. This process was described by the court in Mercorella.[12]
[12] Police v Mercorella (2003) 87 SASR 218 at [3]; Mercorella v Police (2004) 88 SASR 575 at [3]-[4] and [21]-[23].
Compliance with section 47G(2) gives rise to the presumption, in accordance with section 47G(1), that the concentration of alcohol indicated on the statement in writing “was present in the blood of the defendant at the time of the analysis”.[13] As earlier observed, section 47G(1) provides:
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.
[13] Section 47G(1)
The power to direct a person to undergo a breath analysis test is conferred upon police officers pursuant to section 47E(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.
Section 47E(2e) authorises the making of regulations to provide how a breath analysis test pursuant to section 47E(2b) is to be conducted:
The regulations may prescribe the manner in which an alcotest or breath analysis is to be conducted and may, for example, require that more than one sample of breath is to be provided for testing or analysis and, in such a case, specify which reading of the apparatus or instrument will be taken to be the result of the alcotest or breath analysis for the purposes of this and any other Act.
Regulation 8A[14] of the Road Traffic Act (Miscellaneous) Regulations directs that two samples of breath must be provided for testing or analysis. Each sample of breath is analysed to produce a reading. Regulation 8A relevantly provides:
[14] (1)    Pursuant to section 47E(2e), where a person submits to a breath analysis, the breath analysis must be conducted in the following manner:
(a)     the person must provide two separate samples of breath for analysis; and
(b)    each sample must be provided in accordance with the directions of the operator of the breath analysing instrument and must consist of not less than one litre of breath; and
(c)     there must be an interval of not less than two minutes and not more than 10 minutes between the provision of the samples.
…
(3) Where a person submits to a breath analysis, the result of the breath analysis will, for the purposes of the Road Traffic Act 1961 and any other Act, be taken to be the reading produced by the breath analysing instrument, on analysis of the samples of breath provided by the person in accordance with this regulation, that indicates the lower concentration of alcohol in the person's breath (not taking into account any samples that, in accordance with this regulation, are to be disregarded).
(1)Pursuant to section 47E(2e), where a person submits to a breath analysis, the breath analysis must be conducted in the following manner:
(a)     the person must provide two separate samples of breath for analysis; and
(b)     each sample must be provided in accordance with the directions of the operator of the breath analysing instrument and must consist of not less than one litre of breath; and
(c)     there must be an interval of not less than two minutes and not more than 10 minutes between the provision of the samples.
(2)     Despite subregulation (1) –
(a)     if, on analysing a sample of breath, the breath analysing instrument indicates an error in the analysis of the sample –
(i)that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis using a different instrument (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(b)     if, on analysing a sample of breath, the breath analysing instrument indicates the presence of alcohol in the mouth of the person –
(i)that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and
(ii)the person may be required to provide two further samples of breath           for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(c)     if, on analysing two samples of breath, the breath analysing instrument indicates that the reading obtained on analysis of the second sample was more than 15% higher or lower than the reading obtained on analysis of the first sample –
(i)     those samples must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); and
(3)Where a person submits to a breath analysis, the result of the breath analysis will, for the purposes of the Road Traffic Act 1961 and any other Act, be taken to be the reading produced by the breath analysing instrument, on analysis of the samples of breath provided by the person in accordance with this regulation, that indicates the lower concentration of alcohol in the person’s breath (not taking into account any samples that, in accordance with this regulation, are to be disregarded).

Regulation 8A(3) directs that the lower of the two produced readings of alcohol concentration in the person’s blood becomes the result of the breath analysis for the purposes of the Road Traffic Act.
In Mercorella,[15] Duggan J observed: [16]
The Act envisages that the regulations may require more than one sample of breath to be provided (s 47E(2e)). However, each testing is treated by the legislation as a separate breath analysis and, in my view, the requirement to provide a statement in writing specifying the reading produced by the breath analysing instrument arises after a person has submitted to each analysis of breath. There is no basis for reading into the legislation the qualification that only the reading to be relied upon for a prosecution is to be specified and not the readings from other analyses of the person’s breath carried out in the course of the same procedure.
[15] Mercorella v Police (2004) 88 SASR 375.
[16] Mercorella v Police (2004) 88 SASR 375 at [23].
The evidence before the magistrate revealed that the appellant had submitted to a breath analysis test conducted by Sergeant Richards. A copy of the statement in writing delivered to the appellant immediately following the breath analysis test and tendered in evidence at the trial revealed that two samples of the appellant’s breath had been analysed to produce two readings, the first at 1.48am and the second at 1.51am. Sergeant Richards circled the lower of the two readings, 0.085, being the 1.51am reading to indicate that that reading was the result for the purposes of the Act. This result, 0.085, is taken to be the concentration of alcohol indicated as being present in the blood of the appellant for the purposes of section 47G(1).
The copy of the printout tendered in court was received in evidence. The printout states the name of the appellant and the name of the operator. It records the first test as being conducted at 1.48am giving the result of 0.089 grams of alcohol in 210 litres of breath. It records a second test as being conducted at 1.51am and giving the result of 0.085 grams of alcohol in 210 litres of breath. Then follows the final entry which states the subject’s analysis result as 0.085 grams of alcohol in 210 litres of breath.
Compliance with section 47G(2) was proved by the tender of a copy of the recording delivered to the appellant.
The magistrate was correct to conclude:
As regards the defence submission that there was no evidence that the document given to the defendant is identical to P8 [the copy of the printout tendered in court], there is evidence that the machine printed three copies of the report of the breath analysis, one of which Sergeant Richards gave to the defendant. There is no evidence that the copy given to the defendant differed from P8 in any way, shape or form. There is no reason to find it did. A copy can be printed. “Copy” is not restricted to photographic images or carbon copies. This argument is rejected. That a witness marks any particular copy with a handwritten reference mark of his own does not mean that the copy the defendant received is not a copy. This argument is rejected.
Each recording produced by the breath analysis instrument contained the same information. Each was produced from a continuous printout from the same instrument. Each was marked and signed by Sergeant Richards.
The prosecution satisfied the requirement in section 47G(2)(b) of the Road Traffic Act. The magistrate concluded correctly that the prosecution was entitled to rely upon the evidentiary presumptions contained in section 47G to prove its case.
Failure to Produce Licence
The appellant raised one issue in relation to the conviction for the offence against section 97A of the Motor Vehicles Act. Had the prosecution proved the elements of this offence beyond reasonable doubt? The complaint alleged an offence contrary to section 97A(3) of the Motor Vehicles Act:
(3)A person when driving a vehicle in this State pursuant to subsection (1) must carry the licence and must produce it if requested to do so by—
(a) a member of the police force; or
...
Subsection (1) of section 97A provides:
Subject to this section, a person may drive a motor vehicle on roads in this State without holding a licence under this Act if—
(a)     the person holds—
…
(iii)     —
(A)a foreign licence that authorises the person to drive a motor vehicle of the class to which that motor vehicle belongs; and
(B)     an international driving permit; or
Section 97A(3) makes it an offence not to produce a licence if requested to do so by a member of the police. This offence relates to licences held by visiting motorists. A Canadian driver’s licence and an international driving permit are licences within the meaning of section 97A. The holder of such a licence is entitled to drive in South Australia. The appellant, as earlier observed, failed to produce a licence within the meaning of section 97A. He admitted to not being the holder of a South Australian driver’s licence or permit. He claimed to be the holder of a Canadian licence and being from Canada. He spoke of having an international licence. Sergeant Richards asked the appellant to produce his driver’s licence. His evidence recounted the conversation:
A.I asked the driver, ‘Are you the holder of a current South Australian driver’s licence or permit?’ The answer was, ‘No, I’ve got an international licence.’ I asked ‘Where are you from?’ and the reply was ‘from Canada’. I said, ‘so, you’ve got a Canadian licence’. The answer was ‘yes, but I haven’t got it here.’ He was then asked to get out of the car. The car would have been moved by another officer out of the line. As I said, I then had a positive reading so I would have got my paperwork and books as required. I started to enter the details on this proforma what the discussion has been about. I would have recorded those answers and questions I have just given and then continued –
Q.Please continue with the conversation.
A.I would have said, ‘It is an offence to fail to produce a state or international licence on demand.’ I asked what his reason was and the answer was ‘I don’t have a good reason. I lost my international licence anyway, so I don’t have it anymore.’ I stated ‘Your alcotest is positive. You will now be required to submit to a breath analysis test directing you not to take anything by way of mouth and to remain at the site to facilitate that breath test.’ The answer was ‘okay’.
No licence was produced and no international driving permit was produced.
In finding that section 97A(3) had been contravened, the magistrate concluded that the appellant’s failure to produce his Canadian driver’s licence upon request was sufficient to prove the charge pursuant to section 97A of the Motor Vehicles Act in absence of oral evidence to the contrary.
Counsel for the appellant submitted that the magistrate had erred in finding that the respondent had proved beyond reasonable doubt that the appellant was a person ordinarily resident outside the State who was temporarily resident within the State.
This submission misconstrues section 97A. It is not an element of the offence that the appellant was a person ordinarily resident outside the State who was temporarily resident within the State. The appellant failed to produce any appropriate licence when requested to do so and when driving.
Conclusion
This appeal is dismissed.