MCNAMARA v Police - [2014] SASC 187

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCNAMARA v POLICE
[2014] SASC 187
Judgment of The Honourable Justice Parker
10 December 2014
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE - BREATH TEST AND ANALYSIS
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE - BLOOD TEST AND ANALYSIS
Appeal against conviction. The appellant was convicted by the Magistrates Court of driving while having the prescribed concentration of alcohol in blood contrary to s 47B(1)(a) of the Road Traffic Act 1961. A breath analysis produced a reading of 0.055. The appellant was offered and given a blood test kit. A police officer took the appellant to a nearby hospital, informed hospital staff and left. A blood sample was not taken until about four hours later, resulting in a reading of 0.00.
Whether the magistrate erred by not exercising the unfairness discretion to exclude evidence of the appellant’s blood alcohol concentration.
Held (Parker J):
Appeal dismissed. There was no error made by the magistrate when she refused to exclude the breath test evidence under the unfairness discretion. The conversation between the police officer and the appellant about the blood test kit did not cause him to be misled about the operation of the statutory safeguard. The conduct of the police officer could not have led the appellant to believe that he was compelled to remain at the hospital he was taken to until his blood was tested.
Road Traffic Act 1961 s 47B(1)(a), s 47EB, s 47K(1), s 47K(1a), s 47K(2a)(a); Road Traffic (Miscellaneous) Regulations 1999 reg 9, Schedule 1 Part A, Schedule 1 Part B, referred to.
Police v Hall (2006) 95 SASR 482; Ujvary v Medwell (1985) 39 SASR 418; R v Lobban (2000) 77 SASR 24; Burton v Police (2004) 88 SASR 152, considered.

MCNAMARA v POLICE
[2014] SASC 187
Magistrates Appeal

PARKER J: This is an appeal against the conviction of the appellant by the Magistrates Court of driving while he had a prescribed concentration of alcohol in his blood contrary to s 47B of the Road Traffic Act 1961 (“the Act”). A prescribed breath analysis instrument had produced a reading of 0.055 grams of alcohol in 210 litres of breath. In accordance with s 47EB, that equated to a blood alcohol reading of 0.055 grams in 100 millilitres of blood.
The appellant was also charged with driving a motor vehicle while he was disqualified from holding or obtaining a licence contrary to section 91 of the Motor Vehicles Act 1959. He pleaded guilty to that charge at the commencement of the trial in the Magistrates Court. That matter is not subject to appeal.
The father of the appellant appeared as his counsel at the Magistrates Court trial and on…

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 MCNAMARA v Police

Details

AGLC: MCNAMARA v Police [2014] SASC 187
Case: [2014] SASC 187
Decision Date: 10 December 2014

CaseChat Overview and Summary

In the matter of McNamara v Police, the appellant contested his conviction for a breach of s 47B(1)(a) of the Road Traffic Act, related to alcohol and drug offences. The dispute centred on the admissibility of breath test evidence and whether the officer's conduct, including the provision of advice and the transportation of the appellant to a medical centre, was compliant with statutory requirements. The appellant argued that the officer's failure to answer all his questions, and his subsequent actions, led to an unfair delay in obtaining a blood test, thereby depriving him of the opportunity to challenge the breath test results.

The legal issues before the court were whether the police officer's advice to the appellant was adequate and whether the appellant was compelled to remain at the medical centre, both of which could potentially render the breath test evidence inadmissible. The court had to examine if the statutory notices were correctly followed and if the officer's conduct could be seen as compelling the appellant to remain at the medical centre against his will.

The court found that the officer's responses to the appellant's questions were appropriate, and the prescribed notices provided sufficient guidance without misleading the appellant about the urgency of a blood test. The court held that the word "promptly" in the statutory notices was sufficient to convey the necessary urgency and that the officer's conduct did not compel the appellant to remain at the medical centre. The magistrate's decision to admit the breath test evidence was upheld, and the appellant's conviction was affirmed.

No additional orders were made by the court beyond affirming the magistrate's decision. The appeal was dismissed, and the conviction stood as originally determined.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I have found that there was no error by the magistrate and have dismissed the appeal. Background At about 8.50 pm on 6 September 2012 while driving a motor vehicle on Marion Road, Ascot Park, the appellant was stopped by a police officer for the purpose of conducting a breath test. The appellant had been randomly selected. There was no suggestion by the police that the driving of the appellant was in any way impaired. After an initial positive breath test reading, the appellant was taken to the Sturt Police Station and required at 9.22 pm to submit to a breath analysis using a prescribed instrument. That resulted in the reading already noted. The appellant was subsequently charged with a breach of s 47B(1)(a) of the Act. As required by regulation 9 and s 47K(2a)(a) of the Act, the police officer provided the appellant with the oral advice set out in Part A of Schedule 1 to the Road Traffic (Miscellaneous) Regulations 1999 and also gave to him the written notice set out in Part B of Schedule 1. The appellant then asked the officer a series of questions. The officer responded to some, but not all, of those questions. The officer then drove the appellant to the Flinders Medical Centre (“FMC”). At about 10.15 pm the officer informed the triage nurse that the appellant was seeking a blood test. The officer left the FMC at 10.17 pm after saying “goodbye” to the appellant. A blood sample was not taken from the appellant at the FMC until 2.20 am on 7 September 2012. The blood alcohol content was found to be 0.00%. Thus, it was not possible to obtain any evidence to rebut the presumption created by s 47(K)(1) that the concentration of alcohol in the appellant’s blood in the two hours preceding the breath analysis test was the level recorded in that test.The magistrate’s reasons The appellant contended before the magistrate that he had been incorrectly advised by the police officer about the need to have a blood test undertaken promptly if he chose to do so. A further contention was that he had remained at the FMC because he believed that he was compelled to do so. That deprived him of the opportunity to have a blood test undertaken more expeditiously elsewhere. For that reason counsel submitted that the evidence of the breath test ought to be excluded under the unfairness discretion. The magistrate found that the failure of the officer to answer some of the questions asked by the appellant had not derogated from the prescribed oral advice and written notice. The magistrate took into account that the appellant had prior knowledge derived from two similar earlier occasions where he had requested a blood test. The magistrate also found that the appellant had gone voluntarily with the officer to the FMC and considered it inexplicable that he would have thought that he was compelled to stay at the FMC until he was tested some four hours after the officer had left him there. The magistrate concluded that the officer had no responsibility for the appellant’s choice of a medical practitioner to undertake the blood test nor for the failure of the FMC to conduct the test in a timely manner. The magistrate declined to exercise her discretion to exclude the evidence of breath analysis and found the appellant guilty.The appellant’s contentions

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Gray J also noted that by selecting the word “promptly” the legislature had sought to avoid misleading drivers into understanding that a blood test could be effectual if taken many hours after the breath test. The word “promptly” was more likely to convey the necessary urgency.[10][10] Ibid at 158 – 159 [27].Consideration I do not consider the defendant’s submission that the prescribed oral advice and written notice are defective to be correct. As Gray J noted in Burton the legislature had chosen the word “promptly” so as to avoid misleading drivers into thinking that a blood test could be effectual if taken many hours after the breath test. Because the prescribed alcohol levels detected by breath tests will vary widely[11] among drivers, and elimination rates will also vary, I doubt that it would be practicable for the prescribed oral advice and written notice to provide more specific information. [11] From 0.05 grams in 100 millilitres of blood to sometimes 0.30 grams or more. None of the responses provided by the officer to the questions asked of him by the appellant was incorrect. While the officer did not answer every question, I consider that the magistrate was correct in finding that he did not interfere with or derogate from the rights explained in the prescribed notices. When asked what “promptly” meant (the key word in the notice[12]) the officer acted appropriately by responding with the comment “what does promptly mean to you”. If the officer had attempted to paraphrase or explain the words of the statutory notices that may potentially have misled the appellant and derogated from his statutory rights in relation to blood testing. By simply referring the appellant back to the words of the prescribed notices the officer did not offend the principles enunciated by Gray J in Burton. [12] Ibid at 159 [28]. I consider that the magistrate was correct in rejecting the claim that the appellant was directed to accompany the officer to the FMC. That contention is not supported by the officer’s use twice of the word “directly” in the passages “I’ll take you directly to hospital” and “I’m more than happy to drive you here directly to the Flinders Medical Centre in order to have your blood tested”.[13] The word “directly” was quite obviously being used to connote immediacy or a lack of diversion along the route rather than compulsion. [13] Emphasis added. I also consider that the magistrate was correct in finding that the evidence did not support the contention that the appellant believed that he was compelled to attend the FMC. The concluding remark by the officer “I’ll take you to hospital if you like ...”[14] was simply indicating his willingness to assist the appellant by taking him to the nearby FMC if he wished to go there for his blood test. [14] Emphasis added. The evidence also supported the rejection by the magistrate of the contention that the appellant believed he was compelled to remain at the FMC until his blood was tested. The several offers made by the officer to drive the appellant to the FMC and the “goodbye” when he left were not suggestive of an ongoing obligation to remain at the FMC until testing occurred. There was also no evidence that any of the FMC staff did anything to cause the appellant to believe that he was not free to leave.