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 this appeal. The ground of appeal is that the magistrate erred by not exercising the unfairness discretion to exclude evidence of the appellant’s blood alcohol reading. It was contended that the actions of a police officer had resulted in the blood test undertaken by the appellant not being performed promptly enough to provide evidence to rebut the breath test reading.
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
At the request of counsel for the appellant, prior to the hearing of the appeal, I listened to the recording of the conversation between the officer and the appellant at the Sturt Police Station. The recording ran for 37 minutes. Both parties were unfailingly polite and courteous throughout the conversation.
The appellant contends that he was misled by the police officer and came to believe that it was sufficient to present himself promptly to a hospital or medical practitioner in order to have a sample of his blood taken. He claimed to believe that when the test was actually taken did not matter provided that he had presented himself promptly for testing.
The basis on which the appellant was said to have been misled arose from a combination of the contents of the prescribed oral and written notices and the responses provided by the police officer to the questions asked of him by the appellant.
The prescribed notice and advice
The relevant passages in the prescribed written notice are as follows:
In any proceedings against you for such an offence, you will be able to challenge the accuracy of the breath analysis reading—
·    if you have a sample of your blood taken and analysed as described below AND
·    if the result of the analysis of the blood sample shows that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in your blood (section 47K(1a)).
Procedures for optional blood test
1.   You may have a sample of your blood taken and analysed if you wish.
2.   For that purpose, you must request the breath analysis operator to supply you with an approved blood test kit ...
3.   You should then proceed promptly to a hospital or medical practitioner [*or registered nurse] of your choice and request that a sample of your blood be taken (using the blood test kit).
The notice then goes on to describe the procedures for the taking of a blood test. That additional material is not relevant to this appeal.
The prescribed oral advice relevantly provides as follows:
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.
As with the written notice, the oral advice goes on to describe the procedures for the taking of blood. That material is also not relevant to this appeal.
The dealings with the police officer
The officer read out to the appellant the prescribed oral advice and also provided him with a copy of the written notice. The appellant admits that he read the written notice.
After listening to the oral advice and reading the written notice, the appellant asked the officer whether it was necessary for him to have a blood test within two hours. The officer answered “no”. The appellant then asked the officer “what happens if it takes me four hours to get a blood test done?”. The officer answered “what does the word promptly mean to you?” to which the appellant answered “promptly to me is as soon as possible”.
The appellant then went on to ask what would happen if he could not get a blood test. The officer then responded with the statement “I’ll take you directly to hospital”. The appellant responded “that’s fine but they could also have a waiting room full of people”. The officer did not respond to that statement. The appellant then asked “that doesn’t affect it?” Once again, the officer did not respond.
At a later point in the interview the officer reiterated that if the appellant wished to dispute the breathalyser reading, it could only be done by obtaining a blood test kit and having his blood tested. The officer then stated “I’m more than happy to drive you from here directly to the Flinders Medical Centre in order to have your blood tested. How long you are at the Flinders Medical Centre I can’t tell”.
The appellant then said “and has no bearing ...?” The officer did not respond to that question.
The interview concluded at 9.54 pm with the statement by the officer “I’ll take you to hospital if you like in relation to this”. The appellant said “sure”.
The appellant’s submissions
Counsel submitted that while the officer may have intended to assist the appellant, his actions amounted to misconduct and had interfered with the statutory safeguard provided to the appellant by s 47K(1a).
Counsel also submitted that the prescribed oral advice and written notice are defective because they merely state that the blood test kit has to be taken promptly to a hospital or medical practitioner without making clear that the blood sample has to be taken promptly. The advice and notice leave it open to a driver to conclude that it will be sufficient to attend promptly at a hospital or medical practitioner and any delay thereafter in the taking of the test does not matter.
Counsel contended that the appellant had recognised the timing issue but was unsure as to the consequences. For that reason he had sought unsuccessfully to clarify the meaning of the notice with the police officer.
It was submitted that the appellant’s statement “and this has no bearing” had made clear to the officer that the appellant believed that he could rely upon the blood test if he attended promptly at a hospital. While counsel conceded that the officer was probably not required to correct that misapprehension, his offer to drive the appellant to hospital had reinforced the misunderstanding that it was the time of attendance and not the time of the test that mattered.
Counsel submitted that neither the prescribed advice and notice nor the response of the officer to the appellant’s questions had informed him that he was free to choose where the blood test was performed. The officer was said to have interfered with the appellant’s rights by, at a minimum, unduly influencing and, at worst, directing the medical facility he was to attend for his blood test. That had deprived him of an independent choice as to where the blood test would be performed.
After the appellant was driven from the Sturt Police Station to the FMC the conduct of the officer had caused him to believe that he was in the care, control and custody (although not under arrest) of the police and hospital staff until the blood test was performed. The appellant was not told by any person, and in particular the police, that he was free to leave the FMC and arrange a test elsewhere. He believed that to leave the FMC may adversely affect his rights because he had been taken there by the police and that the people dealing with him knew what was needed to be done to protect his rights. For these reasons the appellant had not pursued other possible means of testing that were available to him.
The appellant’s prior knowledge
When the appellant was asked in his evidence in chief whether he had any prior experience with blood alcohol testing, he referred to an occasion in 2009 when he had taken his then girlfriend to the Royal Adelaide Hospital for a test after she had returned a positive breath test.
Under cross examination the appellant provided additional information about his experience with blood alcohol testing. While he initially claimed that he could not recall earlier instances, and asked the police prosecutor what information she had, he did admit that there had been two previous occasions in 2007 and 2008 when he had had a blood test undertaken at the Mount Barker Hospital following a positive breath analysis.
On both occasions he had been taken to the Mount Barker Hospital by the police. The testing had been done almost immediately. In 2007 the police had waited while the blood test was performed and then drove him home. On the second occasion in 2008 the officer had left him at the hospital after asking the appellant whether he wanted the officer to remain there and whether he wanted a lift home. He had told the officer that he could leave as the officer had a prior commitment.
The appellant also admitted that he was aware of alcohol absorption and elimination rates when he was taken to the FMC but said that he was not aware of time frames. He had wanted the blood test because he was aware that his breath analysis reading was close to the legal limit and therefore had to be done promptly.
Relevant authorities
Counsel for the appellant referred to a passage in the judgment of King CJ in Ujvary v Medwell[1] where his Honour stated:
The blood test is the only means by which a citizen can question the correctness of the result of the breath analysis. It must be the paramount concern of the courts to ensure that the citizen has ready access to that check. If obstacles are placed in the way of the citizen, the evidence of the breath analysis should be excluded unless there is some cogent reason to admit it. When applying Bunning v Cross principles, the public interest in securing a conviction for an individual drink-driving offence will rarely outweigh the public interest in protecting the citizen’s right to have the results of the breath analysis checked by means of a blood test.
[1] (1985) 39 SASR 418 at 420.
Police v Hall
Counsel submitted that the decision of the Full Court comprising five judges in Police v Hall[2] supported his contention that evidence of the breath analysis ought to have been excluded by the magistrate under the unfairness discretion.
[2] [2006] SASC 281; (2006) 95 SASR 482.
In Hall the defendant had attended promptly at a public hospital to have his blood tested. The magistrate found that if the defendant had been tested when he first spoke to a hospital staff member, alcohol would have been detected in his blood. When the test was undertaken more than four hours later, no alcohol was detected. That delay had deprived the driver of the opportunity to challenge the breath analysis result.
There was no suggestion that the conduct of the police was improper or unfair. The sole issue was the delay by the hospital after the defendant had promptly presented himself for testing. The magistrate had dismissed the charge after relying on R v Lobban[3] to exclude the prosecution evidence on the basis that its reception would make the trial unfair.
[3] [2000] SASC 48; (2000) 77 SASR 24.
Doyle CJ (with whom Vanstone J concurred) noted that the unfairness discretion might have been enlivened if the delay in the taking of a sample of the defendant’s blood had resulted from a failure by a police officer to comply with what is now s 47K(2a) of the Act.[4] There had been no such failure nor had there been any interference with the exercise by the defendant of his statutory entitlements or with him taking such action as he thought appropriate in his own interest.[5] There was no basis to criticise the staff of the hospital or the procedures followed at the hospital, even if that was a relevant matter.[6]
[4] At that time s 47G(2a).
[5] Police v Hall [2006] SASC 281 at [73]; (2006) 95 SASR 482 at 496.
[6] Ibid at 496 [78].
Bleby J noted that the Court had consistently upheld the exclusion of prosecution evidence where there had been some irregularity on the part of police which had resulted in the defendant being denied the opportunity to have a blood test, whether due to non-compliance with their statutory obligations or through being instrumental in non-compliance by others.[7] Bleby J went on to note that the delay in taking the blood sample brought about by the defendant’s choice of facility, and the intervention of other priorities at that facility, had not rendered the defendant’s trial unfair.[8]
[7] Ibid at 503 [118].
[8] Ibid at 504 [121].
Burton v Police
In Burton v Police[9] Gray J held that if the police provide additional advice to a driver different from the prescribed advice, and thereby cause a misunderstanding about the operation of the statutory safeguard, the breath test evidence may potentially be excluded under the unfairness discretion.
[9] [2004] SASC 85; (2004) 88 SASR 152.
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.
The magistrate had the advantage of seeing and hearing the appellant’s evidence. Each of the factual findings was open to the magistrate and I consider them to be correct. Having made those factual findings, there was no error by the magistrate when she refused to exclude the breath test evidence under the unfairness discretion.
I dismiss the appeal