Mercorella v Police

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MERCORELLA v POLICE
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Besanko and The Honourable Justice Anderson)
17 June 2004
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE
Appellant charged with driving while having a prescribed concentration of alcohol in his blood contrary to s 47B of the Road Traffic Act 1961 – charge dismissed by magistrate following finding that print-out from breath analysis instrument did not comply with requirements of Road Traffic Act 1961 s47G(2) – appeal from magistrate allowed by single judge – consideration as to requirements and procedure for delivering statement in writing pursuant to s47B(2) – whether print-out was a statement in writing “specifying” information required by section – appeal dismissed.
Road Traffic Act 1961 s47B, s 47E, s 47E(1), s 47E(2), s 47E(2b),s 47E(2c), s 47E(2e), s 47EA, s 47G, s 47G(2), s 47G(2a) ; Road Traffic (Miscellaneous) Regulations 8A, 8A(2)(c), 8A(3), referred to.
Taylor v Daire (1982) 30 SASR 435; Ferguson v Police (1998) 27 MVR 11; Ellul v Fauser (1981) 28 SASR 300; United Repairing Co. Ltd v Glover (1945) 64 NZLR 160; Barnes v Barnes [1967] SASR 26, considered.

MERCORELLA v POLICE
[2004] SASC 180
Full Court: Duggan, Besanko and Anderson JJ

DUGGAN J. The appellant was charged on a complaint which alleged that, on 15 November 2002, he drove a motor vehicle at Golden Grove while there was present in his blood the prescribed concentration of alcohol contrary to s 47B of the Road Traffic Act 1961 (“the Act”). It was alleged that the concentration of alcohol was .102 grams in one hundred millilitres of blood. The appellant pleaded not guilty and the matter was tried in the Holden Hill Magistrates Court.
No oral evidence was given, but an agreed statement of facts was tendered. It was agreed that the appellant was stopped at a random breath testing station on the Grove Way, Golden Grove at approximately 1.08 am on Friday15 November 2002. After undergoing an alcotest, he was requested to furnish a sample of his breath. He did so at 1.31 am. Then, at 1.34 am, he furnished a further breath sample in accordance with the procedure prescribed in the Road Traffic (Miscellaneous) Regulations 1999 (“the Regulations”).
The breath analysing instrument used by the police generates a print-out of the breath analysis readings after the second reading has been completed. On this occasion, a reading of .102 grams of alcohol in 210 litres of breath was recorded in relation to the first breath sample and a reading of .103 was recorded in relation to the second sample. It was stated at the foot of the print-out that the “subject’s analysis result” was .102 grams of alcohol in 210 litres of breath. Section 47EA of the Act provides that, if the breath analysing instrument produces a reading in terms of grams of alcohol in 210 litres of a person’s breath, the reading for the purposes of the Act will be taken to be that number of grams of alcohol in 100 millilitres of the person’s blood.
At the completion of the analysis, the appellant was handed the print-out from the breath analysis instrument in purported fulfilment of the requirement under s 47 G(2) of the Act that the person whose breath has been analysed must have delivered to him a statement in writing specifying the reading produced by the breath analysing instrument and the date and time of the analysis.
The magistrate found that the print-out given to the appellant at the completion of the analysis did not comply with s 47G(2) in that it did not specify the information required by that section. It followed that the prosecution could not rely upon the presumptions provided for in s 47G which is set out below. Accordingly, the charge was dismissed.
The respondent appealed to a single judge of the court who allowed the appeal and set aside the dismissal of the complaint. The present appeal is against that decision.
Section 47E of the Act sets out the powers of members of the police force to require drivers of motor vehicles to submit to alcotests and breath analyses and the procedures to be followed for those purposes.
If a police officer believes on reasonable grounds that a person driving or attempting to drive a vehicle has committed an offence of a prescribed class of which driving is an element, or has behaved in a manner that indicates that his or her ability to drive is impaired, or has been involved in an accident, the police officer may require that person to submit to an alcotest or breath analysis, or both (s 47E(1)). An alcotest or breath analysis must take place within two hours of the event giving rise to the police officer’s belief (s 47E(2)). Section 47E also empowers a police officer to require the driver of a vehicle that approaches a breath testing station established under s 47DA to submit to an alcotest.
Where an alcotest indicates that the prescribed concentration of alcohol may be present in the driver’s blood, a police officer may require that person to submit to a breath analysis (s 47E(2b)). The breath analysis must be commenced within two hours after the vehicle is stopped for the purpose of requiring the driver to submit to an alcotest (s 47E(2c)).
In the event of a prosecution, evidentiary aids in the form of presumptions are available to the prosecutor if there has been compliance with the statutory requirements and procedures in relation to breath analysis. These evidentiary provisions are set out in s 47G which, in so far as it is relevant to the present case, provides:
“47G. (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.
(1b) No evidence can be adduced as to a breath or blood alcohol reading obtained from a coin-operated breath testing or breath analysing machine installed in any hotel or other licensed premises.
(2) 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.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3b) A certificate purporting to be signed by a member of the police force and to certify that a person named in the certificate submitted to an alcotest on a specified day and at a specified time and that the alcotest indicated that the prescribed concentration of alcohol may then have been present in the blood of that person is, in the absence of proof to the contrary, proof of the matters so certified.”
The issue raised by the appeal concerns the nature and extent of the requirement to deliver to the driver the statement in writing pursuant to s 47G(2) and whether there was compliance with that provision in this case.
It was not in dispute on the hearing of the appeal that, if there had been compliance with the requirements of s 47G(2), the appellant should have been convicted and that, if there was no or insufficient compliance with the sub-section, the charge should have been dismissed.
It is well established that strict compliance with the requirements of s 47G(2) is a necessary precondition to the operation of the presumptions provided for in the section: Taylor v Daire (1982) 30 SASR 435.
Mr Edwardson, counsel for the appellant, submitted that the print-out supplied to the appellant failed to comply with these requirements. First, it was argued that s 47G(2) contemplates the delivery of a statement in writing separate and distinct from the print-out produced by the breath analysing instrument. Mr Edwardson submitted that the statement in writing must be prepared by the operator by reference to the print-out or what was observed by the operator on a screen of the instrument.
In my view, this argument must be rejected. Mr Edwardson conceded that the print-out was a statement in writing. The sub-section does not require the operator to produce the statement in the sense of bringing it into existence. The operator is required to “deliver” the statement in writing to the person whose breath has been analysed. The legislation requires a statement in writing and prescribes the information which it must contain; it does not expressly or impliedly exclude the use of the automatically produced statement for the purposes of the subsection.
The next argument put forward by the appellant was that the print-out provided to the appellant did not “specify” the reading produced by the breath analysing instrument as required by s 47G(2) in that, included in the print-out, were the details and results of both readings. According to the argument, the print-out did not unambiguously and precisely identify the information which had to be specified.
In order to deal with this argument it is necessary to refer to further provisions in the Act and the regulations.
Section 47E(2e) of the Act states:
“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 provides:
“(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 analysing 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)); or
(d)    if, for any reason, a second sample of breath is not provided within 10 minutes of the provision of the first sample –
(i)the first sample is to 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)).
(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).”
According to the appellant’s argument, the “reading” referred to in s 47G(2)(a) is the lower of the two readings which, in accordance with reg 8A(3), is the result of the breath analysis for the purpose of the Act. It follows, so it was argued, that Parliament intended that the written statement was to contain that reading and no other.
The learned judge appealed from attended a view and demonstration of a breath analysis instrument. This procedure took place with the consent of the appellant and the respondent. The argument before this Court proceeded on the basis that the instrument was operated in the manner observed by the judge. The agreed statement of facts also accorded with this method of operation.
I have said that the instrument generates a print-out of the two readings at the completion of the second analysis. The lower of the two readings is displayed on the screen of the instrument.
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. Section 47E(2e) draws a clear distinction between a reading and a result for the purposes of the Act. The requirement imposed by s 47G(2) is to deliver details of the reading which follows an analysis of breath. The section does not refer to the result of the breath analysis for the purposes of the Act.
Apart from the wording of the Act, it might also be said that the argument for restricting the information in the statement to the lower reading takes too narrow a view of the scheme of these provisions. The advantages available to the prosecution in the form of evidentiary presumptions are conditional upon compliance with requirements which place particular emphasis on providing information to the person whose breath has been analysed. The results recorded in relation to all analyses of a person’s breath are relevant. Information in respect of each reading enables the driver to determine whether the lower of the readings has been correctly identified. It also allows a check on the extent to which the readings differ and, in particular, whether the difference in readings is such that samples must be disregarded in accordance with reg 8A(2)(c). The readings from all breath analyses might also be relevant to a driver’s decision as to whether he or she should arrange for a blood test.
For these reasons I am of the view that the relevant details of each analysis of breath are to be provided in writing to the driver. The Act does not require a separate statement for each reading. In my opinion, the print-out delivered to the appellant in the present case which contains the readings from both analyses complied with s 47G(2).
I am also of the view that there was compliance with the section even if Mr Edwardson’s argument that only the lower reading is to be notified is correct. According to the argument, the word “specifying” in s 47G(2) requires that the information be identified precisely and without reference to any other reading.
The mere inclusion of other information in the statement could not render it ineffective for the purposes of the Act. In this respect, I agree with the observations made by Lander J in Ferguson v Police (1998) 27 MVR 11 in relation to the precursor of s 47G(2) which provided:
“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 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.”
Lander J said at 17:
“Mr Edwardson argued that the statement in writing, which has to be handed to a person who has been required to submit to an analysis of his or her breath, has to specify the concentration of alcohol indicated by the analysis to be present in the blood and the date and time of the analysis. This document, Mr Edwardson argued, contained further information which made it inadmissible. In that respect he referred to para 2 of the document which provided the further information purporting to be a certificate from the police officer that on the 17^th day of March 1997 at 9.51pm he handed to Anthony John Ferguson the statement. Section 47G(2) does not provide for that information to be supplied to the person who has submitted to breath analysis.
However the inclusion of that information does not, in my opinion, render the rest of the document inadmissible for the purpose of establishing the provision of the information in s 47G(2). To comply with s 47G(2) there needs only to be delivered to the person whose breath has been analysed a statement in writing specifying the concentration of alcohol indicated by the analysis to be present in the blood expressed in grams and 100 millilitres of blood and the date and time of the analysis.
There are a number of matters contained in this document which are not required to be contained in any document which is handed to a person under s 47G(2). For example, this document purports to be a certification but the Act does not require the document to be certified. It also shows that it is a certificate of Senior Constable McCarthur who says that he is a person authorised under s 47G(1) to operate breath analysing instruments. That is not required to be provided in the statement in writing. It indicates the person, his address and the place at which he submitted to breath analysis, again all of which is not required to be provided.
However the provision of that further information, like the certificate of delivery of the document, does not in my opinion render the document inadmissible.”

Whilst acknowledging the correctness of these remarks, Mr Edwardson argued that the inclusion of the higher reading in the statement in the present case resulted in the appellant being provided with information in an imprecise and ambiguous manner. In these circumstances it was argued that it could not be said that the operator had delivered a statement “specifying” the prescribed information.
Mr Edwardson referred to a number of authorities in which the word “specify” and some of its cognates were considered. However, as Cox J pointed out in Ellul v Fauser (1981) 28 SASR 300 at 303:
“The cases show, then, as one would expect, that ‘specified’ is a protean word, the requirements of which will vary according to subject matter and the evident policy of the legislative prescription. No doubt in many cases there will be a question of degree involved as well.”
The Oxford English Dictionary defines “specify” as meaning “To mention, speak of, or name (something) definitely or explicitly; to set down or state categorically or particularly; to relate in detail”.
In some, if not most of the cases, the issue is whether the particularity and extent of the information provided is such as to satisfy the requirements of the relevant legislation (see United Repairing Co. Ltd v Glover (1945) 64 NZLR 160 and Barnes v Barnes [1967] SASR 26 both of which were referred to by Cox J).
In Ellul v Fauser s 53a(1) of the Road Traffic Act 1961 provided that the Governor may, by notice published in the Government Gazette, “approve apparatus of a specified kind as traffic speed analysers”. Pursuant to this provision three instruments were identified in the Gazette as being approved. The issue was whether the reference to one category as “Portable Electronic Traffic Analysers” lacked the specificity required by s 53a(1).
However, the present case does not give rise to difficulty as to the nature and extent of the information which must be specified. That information is clearly set out in s 47G(2). It is not in dispute that the required information as to the reading was provided to the appellant. The appellant’s complaint is that too much information was given and that, as a consequence, the statement was ambiguous and lacking in the precision required for information which must be specified under the Act.
I do not accept this assertion. The print-out identifies the make and model of the breath testing machine. It then states the name of the appellant and the name of the operator. It records the first test as being conducted at 0131 hours and gives the result as .102 grams of alcohol in 210 litres of breath.
There follows the details of the second test which commenced at 0134 hours and gave a result of .103 grams of alcohol in 210 litres of breath. The final entry states:
“SUBJECT’S ANALYSIS
RESULT: 0.102 GRAMS OF
ALCOHOL IN 210 LITRES OF
BREATH”
The term “subject’s analysis result” used in this entry reflects the wording of reg 8A(3) in identifying the reading which is to be used for the purposes of the Act.
I do not suggest that a mere glance at the print-out is all that is required in order to obtain a proper understanding of its contents. However it is apparent on reading the document that it sets out the information in an orderly and unambiguous manner. The legislation does not require that an explanation should be given as to the effect of the Act and regulations in relation to the multiple readings.
In my view, there was compliance in the present case with the requirement to deliver a statement in writing in accordance with s 47G(2). The prosecution was entitled to rely on the presumptions provided for in the legislation and a conviction should have been recorded by the magistrate.
It follows that the appeal should be dismissed.
BESANKO J. I agree that this appeal should be dismissed. I agree with the reasons of Duggan J.
ANDERSON J. I agree that the appeal should be dismissed for the reasons published by Duggan J.

[2004] SASC 180

17 June 2004

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Driving Offences

Limitation Periods

Admissibility of Evidence