MUNN v Police - [2017] SASC 173

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MUNN v POLICE
[2017] SASC 173
Judgment of The Honourable Justice Parker
23 November 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - OTHER MATTERS
This is an appeal against conviction for two offences against s 47E of the Road Traffic Act 1961 (SA).
Count 1 alleged the appellant had failed to comply with a direction given by a police officer to stop her vehicle for the purpose of requiring her to submit to an alcotest or breath analysis under s 47E(2). Count 2 alleged that the appellant had refused to comply with a direction of a police officer in relation to the requirement to submit to breath analysis contrary to s 47E(3).
There are two issues in the appeal. First, whether the magistrate gave sufficient reasons to support the finding of guilt with respect to count 1. Secondly, whether a panic attack allegedly suffered by the appellant rendered her unable to comply with police directions.
Held, per Parker J:
1. The magistrate gave sufficient reasons to support his finding that the appellant knew the police were directing her to stop her vehicle, at [93].
2. The magistrate was led into error when he considered whether the appellant had established on the balance of probabilities, that she had a good cause under s 47E(4)(b) for refusing or failing to comply with the police direction. Instead, the question was whether, in accordance with R v Falconer (1990) 171 CLR 30 and Meertens v Falkenberg (1981) 43 SASR 307, the prosecution had proved beyond reasonable doubt, that the appellant understood the police direction and had wilfully refused or failed to comply, at [75].
3. The appeal against conviction on count 1 is dismissed. The appeal against conviction on count 2 is upheld and the matter is remitted for retrial before a different magistrate.
Road Traffic Act 1961 (SA) s 47E, referred to.
R v Falconer (1990) 171 CLR 30; Meertens v Falkenberg (1981) 43 SASR 307; (1981) 92 LSJS 202, applied.
Jasinski v Police (2004) 41 MVR 117; [2004] SASC 183, distinguished.
Police v Ghuede (2007) 99 SASR 280; Police v Barber (2010) 108 SASR 520; Czerwinski v Hayes (1987) 47 SASR 44; Police v Lester (2013) 63 MVR 67; [2013] SASC 28; Rejman v Dunsmore (1983) 32 SASR 151; Police v Pearce [2013] SASC 181; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, discussed.

MUNN v POLICE
[2017] SASC 173
Magistrates Appeal: Criminal

PARKER J: This is an appeal against conviction for two offences against s 43E of the Road Traffic Act 1961 (SA) (‘the Act’). A central issue in the appeal is whether a panic attack allegedly suffered by the appellant rendered her unable to comply with directions given by police to submit to a breath test.
Count 1 alleged that the appellant had failed to comply forthwith with a direction given by a police officer under s 47E(2) of the Act, which required her to stop her vehicle for the purpose of requiring her to submit to an alcotest or breath analysis. Count 2 alleged that the appellant had refused to comply with a reasonable direction of a police officer in relation to the requirement to submit to breath analysis contrary to s 47E(3). The magistrate convicted the appellant on both counts.
No penalty was imposed in respect of count 1. In respect of count 2, the appellant was disqualified from holding a driver’s licence for two years and seven months. The magistrate took into account that the appellant had previously served a disqualification of five months under the instant loss of licence provisions. There is no appeal against penalty.
The evidence
At about 2:00 am on 25 October 2015, the attention of two police officers, Senior Constable First Class Kym Anthony and Senior Constable Alan Flaherty, was drawn to the appellant’s vehicle which was travelling east on Wakefield Street. According to the police officers, the vehicle appeared to be travelling at high speed and making a noise. The police followed the appellant with the intention of requiring her to stop and submit to an alcotest. The appellant’s vehicle turned right from Wakefield Street into Pulteney Street and headed south with the police following her in a cage car. The police activated the flashing red and blue emergency lights on their vehicle, sounded the siren and flashed the high beam lights. The appellant travelled along Pulteney Street into Unley Road. While the appellant was driving along Pulteney Street and Unley Road the police made three attempts to cause the appellant to stop her vehicle. She commenced to pull over on each occasion while the police vehicle stayed behind her car and slightly to the outside of it. However, each time after slowing down she proceeded to drive on. Ultimately, she turned left into Clyde Street, Parkside. This is a dead end street and the only option is to turn into the car park of a hotel. The police allege that the appellant did not stop her vehicle immediately but circled in the car park (which she denies).
The police officers approached the appellant’s vehicle. The appellant complied with a request to get out of her car and to produce her driver’s licence. Senior Constable Anthony directed her to submit to an alcotest. He stated that the appellant appeared to be a little confused, had slow speech, sounded sleepy and smelled of alcohol. Senior Constable Flaherty stated that she appeared intoxicated, smelled of alcohol and was unsteady in her movements. Nevertheless, the appellant had no difficulty in complying with the directions given by Senior Constable Anthony relating to the alcotest. She recorded a blood alcohol concentration of 0.163%. That is merely an indicative reading.
Following the positive alcotest reading, and as directed by the police, the appellant accompanied them in the police vehicle to the Grenfell Street police station so as to enable the administration of a breath analysis test. The dealings between the police officers and the appellant from soon after her arrival at the police station were recorded and filmed. A copy of the sound and visual recording (‘the Recording’) was submitted in evidence to the Magistrates Court and viewed by the magistrate. A transcript of the Recording was also provided. The appellant accepted the accuracy of the Recording. As requested by the respondent, I have viewed and listened to the Recording. It is on two discs and runs for a total of 52 minutes and 54 seconds.
The appellant was directed by Senior Constable Anthony to submit to a breath analysis. He gave that direction on six occasions. He also explained to the appellant on three occasions that she could provide a blood sample at government expense if there was some physical or medical condition that prevented her from providing a breath sample. Each of the directions and explanations provided to the appellant by Senior Constable Anthony was read slowly and carefully from a prepared script. The directions and explanations accurately stated the relevant provisions of the Act.
On each occasion that Senior Constable Anthony gave a statutory direction or explanation he allowed the appellant substantial time to consider her response. Throughout the recorded interview the approach adopted by Senior Constable Anthony was measured and polite. He spoke slowly and carefully and did not raise his voice at any time. There was not the slightest hint of aggression towards the appellant. While Senior Constable Flaherty only had a limited role in the interview, his approach was no different to that of his colleague.
Rather than directly respond to the directions and explanations given by Senior Constable Anthony in relation to the breath analysis, the appellant said on some 20 occasions that she wished to speak to her lawyer. The lawyer in question had represented her in a workers compensation claim. She did not recall his mobile telephone number but stated that it was recorded in her mobile phone. However, the battery on her phone was flat and thus she could not access the lawyer’s number. Senior Constable Anthony stated that a suitable charger was not available. Eventually, Senior Constable Flaherty located the lawyer’s Darwin office telephone number by conducting an internet search. It was pointed out to the appellant that it would not be possible to contact the lawyer at his office at about 3:00 am on a Sunday morning.
While I have noted that the appellant did not directly respond to the directions and explanations given by Senior Constable Anthony in relation to the breath analysis, at other points in the interview she clearly understood the questions that were put to her and, as the magistrate observed, provided a responsive answer. Thus, when Senior Constable Anthony sought information about the lawyer that she was trying to contact, her answers were fully responsive. That was also the case when, towards the conclusion of the interview, Senior Constable Flaherty explained that her vehicle was the subject of a defect notice because it was not possible to use the front passenger door and she engaged in argument or submission about that point. While I am obviously not familiar with the appellant’s ordinary speech pattern, it appeared to me from the Recording that she was speaking rather slowly and had a very slight slur in her words.
Medical evidence
Two medical practitioners and a psychologist gave evidence at the trial. Dr Thang Vuong was called by the prosecution. Dr Vuong is a police medical officer and is registered as a general practitioner. He viewed the Recording. He noted in his written report that he had been asked to provide an opinion detailing objective evidence of an anxiety disorder or panic disorder suffered by the appellant. He noted in his report that it was important to recognise that symptoms of an anxiety disorder or panic attack are largely subjective and he could not comment on subjective symptoms. He stated that his objective observations were that the appellant had not shown evidence of restlessness and had remained relatively still throughout the interview. He assessed her breathing rate to be 18 breaths per minute, which was within the normal range. He also commented that the appellant had appeared calm throughout the interview process. On this basis, Dr Vuong expressed the opinion that there was no clear objective evidence to support the contention that the appellant had a panic attack, nor were there acute objective signs of anxiety to suggest that she would have been unable to comply with the requests to undergo a breath analysis.
Dr Vuong enlarged upon his written report in his oral evidence. He stated that most of the features of a panic attack are subjective. The objective signs were evidence of discomfort or pain, agitation, irritability, shortness of breath and sweating. It was not possible to detect sweating on the Recording and the breathing rate of 18 breaths per minute was not indicative of shortness of breath. In cross examination, Dr Vuong conceded that based upon objective observations alone it is not possible to tell if somebody is suffering a panic attack. Dr Vuong also stated that he could not detect from the Recording any indications that the appellant was affected by alcohol. He did not recall that her speech was slurred. However, he could not exclude the possibility that the appellant was affected by alcohol.
The appellant called Dr Zoey Doueal. Dr Doueal holds a doctorate in forensic psychology. Dr Doueal had first examined the appellant in 2014 in relation to a WorkCover claim. At that time the appellant suffered from major depression and generalised anxiety disorder. Dr Doueal stated that the objectively observable symptoms of anxiety could be shortness of breath, heart rate, sweating and shakiness. The symptoms of general anxiety disorder included impairment in concentration, attention and memory. A person suffering from this condition may also be more irritable and agitated at times and was at high risk of experiencing panic. While the appellant had suffered from these conditions most of her adolescent and adult life, her position had significantly worsened in about 2012 due to issues that had arisen in her employment. Dr Doueal had given the appellant training in slowing down her breathing rate.
Dr Doueal had viewed the Recording. The appellant told Dr Doueal that when the police attempted to stop her vehicle she had experienced an increase in anxiety and was beginning to experience a panic attack. The appellant told Dr Doueal that her symptoms were a racing heart, feeling short of breath, tightness in her chest, a lump in her throat, shakiness, feeling dizzy and lightheaded and detached from the world. She also said that she experienced difficulty focusing and was unable to think or clearly comprehend information presented to her. The appellant told Dr Doueal that these symptoms had occurred in panic attacks before and after her encounter with the police. In the opinion of Dr Doueal, the symptoms described by the appellant were consistent with a panic attack.
Dr Doueal also stated that a person with an anxiety condition can suffer from symptoms of derealisation and depersonalisation so that events appear to have a movie-like quality and the person feels dissociated from themselves. This condition is likely to affect a person’s memory and cognitive ability. The appellant had told Dr Doueal that she was confused about what the police were asking of her and felt that her responses were not making sense but she was not able to properly interpret what the police were asking and to make decisions in response to their questions. Dr Doueal expressed the opinion that, based on the Recording, the appellant appeared to be quite fixated in giving one response and not able to respond in another way to the questions that were being asked of her. Such fixation is typical of an anxiety state. Dr Doueal stated that when experiencing an anxiety state, a person’s ability to make rational decisions and understand and appreciate the consequence of their behaviour may be affected.
Dr Doueal stated that the objective symptoms suggesting that the appellant had suffered an anxiety attack were her shallowness of breathing in comparison to the breathing rate of Dr Doueal and notably her ‘cognitive rigidity and inflexibility in how she was responding to the questions being asked of her’. An anxiety condition may slow down the cognitive process, decrease the short-term memory storage and negatively affect the ability to attend and extract information and draw an appropriate meaning.
Dr Doueal further stated that it was possible that anxiety was the cause of the appellant’s inability to understand the requirement to blow into the breath analysis machine as directed by the police officer. Such a possibility was consistent with the history provided by the appellant. In the opinion of Dr Doueal, the appellant displayed variable respiration and her breathing appeared to be fairly shallow during the police interview. There was some cognitive rigidity and inflexibility in her responses that seemed to be inappropriate to the questions being asked of her. Dr Doueal was unable to say whether or not alcohol would have contributed to the symptoms displayed by the appellant during the interview. However, she acknowledged that being detected with an excess blood alcohol content could trigger an anxiety response. Alcohol consumption would also affect the ability of a person to respond to questions.
The appellant’s general practitioner, Dr Helen Roxburgh, also gave evidence at the trial. She had been the appellant’s general practitioner since 2012 and had seen her on some earlier occasions. She had treated the appellant for anxiety, depression and work related stress. At times the appellant had been suicidal. Dr Roxburg stated the appellant may suffer from an anxiety attack in a conflict situation and that had been a longstanding condition. Dr Roxburgh had viewed about 30 minutes of the Recording immediately prior to giving evidence.
Dr Roxburgh also stated that most of the symptoms of a panic attack are subjective and cannot be seen objectively. She referred to the following as symptoms of a panic attack: palpitations, a pounding heart, sweating, trembling or shaking, shortness of breath, feeling of choking, chest pain or discomfort, nausea or abdominal distress, feeling dizzy, derealisation, sensation of unreality, being detached from oneself, fear of losing control, fear of dying, para seizure, and hot flushes. Many of those symptoms would not be apparent to an observer. Dr Roxburgh stated that if a person suffering a panic attack felt really short of breath or tight in the chest that may make it harder to blow for the purposes of a breath test but that the major impact would be caused by the sensation of detachment, which would prevent the person from being able to assess the situation. Included amongst the symptoms described to Dr Roxburgh by the appellant were a lump in her throat, a feeling of detachment from the world and nausea. She had been prescribed medication for nausea and panic attacks to take on an ‘as needs’ basis.
The appellant’s evidence
The appellant described the symptoms of her anxiety in much the same terms as Dr Doueal. She stated that she had wanted to contact the lawyer who had represented her in WorkCover proceedings because he was aware of her medical condition, medication and her treating medical professionals. She believed that he would be able to explain matters to the police. She claimed that she had consumed three to four glasses of white wine during and after dinner at a friend’s home from about 8:30 pm onwards.
The appellant claimed that she had not seen the flashing lights on the police vehicle until she had reached the intersection of Unley Road and Greenhill Road, although she conceded that it may have been at an earlier point. She had pulled over as she travelled down Unley Road because she thought that the flashing lights and sirens were those of an emergency services vehicle and it was necessary to pull over to the left. The police vehicle had remained behind her and had not moved alongside. She said that she became confused as she did not know why the vehicle had not passed her. She had realised it was a police vehicle as she came close to Clyde Street. She thought that it would be safer to turn into the first side street rather than to pull up immediately. She denied circling the hotel car park and also denied laughing at the police. She claimed that the police had approached her in an aggressive manner and screamed at her. The police had then searched her vehicle after demanding that she give them her keys and get out of the car. She claimed that the police were angry and their behaviour caused her to shake and become dizzy. She said that she was totally confused. She did not recall having an alcotest in the car park.
The appellant stated that during her interview at the police station she felt detached in the sense that she was suffering an out of body experience similar to dreaming. She was fixated on getting help from her lawyer. She also said that she felt dizzy, felt like she was going to throw up, was suffering abdominal pain and a lump in her throat which doctors had described as a globus sensation. That resulted in a feeling of throat constriction. When that occurred she had been trained to breathe slowly so as to stop the shortness of breath. She had engaged in diaphragm breathing throughout the interview so as to control her anxiety. She had not understood that the police had disqualified her from driving for 12 months until her parents informed her of that fact the next morning after reading the forms provided to her by the police. She denied that she had understood the directions given by the police and also stated that she did not understand the explanation given by Senior Constable Anthony in relation to the good cause defence. She thought that the police were proposing to take blood from her. That had added to her anxiety.
The magistrate’s reasons

The magistrate delivered an ex tempore judgment. His Honour noted that the appellant was relying upon a reasonable cause defence under s 47E. He reminded himself of the observation made by Peek J in Murphy v Police that one must ensure that the assessment of the defendant’s evidence is not affected by an assumption that the rare, and thus ‘unlikely’ nature of the claim is a reason to disbelieve them.[1] His Honour also noted that a request for legal advice is not a sufficient cause to refuse a breath test.[2] His Honour also reminded himself that no reliance could be placed upon the alcotest result, other than that a positive reading authorised the later request by the police for the appellant to take a breath analysis test. The magistrate summarised the evidence given by the police, the medical experts and the appellant. He observed that, in his view, the appellant ‘was a difficult witness, her demeanour was aggressive and dogmatic’.
[1] [2011] SASC 138 at [40].
[2] Bormann v Caldwell (1986) 43 SASR 297.
The magistrate set out some substantial passages from the transcript of the interview conducted by the police with the appellant. His Honour observed that one symptom of an anxiety attack is an obsessive connection with something. He observed that there might have been an obsessive connection with the need to get legal advice. His Honour also observed that the appellant had shown clear cognitive thinking in relation to the request by Senior Constable Anthony as to whether she had a medical condition that prevented her from giving a breath sample. She had stated that she thought she did but wanted to talk to her lawyer about that. He also noted that the appellant cognitively understood a subsequent question as to whether she had any physical or medical reason for her refusal to comply with the direction to submit to breath analysis. She understood the question and provided a responsive answer. A further observation made by the magistrate was that the appellant was responsive to the police request for information that might enable her lawyer to be contacted. Finally, the magistrate observed that the appellant was fully responsive in the discussion with Senior Constable Flaherty about the defect in her vehicle. She had even engaged in argument with him about that matter.
The magistrate indicated that the appellant (then the defendant) bore the onus of proof of establishing the reasonable cause defence on the balance of probabilities. His Honour held that, in light of the evidence in the Recording, he was not convinced that the appellant’s panic attack had so immobilised her mind that she was unable to understand the requests directed to her by the police. His Honour observed ‘when it suited her, she could argue. When it did not suit her, when she was asked to blow, she failed to blow. She failed to get a blood test. The defence is not available to her. I find the charge proven.’
The magistrate went on to state:
[34]I add, probably imprudently and by way of afterthought, some matters that do not influence the decisions I have made. I note that she smelt of alcohol, her driving was erratic, her failure to stop was consistent with someone whose driving was less than fully competent. For reasons I have already given I don’t accept that her failure to comply with a police direction was due to a panic attack or anything that is explicable. Realistically, if a police car is behind you with its blue and red lights on, flashing its headlights at you and the siren on. If you take three occasions, and I accept there were three occasions when she pulled to the side and then went off again, to realise that they are actually trying to stop you, you have failed to comply with their direction. This is also indicative of someone to whom no injustice is done by the consequence that will flow from this judgment.
The appellant’s submissions
The appellant was represented by different counsel at the appeal hearing. Counsel for the appellant submits that the magistrate had erred by considering whether the appellant had made out the defence under s 47E(4)(b) of the Act. By doing so, the magistrate placed the onus of establishing the defence upon the appellant. The appellant contends that the decision of the Full Court in Meertens v Falkenberg established that, at least as the Act stood at that time, it was necessary for the prosecution firstly to prove that a defendant had deliberately refused to comply with the direction of a police officer under s 47E(3) of the Act.[3] The question of inability to comprehend a direction given by the police under s 47E concerned an element of the offence. In those circumstances it was not necessary to rely upon the ‘good cause’ defence provided in s 47E(4)(b).
[3] (1981) 43 SASR 307; (1981) 92 LSJS 202.
The appellant submits that the amendments made to s 47E of the Act since Meertens was decided in 1981 have no effect on the issues to be decided in this appeal. The appellant submits that the addition of s 47E(5a) merely limits the circumstances in which the ‘good cause’ defence is available. The amendment does not relieve the prosecution of the burden of proving the elements of the offence, nor does the amendment impliedly reverse the onus of proof in respect of an element of the offence, that element being a conscious and verbal refusal to follow a police direction.
The appellant also submits that in Police v Ghuede, Vanstone J had followed Meertens and found that a deliberate decision was required to constitute a refusal to undergo breath analysis.[4] The appellant further submits that the decision of Gray J in Jasinski v Police is distinguishable on the basis that there the defendant had failed rather than refused to undergo breath analysis.[5] The appellant submits that s 47E(3) creates two different offences i.e. a refusal to undertake breath analysis and failure a to do so. A refusal involves a deliberate non-compliance with a police direction that is understood, whereas a failure may simply mean an omission to comply.
[4] (2007) 99 SASR 280.
[5] (2004) 41 MVR 117; [2004] SASC 183.
In summary, the appellant submits that:
·Meertens establishes that it is an element of the offence of refusing or failing to comply with a direction that the direction has been understood by the defendant. Later authorities indicate that the question of the defendants’ possible misunderstanding goes to the element of voluntariness;
·Meertens remains good law and has not been affected by the subsequent amendments to s 47E of the Act. The magistrate was bound by Meertens;
·The magistrate erred by finding that the appellant was required to establish the defence under s 47E(4)(b) on the balance of probabilities rather than finding that it was necessary for the prosecution to establish the elements of an offence under s 47E(3) beyond reasonable doubt.
The appellant also submits that the magistrate erred by failing to give adequate reasons for finding the appellant guilty of count 1, i.e. the failure to comply with the police direction to stop her vehicle. The appellant submits that in order to find her guilty of count 1, it was necessary for the magistrate to consider and to reject as a reasonable possibility her evidence that she believed the vehicle behind her flashing lights and sounding its siren was an ambulance. It was also necessary for the magistrate to consider whether, quite apart from the panic attack, the appellant was simply mistaken as to the identity of the vehicle behind her. The appellant submits that her evidence was plausible and to the untrained eye at night the police cage vehicle could appear similar to an ambulance. The appellant also relies on the submissions made in respect to the lack of voluntariness arising from the panic attack in relation to the failure to stop.
The appellant submits that the convictions on both counts 1 and 2 should be quashed and the matter remitted to the Magistrates Court for retrial.
The respondent’s submissions
The respondent points out that the defence case at trial had been that it was not possible or reasonably practicable for the appellant to give a breath sample or arrange for a blood sample due to a mental or psychological condition. At no stage had her counsel submitted that the prosecution had failed to prove that the offence had been committed voluntarily.
The respondent submits that Police v Ghuede establishes that the defence under s 47E(4)(b) and s 47E(5a) of the Act is not available to a person whose refusal to undergo a breath test arises from a psychiatric illness as opposed to a physical condition which prevents them from providing a breath sample.[6] In making that submission, the respondent acknowledges that it is a fundamental principle of the common law that a person is only held criminally responsible for their conscious and voluntary acts. The respondent accepts that this principle applies to the offence under s 47E(3). The respondent does not suggest that the limitation placed on the ‘good cause’ defence arising from the enactment of s 47E(5a) has had the effect of altering the common law position.
[6] (2007) 99 SASR 280 at [12], [20]-[22], Vanstone J.
The respondent also submits that unless a lack of voluntariness was genuinely raised as an issue by the defence, the prosecution was entitled to rely on the evidentiary presumption of voluntariness.[7] Thus, the respondent submits the appellant carried the evidentiary onus to establish grounds for believing that she was not able to control her actions at the relevant time. The respondent also submits that Meertens is distinguishable on the basis that there the defendant had been in a motor vehicle accident immediately prior to being directed to provide a breath sample and there was evidence before the Court to support a finding that he had suffered concussion.
[7] R v Falconer (1990) 171 CLR 30 at 40-41 and also Police v Barber (2010) 108 SASR 520 at [31]-[32], White J.
The respondent submits that the appellant had failed to establish grounds for believing that she was not able to control her actions at the time she refused to provide a breath sample. In support of that contention, the respondent refers to the fact that about 20 minutes before the interview at the police station the appellant was capable of understanding and complying with the request to submit to an alcotest. The respondent also observes that the appellant had remained conscious throughout the police interview and was fully aware that she was in a police station and being asked questions and given directions by police officers. The respondent also submits that the appellant was capable of concentrating on breathing exercises throughout the interview, was physically capable of talking during the interview and was able to, and did, comprehend the statements made to her and questions asked of her by the police.
The respondent further submits that the reasons given by the magistrate for finding that the ‘good cause’ defence had not been established are relevant in considering whether his Honour would have found an evidentiary basis for believing that the appellant was not able to control her actions when she refused to provide a breath sample. The respondent contends that it is clear the magistrate did not consider the appellant to be a credible witness. In that respect, the respondent refers, in particular, to the finding by the magistrate that the appellant had given responsive answers to questions when it suited her. His Honour also found that the appellant understood the police directions. For these reasons the respondent submits that, if the issue of voluntariness had been raised before the magistrate, his Honour would have found that the appellant had not discharged the evidential onus in establishing grounds for believing that she was not able to control her actions at the relevant time.
In relation to the failure to stop allegation in count 1, the respondent submits that it was necessary for the prosecution to prove beyond reasonable doubt that the appellant knew she was being directed by a police officer to stop. However, it was not necessary for the prosecution to prove that she knew the purpose of the direction, nor was it necessary to show that she intended to fail to comply with that direction.[8]
[8] Police v Pearce [2013] SASC 181 at [23]-[24], Peek J.
The respondent submits that it is apparent from the magistrate’s reasons that his Honour understood the appellant’s defence to count 1 to rely solely upon her assertion that she thought the vehicle behind her was an ambulance. The respondent submits that it is clear from the magistrate’s reasons, when viewed as a whole, that his Honour found that the prosecution had negated beyond reasonable doubt the appellant’s assertion that she did not know that she was being directed by a police officer to stop her vehicle.
Section 47E of the Road Traffic Act 1961
The relevant provisions of s 47E of the Act are as follows:
(1)Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person—
(a)     is driving, or has driven, a motor vehicle; or
(b)     is attempting, or has attempted, to put a motor vehicle in motion; or
(c)is acting, or has acted, as a qualified supervising driver for the holder of a permit or licence,
the police officer may require the person to submit to an alcotest or a breath analysis, or both.
(2)A police officer may direct a person driving a motor vehicle to stop the vehicle and may give other reasonable directions for the purpose of making a requirement under this section that a person submit to an alcotest or a breath analysis.
(2a)A person must forthwith comply with a direction under subsection (2).
Maximum penalty: $2 900.
(2ab)[not relevant]
(2b)[not relevant]
(2d)[not relevant]
(2e)[not relevant]
(3)A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a police officer.
Penalty:
(a)for a first offence—a fine of not less than $1 100 and not more than $1 600;
(b)for a subsequent offence—a fine of not less than $1 900 and not more than $2 900.
(4)     It is a defence to a prosecution under subsection (3) that—
(a)the requirement or direction to which the prosecution relates was not lawfully made; or
(ab)the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to—
(i)the consequences of refusing or failing to comply with the requirement or direction; and
(ii)the person's right to request the taking of a blood sample under subsection (4a); or
(b)there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction.
(4a)If a person refuses or fails to comply with the requirement or direction under this section by reason of some physical or medical condition of the person and forthwith makes a request of a police officer that a sample of his or her blood be taken by a medical practitioner, a police officer must do all things reasonably necessary to facilitate the taking of a sample of the person's blood—
(a)     by a medical practitioner nominated by the person; or
(b)     if—
(i)it becomes apparent to the police officer that there is no reasonable likelihood that a medical practitioner nominated by the person will be available to take the sample within 1 hour of the time of the request at some place not more than 10 kilometres distant from the place of the request; or
(ii)the person does not nominate a particular medical practitioner,
by any medical practitioner who is available to take the sample.
(5)No person is entitled to refuse or fail to comply with a requirement or direction under this section on the ground that—
(a)the person would, or might, by complying with that requirement or direction, furnish evidence that could be used against himself or herself; or
(b)the person consumed alcohol after the person last drove a motor vehicle or attempted to put a motor vehicle in motion and before the requirement was made or the direction given.
(5a)A person may not raise a defence that the person had good cause for a refusal or failure to comply with a requirement or direction under this section by reason of some physical or medical condition of the person unless—
(a)a sample of the person's blood was taken in accordance with subsection (4a); or
(b)     the person made a request as referred to in subsection (4a), but—
(i)a police officer failed to facilitate the taking of a sample of the person's blood as required by that subsection; or
(ii)a medical practitioner was not reasonably available for the purpose of taking such a sample; or
(c)the taking of a sample of the person's blood in accordance with subsection (4a) was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person.
The relevant authorities
Several decisions of this Court and one decision of the High Court are relevant to this matter.
Meertens v Falkenberg
Unfortunately, neither the police prosecutor nor counsel for the appellant (not the counsel who appeared on the appeal) drew the attention of the magistrate to the decision of the Full Court in Meertens v Falkenberg.[9] That decision is of central importance in this appeal. Before considering Meertens, it is necessary to refer to the relevant provisions of s 47e of the Act as it then stood.[10] Those provisions were as follows:
(3)When a person is required under this section to submit to an alcotest or breath analysis he shall not refuse or fail to comply with all reasonable directions of a member of the police force in relation to the requirement and, in particular shall not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a member of the police force.
(3a)…
(4)It shall be a defence to a prosecution under subsection (3) of this section that –
(a)the requirement or direction to which the prosecution relates was not lawfully made;
or
(b)there was in the circumstances of the case good cause for the refusal or failure of the defendant to comply with the requirements or direction.
[9] (1981) 43 SASR 307; (1981) 92 LSJS 202.
[10] Until the early 1990s additional sections inserted into South Australian Acts were identified by use of a lower case letter, e.g. s 47e rather than s 47E. In the case of the Road Traffic Act, the revised approach was first adopted in Reprint No 10 published on 5 January 1995. I have adhered to the approach in force at the relevant time.
When Meertens was decided in 1981 there was no provision in the Act equivalent to the current s 47E(5a). However, it is apparent that the legal effect of s 47e(3) and s 47e(4)(b) remains unchanged.
The appellant in Meertens was charged with refusal to comply with a direction to submit to breath analysis. He had been involved in a motor vehicle accident a short time before the direction was given. There was medical evidence supporting his claim that he suffered concussion in the accident. A magistrate dismissed the charge on the ground that it was more likely than not that the appellant was unable to understand and consider the direction. A single judge upheld a prosecution appeal and set aside the dismissal. Both the magistrate and the judge decided the matter under s 47e(4)(b), i.e. whether there was good cause for the refusal.

King CJ agreed with the reasons of Sangster J and held that the offence of refusing or failing to comply with a requirement or direction cannot be committed unless the defendant is capable of understanding and considering the request. His Honour stated ‘the refusal or failure to comply contemplated by the section is a deliberate act or omission and involves a conscious decision by a person who has heard and understood the requirement or a direction’.[11]
[11] Meertens v Falkenberg (1981) 92 LSJS 202 at 205.
King CJ expressed doubt as to whether s 47e(4) placed the onus upon the defendant to prove the relevant matters of the good cause defence as distinct from producing or pointing to evidence raising such matters.[12] However, it was unnecessary to decide that question. His Honour also observed that it had been open to the magistrate to conclude beyond reasonable doubt, if he had seen fit to do so, that the behaviour of the appellant was due to alcohol and not concussion. If he had done so, no fault could have been found with such a conclusion.[13]
[12] Ibid.
[13] Ibid.
Sangster J noted that s 47e(3) made it an offence to refuse to exhale into the apparatus and also made it an offence to fail to exhale.[14] The appellant had only been charged with having refused. His Honour observed that refusal obviously imports both knowledge of the request and wilfulness in refusing to comply. It was necessary for the evidence to establish beyond reasonable doubt, not only that the request had been made and was justified under the Act, but also that the request was received and understood by the defendant and the defendant wilfully refused to comply.
[14] Ibid at 206.
Sangster J held that the magistrate and the judge had both erred in considering under s 47e(4) whether there was good cause for the appellant’s refusal or failure to comply with the police direction.[15] If it was reasonably possible that the appellant was unable to understand and consider the request, or if it was reasonably possible that he did not knowingly and wilfully refuse the request, then the prosecution had failed to establish that he had refused to comply. While the magistrate had applied the wrong test, he had properly acquitted the appellant.
[15] Ibid.
In a separate judgment, Legoe J agreed with Sangster J.[16] His Honour also found it unnecessary to decide whether a defendant carried the onus of proving the elements of the defence under s 47e(4).
[16] Ibid at 207.
R v Falconer
The respondent submits that the decision of the Full Court in Meertens has been impliedly overruled by the subsequent decision of the High Court in R v Falconer.[17] The basis for the contention is that the High Court held that the prosecution may rely upon a presumption that an act done by an apparently conscious actor is willed or voluntary.[18] In that light, the respondent submits that the finding of the Full Court in Meertens, being that the prosecution must prove that the defendant understood and was capable of acting upon the direction by police to submit to breath analysis, is no longer good law.
[17] (1990) 171 CLR 30.
[18] Ibid at 41, Mason CJ, Brennan J and McHugh JJ.
The members of the High Court delivered four separate judgments in Falconer. However, each member of the Court held that special leave to appeal should be granted but the appeal against the decision of the Court of Criminal Appeal setting aside the respondent’s conviction and ordering a retrial was dismissed. The underlying issue was whether the respondent had been in a disassociative state amounting to non-insane automatism at the time she had killed her husband by discharging a shotgun. While the matter arose under the Criminal Code (WA), the judgments make clear that the relevant principles under the Code are not materially different from the common law.
Mason CJ, Brennan and McHugh JJ held that, in the absence of some contrary evidence, it is presumed that an act done by a person who was apparently conscious is willed or done voluntarily.[19] That presumption accords with, and gives expression to, human experience. While the prosecution bears the ultimate onus of proving beyond reasonable doubt that an act which is an element of an offence charged was done voluntarily, the prosecution may rely on the inference that an act done by an apparently conscious actor is willed or voluntary to discharge that onus, unless there are grounds for believing the accused was unable to control that act.[20] Most importantly, Mason CJ, Brennan and McHugh JJ held that although the accused bears no ultimate onus of proving that their act was not willed, they bear the evidential onus of rebutting the inference that their act was willed. There is no occasion for the jury to consider the possibility of an unwilled act unless that evidential onus is discharged.[21]
[19] Ibid at 40.
[20] Ibid at 41.
[21] Ibid at 43.
Deane and Dawson JJ referred to the distinction between insane automatism and sane automatism.[22] Insane automatism must be established by the defendant on the balance of probabilities. However, where the evidence indicates that the actions of the accused may have been involuntary as a result of the operation of events upon a sound mind (i.e. sane automatism) then a reasonable doubt about the voluntariness of the relevant actions will be sufficient to entitle the defendant to be acquitted. As I have already noted, Mason CJ, Brennan and McHugh JJ made comments to like effect.[23]
[22] Ibid at 63.
[23] Ibid at 56-57.
Toohey J stated that there is an evidentiary onus on an accused properly to raise the question of voluntariness, but the onus lies on the Crown to prove that the act or omission did not occur independently of the accused’s will.[24] In a separate judgment, Gaudron J also held that there is an evidentiary presumption that an act done by an apparently conscious person is done voluntarily.[25] Gaudron J further held that the evidence in that case was sufficient to raise the question of whether the respondent’s action in shooting her husband was done independently of her will. In that light, it was necessary for the prosecution to prove beyond reasonable doubt the voluntariness of her action.[26]
[24] Ibid at 68.
[25] Ibid at 83.
[26] Ibid at 85-86.
I reject the submission by the respondent that the High Court decision in Falconer has impliedly overruled the decision of the Full Court in Meertens. The relevant ratio of the High Court decision involves two points. First, there is an evidentiary onus on a defendant to present credible evidence suggesting that the relevant act was done involuntarily. Secondly, upon the defendant discharging that evidentiary burden, the prosecution must prove, beyond reasonable doubt that the relevant act was done voluntarily.
While the Full Court did not make specific reference in Meertens to the evidentiary burden carried by the defendant, there was cogent evidence in that case to suggest that the defendant had suffered concussion immediately prior to being directed to submit to breath analysis. On this basis, the defendant had clearly discharged his evidentiary burden. It was therefore unnecessary for the Full Court to consider expressly the question of the evidentiary burden. Accordingly, the conclusion of the Full Court that it was necessary for the prosecution to prove, beyond reasonable doubt that the action of the defendant in failing or refusing to comply with the direction to undertake breath analysis was a voluntary act is entirely consistent with the findings of the High Court in Falconer.
Police v Barber
The respondent also relies upon the judgment of White J in Police v Barber.[27] In that case, the respondent was charged with failing to comply with a direction to undergo breath analysis amongst other matters. She relied on a defence of automatism based on the effect of a sleeping tablet, Stilnox, that she had taken earlier in the evening. White J held that although the prosecution carried the ultimate onus of proving that the conduct of the respondent was voluntary, she carried the evidentiary onus.[28] White J followed Falconer in reaching that conclusion. While White J did not refer to the Full Court decision in Meertens, his Honour’s decision was entirely consistent with Meertens (and with Falconer). The judgment in Barber does not assist the respondent.
[27] (2010) 108 SASR 520.
[28] Ibid at [32].
Jasinski v Police
The appellant in Jasinski v Police was charged with failing to comply with a police direction to submit to breath analysis.[29] His evidence was that he understood the directions but could not comply because of a panic attack. The evidence of a psychiatrist was that, in light of the appellant’s past medical history, a panic attack may have occurred and there would not necessarily be any observable symptoms of such an attack.
[29] [2004] SASC 183.
The police evidence was that the appellant was requested to provide a breath sample on three occasions and had failed to do so. He showed no signs of distress and did not complain of a panic attack. The magistrate found it unlikely that the appellant’s failure to comply had resulted from a panic attack. Although the magistrate considered the appellant’s account to be unconvincing, he could not exclude the possibility that the appellant had suffered a panic attack that prevented him from complying with the police directions. The magistrate held that if a panic attack had occurred it was by reason of some physical or mental condition. However, because the appellant had failed to establish the preconditions set out in s 47E(5a), he could not rely upon the good cause defence under s 47E(4)(b).
On appeal the respondent submitted that the relevant offence was one of strict liability. Thus, there was no need to establish an intentional or deliberate non-compliance. Counsel also submitted that Meertens and Rejman v Dunsmore[30] had been decided before the enactment of s 47E(5a) and for this reason were distinguishable.
[30] (1983) 32 SASR 151.
After examining relevant authorities, Gray J held that the offence created by s 47E(3) is a strict liability offence. The word ‘failure’ in s 47E(3) simply connotes an omission. Gray J followed Czerwinski v Hayes, where the Full Court held that a defendant bore the onus of proving on the balance of probabilities that there was good cause for refusing or failing to comply with a direction to submit to a breath test.[31] Gray J held that the position had not been changed by the revised wording of s 47E(4) and the introduction of s 47E(5a).
[31] (1987) 47 SASR 44 at 47, King CJ.
While there was some debate on this appeal as to whether s 47E(3) creates a strict liability offence, I agree with the finding by Gray J that it operates in this fashion. As his Honour noted, the purpose of drink-driving legislation is to protect the public from persons driving with excessive amounts of alcohol in their blood. Due to the problems caused by such conduct, close regulatory control is required. The conclusion that this is a strict liability offence is greatly reinforced by the fact that the Parliament has provided the statutory ‘good cause’ defence. That would not have been necessary if s 47E(3) was not a strict liability offence.
Gray J held in Jasinski that the appellant’s alleged inability to comply with the police directions due to a panic attack raised the possibility of a good cause defence arising from a mental condition within the meaning of s 47E(5a). As the appellant had not met any of the conditions in s 47E(5a) and s 47F, Gray J held that the magistrate correctly found that the appellant had not established a good cause for his failure to comply with the police direction.
I do not accept the correctness of the submission by the appellant that Jasinski is distinguishable from Meertens on the basis that Jasinski involved a failure to provide a breath sample, while Meertens was concerned with a refusal. I respectfully agree with the finding by Wells J in Rejman v Dunsmore[32] and by Anderson J in Police v Lester[33] that s 47E(3) creates only one offence that may be committed by either a refusal or a failure to comply with a direction to undergo breath analysis.
[32] (1983) 32 SASR 151.
[33] (2013) 63 MVR 67; [2013] SASC 28.
The appellant in Jasinski acknowledged that he understood the police direction to provide a breath sample but asserted that he could not comply because of his panic attack. Those facts did not bring the case within the principle stated by the Full Court in Meertens. Thus, Meertens was not relevant. Section 47E(3) required the appellant in Jasinski to prove on the balance of probabilities, that he had good cause for his refusal or failure to comply with the police direction. However, because the appellant allegedly relied upon a physical or medical condition, s 47E(5a) precluded him from raising the good cause defence because he had not satisfied the blood test requirement.
Jasinski is distinguishable from the present matter because on appeal (but not at first instance), the appellant has in fact raised the issue of voluntariness. The evidence in Jasinski did not support such a submission and it was not made.
Police v Ghuede
The facts in Police v Ghuede were that after a high speed police pursuit, allegedly involving multiple offences, the respondent refused a police direction to submit to an alcotest.[34] Psychiatric evidence established that at the relevant time the respondent had been in a psychotic state arising from schizophrenia. With the exception of the refusal to undergo breath analysis offence, the prosecution accepted that the respondent was not mentally competent at the time of the impugned conduct and the alleged offences should be dealt with under the mental impairment provisions in Part 8A of the Criminal Law Consolidation Act 1935 (SA). The prosecution submitted that s 47E(4) and s 47E(5a) of the Act operated to preclude the application of Part 8A to the refusal to undergo a breath analysis offence. The effect of the prosecution submission was that s 47E(4) and s 47E(5a) covered the field of defences based on medical or physical grounds.
[34] (2007) 99 SASR 280; [2007] SASC 351.
Vanstone J considered that the basis of the Full Court decision in Meertens was that the prosecution had failed to establish that the appellant had knowingly or wilfully refused the direction to submit to breath analysis. If the applicant was not able to understand and consider the police direction, there was no refusal and it was unnecessary to consider the good cause defence. Vanstone J observed that Meertens was clear authority for the proposition, at least as the law stood in 1979, that the offence of refusal or a failure to submit to breath analysis required proof by the prosecution of a voluntary act. Thus, the defence of insanity would be available.
Vanstone J also held that the position had not been changed by the enactment of s 47E(5a). That provision served to restrict and regulate the circumstances in which a person could justify a refusal or failure to comply where the ‘good cause’ arose from a physical or mental condition. In that light, Vanstone J held that the words ‘good cause’ in s 47E(4) are not apt to apply to a refusal consequent upon a psychosis and also that the language and content of s 47E(5a) did not evince a clear intention to exclude the general criminal defence that is now called mental incompetence.
The respondent submits that Ghuede establishes that the defence under s 47E(4)(b) and s 47E(5a) of the Act is not available to a person whose refusal to undergo a breath test arises from a psychiatric illness as opposed to a physical condition. That submission fails upon careful analysis of the facts and judicial reasoning in Ghuede and a comparison with Jasinski.
The appellant in Jasinski asserted that he suffered from a panic attack but did not raise credible evidence suggesting an issue with voluntariness. He acknowledged that he understood the police direction but asserted that he could not comply due to his panic attack. The appeal was decided by Gray J on the basis that the appellant was not entitled to rely on the good cause defence based upon a medical condition due to his failure to undergo a blood test. Gray J was not called upon to consider the issue of voluntariness. In contrast, the respondent in Ghuede had raised credible evidence suggesting a lack of voluntariness. That served to rebut the presumption of voluntariness referred to by the High Court in Falconer. Accordingly, the prosecution carried the persuasive burden of proving voluntariness beyond reasonable doubt. Because the prosecution had not met that persuasive burden, Vanstone J held that the ‘good cause’ defence was not relevant.
The observation by Vanstone J in Ghuede that the defence under s 47E(4)(b) and s 47E(5a) of the Act is not available to a person whose refusal to undergo a breath test arises from a psychiatric illness as opposed to a physical condition must be read in the context of the issues before her Honour. Vanstone J was dealing with a case where the evidence indicated a lack of voluntariness based on a psychiatric condition, i.e. an inability to understand and consider the police direction. In contrast, in Jasinski the appellant did not assert a lack of voluntariness but sought, unsuccessfully, to rely on the ‘good cause’ defence based upon a psychological condition (i.e. a panic attack). He acknowledged that he understood the police direction but asserted an inability to comply. I consider that when, considered in the context of the facts before her Honour, the observation of Vanstone J that the ‘good cause’ defence is not relevant in cases of psychiatric illness must be understood as only applying where that illness leads to a lack of voluntariness, i.e. the driver is allegedly not able to understand and consider the police direction.
I respectfully agree with Vanstone J that s 47E(5a) restricts the availability of the ‘good cause’ defence in s 47E(4)(b). Section 47E(5a) requires a blood test in cases where the refusal or failure to comply is said to be based on physical or medical reasons. Due to the specific and limited operation of s 47E(5a), I reject the submission by the respondent that Meertens and Rejman v Dunsmore were distinguishable because they had been decided before the enactment of s 47E(5a).
Discussion
The respondent complains that the legal arguments raised in this appeal were not put before the magistrate. While that is correct, all relevant evidence was adduced. The appellant now submits that this Court should follow Meertens. Unfortunately, this situation has arisen because neither the appellant’s counsel (not counsel who appeared on the appeal), nor the police prosecutor drew the attention of the magistrate to the decision of the Full Court in Meertens, or that of Vanstone J in Ghuede.
Two issues needed to be decided by the magistrate. First, as established by Falconer, whether the evidence led by the appellant concerning her alleged panic attack amounted to credible evidence suggesting an issue with voluntariness. Secondly, if that evidentiary burden was met by the appellant, in accordance with both Falconer and Meertens, whether the prosecution had proved beyond reasonable doubt, that she understood the police direction and had wilfully refused or failed to comply.
Rather than adopting that approach, in accordance with the parties’ submissions, the magistrate considered whether the appellant had established on the balance of probabilities that she had good cause under s 47E(4)(b) for refusing or failing to comply with the police direction. In that context the magistrate found at paragraph [33] that:
… it is just not convincing that her panic attack so immobilised her mind that she was unable to understand the requests made of her. When it suited her, she could argue. When it did not suit her, when she was asked to blow, she failed to blow. She failed to get the blood test. The defence is not available to her. I find the charge proven.

The respondent submits that the evidence permits me to find in this appeal, by way of rehearing, that the prosecution has discharged its onus of proving that the appellant understood the police direction. In deciding that question I must apply the principles expressed by the High Court in Fox v Percy where Gleeson CJ and Gummow and Kirby JJ stated:
…On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.[35]
(Footnotes omitted)
[35] (2003) 214 CLR 118 at 125-126.
I have viewed and listened to the Recording and also read the transcript of the evidence at trial and the medical reports. Because of the availability of the Recording, I am in a far better position to assess the evidence of the police and the appellant than is ordinarily the case with an appellate court, which must rely solely on the transcript and documentary evidence. Nevertheless, the magistrate additionally saw and heard the oral evidence of the appellant and the police officers. His Honour was able to compare that evidence with the appellant’s interactions with the police as depicted in the Recording. In that respect, the magistrate was in a far better position to determine the genuineness of the appellant’s claim that she was unable to understand the police directions because she was suffering from a panic attack.
The magistrate also saw and heard the medical experts give evidence. However, as the credit of the experts was not in question, any advantage held by the magistrate in assessing their evidence is of little or no significance.
While the magistrate was led into error and did not apply the correct legal test, he rejected the appellant’s claim that she was unable to understand and respond to the police directions. The appellant submits that the words ‘just not convincing’ used by the magistrate when he rejected her claim that a panic attack prevented her from understanding and complying with police directions fell short of a finding beyond reasonable doubt in favour of the prosecution case.
The question is whether, when read in context, the words ‘just not convincing’ indicate that the magistrate would have been satisfied beyond reasonable doubt if he had applied the correct test. Although this was an ex tempore judgment, his Honour referred at some length to the transcript passages extending over more than four pages that led him to conclude that the appellant was capable of understanding and giving responsive (and sometimes argumentative) answers to the police questions when it suited her. The magistrate clearly did not believe the appellant’s story that a panic attack prevented her from complying with the police direction to undertake a breath test. However, he reached that conclusion on the balance of probabilities.
Although the magistrate was not convinced by the appellant’s defence, there remains a possibility that he might not have been persuaded that the prosecution had established, beyond reasonable doubt, that her refusal to undertake breath analysis was not involuntary. His Honour’s reasons throw no light on that issue.
In this appeal by way of rehearing, my task is to arrive at the decision that I consider should have been made. However, because I have not seen and heard the appellant and the police witnesses give evidence at the trial, it is not appropriate for me to attempt to determine whether the prosecution has proven its case beyond reasonable doubt. In that light, I will uphold the appeal against conviction on count 2 and direct that the matter be remitted for retrial before a different magistrate.
I turn to count 1. The appellant contends that the reasons given by the magistrate for finding her guilty of count one are manifestly inadequate. She says that the magistrate failed to deal with her explanation that she had mistaken the police cage car for an emergency services vehicle, i.e. an ambulance. It is not entirely clear to what extent the appellant relies upon the panic attack in defence of count 1, although there is a suggestion that the flashing lights may have been the initial trigger for the alleged panic attack.
In Police v Pearce, Peek J held that it is not necessary for the prosecution to prove that the driver knew the purpose of a direction to stop.[36] However, his Honour also held that the prosecution must negate, beyond reasonable doubt, an assertion by a driver that they were unaware that they were being directed by a police officer to stop. As no contrary argument was advanced on this appeal, I proceed on the basis that the analysis by Peek J is correct.
[36] [2013] SASC 181.
The magistrate referred to the facts relevant to count 1 at several points in his judgment. After referring in some detail at paragraphs [5] and [6] of his judgment to the circumstances involved in the failure to stop, his Honour stated at paragraph [25]:
… she says that she had a panic attack. Starting, as counsel would say, to explain the failure to respond to the emergency services vehicle’s red and blue lights behind her, siren and flashing of headlights …
His Honour then stated at paragraph [34]:
I add, probably imprudently and by way of afterthought, some matters that do not influence the decisions I have made. I note that she smelt of alcohol, her driving was erratic, her failure to stop was consistent with someone whose driving was less than fully competent. For reasons I have already given I don’t accept that her failure to comply with a police direction was due to a panic attack or anything that is explicable. Realistically, if a police car is behind you with its blue and red lights on, flashing its headlights at you and the siren on. If you take three occasions, and I accept there were three occasions when she pulled to the side and then went off again, to realise that they are actually trying to stop you, you have failed to comply with their direction. This is also indicative of someone to whom no injustice is done by the consequence that will flow from this judgment.
It is not absolutely clear what the magistrate intended by the inclusion of the first sentence of paragraph [34]. Nevertheless, whatever the intended effect of those words in his ex tempore judgment, it is clear that his Honour moved on in the fourth sentence of paragraph [34] to discuss the allegation in count 1 that the appellant failed to comply with the direction to stop her vehicle. In the next sentence the magistrate discussed his reasons for finding the appellant guilty on count 1. I do not consider that the opening sentence was intended to derogate from the conclusions that he expressed about count 1.
The magistrate has provided reasons for finding the appellant guilty of count 1. However, the issue is whether those reasons were adequate. I have reproduced the findings made by the magistrate at paragraph [34] concerning the appellant’s failure to stop. His Honour did not specifically reject the appellant’s contention that she did not realise that the vehicle following her was a police car. However, at paragraph [16] of his ex tempore judgment, the magistrate recorded the appellant’s explanation that she thought that it was an ambulance and not a police car behind her. I am not persuaded that when this highly experienced magistrate considered the issues he did not take into account the explanation that he had referred to shortly before. In other words, I accept that when his Honour found against the appellant, he took into account her explanation.
The principles to be applied in determining the adequacy of judicial reasons were stated by Kirby P (as he then was) in the often cited passage in Soulemezis v Dudley (Holdings) Pty Ltd:
This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. When nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done.[37]
[37] (1987) 10 NSWLR 247 at 259.
McHugh JA (as he then was) also stated in Soulemezisthat:
If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons ... But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given ... the extent of the duty to give reasons is related ‘to the function to be served by the giving of reasons’. Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies.[38]
[38] Ibid at 280.
While those principles have not infrequently been applied by the Full Court,[39] the observation by Kirby P that ‘a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process’ is not required is particularly apposite in cases where a magistrate has delivered an ex tempore judgment in a busy court.[40]
[39] A recent example is R v Ricciardi [2017] SASCFC 128 at [100]-[101], Lovell J (Parker J agreeing).
[40] See generally, Frohling v Police [2011] SASC 53 at [22]; Savage v Police [2011] SASC 13 at [15]; Chhun Sau v Commonwealth Director of Public Prosecutions [2009] SASC 47 at [13].
The issue is whether or not the magistrate gave adequate reasons for his implicit conclusion that the prosecution had established that the appellant knew that the relevant vehicle was a police car and that she was being directed to stop. I consider that the magistrate did give sufficient reasons for rejecting the explanation given by the appellant. To the extent that her defence relied upon a panic attack, his Honour expressly rejected that explanation. It is also apparent in the magistrate’s reasons that after three attempts by the police to get the appellant to stop, which involved the police car moving in behind her vehicle while flashing red and blue lights, sounding the siren and flashing its lights on high beam, his Honour accepted that she must have known it was the police whom were requiring her to stop. While it would have been preferable for the magistrate to state expressly how he reached his finding of guilt on count 1, I consider that there is sufficient information contained in his ex tempore judgment to understand how he reached that conclusion. I dismiss the appeal against conviction on count 1.
Conclusion
I dismiss the appeal against conviction on count 1 and uphold the appeal against conviction on count 2. I will hear the parties as to costs.