Murphy v Police - [2011] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MURPHY v POLICE
[2011] SASC 138
Judgment of The Honourable Justice Peek
26 August 2011
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE - BREATH TEST AND ANALYSIS
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - ONUS OF PROOF
Appeal against a conviction for failing to comply with reasonable directions given by a police officer at a random breath testing station contrary to s 47E(3) of the Road Traffic Act 1961 – appellant successfully provided one valid sample of breath but then failed to provide a second sufficient sample on three successive occasions.
Whether the appellant had good cause for not complying with reasonable directions – pre-existing medical condition of the appellant – whether on a correct assessment of the evidence the appellant had made out the defence under s 47E(4) RTA – whether the Magistrate erred in taking into account the appellant’s failure to discuss his medical condition with the police at the time of the breath test – whether the complaint was invalid due to a failure to indicate what it was to which the appellant was required to submit.
Held: appeal allowed – conviction set aside and complaint dismissed – Magistrate failed properly to assess the evidence – Magistrate’s suggestion that appellant's treating specialist was not completely objective in his opinion was unfounded – Magistrate did not have sufficient regard to the chronology of the medical investigation into the appellant’s health problems – Magistrate erred in drawing an impermissible inference from the appellant’s failure to discuss his medical condition with police – if Magistrate had not made errors of approach and analysis, highly likely that he would have found that the appellant had discharged onus of establishing defence under s 47E(4) RTA – finding that appellant had discharged onus of establishing defence substituted on appeal – complaint should also be dismissed on independent ground that it failed to aver what it was to which the appellant was required to submit – complaint charged no offence known to the law.
Motor Vehicles Act 1959 (SA) s 81AB(5); Road Traffic Act 1961 (SA) ss 47E, 47E(1)(c), 47E(3), 47E(4), 47E(4)(b), referred to.
Petty v The Queen (1991) 173 CLR 95; Taylor v Hayes (1990) 53 SASR 282; Weldon v Neal (1887) 19 QBD 394; Australasian Meat Industry Employees' Union v Sunland Enterprises Pty Ltd (1987) 36 A Crim R 418; Tregilgas v Howie [1926] SASR 122; Schultz v Pettit (1980) 25 SASR 427, applied.
R v Weetra (2010) 108 SASR 232, discussed.
Robinson v The Queen (No 2) (1991) 180 CLR 531; Stafford v The Queen (1993) 67 ALJR 510; R v Griffis (1996) 67 SASR 170; Tregilgas v Howie [1926] SASR 122; Arnold v Hughes [1926] SASR 360; Reedy v O'Sullivan [1953] SASR 114; Jurekic v Menz [1961] SASR 322; Fred Wakefield Pty Ltd v Dowd (1979) 20 SASR 328; Davidson v Kennelly (1982) 103 LSJS 281; Tiver v Brewster (Unreported, Supreme Court of South Australia, Bollen J, 27 July 1988, Judgment No 924); Surman v Police (1996) 65 SASR 421; Traveland Pty Ltd v Doherty (1982) 63 FLR 41; Gilmour v Bannister Nominees Pty Ltd (1982) 60 FLR 308; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, considered.

MURPHY v POLICE
[2011] SASC 138
Magistrates Appeal

PEEK J. This is an appeal against a conviction for failing to comply with reasonable directions given by a police officer at a random breath testing station.
The charge
The appellant was convicted of the following charge:
On the 7^th day of AUGUST, 2009 at LONSDALE in the said State being a person who was required under Section 47E of the Road Traffic Act, 1961 to submit to FAILED to comply with all reasonable directions of a member of the Police Force in relation to the requirement.
Section 47E(3) of the Road Traffic Act, 1961.
This is a summary offence.
I will refer to the precise terms of the “complaint” later in the judgment.
Background
As at 7 August 2009, the date of the alleged offence, the appellant was 58 years old. His state of health as it bore upon his ability to comply with the relevant directions to blow into a breath analysis machine that day was a central matter at trial. He had over the previous months twice consulted a heart specialist, Dr Ardrill, but investigations were still being carried out and it was not until well after August 2009 that he gained a clear appreciation of the nature and extent of his health problems. Dr Ardrill was called at trial and his evidence will be considered in detail below.
The breath testing on 7 August 2009
On 7 August 2009 the appellant had a small amount of white wine with a meal. He held a probationary driver’s licence and delayed driving until he thought that all of the alcohol would be out of his system.
At 9.02pm he was stopped at Lonsdale and required to submit to an alcotest by a police officer, Sergeant Mitchell (hereafter “Mitchell”), who was acting as a “satellite” to a random breath testing station. This test indicated that there may have been a small amount of alcohol still present but did not indicate that a blood alcohol concentration (“BAC”) of .05 may have been present. Mitchell agreed that he would in such circumstances inform a driver who had a full driver’s licence that he was free to drive on. He asked the appellant for details of his driver’s licence and he produced a probationary licence. Under the Motor Vehicles Act 1959 (SA) (“MVA”), one of the conditions of a probationary licence is that the holder of such licence drive with zero BAC and s 81AB(5) MVA creates an offence of driving on a probationary licence with more than zero BAC.
Mitchell then compelled the appellant to submit to a breath analysis test. Under the Road Traffic Act 1961 (SA) (hereafter “RTA”), a person is required to provide two valid samples of breath with the lower reading being taken as the appropriate reading. The appellant successfully provided the first valid sample but then failed to provide a second sufficient sample on three successive occasions; it is the failure to provide that second sample that forms the subject matter of the charge.
In circumstances to be recounted below, the appellant was then taken to Noarlunga Medical Centre to provide a blood sample. There was only a short wait of about 15 minutes before blood was duly taken. On later analysis, the blood was found to have zero content of alcohol or drugs.
The grounds of appeal
The appellant’s grounds of appeal were as follows:[1]
1. That the finding of guilt was against the weight of the evidence.
2.That the learned Magistrate erred in determining that the defendant had not proved on the balance of probability that there was good cause for his failure to comply with the directions of the police.
3.That the learned Magistrate placed too much weight on the evidence of the prosecution’s medical experts, against the evidence of the defendant’s treating medical expert.
4.That the learned Magistrate failed to assess the importance of the defendant’s request for a blood test and the subsequent reading of that test.
[1] There was a further ground of appeal added at the hearing of the appeal but since I find in favour of the appellant on the original grounds it will not be necessary to refer to it.
The thrust of the grounds is that the learned Magistrate failed to approach his task correctly and that, on a correct assessment of the evidence, the defence of “good cause” under s 47E(4) RTA was made out. In order to explore that claim, the evidence as to the breath testing procedure, the expert evidence and his Honour’s consideration of the evidence must be considered in some detail.
The breath testing process in detail
After the preliminary alcotest, Mitchell compelled the appellant to accompany him to the random breath testing (“RBT”) station, which was some 140 metres down a slope from Mitchell’s “satellite” police vehicle, in order to undertake a breath analysis test. Having arrived at the RBT station, it was discovered that the appellant’s driver’s licence, which had previously been produced to Mitchell, could not be found and the appellant was required to walk the 140 metres back up the slope to the previous position to see if the licence was there; it could not be found and he walked back to the RBT station. The appellant was then required to wait outside the RBT station while others were processed; it was a cold night and he was shaking; he asked permission to go back to his car once again to fetch a jacket, did so, and returned to the RBT station. As I understand it, he had by now walked at least 700 metres on a cold night in August at about 9pm in stressful circumstances.
The first blow – the valid sample of 1.1 litres in volume
As stated above under the RTA, a person is required to provide two valid samples of breath with the lower reading being taken as the appropriate reading. At 9.27pm Mitchell directed the appellant to breathe into the breath analysing instrument; he did so, and his sample was accepted as a valid sample by the machine. Although no details were then provided by the machine to either Mitchell or the appellant during the testing process, this valid sample, was subsequently found to be 1.1 litres in volume, the minimum required volume being 1 litre.
The second blow – the first invalid sample of .9 litres in volume
Mitchell again directed the appellant to breathe into the breath analysing instrument to provide the second required valid sample. The appellant did so but this sample was rejected by the machine as an invalid sample. This first invalid sample was later recorded to be .9 litres in volume, just under the minimum required 1 litre volume. It is to be noted that the appellant could not know by what margin the first blow (1.1 litres in volume) had been successful and the second blow (.9 litres in volume) had been unsuccessful.
The third blow – the second invalid sample of .5 litres in volume
Mitchell again directed the appellant to breathe into the breath analysing instrument to provide the second required valid sample. The appellant again did so but this sample was also rejected by the machine as an invalid sample. This second invalid sample was later recorded to be .5 litres in volume.
The fourth blow – third invalid sample of .8 litres in volume
After the above two failures to provide a second valid sample, Mitchell read a pro forma warning to the appellant and then once again directed the appellant to blow into the machine which he did. Once again, the sample was rejected. This third invalid sample was later recorded to be .8 litres in volume, again under the minimum required 1 litre volume.
Mitchell gives required warnings to the appellant
After the third invalid sample, Mitchell read to the appellant from a pro forma document. He gave a full criminal caution, stating to the appellant that he was “not obliged to answer these questions unless you wish to do so, anything you do say may be taken down and may be given in evidence, do you understand that?” to which the appellant replied “Yes”.
Mitchell then advised the appellant that it is a criminal offence to fail without good cause to comply with police directions to provide a sample of breath, that it is a defence to a charge of failing to provide a breath sample if the reason for the failure to comply is because of some physical or medical condition, and that such a defence cannot be used unless a sample of blood is taken. The appellant forthwith elected to have a blood sample taken and he was conveyed to the Noarlunga Hospital for that purpose.
The blood test taken at Noarlunga Medical Centre
There was only a short wait of about 15 minutes to see the doctor and have blood taken. The analysis of this blood was later found to be zero for both alcohol and drugs.
The appellant’s evidence
The appellant gave evidence that at the RBT station he was feeling anxious and nauseous and very uncomfortable, that he had a tightness of the chest and that although he tried his best to comply, he just ran out of air. He said “I gave it all I could”. He recounted a history of his health problems, consistent with, but not as detailed as, the evidence of Dr Ardrill to which I will now refer.
The evidence of Dr Ardrill
Dr Ardill is an experienced heart specialist and his qualifications were conceded by the respondent. He gave evidence that on 2 December 2008 (about eight months prior to the subject incident on 7 August 2009) he first saw the appellant in relation to problems of tightening of the chest, having been referred by his GP, Dr Botha, who had noted an irregular heart rhythm at a regular examination. He diagnosed atrial fibrillation (irregular heart rate) due to heart disease with high blood pressure coupled with diabetes. He prescribed medication to slow the heart rate which was added to the other daily medication the appellant was already taking for blood pressure and diabetes.
On 19 January 2009 he again saw the appellant and performed an ultra sound. The appellant appeared to be tolerating his new medication well and his heart rate was slower than on the first consultation. Investigations as to his underlying problem had not progressed beyond this preliminary stage by 7 August 2009, the date of the police breath test.
On 11 November 2009 he again saw the appellant who, during the course of the consultation, mentioned that he had been unable to comply with the police breath test on 7 August 2009. Dr Ardrill conducted an exercise stress test that same day. This was the first time the appellant had undergone such a test and the results were very bad. Dr Ardrill described them as follows:[2]
[2] T86-88.
A:Surprisingly poor. Again I’m embarrassed with Mr Murphy in the room but he exercised for an average of a man in his eighties not in his fifties. At a fairly low exercise performance his heart rate went to a very fast level 203 beats a minute. Normally your peak heart rate would be 220 minus your age. For someone of John’s age about 160 would be what we’d push their heart rate to and we’d expect that sort of heart rate at the peak of a predicted exercise so for someone of John’s age maybe nine minutes, eight minutes but at just over four minutes his heart rate was 203 in his atrial fibrillation and he was quite breathless and had some chest tightness but not pain.
Q:I think you said he should have exercised at least for about nine and a half minutes or somewhere in that vicinity?
A:Yeah, I haven’t got that actually in front of me at the moment but that was the average for someone in that age, nine – nine and a half minutes.
Q:He was unable to continue it after how long?
A:Couldn’t keep going – four minutes and 30 seconds. It’s a graduated exercise capacity so the first three minutes is a real stroll, almost flat, the second three minutes is a little bit faster, four km/h and then it goes up to 5.4 etc, it gets faster and steeper so the exercise capacity was very limited.
Q:His heart rate was far higher than it should have been?
A:Yeah to a point that you potentially – you couldn’t keep operating with exertion that sort of heart rate. You become inefficient, the filling of the heart becomes such that there’s not enough time for the blood to fill for the ventral to contract again. It couples with his echo findings as well. There’s a concept called diastolic dysfunction that –
Q:Can you explain that to us?
A:Yeah, effectively people believe the heart only pumps, the heart doesn’t just pump, the heart also relaxes it’s like it bellows it pumps in and it sucks back out and there’s an active sucking in of blood during the period of relaxation of the heart called diastole and that requires the heart rate not being too fast so when John has quite a fast heart rate under exertion but he also has thickening of his heart muscle wall as shown on our ultrasound, hypertensive heart disease. He also has enlargement of the filling chambers of his heart even just at rest on the ultrasound we did. So he has evidence that blood pressure has damaged his heart in a concept called diastolic dysfunction. When the heart starts working quickly it becomes quite inefficient, the blood just can’t fill back into the heart and it builds back up into your lungs and you become quite breathless with that. The pressure within the blood vessels in the lungs increase, if it keeps going you’ll go into heart failure and have problems.
As to the matter of the impact of stress on the appellant’s heart condition, Dr Ardrill gave the following evidence:[3]
Q:The condition that he suffers from would that be made worse if someone was placed in a situation where they were anxious or stressed?
A:Clearly, yeah. The adrenaline system will[4] drive his heart rate such that just at rest when I first met him his heart rate was 95, hopefully with medication that’s going to be lower at rest but the degree of exertion that we did on the stress test is only a moderate exertion, it really isn’t pushing to a degree that you wouldn’t expect from a couple of flights of stairs sort of level of exertion. The stress of having a police officer saying you’re not complying[5] with me you will be potentially charged on this would in my opinion increase his adrenaline outflow, cause increase in heart rate such that he would have gone into this cycle of diastolic dysfunction such that pressure would build back up into his lungs and he’s become quite breathless. What we saw on the stress test which is the best mimicker of the situation that we are discussing with the RBT is that he was breathing very quickly but quite shallow breaths right at the peak of his lung capacity so you’d expect a man of John’s size to be able to blow quite a volume of air but if you were breathing (DEMONSTRATES) like this then you wont have the ability to comply with the request of the police officer.
[3]    T88.
[4]    Transcript erroneously reads “with”.
[5]    Transcript erroneously reads “comply”.
He later was asked to specifically relate his evidence to the circumstances of the breath test procedure on 7 August 2009 and stated:[6]
[6]    T90-92.
A:…he would have had a fast heart rate at that period of time, the acute stress of being stopped but with further time worrying – you know, what’s going on, got to do another test faster heart rate over a period of time would have increased pressure back into his lungs and could have caused a degree of what’s called pulmonary venous congestion – fluid leak into the lungs so his lung function would have been deteriorating as the heart was racing over that 20 minutes or so. I think the subsequent blood test was .9 and then there was a further period of delay of more stress and a further decline in his ability to blow the air.
Q:The first test you are right was 1.1 litres and then there is about 2 minutes where he is required to blow again and there’s a sample that’s been provided at .9 litres, is that consistent with someone undergoing these sorts of stresses and anxieties?
A:I don’t have any particular evidence for that, I’m sorry but yeah I believe that his heart rate would have being going higher as there would have been the stress of that situation. I just checked my pulse and I’m going about 120 here at that moment and I don’t feel particularly stressed but I think having a police officer putting an RBT and saying to keep blowing it would be a particularly stressful environment. I go back to what I said before that with moderate physical exertion, what would be average for an 80 year old man John’s heart rate went to 203 which is 45 more than would be the maximum that someone of his age could achieve.
Q:If I’ve suggested that perhaps at 2 minute intervals he’s been able to blow 1.1 litres, .9, .5 and then .8 litres of breath over perhaps about an eight or nine minute time frame, does that seem consistent with the sorts of illnesses that he’s suffering or injuries that he’s suffering?
A:I believe so. I believe that he would have been under – the situation where his heart rate would have been very very fast, he had some chest tightness during this episode from this period, his diastolic dysfunction this difficult concept of his heart not taking the blood back in, pressure building up into his lungs would have caused a very fast heart rate, very fast breathing rate and inefficient lung function.
Q:So whilst the lungs are capable of at least on one occasion of producing that 1.1 litres of air because of the things that are then going on it stops them from functioning properly, is that in very laymen’s terms what’s going on?
A:    Absolutely.
Q:Where Mr Murphy’s given evidence that on those three where he’s unable to produce the 1 litre of breath he’s saying that he’s blown the most he can and has to stop because he’s got no[7] air left, that doesn’t surprise you in light of what you’ve said?
A:Yeah, I think there’s two choices here, either we believe Mr Murphy is lying or Mr Murphy is trying to comply with the request. I think in a physiological sense from his very fast heart rhythm, inefficient rapid breathing process there’s a plausible explanation for this decline in his lung function and really surprisingly poor lung function even for the first breath test, you’d expect someone of John’s build to be able to blow a lot more air than that particularly at rest but none of these positions were at rest. I go back again; he managed on a stress test what an 80 year old man would do so at very moderate exertion, a gentle walk, he is very breathless. So I think even just being pulled over and seeing a blue light his heart rate would have gone up to 190-200 who knows.
Q:    So it can be both the physical exertion and the mental stress of what’s happening?
A:    Driven by the adrenaline system, yes.
[7]    Transcript erroneously reads “not”.

Dr Ardrill continued to see the appellant and, as at the date of the trial (July 2010), had seen him a further three times since November 2009.
The prosecution case in rebuttal
The prosecution were aware at all times that the appellant was intending to call Dr Ardrill as an expert witness. The prosecution had arranged to call two witnesses, Professor Crockett and Professor Bowden. With the generous consent of the appellant, they were permitted to be present during the evidence of the appellant and that of Dr Ardrill and then to give their evidence in rebuttal.
The evidence of Professor Crockett
Professor Crockett had performed a study on persons blowing into a breath analysing instrument under controlled conditions. However, these conditions hardly replicated an actual experience of being pulled over while driving in a normal way and being compelled to undertake a breath analysis test, failure of which carries dramatic consequences. Obviously, experiments of this type cannot include the element of stress likely to be induced by such a procedure, let alone the impact of such stress on a person with underlying medical problems such as those of the appellant. The following passage in cross-examination of Professor Crockett is relevant:[8]
Q:    Have any of the tests ever been conducted by police officers?
A:    No.
Q:Have any of the tests that you’ve conducted have the patients been under the prospect of losing their licence if they don’t complete the tests?
A:    No.
Q:    Would you agree that that is something that might raise their level of anxiety?
A:    Yes.
[8]    T112.
The cross-examiner then turned to the facts of the present case:[9]
[9]    T112-113.
Q:If I suggested to you that someone who is suffering from AF was tested on the roadside by police officers under the threat that they may lose their licence and not been given the three or four minutes in between the test but told after two minutes that they must comply, that that may increase the level of anxiety that they’re under?
A:    Would increase their level anxiety.
Q:    It may affect their ability to comply with the tests?
A:    It may do that, yes.
Q:None of the tests that you’ve done have ever been under those conditions, have they?
A:    No.
Professor Crockett had never examined the appellant and his evidence did not really advance the prosecution case. His concluding passage in examination-in-chief was as follows:[10]
Q:With what you know and what you’ve seen with respect to the evidence are you able to proffer an opinion relative to whether it’s plausible, to use the defence term, or probable that it was atrial fibrillation on the night or simply the defendant wasn’t trying to blow into the instrument?
A:I find it difficult to answer that question.
Q:But certainly nothing you’ve heard would sway you either way necessarily?
A:No.
[10] T110.
The following question and answer in cross-examination really summed up the witness’ evidence:[11]
Q:Can you exclude the fact that it’s the atrial fibrillation that stopped Mr Murphy from blowing and complying as the police officer’s described?
A: No, I can’t.
[11] T114.
The evidence of Professor Bowden
Professor Bowden was the second prosecution rebuttal witness. He conceded that he had never tested the appellant and agreed with Dr Ardrill that the appellant’s condition could prevent the appellant’s successful performance of a breath test. However, he considered that there would likely have been some observable signs if this were so. He stated:[12]
A:So is it possible that rapid atrial fibrillation would lead to cardiac dysfunction would lead to pulmonary oedema or pulmonary venous hypertension which could preclude a breath testing? The answer to that question is yes, but is it possible that it would do that without causing signs of rapid breathing or other signs, I’d say no.
[12] T117.
However, as against that observation, his Honour was required to give appropriate weight to the contrary opinion of Dr Ardrill who was, after all, the appellant’s own treating specialist. Dr Ardrill said in evidence:[13]
Q:What would a lay observer, if dealing with Mr Murphy, expect to see with someone who is suffering from AF to the degree it was that he couldn’t blow into the breath analysis?
A:The lay observer might not pick up anything at all, probably nothing. He might just appear nervous. He might be breathing at the peak of his breath, so little shallow fast breaths. He might look a little bit pale, but whether a lay observer would pick that up.
Q:Certainly. But if none of those things presented, and certainly no one complained of those things, would it be unreasonable to suggest that maybe there was no AF condition occurring at that time?
A:I believe that’s unreasonable. He does have AF, permanent atrial fibrillation. It’s not a have it, don’t have it now situation. He’s an AF all the time. At rest, when I first met him, his heart rate was 95, which is high normal level. When you put him under moderate stress, just a moderate level intensity walk, his heart rate goes up to over 200 beats a minute, so I think in the situation of being pulled over by a RBT, which for lay people is very stressful, the heart rate would have been driven by adrenalin to a very fast rate.
[13] T96.
The high point of Professor Bowden’s evidence, indeed of the prosecution case, would appear to be the following passage:[14]
Q:Can you rule out the possibility that Mr Murphy’s atrial fibrillation stopped him from complying with the police requests?
A:I can’t exclude that because I wasn’t there on the night, but I think on the balance of probabilities it is unlikely, extremely unlikely
[14] T126-127.
However, as to this last observation, it was critical for the Magistrate to appreciate that when a person – here the appellant – makes oath and swears that an event occurred, his evidence may not be rejected simply on the basis that the event is “unlikely”. Unless the claim is ridiculous on its face (and no one suggests that here) the inquiry remains primarily one as to credibility. I will return to such matters in greater detail below.
The reasons of the Magistrate
His Honour concluded his reasons thus:
[43]… Whilst I consider that it is possible that his failure to provide an adequate sample of breath was as a result of his medical condition, I consider that it is equally possible that his failure was as a result of a lack of effort on his part. In the circumstances, the defendant has not proved on the balance of probability that there was a good cause for his failure to comply with the direction of the police officer due to his medical condition. …
Thus, in his Honour’s view, the scales were very evenly balanced. In such a case, any significant error in approach or a failure to appreciate or fully take into account the defence case will necessitate a close consideration of whether a conviction can stand. In the present case, I consider that there are several significant errors, the cumulative effect of which is such as to require his Honour’s decision to be set aside. My reasons follow.
The correct approach to an assessment of the evidence
The prosecution case here did not involve an express refusal to comply with a reasonable direction; rather, it was the prosecution case that the appellant “failed” to comply in the sense that he did not attempt to comply to the best of his ability. In such a case, the Magistrate was required to particularly bear in mind a number of matters.
First, it was necessary correctly to consider and appreciate the inherent infirmities of the prosecution evidence and its case generally.
Second, while the present offence may be committed by a failure to attempt to comply to the best of one’s ability, the appellant here asserted on oath that he had tried his best and called evidence to explain why he had been unable to comply. One must approach a reverse onus provision in the context of a criminal charge very carefully. A defendant may be required to discharge such an onus, but in considering whether he has done so, a correct approach must be taken to the evidence given or called by him. When the defendant himself gives evidence, one must not approach its consideration in an unduly cynical way, let alone presume that he is likely to give untruthful evidence; one must not adversely take into account his particular interest in the outcome of the case.[15]
[15] Robinson v The Queen (No 2) (1991) 180 CLR 531; Stafford v The Queen (1993) 67 ALJR 510; R v Griffis (1996) 67 SASR 170.
Third, when the subject event is, as here, a failure to perform a task, one must be careful to take into account fully the cumulative impact of any physical and mental impediments on the person’s ability to perform that task. One must not fail to take into account that the defendant may have been acting under a good deal of unaccustomed stress and discomfort since experience demonstrates that it is easy to draw incorrect inferences in such cases.
Fourth, one must be careful where, as in the present case, the claim being made by a defendant is of an admittedly unusual nature. One must ensure that the assessment of the defendant’s evidence is not infected by an a priori assumption that the rare, and therefore “unlikely”, nature of the claim is of itself a reason to disbelieve the defendant’s claim. As an obvious example, it is well to remember that a man who asserts on oath that he had won a rich lottery may be making a claim that is statistically extremely unlikely, but he may well be telling the truth.
Fifth, on the topic of the defendant’s dealings with the police, one must not reason in a way that is inconsistent with the right to silence.
A failure by the Magistrate properly to assess the inherent infirmities of the prosecution evidence and its case generally
In such an evenly balanced matter, it was critical for the Magistrate to bear in mind certain factual matters militating against the prosecution case or in favour of the defence case.
The prosecution case was that the appellant deliberately sought to evade giving a sufficient sample by blowing below his capacity. However, his first blow was in fact a valid sample. Under previous legislation requiring only one sample he would have passed the test by this stage. The question arises: what is said to have changed between the completion of that first successful blow and the beginning of the process to furnish the second valid sample as required by the RTA? The fact is, and the evidence discloses, that no analysis of the first sample is displayed in any form by the current Drager alcotest machine until both valid samples have been provided. Thus, in the present case the appellant could not know, and did not know, that his first valid sample was positive for any reading of alcohol content. The position is therefore that after the completion of the giving of the first sample, he was in exactly the same position as he had been prior to the giving of that sample. He had gained no new motivation whatsoever to obfuscate or cause delay.
As to the second blow (the first invalid sample) when he blew a volume of .9 litres of air, the evidence discloses that while there is visible to the operator a display of stars showing the general passage of air, there is no display by the machine of the actual volume of any sample until both valid samples have been received. There were three very important things in the present case that the appellant could not know as he blew for the second time:
·what the volume of his first valid sample had been;
·by what margin the volume of his first valid sample had exceeded the minimum volume required by the machine; and
·what volume he had supplied during the second blowing process.
At trial, the position was put on the somewhat simplistic basis that it would have been quite difficult for the appellant to get as close to the one litre minimum as .9 litres without going too far and inadvertently giving a full litre which would have been a valid second sample. This is correct as far as it went, but on a full appreciation, the defence case was much more powerful than that. It was that the appellant could not know how much volume he had delivered in the first blow and accordingly could not know by how much the volume he had delivered in the first blow exceeded the minimum volume.[16] It followed that, if his aim was to deliberately “under blow”, he simply had no target at which to shoot. To labour the point, it was not just a matter of trying to deliver a breath sample of 100 mls less than his first blow because, for all he knew, his first blow may have exceeded the minimum required volume by a much greater figure than, say, 100 mls.
[16] He also probably would not know the minimum figure of one litre for the machine but the appellant’s argument in no way depends upon that observation.
With respect, his Honour does not appear to have appreciated or adverted to any of these matters; he only addressed the point that .9 litres was very close to the minimum of one litre. As to this, his Honour simply said:
[42]… Mr Colthorpe suggests that the evidence of the respective volumes of breath provided by Mr Murphy, namely 1.1 litres, 0.8 litre, 0.6 litre and 0.9 litre, the last sample falling short by just 0.1 litre, are indicative of a genuine attempt and not of a deliberate falling short. However, when that proposition was put to Professor Bowden, he answered that he ‘would still think that that is most consistent with someone who is not giving optimal effort, not with full inspiration or maximal expiration.’[17]
[17] His Honour’s list of volumes is incorrect. The volumes in correct order were in fact: 1.1 litres, 0.9 litre, 0.5 litre and 0.8 litre.
But even here, if one is restricted to a comparison between the figures of 1 litre and .9 litres, there is considerable force in the defence position that it would be highly unlikely that a person seeking to deliver an insufficient sample would go so close to the required minimum. With respect, his Honour has not come to grips with this problem and certainly not with the true extent of the problem as explained above. The passage of the cross-examination of Professor Bowden from which his Honour has taken the above quotation was as follows:[18]
Q:I’m not talking about normal breathing, I’m talking about blowing into a breath analysis instrument with some resistance, how difficult would it be for someone to blow deliberately blow .9 of a litre,[19] but deliberately fall short of 1 litre?
A:Are you asking could someone deliberately say, I’m going to choose to blow .9 of a litre then blow that amount?
Q:Perhaps I’ll rephrase that. If someone was to blow .9 of a litre but fail because they needed 1 litre do you think that that is an indication that they are trying but not able as opposed to someone who is deliberately avoiding the instrument altogether?
A:I would still think that that is most consistent with someone who is not giving optimal effort, not with full inspiration or maximal expiration.
Q:So you think it would be possible for someone to submit .9 of a litre and deliberately fall short of that 1 litre?
A: It would be possible.
[18] T127-128.
[19] Transcript erroneously reads “.09 of a litre”.
In my view, these answers by the prosecution expert tend toward the dogmatic. Of course, it would be theoretically “possible” for someone to do so, but a correct appreciation of the evidence in this case required an acknowledgement that the point that the solicitor for the appellant attempted to make had force.
I consider that the learned Magistrate erred in that he failed adequately to direct himself as to the strengths of the defence case and the infirmities of the prosecution case in the above respects.
The Magistrate’s approach to the credibility of the appellant
Towards the conclusion of his reasons his Honour observed that “This is a case of ‘competing specialists’.” A little later, his Honour stated:
[42]As stated above, the defendant has the burden of proof in establishing the defence. The defendant gave evidence that on each occasion he gave it all he could, but ran out of air due to tightness in his chest. I found it perplexing that the defendant did not offer that explanation to the police at the time, particularly when asked, and I did not find his explanation for that failure convincing. I am not persuaded by the evidence of the defendant that I should accept his and Dr Ardill’s evidence over that of Professor Crockett and Professor Bowden. …
(Emphasis added)
I consider that his Honour has erred in this passage on a number of levels.
The appellant’s understanding of his medical condition as at 7 August 2009
First, on a purely factual level, his Honour did not have sufficient regard to the chronology of the medical investigation into the appellant’s health problems and where the subject event fitted within that chronology. His Honour did not sufficiently direct himself as to the undisputed evidence of Dr Ardrill that, as at 7 August 2009, investigations into the appellant’s underlying problem had not progressed beyond a preliminary stage. I have referred to this evidence in chronological detail above, but as to what the appellant’s understanding as at 7 August 2009 would have been, Dr Ardrill gave the following further evidence:[20]
Q:Just one other point also, as of [7] August 2009 did you and perhaps even Mr Murphy have a good understanding of what his problem was, was there – had it been diagnosed to that extent that he was aware and could perhaps describe to others what was going on to him?
A:I’m not certain that’s the case. I say that because the medications were changed from January [2009] when we advised to be on diltiazem which is a medication to slow the heart rate back to another blood pressure medication so he was off the medication to slow his heart down under positions of stress. When I saw him in November [2009] I put him on to what’s called a beater blocker atenolol for the first time, when I saw him in October [2010] this year he’s been taken off that tablet as well and went back to his very original blood pressure tablet again so I put him back on to his beater blocker again. So essentially different messages coming from me and his general practitioner about how he should be managed so I don’t think he would have had a clear understanding as to what the condition was and how it should be best treated.
Q:As of August last year, 2009, did you have a good understanding of what Mr Murphy’s problem was prior to – particularly prior to the November [2009] point?
A:No, I was surprised by how poorly he performed on the stress test.
(Dates in parenthesis added)
[20] T92-93.
As can be seen from this and the passages above, it was Dr Ardrill’s concern that the appellant had failed the test on 7 August 2009 that set in train further medical investigation and the finding that his position was more serious then had previously been thought. Indeed, Dr Ardrill made it plain that as at 7 August 2009, the appellant would have had a very poor understanding of the seriousness of his condition; thus he observed during cross-examination: “John didn’t have any symptoms going back when I first met him. He didn’t know the AF was causing any problem.”
Against that background properly understood, the appellant’s explanation as to his somewhat terse manner on 7 August 2009 is not “perplexing”. Thus the appellant stated in cross-examination:[21]
[21] T78-79.
Q:    Is it your evidence that when you get anxious, that you get this tightness of chest?
A:    Yes, I have it right now.
Q:But with respect you’re not presenting as someone with tightness of chest, you seem pretty calm.
A:    I do.
Q:    And is that how you were behaving on the night of the random breath test?
A:    I believe so.
Q:You weren’t outwardly say, clutching your chest or indicating there was anything wrong with you?
A:    No.
Q:    But you knew there was something wrong with you didn’t you?
A:    Yes, I did.
Q:In fact what was wrong with you concerned you enough to go see your doctor, to go to Dr Ardill again, is that right?
A:    Yes, I did.
Q:When a police officer asks you, ‘Do you have any medical conditions for not blowing?’, why didn’t you mention chest pains?
A:Because I wanted everything to be finished and I know after a while the chest pain goes away, when I relax. It’s not a chest pain like acute, it’s a tightness.
Q:    But you said it stops you from supplying a sample of breath, didn’t you?
A:    I didn’t know that until that night.
Q:    But you’d had the chest pains before, yes?
A:    Not like this, no.
Q:    On this particular night they were the worst you’d had, is that correct?
A:    That’s right.
Q:    And subsequently?
A:    It’s been happening.
Q:    But not as bad as this particular night?
A:    No, it’s happened since.
Q:    But in your mind you said ‘They were bad on this night’, that’s fair, yes?
A:    It is.
Q:    Did you mention it to the police officer?
A:    No, I didn’t.
Q:    Why?
A:Because I’m not a person that goes around, I’m a bloke, like you would know yourself, you hang onto whatever you – you know your feelings, I’ll be okay.

This last answer – “you hang onto whatever you – you know your feelings, I’ll be okay” – reflects an attitude that many men have. It might be the wrong attitude to have, but they hold it nevertheless. I do not find the appellant’s expression of that view, and of his actions generally, at all implausible, unlikely or perplexing.
The right to silence
A second level of error is that his Honour clearly took into account the appellant’s decision not to discuss his medical situation with either Sergeant Mitchell or with the doctor at the Noarlunga Medical Centre (in Mitchell’s presence) as a matter adverse to the appellant’s credibility. As to a lack of conversation with Mitchell during the testing process, his Honour said (in the same passage to which I have referred above):
[42]… The defendant gave evidence that on each occasion he gave it all he could, but ran out of air due to tightness in his chest. I found it perplexing that the defendant did not offer that explanation to the police at the time, particularly when asked, and I did not find his explanation for that failure convincing. …
As to absence of discussion by the appellant of his medical problems with the doctor at Noarlunga Medical Centre, his Honour said:
[15]Sergeant Mitchell told the court that he then conveyed Mr Murphy to the Noarlunga Hospital, and that he sat alongside Mr Murphy while the doctor was attending to him. Mr Murphy did not mention anything to the doctor relevant to health issues. Further, Mr Murphy did not mention anything to Sergeant Mitchell with respect to his health whilst at the hospital, with the exception of mentioning his blood pressure when asking for a drink of water. …
There are really three components of the appellant’s behaviour to which his Honour refers, namely:
1the appellant’s absence of discussion with Miller during the breath testing process;
2the appellant’s absence of discussion with the doctor in presence of Miller;
3the appellant’s answers to Miller’s questions after the conclusion of the breath testing process.
As to each of the first two components, I consider that his Honour’s approach equated to the drawing of an impermissible inference from what was no more than the exercise of the appellant’s right to silence. In Petty v The Queen[22] Mason CJ, Deane, Toohey and McHugh JJ stated:[23]
That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused’s exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.
[22] (1991) 173 CLR 95.
[23] Ibid 99.
Their Honours recognised that there has for a long time been discussion of a distinction between inferring a consciousness of guilt from silence on the one hand and questioning the credibility of a belated defence or explanation by reason of that earlier silence on the other hand. Their Honours rejected that distinction and stated:[24]
In the present case, Priestley JA expressed the view that there is a “significant distinction” between inferring a consciousness of guilt from silence and denying credibility to a late defence or explanation by reason of earlier silence. His Honour suggested that in the first case there can be inferred an admission by reason of the consciousness of guilt whereas in the second case rejection of the defence or explanation has no evidentiary value in itself, though its effect may be to leave the prosecution case unanswered, or at least not answered by that defence or explanation. We acknowledge that there is a theoretical distinction between the two modes of making use of the accused’s earlier silence. However, we doubt that it is a distinction which would be observed in practice by a jury, even if they understand it. And, what is of more importance, the denial of the credibility of that late defence or explanation by reason of the accused’s earlier silence is just another way of drawing an adverse inference (albeit less strong than an inference of guilt) against the accused by reason of his or her exercise of the right of silence. Such an erosion of the fundamental right should not be permitted. Indeed, in a case where the positive matter of explanation or defence constitutes the real issue of the trial, to direct the jury that it was open to them to draw an adverse inference about its genuineness from the fact that the accused had not previously raised it would be to convert the right to remain silent into a source of entrapment. Accordingly, the distinction is, in our view, unsound.
[24] Ibid 100-101.
There are many reasons why the appellant may have abstained from discussing his personal affairs with Mitchell or the doctor at the Noarlunga Health Centre that are perfectly consistent with having made a genuine attempt to provide a sufficient sample. The appellant was surrounded with an aura of formality and compulsion, certainly not sympathy. He was no doubt affected to some degree by stress. Further, he had his own doctors and no need to say anything to a doctor who was simply taking blood. In all, he may well have thought, “the less said the better”. In my view, he was entitled to hold such views and no inference should have been drawn from his silence.
I might add, in relation to his Honour’s use of the word “failure” in the context of the appellant’s silence, that in R v Weetra,[25] the point was made, not for the first time, that it is undesirable to describe the exercise of a right not to speak as a “failure” to speak. I there stated:[26]
[89]Although silence by the accused in court is sometimes referred to as a “failure to give evidence”, it is best to avoid this terminology which tends to suggest that the accused has, in some undefined way, failed to live up to a norm or expected standard of giving evidence. Even worse, it may tend to suggest that the accused’s silence in court may stem from a consciousness of guilt.
[25] (2010) 108 SASR 232.
[26] Ibid 250.
As to the third of the three components, the passage to which his Honour refers is the evidence of Mitchell where he describes giving a full caution to the appellant and the following question and answer then occurring:[27]
I said ‘Have you any reason of a physical or medical nature for failing to comply with my directions in relation to this test?’ and he said ‘Not that I’m aware of’.
[27] T12.
In all of the circumstances of the case, and particularly having regard to the chronology of the medical investigations to which I have referred, I do not find the particular terms of that answer to be a matter of concern. It is not inconsistent with the evidence of the appellant (supported by the evidence of Dr Ardrill) that, as at the time of giving that answer, he was generally aware of some health problems but not then aware that they were of such an extent as to cause an inability to comply with a breath test.
The Magistrate’s approach to Dr Ardrill’s evidence
A third level of error concerns his Honour’s approach to the evidence of Dr Ardrill. In the course of his reasons, his Honour stated:
[41]… Further, I did gain the impression that Dr Ardill was not completely objective in his opinion. For example, at one stage during cross-examination when asked whether he had considered possible explanations for the failed readings other than Mr Murphy’s medical condition, he said
Well, the instrument may not have been working correctly, I concede that, but as I say in my experience of John he struck me as being a very reasonable and honest person, so he told he was trying to blow very hard and so I take him at his word on that.
It is necessary to place this comment by Dr Ardrill in context. The passage of cross-examination from which it came is as follows:[28]
[28] T94-95.
Q:But is it fair to say, and would you concede, that a reason why he didn’t blow in the instrument could have been he just didn’t want to?
A:Well, I did see Mr Murphy in November and he mentioned this particular episode, and that there was a court case pending potentially. I was asked a few months thereafter to given an opinion medically as to whether there could be any issues so I didn’t see all this preceding happening. I have seen John now on a number of occasions. He strikes me as someone who seems to be very honest and of his word, so –
Q:Certainly, but would you concede an issue for him not blowing could simply be he just didn’t want to, or he wasn’t trying hard enough?
A:In a general sense, yes.
Q:And an alternative could be that the instrument wasn’t working correctly and it didn’t take his sample.
A:I presume so.
Q:I just ask that because your opinion you’ve given, and I accept it for the purpose of your document, but it only covers one aspect. Would you concede there’s another two, so there’s three potential issues relative to this – that is atrial fibrillation, he just didn’t blow, or the instrument wasn’t working correctly?
A:Well, the instrument may not have been working correctly, I concede that, but as I say in my experience of John he struck me as being a very reasonable and honest person, so he told me he was trying to blow very hard and so I take him at his word on that.
Q:Did he explain to you what symptoms he was suffering on this particular night during this breath test?
A:He mentioned that he had some chest tightness.
Q:Yes. Was there anything else he explained?
A:I did see him in November, so it’s a number of months after the episode. I think his GP sent him back to see me because of this chest tightness and concern, but I will have to check all my notes on that. What I have written here is ‘A prominent episode of chest discomfort whilst under significant stress. At the time Mr Murphy was attempting to perform a RBT, was unable to exhale the appropriate volume of air’.
In my view, Dr Ardrill was simply doing what medical practitioners are taught to do – accept the history as given by the patient as a working hypothesis unless and until it is shown to be in error. That Dr Ardrill was doing no more than that is confirmed by further passages in his evidence, including the following:[29]
Q:But you are speculating on that, aren’t you, in fairness?
A:I can’t tell you exactly how stressed John was when he was pulled over.
Q:Yes.
A:The speculation comes – I am speculating, yes – the speculation comes from him telling me ‘I was quite stressed. I had chest tightness’.
[29] T96-97.
In my view, the evidence demonstrates that Dr Ardrill made appropriate concessions and was an objective and impartial witness.
As stated above, his Honour observed in his reasons “This is a case of competing specialists”. Without dwelling on the matter, I am not sure that this was the correct way to approach the matter, there being a danger that it undervalues the weight to be given to the evidence of the appellant that he simply could not, for whatever precise medical reason, successfully furnish a second valid sample.
However that may be, it was the approach that his Honour took and therefore for his Honour to suggest that “Dr Ardill was not completely objective in his opinion” obviously had a significant bearing on who, in his Honour’s opinion, should be preferred. I consider that the observation was unfounded and should not have been made. I consider that this was a critical error by his Honour.
The cumulative effect of the above errors of approach require that the judgment be set aside.
Conclusion as to the disposition of the appeal
In Taylor v Hayes Perry J stated:[30]
Grounds of appeal under the Justices Act, when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the magistrate’s findings. While it must give due weight to the advantage held by the magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for rehearing before the same or another court of summary jurisdiction.
Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the magistrate upon which it was open for him to reach the decision the subject of the appeal.
[30] (1990) 53 SASR 282, 291-292.
In the present case, while I give full and due weight to the advantage held by the Magistrate in seeing and hearing the witnesses, I have reached a different view on the evidence. I appreciate that a reverse onus provision is involved in the present case which was not the position in Taylor v Hayes, but this does not prevent an appellate court from substituting its view that such onus has been discharged in appropriate circumstances provided that it proceeds with due caution and circumspection.
The present case is unusual in that the Magistrate explicitly found that it was “equally possible” that the defence and prosecution cases were correct. In my view, if his Honour had not made the errors of approach and analysis that I have identified, it is highly likely that he would have found that the appellant had discharged his onus.
However, the ultimate responsibility rests on me to decide whether the appellant did discharge his onus and establish the relevant defence pursuant to s 47E(4)(b) RTA. After due consideration, I have come to the firm view that, on a correct appreciation of all of the evidence, he did so. Accordingly, I give effect to that view by substituting my view for that reached by the Magistrate. I find that the defence pursuant to s 47E(4)(b) RTA was made out, namely that there was, in the circumstances of the case, good cause for the failure of the defendant to comply with the requirement of Mitchell. Accordingly, the complaint is to be dismissed.
The terms of the “complaint”
Although it may not be a matter necessary for the present decision, I should draw attention to a problem with the “complaint”[31] I have noticed while writing this judgment lest the prosecution repeat such an error in the future.
[31] I have used quotation marks to allude to, but, I hasten to add, not to analyse or answer, the question that sometimes arises in certain contexts as to whether such a document is properly to be characterised as a “complaint” at all.
As reproduced above, the terms of the complaint are as follows:
On the 7^th day of AUGUST, 2009 at LONSDALE in the said State being a person who was required under Section 47E of the Road Traffic Act, 1961 to submit to FAILED to comply with all reasonable directions of a member of the Police Force in relation to the requirement.
Section 47E(3) of the Road Traffic Act, 1961.
This is a summary offence.
(Emphasis added)
It can be seen that there is something missing between the words in emphasis “to” and “FAILED”. The complaint purports to be laid as a charge contrary to s 47E(3) of the Road Traffic Act 1961 (SA) which provides:
47E—Police may require alcotest or breath analysis
(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.
…
(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.
…
As can be seen, there is no averment in the complaint as to what it was to which the defendant was required to submit. Indeed, there are different possibilities under s 47E(1)(c), namely an alcotest, or a breath analysis, or both and these different possibilities correspond to different charges that might be laid arising out of any given incident.
In my view, the authorities establish that a complaint which fails to aver an ingredient of this importance in fact charges no offence known to the law and, accordingly, a conviction which purports to be founded on such a complaint is bad.[32] The features of the present case that lead me to this conclusion are that: a critical averment of the charge itself is missing; there was no application for an amendment made by the prosecution at any time; and the complaint may not now be amended since the limitation period has expired thus invoking the principle in Weldon v Neal.[33] As Gray J observed in Australasian Meat Industry Employees Union v Sunland Enterprises Pty Ltd[34] in the context of a problem with a complaint very similar to the present situation:
It is a fundamental principle of law that a court will not permit amendment of a proceeding where to do so will remove an immunity given to another party by a statutory period of limitation. In civil cases, this principle is known as the rule in Weldon v Neal (1887) 19 QBD 394, that no amendment will be permitted which will add a new cause of action which is statute-barred at the time when the amendment is sought. This principle also applies in the criminal law. As Fitzgerald J said in Linehan v Australian Public Service Association (1982) 66 FLR 90 at 112 “ ... it is readily comprehensible that, in the context of ss 21 and 21A of the Crimes Act, it should be seen as impermissible for the prosecutor to add essential allegations for the first time after the time for a prosecution has expired”.
[32] The position in relation to an Information subject to a different statutory regime and not subject to a statutory time limit may be different but it is unnecessary to consider that matter.
[33] (1887) 19 QBD 394.
[34] (1987) 36 A Crim R 418, 421-422.
In such circumstances, the purported conviction must be set aside. The authorities are many. For example, in the central decision of Tregilgas v Howie,[35] Murray CJ stated:[36]
… [I]f the complaint (I will use that term only for the sake of brevity) discloses no offence, it must be dismissed, unless the justices are of opinion that it ought to be amended. It is also clear, in my judgment, that if no offence is disclosed in the complaint until it is amended, the time from which it becomes a good complaint is the time of the making of the amendment. There might have been some such provision in the Act as that the amendment should be retro-active, or that, after amendment, the complaint should be deemed to have been a good complaint from the time when it was first laid, or there might have been some words used that would carry an implication to that or the like effect. But the Act is silent upon the matter. All that there is to go by is the actual fact that the complaint is not a good complaint until it is amended, and that necessarily involves the consequence that its validity as a complaint dates from the amendment.
The question is probably only of importance in relation to the time-limit which is prescribed for laying informations or complaints. … These provisions are as much a part of the Licensing Act and the Justices Act as the sections giving power of amendment, and cannot be disregarded when a question of amendment is being considered. And it is obvious that if the effect of an amendment would be to create a valid information or complaint for the first time after the statutory period for taking proceedings has expired, the amendment cannot be made.
Similarly, Cox J stated in Schultz v Pettit:[37]
A complaint may not be amended, under s 183 or any other power, if the result would be to convert a bad complaint into a good one, or to charge the defendant with a different offence. … Certainly, if the effect of an amendment or a variance would be to take the offence outside the relevant limitation period, that would provide a compelling reason why an amendment to the complaint should not be made or a variance disregarded.
[35] [1926] SASR 122.
[36] Ibid 126.
[37] (1980) 25 SASR 427, 433.

South Australian decisions include (chronologically): Tregilgas v Howie,[38] Arnold v Hughes,[39] Reedy v O’Sullivan,[40] Jurekic v Menz,[41] Fred Wakefield Pty Ltd v Dowd,[42] Schultz v Pettitt,[43] Davidson v Kennelly,[44] Tiver v Brewster[45] and Surman v Police.[46] See also decisions such as Traveland Pty Ltd v Doherty,[47] Gilmour v Bannister Nominees Pty Ltd,[48] John L Pty Ltd v Attorney-General (NSW)[49] and Kirk v Industrial Relations Commission of New South Wales.[50]
[38] [1926] SASR 122.
[39] [1926] SASR 360.
[40] [1953] SASR 114.
[41] [1961] SASR 322.
[42] (1979) 20 SASR 328.
[43] (1980) 25 SASR 427, 433.
[44] (1982) 103 LSJS 281.
[45] (Unreported) Supreme Court of South Australia, Bollen J, 27 July 1988, Judgment No 924.
[46] (1996) 65 SASR 421, 424.
[47] (1982) 63 FLR 41, 49-51.
[48] (1982) 60 FLR 308, 311-313.
[49] (1987) 163 CLR 508, 519-521; 525-529.
[50] (2010) 239 CLR 531, 557-558 [26].
This matter constitutes a second independent reason why the conviction in the present case must be set aside and the “complaint” dismissed.
Conclusion as to the disposition of the appeal
For all of the above reasons, I set aside the Magistrate’s finding of guilt and dismiss the complaint.
Orders
1That the appeal be allowed and both the finding of guilt and the conviction recorded on the complaint be set aside and the complaint be dismissed.
2That all orders made by Mr Dixon SM in relation to the finding of guilt on the complaint be set aside.
3That all amounts of money that have been paid by the appellant pursuant to orders made by Mr Dixon SM including fines, Court fees, levy and prosecution costs be refunded to the appellant forthwith.