Murphy v Police

Case [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…

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Murphy v Police [2011] SASC 138
Case
[2011] SASC 138
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CaseChat Overview and Summary

In the case of Murphy v Police, the appellant was convicted of failing to comply with reasonable directions given by a police officer at a random breath testing station. This offence is contrary to section 47E(3) of the Road Traffic Act 1961. The appellant successfully provided one valid sample of breath but failed to provide a second sufficient sample on three successive occasions. The appellant appealed against the conviction on several grounds, including the Magistrate's failure to properly assess the evidence and the erroneous drawing of an inference from the appellant's failure to discuss his medical condition with the police at the time of the breath test. The Supreme Court of South Australia heard the appeal and found that the Magistrate's errors in approach and analysis were significant enough to warrant the setting aside of the conviction and the dismissal of the complaint. The Court substituted its view for that of the Magistrate, finding that the appellant had discharged the onus of establishing the defence under section 47E(4) of the RTA.

The legal issues in this case centred around the interpretation of the evidence and the application of the burden of proof. The appellant argued that he had good cause for not complying with the reasonable directions given by the police officer due to his pre-existing medical condition. The Court had to determine whether the appellant had made out the defence under section 47E(4) of the RTA and whether the Magistrate erred in his assessment of the evidence. Additionally, the Court needed to consider whether the complaint was invalid due to a failure to indicate what it was to which the appellant was required to submit.

The Supreme Court of South Australia held that the appeal should be allowed, the conviction set aside, and the complaint dismissed. The Court found that the Magistrate failed to properly assess the evidence, particularly in relation to the appellant's medical condition. The Magistrate's suggestion that the appellant's treating specialist was not completely objective in his opinion was unfounded. The Court also noted that the Magistrate did not have sufficient regard to the chronology of the medical investigation into the appellant's health problems. Furthermore, the Magistrate erred in drawing an impermissible inference from the appellant's failure to discuss his medical condition with the police. The Court concluded that if the Magistrate had not made these errors of approach and analysis, it was highly likely that he would have found that the appellant had discharged the onus of establishing the defence under section 47E(4) of the RTA. Therefore, the Court substituted its view for that of the Magistrate, finding that the appellant had discharged the onus of establishing the defence. The Court also dismissed the complaint on the independent ground that it failed to aver what it was to which the appellant was required to submit, as it charged no offence known to the law.

Orders

Orders of the court

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Background

Background to the litigation

The appellant was convicted of the following charge:On the 7th 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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

PEEK J
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.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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