Neep v Police - [2015] SASC 165

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NEEP v POLICE
[2015] SASC 165
Judgment of The Honourable Justice Sulan
29 October 2015
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN BLOOD - GENERALLY
The appellant was convicted of driving a motor vehicle with the prescribed concentration of alcohol in her blood. At the site of the breath analysis, the appellant requested and received a blood test kit. The appellant elected not to undertake blood testing. The circumstances of the blood test kit being issued and the appellant's decision not to undergo a blood test procedure form the basis of the appeal.
The appellant contends that the Magistrate erred in convicting as a result of police failing to comply with breath testing procedures required by the Road Traffic Act 1961 (SA). The appellant further contends that the prescribed oral advice given by police at the scene was insufficient in this case, and that the police evidence at trial was inconsistent, and the Magistrate erred by accepting it.
Held, dismissing the appeal:
1. The procedures under the Act were sufficiently complied with.
2. The statutory purpose underlying the prescribed oral advice was fulfilled, and the Magistrate's reasons dealt with the inconsistencies in the police evidence. The Magistrate preferred the evidence of the police officers to that of the appellant, and there is no basis on which to overturn the Magistrate's findings.
Road Traffic Act 1961 (SA) s 47B, s 47K, s 47K(1), s 47K(2a)(a), s 47B(2a)(b), s 47K(7)(c)(ii); Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 9, reg 13, sch 1, referred to.
Police v Lloyd [2004] SASC 54; Clark v Police [2011] SASC 130, considered.

NEEP v POLICE
[2015] SASC 165
Magistrates Appeal: Criminal

SULAN J: The appellant, Michelle Neep, was convicted of driving a motor vehicle with the prescribed concentration of alcohol in her blood, contrary to s 47B of the Road Traffic Act 1961 (SA) (“the Act”). The appellant appeals against that conviction.
Background
The trial proceeded largely on agreed facts. On 30 August 2014, the appellant was stopped at a static driver testing station by Senior Constable Patterson. The testing station was positioned on Angaston Road, the main thoroughfare between Angaston and Nuriootpa in the Barossa Valley. The appellant submitted to an alcotest, returning a positive result. The appellant was asked to remain at the scene in order for further mobile breath analysis upon the arrival of Senior Constable Thomson. It was agreed at trial that the further analysis conducted by Senior Constable Thomson returned a blood-alcohol concentration of 0.103. The appellant requested, and was issued with, a blood test kit by Senior Constable Thomson, for the purposes of a further analysis of her blood-alcohol concentration should she choose to undertake the procedure. She elected not to undertake that procedure. The circumstances of the kit issue and the election not to undergo a blood-test procedure forms the basis of this appeal.
Grounds of appeal
Counsel for the appellant relied on two grounds of appeal. First, that the Magistrate erred in convicting the appellant as a result of failure by the police to comply with procedures for breath analysing under the Act. Secondly, that the Magistrate erred in finding that the appellant was not dissuaded from having a blood sample taken at Angaston Hospital after Senior Constable Thomson failed to advise the appellant that a registered nurse could take the blood sample should a doctor be unavailable. This advice is to be given when a breath analysis returns a positive sample outside of metropolitan Adelaide, pursuant to reg 9 and sch 1 of the Road Traffic (Miscellaneous) Regulations 1999 (SA) (“the Regulations”), which applied at the time of the offence. Additionally, counsel contended that the evidence on this matter was inconsistent, and the Magistrate erred in accepting the evidence of the police officers in preference to the appellant.
Statutory provisions
The appellant submits that the requirements and procedures in relation to breath and blood testing were not complied with, and that the Magistrate therefore erred in not excluding the evidence of the breath analysis. The relevant sub‑ss of s 47K of the Act for the purpose of this appeal are:
(1)Without affecting the admissibility of evidence that might be given otherwise than under this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis and throughout the preceding period of 2 hours.
...
(2a)If a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith—
(a)     give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person's blood; and
(b)     at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.
...
(7)A certificate purporting to be signed by a person authorised under subsection (1) and to certify—
(a)     that, on a date and at a time specified in the certificate, a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument; and
(b)     that the prescribed oral advice and the prescribed written notice were given and delivered to the person in accordance with subsection (2a)(a); and
(c)     that—
(i)the person did not make a request for an approved blood test kit in accordance with the regulations; or
(ii)at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subsection (2a)(b),
is, in the absence of proof to the contrary, proof that the requirements of subsection (2a) were complied with in relation to the person.
In order to enliven the presumption that “that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis and throughout the preceding period of 2 hours” for the purposes of s 47K(1), procedures and requirements under the Act must be complied with. Absent any evidence that procedures were not followed, this presumption will be enlivened. It is submitted by counsel for the appellant that the procedures in sub‑ss (2a)(a), (2a)(b) and (7)(c)(ii) were not complied with, and therefore in this case the presumption could not be relied on, and as a result there was insufficient evidence before the court to establish a prescribed concentration of alcohol in the appellant’s blood.
Compliance with procedure
Counsel for the appellant submitted that it was not proved beyond reasonable doubt that an approved blood test kit had been delivered to the appellant, as required by s 47K(2a)(b). In turn, this is argued as being a significant enough departure from the statutory requirements that the presumption as to the legitimacy of the breath analysis results in s 47K(1) was not enlivened.
A document titled “Blood Test Kit” was tendered at trial. The document[1] evidences that at about 5:49 pm on the day of the offending, Senior Constable Patterson completed a form of request relating to a blood test kit which the appellant signed, stating that an approved blood test kit was delivered along with the original form of request. The serial number and expiry date of the approved blood test kit was noted. In my view, this constitutes sufficient “examination of [the blood test kit’s] markings” for the purposes of s 47K(7)(c)(ii) of the Act. Exhibit P5 constitutes valid certification for the purposes of establishing that an approved blood test kit was provided to the appellant pursuant to s 47K(7)(c)(ii), therefore satisfying the requirement in s 47K(2a)(b) that an approved blood test kit be delivered. This ground of appeal is not established.
[1] Exhibit P5 at p 3.
Prescribed oral advice
On the return of a positive sample by breath analysis, s 47K(2a)(a) of the Act requires that oral advice be given. Regulation 9 provides that the prescribed advice required must be given as set out in sch 1. The advice outlines that in any court proceedings it will be presumed that the breathalyser result is accurate, however the Act allows for contrary evidence based on the results of a blood test. The advice outlines that, should the driver decide to undergo a blood test, they need to make their own arrangements to do so using an authorised blood test kit, provided by police at the scene on the signing of a written request. The advice states that the test can be performed at a hospital, by a medical practitioner, or alternatively, by a registered nurse. The advice relating to the taking of a sample by a registered nurse is required only if the positive breath analysis occurs outside metropolitan Adelaide. It was not disputed that the analysis occurred outside metropolitan Adelaide, or that the advice that a registered nurse could take the blood sample was not given by Senior Constable Thomson.
Counsel for the appellant submitted that there must be substantial compliance with the statutory obligation to give the prescribed oral advice. The failure by police to refer to a registered nurse was more than trivial, meaning the statutory obligation was not substantially complied with. Counsel referred to the decisions of Police v Lloyd[2] and Clark v Police.[3] The thrust of counsel’s submission was directed to the test the Magistrate applied; being considerations of illegality and prejudice to the appellant as a result of the omission, when the correct test was substantial compliance with the statutory requirements.
[2] [2004] SASC 54.
[3] [2011] SASC 130.
The authorities relied on do not support this submission. Police v Lloyd established that the primary consideration was whether the statutory purpose has been fulfilled. Perry J stated:[4]
I am unable to construe that the relevant provisions of the Act to mean that every departure, however minor, renders the relevant act invalid. In the context of the provisions relating to the giving of the prescribed oral advice, such an approach would give the provisions an unreal and impractical operation which would be at odds with the evident scope and purpose of that part of the legislation.
[Emphasis in original.]
[4] [2004] SASC 54 at [60].
While it is accepted that a registered nurse was not referred to, which amounts to a departure from the prescribed advice, it is in my view inconsequential in the circumstances of this case. Angaston Hospital was within 2 kilometres of the site where the breath analysis occurred. The advice given to the appellant in this case referred to a hospital as a valid site at which a test could be conducted. Further, Angaston Hospital is a declared hospital for the purposes of compulsory blood testing pursuant to reg 13 of the Regulations. The statutory purpose of the prescribed advice is to outline to a person in the appellant’s position their rights to have a blood test conducted for the purposes of determining blood-alcohol concentration. This purpose was fulfilled. The appellant’s decision not to undergo a blood test was not conditioned on knowledge of whether a registered nurse could carry out the test or not. The omission was inconsequential.
Inconsistencies
A number of inconsistencies in the evidence of the police were outlined by the appellant’s counsel, with regards to whether the breath analysis conducted took place at the front or rear of the police vehicle, and deficiencies in the recording of notes of conversation with the appellant regarding the use of blood test results by the court. It was argued that these inconsistencies and deficiencies revealed that the evidence of the police officers was vague, unsatisfactory and unreliable, and that the appellant’s evidence on the topic of what was said following the breath test and her reasons for deciding not to have a blood sample taken should have been accepted.
Counsel argued that following the breath test, the appellant was told that if she had been drinking recently the blood reading would most likely be higher and the court would rely upon the higher reading at trial. Counsel submitted the appellant changed her mind about having a blood test as a result of this misinformation. Counsel drew attention to conversations between the police officers and the appellant regarding the taking of a blood sample and the use of the results, and the fact that no notes were made of this conversation rendered the evidence unreliable.
Senior Constable Thomson admitted having a conversation with the appellant regarding the taking of a blood sample, but denied saying anything that would have dissuaded the appellant from seeking to have her blood tested. He agreed in cross‑examination that the appellant had asked him something along the lines of “which reading goes to court?” He denied that he had advised the appellant that it would be the blood test reading. He stated that he had told her it was a matter for the court to consider.
The Magistrate made specific findings accepting the evidence of the police officers as to what the appellant was told:
I find [Thomson] a reliable witness. I find his narrative of events coherent, consistent, wholly plausible and I also find him a witness of truth. In particular I accept and find his evidence as the truth that he had at no stage whatsoever uttered the words or words to that affect [sic] to the defendant that the court would only rely on a blood sample analysis results, and where this contradicts with the defendant’s evidence about this particular issue I prefer the evidence of [Thomson].
I also accept his explanation that he would not have engaged in conversation thus with the defendant because of a prior experience where as a witness he was chastised by the court for having over engaged in his carrying out the procedural requirements.
In all respects I find [Thomson] credible. I find his evidence reliable.
The Magistrate made similar remarks regarding Senior Constable Patterson, and expressly dealt with inconsistencies between the two police officers’ evidence regarding at which location the breath analysis occurred:
As regards [Patterson] I find her a truthful witness. I also find her evidence in so far as it supports the Prosecutions [sic] case as reliable, even taking into consideration that her evidence as regards the exact location where a breath analysis by [Thomson] was conducted in that she says it was conducted at the rear of [Thomson’s] police vehicle at the hood area, whereas it is the evidence of [Thomson] that it was at the front bonnet of his car. I do not find that this contradiction materially affects the thrust of the Prosecution case.
In all I find the evidence of both [Thomson] and [Patterson] credible and reliable and wherever their evidence contradicts, contrasts or is in conflict with the defendant’s evidence I prefer the evidence of both [Thomson] and [Patterson] in so far as the establishment and findings of facts are concerned.
The Magistrate directed himself on the issues of the facts to be proved, and that proof of the elements is required even if the appellant’s evidence was rejected. The Magistrate stated that competing accounts or inferences consistent with innocence should be assessed to the benefit of the appellant.
There is no basis on which to overturn the Magistrate’s findings, and no demonstrable error in approach.
Conclusion
There has been no error in the Magistrate’s approach to the facts or law. The Magistrate outlined why he accepted the evidence of the police officers to that of the appellant where the evidence differed in relation to proof of facts in issue. There is no scope or reason for this Court to interfere with the conviction.
I would dismiss the appeal.