Parker v Police - [2002] SASC 256

PARKER v POLICE
[2002] SASC 256
Full Court: Perry, Williams and Bleby JJ

PERRY J. I agree that the appeal should be allowed for the reasons given by Bleby and with the order which he proposes.
WILLIAMS J I agree that the appeal should be allowed for the reasons given by Bleby J.
BLEBY J:
Background:
This is an appeal by leave from the decision of a Judge of this Court who allowed an appeal by the present respondent (“the defendant”) against a conviction in the Magistrates Court. The defendant had been found guilty and convicted after a trial of driving a motor vehicle while there was present in her blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961 (“the Act”), contrary to s 47B of the Act. As alleged, and as found on the evidence admitted at the trial, the concentration of alcohol was 0.127 grams per hundred millilitres of blood.
On 5 May 2000 the defendant was required to submit to an alcotest in accordance with the requirements of s 47E(2a) of the Act at a random breath testing station set up in accordance with the requirements of s 47DA of the Act. That test indicated that the prescribed concentration of alcohol might be present in her blood and she was required to submit to a breath analysis in accordance with the requirements of s 47E(2b) and s 47E(2c) of the Act. It was that breath test which indicated the presence of 0.127 grams per hundred millilitres of blood in the defendant’s body. She was given the results of the test, together with the advice required by s 47G(2a)(a) of the Act.
The Magistrate found that she understood the oral advice and the contents of the written notice. She then requested, and was given, an approved blood test kit pursuant to s 47G(2a)(b) of the Act. She was taken to a nearby hospital, and the kit was used to take a sample of blood from her by a medical practitioner. The medical practitioner took the sample in accordance with the requirements of Regulation 11 of the Road Traffic (Miscellaneous) Regulations 1999 (“the Regulations”). The sample was divided into separate phials which were part of the kit. One phial was given to the police and the other to the defendant. She was told that the phial given to the police would be sent for analysis to State Forensic Science, and that she would be informed of the result by post.

The sample given to the police was sent to State Forensic Science and was examined by an analyst on 9 May 2000. However, the level of alcohol in the sample could not be ascertained because the blood was denatured. That means that it had become clotted or there was particulate matter in the sample rendering it unsuitable for analysis. A certificate to that effect was sent to and was received by the defendant shortly thereafter. On advice of friends,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] SASC 256
Decision Date: 8 August 2002

CaseChat Overview and Summary

The case of Parker v Police involved the defendant, who was charged with an offence related to driving with an illegal blood alcohol concentration. The defendant contested the breath analysis result, asserting that the police failed to provide an approved blood test kit as required by the Road Traffic Act. The matter was heard and determined in the Magistrates Court, with the defendant subsequently appealing the decision to the Supreme Court.

The primary legal issue before the court was whether the defendant was deprived of a fair trial due to the police's failure to provide an approved blood test kit, which would have allowed the defendant to challenge the breath analysis result. Additionally, the court had to consider whether the presumption in section 47G(1) of the Road Traffic Act applied, given the lack of evidence regarding the state of the defendant's blood sample.

The Supreme Court found that the Magistrate had erred in not excluding the evidence of the breath analysis on the grounds of unfairness. The court held that the police's failure to provide an approved blood test kit, despite not being at fault, meant that the defendant could not challenge the breath analysis result in the only way permitted by the Act and regulations. The court concluded that the Magistrate should have exercised his discretion to exclude the evidence of the breath analysis, as the defendant had no way of challenging it. The Supreme Court exercised the discretion afresh and concluded that the evidence of the breath analysis should be excluded due to the failure to provide an approved blood test kit suitable for its purpose.

The Supreme Court's decision overturned the Magistrate's judgment, and the appeal was allowed. The evidence of the breath analysis was excluded, and the defendant's conviction was quashed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The blood test kit given to the defendant was required to be an “approved blood test kit”. That means a kit of a kind declared by the Governor by regulation to be an approved blood test kit; s 47A. Regulation 7 of the Regulations specifies two brands of blood test kit which are approved for the purposes of the Act. There was no dispute that one of those was given to the defendant, which was, in turn, given unopened to the medical practitioner who took the blood sample.The evidence There was no dispute that the statutory procedures relating to the setting up of the random breath testing station, the administration of the alcotest, the administration of the breath test, the advice and written notice concerning the optional blood test were all complied with. It was also agreed that the medical practitioner who took the sample of blood received the kit unopened and complied with the necessary requirements and regulations regarding the taking and dividing of the sample. That includes the requirement of reg 11(e) which in turn requires proper mixing of the sample with any anti-coagulant in the phial in order to ensure that it does not deteriorate for the purposes of analysis. At the trial it was agreed that no-one at State Forensic Science was prepared to say why that part of the sample which was submitted for analysis had become denatured. A chemical pathologist gave evidence on behalf of the defendant as to the procedures necessary for the preservation of blood samples for analysis. It is necessary that there be an anti-coagulant, usually sodium oxylate or potassium oxylate, in the bottom of the phial. It must be thoroughly mixed with the blood in order to prevent clotting which would compromise the accuracy of the analysis. When asked if there was any way by visual examination of determining whether there was sufficient anti-coagulant in a phial he said:“If you look very closely at the tube you can probably just see a white powder in there before you add the sample but after it is virtually impossible.” It was the pathologist’s undisputed evidence that the only reasons why clotting could occur in the use of the blood test kit are (a) that there was no anti-coagulant in the phial, (b) the anti-coagulant was present but was not mixed with the blood, or (c) the blood in the phial had been exposed before testing to extreme temperatures.The Magistrate’s Judgment In his judgment the Magistrate found that there was no basis on the evidence before him to be able to decide why the police sample of the defendant’s blood was denatured. There was insufficient evidence to enable him to reach any conclusion. All he could say was that the police sample was denatured. He was unable to reach any conclusion in relation to the state of the defendant’s sample. He found that, in the absence of proof to the contrary, it was to be presumed that the concentration of alcohol indicated by the breath analysis was present in the defendant’s blood at the time of the analysis: s 47G(1). The prosecution was then entitled to the conclusive presumption in s 47G(1ab). The Magistrate considered that s 47G(8) had no application in the circumstances. He then considered whether he should exercise his general discretion to exclude the evidence of breath analysis on the ground of unfairness: R v Lobban (2000) 77 SASR 24. He declined to do so because the defendant had been given her sample and could have had it analysed.The Judgment on appeal

Decision

Reasons for decision

PERRY J WILLIAMS J

In his judgment the Magistrate found that there was no basis on the evidence before him to be able to decide why the police sample of the defendant’s blood was denatured. There was insufficient evidence to enable him to reach any conclusion. All he could say was that the police sample was denatured. He was unable to reach any conclusion in relation to the state of the defendant’s sample. He found that, in the absence of proof to the contrary, it was to be presumed that the concentration of alcohol indicated by the breath analysis was present in the defendant’s blood at the time of the analysis: s 47G(1). The prosecution was then entitled to the conclusive presumption in s 47G(1ab). The Magistrate considered that s 47G(8) had no application in the circumstances. He then considered whether he should exercise his general discretion to exclude the evidence of breath analysis on the ground of unfairness: R v Lobban (2000) 77 SASR 24. He declined to do so because the defendant had been given her sample and could have had it analysed.The Judgment on appeal On appeal to this Court the learned Judge considered that there was no evidence from which it could be inferred that the phial sent to State Forensic Science could have been subjected to an extreme temperature, and that indeed such exposure was “highly unlikely”. He held that it followed from the agreed fact regarding the taking of the sample by the medical practitioner that failure adequately to mix the sample with the anti-coagulant was excluded because the doctor complied with reg 11(b). He considered that the Magistrate should have concluded that the blood was denatured because there was no anti-coagulant in the phial. The blood test kit was therefore defective in a crucial respect and was therefore not “an approved blood test kit” in accordance with the Act and regulations. He therefore considered that there was a failure by the police officer to comply with s 47G(2a)(b) of the Act, although there was never any suggestion of fault on the part of the police officer. He held that the defendant was deprived of the benefit of the safeguard given to her by Parliament and was not able to challenge the result of the breath analysis test in the only way permitted by the Act and regulations. Because of the failure to comply with s 47G(2a)(b), but subject to consideration of the effect of s 47G(8), he considered that the presumption expressed in s 47G(1) did not apply: Taylor v Daire (1982) 30 SASR 453, King CJ at 463 and Wells J at 473. As to the provisions of s 47G(8), his Honour concluded that, as there was no evidence led from the medical practitioner as required by s 47G(8)(b), the decision in Taylor v Daire did not apply in the circumstances of this case, and that the presumption expressed in s 47G(1) therefore did apply. Nevertheless, he considered that there was an improper failure on the part of the Magistrate to exercise his discretion to exclude the evidence of the breath analysis in circumstances where the appellant had no way of challenging it. This was because, in the circumstances, when she received the certificate from State Forensic Science, it was not unreasonable for her to have accepted that the matter was at an end, and that it was very likely that her portion of the sample would also have been denatured. His Honour considered that the Magistrate wrongly proceeded on the basis that there was no reason to conclude that the defendant’s part of the sample had also denatured. In exercising the discretion afresh, the Judge concluded that the failure to provide an approved blood test kit suitable for its purpose meant that the defendant could not have a fair trial. The consequence was that the evidence of the breath analysis should be excluded.Consideration of the appeal

Ratio Decidendi

Legal Principle Established

Established by: PERRY J, WILLIAMS J

As to the provisions of s 47G(8), his Honour concluded that, as there was no evidence led from the medical practitioner as required by s 47G(8)(b), the decision in Taylor v Daire did not apply in the circumstances of this case, and that the presumption expressed in s 47G(1) therefore did apply. Nevertheless, he considered that there was an improper failure on the part of the Magistrate to exercise his discretion to exclude the evidence of the breath analysis in circumstances where the appellant had no way of challenging it. This was because, in the circumstances, when she received the certificate from State Forensic Science, it was not unreasonable for her to have accepted that the matter was at an end, and that it was very likely that her portion of the sample would also have been denatured. His Honour considered that the Magistrate wrongly proceeded on the basis that there was no reason to conclude that the defendant’s part of the sample had also denatured. In exercising the discretion afresh, the Judge concluded that the failure to provide an approved blood test kit suitable for its purpose meant that the defendant could not have a fair trial. The consequence was that the evidence of the breath analysis should be excluded.Consideration of the appeal Of the three possible reasons advanced in evidence by the pathologist as to why the sample could have become denatured, one of the possibilities was excluded by the agreed facts, namely that the medical practitioner had complied with the requirements of reg 11. That meant that the court could be satisfied that there had been an adequate mixing of the blood with the anti-coagulant, if it was present at all. That left two other possibilities, namely the absence or an insufficient quantity of coagulant in the test kit or exposure of the sample tested to extreme temperatures sometime between 5 and 9 May 2000. There was no evidence to exclude either of those possibilities. Likewise, there was no evidence to suggest that either had occurred. In those circumstances, in my opinion it was not open to the Judge on appeal to conclude that the sample, on the balance of probabilities, was not exposed to extreme temperatures, and that therefore there was an absence or insufficient quantity of anti-coagulant in the phial. While there was no evidence from which it could be inferred that the sample could have been subjected to extreme temperature, there was no evidence that it could not. Once can conceive a number of possible mishaps that might occur between the time of taking the sample and the time of its testing. It is therefore not possible to conclude by that process of reasoning that on the balance of probabilities the blood test kit supplied to the defendant was defective. Section 47G(7) of the Act provides:“(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.”Such a certificate was in evidence before the Magistrate. In the absence of proof to the contrary, there was therefore proof that the requirements of subsection (2a) were complied with and that an approved blood test kit was given to the defendant. There was no evidence given by the medical practitioner who took the sample of blood that he was unable to comply with the prescribed procedures. In fact, the inference to be drawn from the agreed facts is that he was able so to comply. The provisions of s 47G(8) could therefore have no application. It follows that the presumption required by s 47G(1) had to apply.