Parker v Police

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, the defendant subsequently disposed of the phial containing her portion of the sample of blood taken at the hospital without having the sample tested. She had kept it in her refrigerator. At the time, she was aware that she could be prosecuted up to six months after 5 May 2000.
Relevant legislation
Before turning to other evidence at the trial, it is necessary to refer to the relevant parts of the statutory scheme concerning proof of an offence against s 47B of the Act. Section 47G relevantly provides:
“(1)Without affecting the admissibility of evidence that might be given otherwise than in pursuance of 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.
(1a)No evidence can be adduced in rebuttal of the presumption created by subsection (1) except –
(a) evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I or in accordance with the procedures prescribed by regulation; and
(b) evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.
(1ab)If it is proved in proceedings that a concentration of alcohol was present in the defendant’s blood at the time of a breath analysis, it must be conclusively presumed that that concentration of alcohol was present in the defendant’s blood throughout the period of two hours immediately preceding the analysis.
(1b)No evidence can be adduced as to breath or blood alcohol reading obtained from a coin-operated breath testing or breath analysing machine installed in any hotel or other licensed premises.”
In this case the procedures referred to in subsection (1a)(a) were prescribed by regulation. Sub-section (2a) sets out the obligations relating to the provision of an approved test kit. It provides:
“(2a)Where 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.”
Subsection (8) is also of some significance. It provides:
“(8)A prosecution for an offence will not fail because of a deficiency of a kit delivered to the defendant in purported compliance with subsection (2a)(b) and the presumption under subsection (1) will apply despite such a deficiency unless it is proved –
(a) that the defendant delivered the kit unopened to a medical practitioner for use in taking a sample of the defendant’s blood; and
(b) by evidence of the medical practitioner, that the medical practitioner was, because of a deficiency of the kit, unable to comply with the prescribed procedures governing the manner in which a sample of a person’s blood must be taken and dealt with for the purposes of subsection (1a).”
Regulation 9 and Sch 1 Part A of the Regulations prescribe the oral advice which must be given for the purposes of s 47G(2a)(a) of the Act. So far as it is material for present purposes it includes the following:
“The breathalyser reading just taken shows that you had a prohibited level of alcohol in your blood.
Therefore, it appears that you have committed an offence against section 47B of the Road Traffic Act.
In any court proceedings for that offence, or for an offence against section 47 of the Road Traffic Act (driving under the influence of liquor), it will be presumed that the breathalyser accurately indicated your blood alcohol level at the time of the reading and for the preceding two hours. However, the Road Traffic Act allows for contrary evidence based on the results of a blood test.
If you want to have such a blood test you will have to make your own arrangements and follow certain procedures, using a special blood test kit. This blood test kit will be supplied to you on your signing a written request.
If you obtain a blood test kit and want to have your blood tested, you should take the kit promptly to a hospital or medical practitioner in order to have a sample of your blood taken.
…….
Under the blood test procedure, the sample of blood is divided and sealed in two containers. You will have to sign a form that will be given to you by the medical practitioner. …….
One of the sealed containers will be given to you and you may make your own arrangements to have the blood in the container analysed.
In any event, the blood in the other container will be analysed by State Forensic Science and you will be given written notice of the results of the analysis.
Further information as to these matters is contained in the written notice which will be delivered to you shortly.”
The written advice is specified in Part B of Sch 1. It contains a description of the offence against s 47B(1) of the Act and warns the recipient that it appears that an offence against the section has been committed. It then contains the following provision:
“Legal effect of breath analysis result
3.In proceedings for the offence described above or an offence against section 47(1) of the Road Traffic Act 1961 (driving under the influence of liquor), the result of the breath analysis will be presumed to accurately record the concentration of alcohol in your blood at the time of the analysis and throughout the preceding 2 hours (section 47G(1), (1ab)).
In any proceedings against you for such an offence, you will be able to challenge the accuracy of the breath analysis reading –
·If you have a sample of your blood taken and analysed as described below
AND
·If the result of analysis of the blood sample shows that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in your blood (section 47G(1a)).”
It then sets out the procedures to be followed for an optional blood test, including the following:
“8.You may, if you wish, have the blood sample (in the container delivered to you) analysed at a laboratory to determine the concentration of alcohol present in the blood.
9.The other blood sample container will, in any event, be sent to State Forensic Science where the blood will be analysed. The results of this analysis will be sent to you at your address (as indicated on the form presented to you by the medical practitioner …. who took the blood sample).”
Regulation 11 of the Regulations provides a number of procedures which must be followed in connection with the taking of blood and the voluntary testing of it. They include (par (c)) that each of the two containers must contain a sufficient quantity of blood to enable an accurate evaluation to be made of any concentration of alcohol present in the blood, and that the containers must be sealed: par (d). Paragraph (e) provides:
“(e)It is the duty of the medical practitioner to take such measures as are reasonably practicable in the circumstances to ensure that the blood is not adulterated and does not deteriorate so as to prevent a proper assessment of the concentration of alcohol present in the blood of the person from whom the sample was taken;”
Besides providing for relevant certificates, it requires that one of the sealed containers be given to the person from whom the sample was taken and one be delivered, with appropriate certificates, to a member of the police force who must in turn deliver the certificate and sample to State Forensic Science.
Paragraph (l) provides:
“(l)On receipt of the blood sample container and certificate at State Forensic Science, the blood in the container must be analysed as soon as reasonably practicable by or under the supervision of an analyst to determine the concentration of alcohol present in the blood expressed in grams in 100 millilitres of blood;”
The regulation also provides for a copy of the analyst’s certificate to be sent to the person from whom the blood sample was taken. Finally, par (q) provides:
“(q)The person from whom the blood sample was taken may cause the sample of blood as contained in the blood sample container delivered to that person to be analysed to determine the concentration of alcohol present in the blood.”
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
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
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.

However, even if it were possible to conclude that the phial containing the blood sample sent to State Forensic Science did not contain anti-coagulant, there was no basis to find that on the balance of probabilities the same applied to the phial of blood given to the defendant. There was no evidence to suggest that that phial contained no anti-coagulant, nor is there any reason to infer that because one phial did not, the other did not also. There was therefore no reason to find that the sample in possession of the defendant had also denatured.
One of the purposes behind the elaborate provisions of s 47G of the Act and the supporting regulations is to ensure that a defendant who is required to submit to a breath analysis under s 47E of the Act is afforded every opportunity to dispute the breath analysis reading. If the taking of a blood sample is requested, one of the phials from the approved breath testing kit is submitted to State Forensic Science for analysis as a matter of course. However, that

reading itself, as well as the breath analysis reading, might be disputed by the defendant. The defendant is given the other half of the sample to enable an independent test to be carried out on the instructions of the defendant in circumstances where the only evidence that may rebut the presumption contained in s 47G(1) is either evidence of the result of the blood analysis performed on the sample, or evidence that the breath analysing instrument gave an exaggerated reading (s 47G(1a)).
Ignorance of that presumption and of the means of rebutting it is no excuse. However, the oral and written advice given in accordance with s 47G(2a)(a) and Sch 1 of the regulations makes it quite clear to a defendant that one of the only ways of rebutting the presumption arising from the breath test is by way of the blood analysis which the defendant is then able to have undertaken. It is but a short step to realise that if one test is inconclusive, much may depend on an analysis of the one remaining part of the sample.
I do not consider that the defendant was misled by what she was told or by what she received from State Forensic Science. She was aware that she was still open to prosecution. She should have been aware that she held the key to any possible rebuttal of the presumption arising from the breath analysis. Nor do I consider that there are any grounds for interfering in the exercise of the Magistrate’s discretion not to exclude the evidence of the breath analysis. There were no grounds which would have justified him doing so. There was no unfairness in the trial.
In Singh v Police [2000] SASC 114 Martin J dealt with an analogous situation where there had been a failure of the medical practitioner to follow the procedure required by reg 11. Instead, he followed the procedure specified in s 47I relating to compulsory blood testing. That section also required a sample to be taken and divided, with one-half being made available to the defendant. The defendant’s sample had always been available to the defendant, but had never been collected, including at the time of trial. Martin J said, at [28] – [29]:
“A defendant who is deprived of the opportunity of having a sample of blood taken is in a different position from the appellant. As previously discussed, one half of the appellant's sample had been analysed by Forensic Science and the appellant knew the result of that analysis. The appellant could have led evidence before the Magistrate of the result of that analysis for the purpose of demonstrating that, if admissible, that result would have assisted a challenge to the presumption. The appellant could also have led the results of that analysis before this Court if he had wished to do so. In addition, the appellant had the opportunity of taking simple and inexpensive steps to have his share of the sample independently analysed with a view to demonstrating that, if the result had been admissible, there was a reasonable prospect that the result of the analysis would have assisted a challenge to the

presumption. During the course of submissions I intimated that I would receive favourably an application to call evidence concerning analysis of the blood sample, but the appellant elected not to pursue that opportunity. It is obvious that no unfairness would have been caused by the inability of the appellant to lead evidence of an analysis of the blood if the result of the analysis would not have assisted in challenging the presumption.
Generally speaking, a burden rests upon the person seeking the exercise of a discretion to exclude evidence to persuade the court that the discretion should be exercised. What is required of the person affected in that regard will vary with the circumstances, but where the person affected has the opportunity to positively demonstrate the existence of unfairness or the realistic possibility that unfairness exists without incurring undue inconvenience or cost, it is not unreasonable to expect that some attempt will be made to do so. The appellant has chosen not to pursue that course. In the particular circumstances, in my view the relevant unfairness should not be assumed.”
It was always open to the defendant in this case to have her sample tested. She chose, perhaps on bad advice from friends, not to do so. She deprived herself of the opportunity of rebutting the presumption. Of course, if, despite careful handling and storage, her part of the sample had also denatured, that might have led to other inferences being drawn about the adequacy of the test kit, and to a consideration as to whether, in those circumstances, she would be denied a fair trial. However, that is not this case.
Conclusion
I would allow the appeal. I would set aside the orders of the single Judge and reinstate the conviction sentence and orders of the Magistrate’s Court. I would remit the matter to the Magistrate’s Court sitting at Mt Barker for the purpose of determining the date of commencement of the period of disqualification of the respondent from holding or obtaining a driver’s licence. I would hear counsel as to the costs of the appeal and of the appeal from the Magistrate’s Court to the single Judge.

[2002] SASC 256

8 August 2002