Perham v Police No. Scciv-00-1201

PERHAM v POLICE
[2001] SASC 66

Magistrates Appeal (Criminal)

OLSSON J

Introduction

This is an appeal against the conviction of the appellant on a charge that, on 28 August 1997 at Bedford Park, he drove a motor vehicle on a road while there was present in his blood the prescribed concentration of alcohol, as defined in s 47a of the Road Traffic Act, 1961. It was alleged that the actual concentration in the appellant’s blood was 0.150 grams in a hundred millilitres of blood.
The core issue as to merit arising at trial was as to whether or not the appellant had demonstrated, on the balance of probabilities, that a breath analysis result which indicated the above concentration was unreliable. The learned stipendiary magistrate who presided at trial, in a carefully reasoned and definitive decision, held that the appellant had not discharged his onus of demonstrating that the breath analysis result was unreliable. He recorded a conviction against the appellant.

The narrative facts

The core narrative facts were never in dispute.
At about 3.21 am on 28 August 1997 the appellant was driving a motor vehicle in a southerly direction along South Road at Bedford Park. A police patrol stopped the vehicle when it was observed that the rear lights were not operating and one tyre was flat.
The appellant was requested to submit to an alcotest. This gave a positive result. He was then conveyed to the Sturt Police Station and required to submit to a breath analysis. This was administered at 3.53 am. The breath analysing instrument indicated that, at that time, the appellant had an alcohol concentration of 0.150 grams in a hundred millilitres of blood - ie well in excess of the prescribed amount.
It was never in dispute that, at the time of and after the test, the police complied with the formal requirements of s 47G of the Road Traffic Act.
At the request of the appellant, the police officer who carried out the breath analysis delivered to him an approved blood test kit. A medical practitioner at the Flinders Medical Centre took a blood sample from the appellant at 5.30 am. When later analysed this contained not less than 0.099 grams of alcohol per hundred millilitres of blood.
There was no evidence before the court as to precisely what alcohol had been consumed by the appellant prior to being stopped by the police. He did not give evidence at trial.
It was common ground that, between 1.30 pm and 2.30 pm on 25 February 1998 (ie some six months after the alleged offence) the appellant underwent what was described as an “assay” test. He consumed five schooners of beer and a cocktail of Sambucca and Galiano. He then remained in an unoccupied consulting room of a medical practitioner for the whole of the period from 3.00 pm to shortly after 6.00 pm. During that time he read or slept.
Blood samples were taken from him at 3.05 pm, 4.05 pm, 5.05 pm and 6.05 pm respectively. Upon analysis these returned the following results:-
Time Concentration Alcohol Elimination
Rate

3.05 pm  0.124   N/A
         4.05 pm  0.106  0.018
         5.05 pm  0.087  0.019
         6.05 pm  0.071  0.016

Issue at trial

There was only one issue to be addressed at trial. Its resolution depended on the view taken by the learned magistrate of the effect of conflicting opinions of a medical witness called by the appellant and two expert witnesses called by the prosecutor.
The learned magistrate was called upon to decide whether the appellant had, by the evidence tendered and led by him, proved, on the balance of probabilities, that the reading indicated by the breath analysis instrument was “exaggerated” (s 47G(1a)(b)) ; and that, accordingly, the statutory presumption arising on issue of certificates tendered pursuant to s 47G(3) and s 47G(5) of the Road Traffic Act had been rebutted. If so, the prosecution necessarily failed.
As I understand the material before me, the essential thrust of the defence case, as presented, may be summarised thus:-
The difference between the breath analysis result and the blood test analysis result was of the order of 0.051 per grams per cent over a period of 1 hour and 37 minutes. This was equivalent to an elimination rate of the order of 0.028 grams per cent per hour.
This contrasts with what is said to be a “normal” range of 0.15 - 0.02 grams per cent per hour.
It also contrasts with the appellant’s “assay” test performance on 25 February 1988, which fell neatly within the “normal” range.
The alcohol elimination rate of each individual generally remains relatively constant over a period of time and varies only by relatively trivial amounts.
The breath analysis result was therefore exaggerated and patently unreliable. It should be rejected.

A conflict of medical and expert opinion

The appellant’s contentions were based on the evidence of Dr McCleave, a highly experienced police medical officer, who has conducted fairly extensive literature research into alcohol absorption and elimination rates. His theses, or at least some of them, were challenged by the prosecution witnesses Professor Miners, Chief Pharmacologist at the Flinders Medical Centre and Professor of Clinical Pharmacology at the Flinders University Medical School and Mr Lokan, the Assistant Director of Operations at the Forensic Science Centre. Mr Lokan holds the degree of Master of Science and has expertise in blood alcohol count back computations. These witnesses based their evidence on both literature research and statistics arising from clinical tests.
In the course of his reasons for decision the learned special magistrate embarked upon an in-depth review of the evidence given. I do not find it necessary to descend to the same depth in these reasons.
It seems to me that, distilled to the essence, Professor Miners and Mr Lokan parted company with Dr McCleave upon several key points. Those which are critical for present purposes are:-
The prosecution experts joined issue with the thesis that an individual’s alcohol elimination rate does not vary over time by more than trivial amounts. Professor Miners said that it was possible that an individual’s elimination rate could vary from one episode of drinking to another. It was dependent on aspects such as food intake, general health, general disposition, rate of ingestion of alcohol and other factors.
Whilst it is true that the vast majority of individuals show elimination rates in the range 0.01 - 0.02 per hour, there are a significant number of individuals who have much higher or lower rates.
An individual’s elimination rate can change significantly over time. Professor Miner testified that the enzymes that break down ethanol are influenced by a whole host of factors which affect the rate of metabolism. He did not regard a difference from 0.0177 to 0.0278 over time as being out of the realm of reasonable possibility.
The “assay” test exercise conducted on 25 February 1998 was not necessarily an accurate guide for present purposes, for two reasons.
First, it did not appear that the alcohol which had been ingested had been fully absorbed at the time when the test began. This rendered the resultant figures unreliable.
Second, it was clear that, on the lastmentioned date, the appellant did not ever ingest sufficient alcohol to achieve the level of concentration which appeared to have been present on the occasion of the offence. Alcohol elimination rates vary with blood alcohol concentration. Those variations can be considerable at certain levels. A reliable “assay” comparison mandates the existence of a similar concentration at the commencement of the test. Moreover, a subject’s elimination rate does not necessarily remain constant over the whole period of elimination. The witness Lokan said that he had seen a number of blood alcohol curves where it was apparent that the elimination rate of an individual had changed over a three or four hour period.

The conclusion of the magistrate

It is fair to say that, while the learned magistrate acknowledged the experience of Dr McCleave, he felt that the credentials, research experience and expertise of the prosecution experts in this highly specialised and technical field were of a higher order. He was plainly persuaded by their evidence, which he accepted, that the appellant had not been able, by the evidence on which he relied, to demonstrate on the balance of probabilities that the differences in the various results relied upon indicated that the breath analysis reading was exaggerated and unreliable or suspect as to its accuracy. He therefore held that the presumption created by s 47G(1) had not been rebutted and convicted the appellant.

The course of the trial

A major strand of the grounds of appeal is that it is said that the conduct of the prosecution case, as permitted by the learned magistrate, was such as to breach the requirements of Rules 8 and 26 of the Magistrates Court Rules 1992, take the appellant by surprise and give rise to an unfair trial.
The evidence discloses that, on 1 June 1998, full details of the defence case, including copies of the “assay” results and a report of Dr Ross James on them were supplied to the prosecution. Although the case was first listed for trial on 31 August 1998, it was adjourned on a number of occasions to await the decision of a Full Court in Police v Shelmerdine (2000) 207 LSJS 159. That case focused on what was meant by the word “exaggerated”, as used in s 47G(1a)(b) of the Road Traffic Act and the type of evidence which could properly be led to challenge a breath analysis reading.
On 5 April 2000, following publication of the lastmentioned decision, the prosecution initiated steps to have this case listed for trial. It actually proceeded to trial on 10 July 2000 before the learned magistrate.
When the matter was called on, counsel for the appellant formally admitted that, at 3.21 am on 28 August 1997 at Bedford Park, the appellant drove a motor vehicle on a road, namely South Road, as averred in the complaint.
The prosecutor then tendered a series of certificates pursuant to the provisions of s 47G of the Road Traffic Act and a notice published in the Government Gazette on 24 March 1994 relating to the approval of the Dragar 7110 equipment. He thereupon closed his case.
Counsel for the appellant then opened his case, tendered certificates as to the blood taken from his client at 5.30 am on 28 August 1997 and of the analysis of it and reports relating to the subsequent “assay” test results. He called Dr McCleave to give evidence based on the data before the court and its significance, following which he closed his case.
At that point the prosecutor sought an adjournment and leave to call expert evidence in rebuttal of that given by Dr McCleave. Counsel for the appellant objected to such a course. The learned magistrate adjourned the matter over until 13 July 2000, for a ruling on the objection.
On that date the learned magistrate granted leave to the prosecution to call the proposed evidence. The endorsement on the file says “Ruling delivered”, although there does not appear to be any transcribed record of what may have been said.
Be that as it may, the endorsements on the summons indicate that, on 13 July 2000, the learned magistrate ordered that the prosecution obtain reports from Professor Miners and Mr Lokan and disclose and produce them to counsel for the appellant, on or before the close of business on 4 August 2000. He directed that the reports contain an outline of the evidence which each witness proposed to give, with references to any studies, reports, articles or research papers to which they proposed to refer, or on which they relied.
The learned magistrate also gave directions designed to ensure that counsel for the appellant and Dr McCleave had timely access to any such documents, which were not otherwise readily available to them.
The case was adjourned to 11 August 2000 for mention, when it was relisted for trial on 12 September 2000. The two prosecution experts were duly called on that date and examined and cross-examined.

Respondent’s Notice of Contention

Prior to the hearing of the appeal the respondent gave written notice that it proposed to contend that Dr McCleave was not an expert in relation to the rate of elimination of alcohol from the human body and the factors that may or may not bear upon the rate of elimination generally, or in respect of a particular individual. It was said that to the extent that his “evidence trespassed into this area it was inadmissible”.
The transcript of evidence does not indicate that any such objection was advanced at trial.

The issues debated on appeal

I first turn to the cross appeal, merely to clear away the issue arising from it. It is patent that, until the morning of the trial, the prosecutor was unaware that the defence proposed to call Dr McCleave, in lieu of Dr Ross James, as originally envisaged. However, it was plain that, although there was to be a change of witness due to some internal ethical problems with the Forensic Science Centre, the evidence to be given was essentially the same.
Undoubtedly, in terms of expert qualification, the backgrounds of the two doctors differed to some extent, but they were both well known to anyone routinely appearing in blood concentration and other forensic settings. Both were, of course, medical practitioners, rather than pharmacologists. Dr James is a very experienced pathologist and has collaborated with others in the conduct of certain clinical trials dealing with blood alcohol concentration, as appears from documentation which was tendered at the trial.
However, for present purposes, the critical feature to be borne in mind is that, when Dr McCleave was called by the defence and evidence sought to be led from him concerning the matters in issue in this case, no objection was advanced by the prosecutor on the basis of his lack of proven relevant expertise. He was permitted to give evidence, on the matters testified to by him, as a duly qualified expert witness. The prosecutor cross examined him at length as to the opinions which he expressed.
As Kirby J reiterated in Suresh v The Queen (1998) 153 ALR 145 at 159, a litigant will normally be held to the manner in which it conducted its case at trial, in both the civil and criminal jurisdictions. Where evidentiary material is admitted without objection and is relevant to an issue, even although objection could have been taken to it in the form tendered or led, then it becomes evidence which may be considered in the case (Skaventzos v Vander-Lee [1974] 8 SASR 33 at 40, Ritz Hotel Ltd v Charles of the Ritz Ltd & Anor (1988) 15 NSWLR 158 at 169). The conceptual reasoning and certain of the authorities adverted to in my judgment in Casley-Smith & Ors v F S Evans & Sons Pty Ltd & District Council of Stirling (No 2) (1988) 49 SASR 332 are apposite. (See also discussion in Cross on Evidence, South Australian Edition, par 1645-1680.)
The evidence of Dr McCleave, having been admitted without objection, was plainly relevant to the issues in the case. It was therefore a question of the weight which ought, properly, to be attached to it. I see no relevant distinction in principle between hearsay and opinion evidence in this regard, especially where, as here, it is plain that Dr McCleave, had some apparent level of knowledge and experience in the area.
Having made that point, it seems to me that, in any event, the notice of contention must be rejected for other reasons. It seeks to raise, in a most belated fashion, an issue which, at the election of the respondent, was never agitated at the trial. No challenge ever having been mounted to Dr McCleave’s status as an expert, steps were not taken to really explore his qualifications and experience in depth in a manner relevant to the question now raised. Equally, the appellant was not put on notice that Dr McCleave’s status was being questioned. This not only limited the degree to which he was formally qualified in evidence in chief as an expert, but also, has given rise to a situation in which, if the respondent is now permitted to agitate the issue, the appellant has effectively been denied an opportunity of seeking and leading other expert evidence on the topic.
The respondent must plainly be held bound to its conduct at trial. Its notice of contention cannot fairly be entertained.
I therefore turn to the other topics debated on the appeal.
A key submission of the appellant was to the effect that the learned magistrate erred in ruling that the prosecution was entitled, in the circumstances as they developed, to call rebuttal evidence.
As the present appeal is by way of rehearing, I permitted the respondent to give oral evidence before me as to his conduct of the prosecution case. He was duly cross examined by counsel for the appellant.
The prosecutor, Sgt Laganin, presented as an impressive and entirely candid witness. I have no hesitation in accepting the substance of his testimony. The key points of his evidence may be summarised as follows:-
He is regarded as the police “expert” prosecutor in PCA cases, and prosecutes most of them in the metropolitan area, when they are defended;
He has carried out a good deal of relevant background research and is fairly familiar with the relevant studies and published papers on the topic, as well as the key issues which tend to arise;
It was his initial understanding that the defence proposed to call Dr James to give evidence in conformity with the report given by him (exhibit D5), a copy of which had been supplied by the defence to the prosecution. Because of the prosecutor’s awareness of a study by a person called Haffner, he proposed to challenge, by way of cross examination, certain aspects of what Dr James had written. He therefore spoke, informally, first with Mr Lokan and then (at his suggestion) with Professor Miners, in preparation for that cross examination, to verify the validity of his proposed approach;
At that time he did not seek or receive any written report from these persons, nor did he propose to call either of them as a rebuttal witness;
It was not until the eve of the trial that the prosecutor was told that Dr McCleave would be the defence witness, in lieu of Dr James. He was not given a copy of any report by or proof of evidence of Dr McCleave.
The prosecutor concluded, for the first time, when he was about half way through the cross examination of Dr McCleave, that there were certain propositions which the latter was propounding which caused him to realize that he would need to call expert evidence in rebuttal. Salient among these were issues as to the validity of the blood elimination assay test and the propositions sought to be based on it;
It was for that reason that, when the defence closed its case on conclusion of the evidence of Dr McCleave, the prosecutor sought an adjournment and leave to call rebuttal evidence;
Prior to doing so the prosecution had not sought any formal reports, nor obtained formal proof of evidence, from either Professor Miners or Mr Lokan; and
The prosecution had not previously advised the defence of any intention to call those witnesses because a firm intention to do so had not been arrived at. Further, the precise evidence which they could give had not been ascertained.
In short, it simply could not fairly be said that there was any guile on the part of Sgt Laganin in what he did.
Particularly bearing that evidence in mind, it seems to me that any possible basis for asserting procedural unfairness necessarily dissipates.
The essential triggering mechanism for what actually occurred was the last minute decision to replace Dr James with Mr McCleave. That having occurred, the prosecutor was, in a sense, caught in a situation in which he had to revise his strategy in light of an evolving evidentiary situation which he could, scarcely, have foreseen.
At the point when he sought the adjournment and advised his intention of seeking and calling expert rebuttal evidence, it must have been apparent to counsel for the appellant that the theses advanced by Dr McCleave were being challenged and that the prosecution was seeking an opportunity of calling rebuttal expert evidence as the basis for making those challenges good. That having been signalled, it was open to the defence, itself, to apply for an adjournment to enable it to seek expert advice and, if necessary, re-open the defence case to supplement the testimony of Dr McCleave. It did not do so.

Mr Algie, of counsel for the appellant, sought to counter such a suggestion by contending that the prosecution had not by then, clearly enough signalled its proposed approach. He actually asserted that there had been a breach of the principle espoused in Browne v Dunn (1894) 6 R 67, in that the propositions espoused by Professor Miners and Mr Lokan had not positively been put to Dr McCleave in cross examination.
Quite apart from the fact that the prosecutor did, fully and fairly, put his concerns to Dr McCleave, as they existed in his mind, the fallacy in Mr Algie’s contention is that one cannot put in cross examination other than those aspects of which you are aware at the time. Prior to going back to the two rebuttal witnesses after closure of the defence cases, the prosecutor had not ascertained precisely what rebuttal evidence was obtainable.
The principle of Browne v Dunn does no more than require proper disclosure, by cross examination, of contrary evidence of which the other side is currently aware and which it positively proposes to lead. The developing situation in the instant case did not give rise to that type of scenario, as I have already demonstrated.
It must, in any event, be emphasized that, when the learned magistrate indicated that he proposed to give leave to the prosecution to call rebuttal evidence, he went to considerable pains to require it, first, to obtain written reports from the proposed witnesses and then disclose them to the defence a week prior to the resumed hearing. It will be recalled that copies of any studies or articles relied on by the proposed witnesses were to be provided, unless they were otherwise readily available.
The case was next called on for mention and a resumed trial date fixed a month later again.
It follows that there was more than ample time for the defence to consider the detail and implications of the proposed rebuttal evidence long before it was called. Equally, there was ample opportunity for the defence to seek time to conduct further assay tests, procure other relevant expert evidence should it wish to do so and to seek leave to reopen its case if it desired to do so. It elected to do none of those things.
Frankly, I fail to see how it could reasonably be suggested that the appellant was caught by surprise.
I see no basis on which the approach of the learned magistrate in this regard can be faulted. That aspect of the appeal necessarily fails.
Next it was argued that, at the end of the day, the state of the evidence was such that the learned magistrate ought to have concluded that the defence had discharged its onus of proving that, on the balance of probabilities, the breath analysis equipment had produced an exaggerated reading.
As I understood his submissions Mr Algie argued that, on the one hand Dr McCleave identified the various criticisms of the breath analysis reading (in light of the assay tests) which I have above identified, but, on the other, Professor Miners and Mr Lokan did not ever assert that the breath analysis result was correct. He said that what they contended amounted to mere carping criticisms, from a strictly scientific viewpoint, and pointed to what were no more than possible bases of criticism of the validity of the blood assay procedure actually undertaken.
Mr Algie pointed out that the decision of the Full Court in Police v Shelmerdine (2000) 207 LSJS 159, read together with the decision in Evans v Benson (1986) 46 SASR 317, limit the type of evidence which may be led by a defendant. The degree of scientific certainty sought by Professor Miners is, in practical terms, never likely to be available. Moreover, certain aspects of his evidence reflect only on what are possibilities, rather than probabilities. So it was contended that the rebuttal witnesses were approaching the matter on the basis of a need for evidence of exaggeration with a degree of certainty far in excess of that required for proof on the balance of probabilities. The learned magistrate was, Mr Algie said, led along an incorrect path of assessment by that approach.
A criticism was also advanced that Professor Miners simply assumed that, on the occasion of the assay, the appellant was still in the absorption phase, whereas there was no evidentiary basis for arriving at such a conclusion.
Moreover, he contended that insufficient weight was attributed to exhibit P7, which tended to support Dr McCleave’s reasoning. The rebuttal witnesses did not ever direct attention to any emperical studies which disclosed variations as wide as those exhibited by the appellant, as between the readings on the night of the alleged offence and those when the blood assay was carried out.
It was also argued that the results of the studies set out in exhibit D6 strongly supported Dr McCleave’s reasoning.
In summary it was said that there were no expressed, compelling reasons for rejecting the evidence of Dr McCleave.
Mr Hinton, of counsel for the respondent, submitted that the foreoing criticisms of the evidence of the rebuttal witnesses accorded less than justice to them in relation to their reasoning, based as it was on scientific studies. He argued that the rebuttal evidence, in its totality, undermined the safety with which the learned magistrate could draw the inference, that, on the night of the alleged offence, the appellant’s elimination rate was probably of the order of 0.0177; and that the breath analysis reading was therefore probably exaggerated.
As he put it, whether or not one can safely conclude, on the balance of probabilities, that the appellant’s elimination rate fell within the “average” range on the night of the alleged offence, rather than that computed from the blood test on the night of the alleged offence, depends on an assumption that there was no change in the elimination rate over time up to the date of the assay.
His answer to Mr Algie was that, on the whole of the evidence, there was no satisfactory basis from which to infer that the blood assay result truly reflected what occurred on the night of the alleged offence. That being so, the learned magistrate was justified in concluding that the defence had not discharged its evidentiary onus of proof.
In my view this is correct. On the one hand, Dr McCleave, whose expertise was much less than that of the rebuttal witnesses proffered one thesis. On the other, the rebuttal witnesses responded that, in absence of a more appropriately based assay, there were serious doubts about the validity of that proposition. They advanced reasons of substance to support that contention. The state of the evidence was ultimately such that the learned magistrate was reasonably entitled to conclude that he found Dr McCleave’s opinion insufficiently compelling so as to cause him to conclude that, on the balance of probabilities, the breath analysis reading was exaggerated to the point that it could not be relied upon to warrant a conviction.
Accordingly this aspect of the appeal also fails.
The appeal must therefore be dismissed as to the first four grounds.
As intimated at the hearing, I will hear counsel further as to the ground of appeal related to the order made as to costs in the court below.

[2001] SASC 66

15 March 2001