Police v Adams - [2011] SASC 155

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v ADAMS
[2011] SASC 155
Judgment of The Honourable Justice Stanley
29 September 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE - BREATH TEST AND ANALYSIS
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - PROOF OF PARTICULAR MATTERS AND RELATIONSHIPS - BREATH ANALYSIS TESTS
Police appeal against conviction and sentence – respondent found guilty of driving without due care or attention – charges of aggravated driving without due care and driving while prescribed concentration of alcohol in blood were dismissed – respondent’s blood sample taken over two hours after the offending driving – scientific evidence led as to the likely blood alcohol concentration at the time of the offending driving – whether the magistrate erred in finding there was a reasonable doubt as to the respondent’s blood alcohol concentration – whether the magistrate erred in dismissing the other charges.
Discussion of the Court’s power to amend the complaint – whether the Court has the power to amend the complaint to a Category 1 offence when the respondent has not been able to expiate the offence under s 47B(5) of the Road Traffic Act 1961 (SA).
Held: appeal allowed – magistrate failed to properly assess the evidence - scientific evidence of blood alcohol concentration should be considered with regard to other evidence – magistrate erred in finding there was a reasonable doubt – conviction set aside - respondent found guilty of aggravated driving without due care and category 2 driving while prescribed concentration of alcohol in blood – matter remitted to the magistrate for sentencing.
Road Traffic Act 1961 (SA) s 45, s 45(3)(b)(iii), s 47A, s 47B, s 47B(1)(a), s 47B(1)(a)(i), s 47B(5), s 47I, s 47K(13); Road Traffic (Miscellaneous) Regulations 1999 (SA) Schedule 9; Summary Procedure Act 1921 (SA) s 52, s 22A, s 181; Expiation of Offences Act 1996 (SA), referred to.
Hayes v Kenning [1992] SASC 3616, discussed.
Taylor v Hayes (1990) 53 SASR 282; Laurie v Nixon (1991) 162 LSJS 16; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272-273, 275, 280, 290; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423, per McHugh JA, approved in Bropho v Western Australia (1990) 171 CLR 1 at 20; L V Dohnt & Co Pty Ltd v Chambers (2009) 106 SASR 48; WGC v R (2007) 233 CLR 66; R v VHP Unreported, New South Wales Court of Criminal Appeal, 7 July 1997; Godbee v Samuels (1973) 5 SASR 236; Kyriakopoulos v Police [2006] SASC 71; Crotty v Police [2008] SASC 308; Ireland v Police [2005] SASC 202; Ayles v The Queen (2008) 232 CLR 410; Wellington v Police (2009) 105 SASR 215; Crafter v McKeough [1943] SASR 371; Camilleri v Wilkinson (1983) 35 SASR 270; Schultz v Pettit (1980) SASR 427, considered.

POLICE v ADAMS
[2011] SASC 155
Magistrates Appeal
STANLEY J:
Introduction

The respondent, Jason Adams, was charged with a number of motor vehicle offences which were alleged to have occurred on 22 May 2010 at Seaford Rise. At trial he contested two of those charges, namely, aggravated driving without due care or attention contrary to s 45 of the Road Traffic Act 1961 (SA) (the Act), and driving while there was the prescribed concentration of alcohol in his blood contrary to s 47B of the Act.
Following a trial before a magistrate the respondent was convicted of a contravention of s 45 for driving a vehicle without due care or attention or without reasonable consideration for other persons using the road (“driving without due care”). The charges of aggravated driving without due care and driving while there was the prescribed concentration of alcohol in his blood, contrary to s 47B, were dismissed.
The police have appealed the dismissal of these charges.
Background
At approximately 3:10 am on Saturday, 22 May 2010 the respondent was the driver of a Ford utility, owned by him, which was driven into the wall of a residential dwelling at the junction of Harbour Drive and Grand Boulevard, Seaford Rise.
At the scene the respondent was questioned briefly by a police officer at approximately 3:30 am. He was then taken to the Noarlunga Hospital. A blood sample was taken from the respondent at 5:40 am. It returned a reading of 0.152 grams of alcohol in 100 millilitres of blood.
The blood sample was taken pursuant to the powers conferred by s 47I of the Act.
Section 47K(13) creates a statutory presumption that the blood alcohol reading recorded pursuant to the powers exercised under s 47I is proved conclusively in respect of the period of two hours immediately preceding the taking of the sample.
By reason of the fact that the sample was taken in this instance some two and a half hours after the driving the subject of the charges brought pursuant to s 45 and s 47B of the Act, the police were not able to avail themselves of the presumption provided by s 47K(13).
The police case was that the respondent’s driving constituted an aggravated offence of driving without due care on the basis that the offence was committed in circumstances where there was present in the respondent’s blood a concentration of 0.08 grams or more of alcohol in 100 millilitres of blood. The police relied upon the provisions of s 45(3)(b)(iii).
The particulars of the offence charged pursuant to s 47B(1)(a) of the Act were that it was alleged that the respondent had driven a motor vehicle while there was present in his blood 0.152 grams of alcohol in 100 millilitres of blood.
Accordingly, the police were required at trial to prove beyond reasonable doubt that at the time of the relevant driving, namely, approximately 3:10 am, the respondent had in his blood a concentration of 0.08 grams or more of alcohol in 100 millilitres of blood in order to prove that the contravention of s 45 was an aggravated offence.
For reasons which I will explain later, in my view, the police were also obliged to prove, beyond reasonable doubt, that the respondent had in his blood a concentration of more than 0.08 grams of alcohol in 100 millilitres of blood before he could be convicted of a contravention of s 47B of the Act.
Relevant evidence at trial
At trial, evidence was adduced by the police from a forensic scientist, Mr Chris Kostakis, two police officers, Senior Constable Furse and Senior Constable Hunt, and a number of lay witnesses who made observations of the respondent on the evening of 21 May 2010 or the early hours of the morning of 22 May 2010.
David Ellis gave evidence by way of affidavit that some time in the evening of Friday, 21 May 2010 he and the respondent attended the Seaford Tavern. They were there for the majority of the night. He thought the respondent was drinking alcohol. Mr Ellis was not. He said they left the tavern late in the evening. They returned to his house. He could not recall if the respondent drank alcohol there. They then walked to the respondent’s home a short distance away. He then drove the respondent in the respondent’s utility to a house at Harbour Drive, Seaford Rise. The house was occupied by Narissa Hayles and Emma Stopp. When they arrived, Ms Hayles and Ms Stopp were present together with Ms Stopp’s boyfriend, Kane Goldsmith. Mr Ellis and the respondent were there for a while. Mr Ellis said he did not drink at the Harbour Drive residence and he could not recall if the respondent did.
Ms Hayles gave evidence by affidavit that she was home at her residence at Harbour Drive, Seaford Rise, when some time after 1:30 am on 22 May 2010 Mr Ellis arrived with the respondent. They had beers with them when they arrived. They were there for about an hour and were drinking during that time. Ms Hayles asked the respondent to leave after he made unwanted advances towards her. She said that the respondent did not appear to be drunk. She said he left in a disgruntled mood. Shortly thereafter she heard a car engine start at the front of the house and a screech of tyres. A short time later she heard a very loud burnout, and then a loud bang. She went outside and saw the respondent’s Ford utility had hit a house down the road.
Kane Goldsmith gave evidence by affidavit that he was in bed at the Harbour Drive residence when Mr Ellis and the respondent arrived. At about three or four o’clock in the morning he was woken by the sound of someone leaving through the front door of the house. He heard a car start, followed by a burnout. Shortly thereafter he heard the sound of an engine revving and tyres screeching, followed by a loud bang. He went outside the house. He saw the respondent running towards the house. He spoke to the respondent. He told him to leave the premises. Shortly afterwards he observed the respondent speaking to people in the street. He considered the respondent was hysterical and appeared drunk. He considered the respondent could barely speak.
Senior Constable Furse gave evidence at trial. He said he attended at the scene of the collision at Harbour Drive, Seaford Rise, at about 3:30 am on 22 May 2010. He spoke to the respondent briefly at the scene. The respondent advised him he was the owner of the Ford utility. The respondent told him he felt dazed and was not sure what had happened. Senior Constable Furse observed the respondent had slurred speech. The respondent told the police officer that he had been drinking. The officer did not recall observing any obvious injuries on the respondent. He concluded that the respondent was intoxicated. Under cross-examination he conceded it was possible that his observations may have been attributable to the respondent suffering concussion.
On Friday, 18 June 2010 Senior Constable Furse interviewed the respondent at the Aldinga Police Station. He made a record of the interview which became Annexure B to his affidavit of 22 December 2010, which was tendered at trial as exhibit P13. The record of interview records the respondent saying that he had not been injured in the collision and that he had been drinking at the Seaford Tavern the night before. The record of interview records the respondent as saying that he had his first drink at around 10 pm. He was drinking vodka pre-mix, being “300 ml Smirnoff”. The respondent claimed he had four of these drinks.
There was no evidence of the respondent having suffered a concussion. There was evidence of him having suffered a laceration to his left arm in the collision.
The respondent did not give evidence at the trial.
Expert evidence
At trial the forensic scientist, Mr Kostakis, gave evidence. A report prepared by him was tendered in evidence as Exhibit P12. In preparing the report he made the following assumptions:
1that the collision had occurred at 3:10 am on 22 May 2010;
2that the blood sample of the respondent was taken at 5:40 am on the same day;
3that the blood sample taken produced a result of 0.152 grams of alcohol in 100 millilitres of blood;
4that no alcohol was consumed by the respondent following the collision.
In his report Mr Kostakis addressed two discrete scenarios. First, his calculation of the respondent’s blood alcohol reading if the collision had occurred immediately after his drinking had concluded and, secondly, his calculation of the respondent’s blood alcohol reading at the time of the collision if it had occurred more than one to two hours after the conclusion of his drinking.
On appeal the appellant submitted that the second scenario was irrelevant as it was inconsistent with the evidence of the witness Hayles. That proposition was not contested by the respondent.
In his report Mr Kostakis developed the following propositions based on the first scenario:[1]
1.1Assuming a steady drinking pattern, 40 minutes for the time taken to achieve the blood alcohol concentration maximum, a rise of 0.03% in blood alcohol concentration after the finish of drinking and a roughly average value for the rate of elimination of 0.016% per hour, the subject’s blood alcohol concentration was probably about 0.13% at the time of the collision at 03:10 hours, but this should not be regarded as a firm figure.
1.2 Calculation of the estimate of the minimum blood alcohol concentration relies on assuming the blood alcohol concentration reached its maximum 120 minutes after the finish of drinking, a minimum reported value for the rate of elimination of 0.006% per hour and the maximum reported value for the rise in blood alcohol concentration after the finish of drinking. However, estimating a possible value for the latter is problematical since it will be substantially dependent on the individual and the actual rate of drinking.
For example, in drinking studies, Bayly and McCallum (1959) tested 56 volunteers who consumed alcohol as rapidly as possible and found a maximum rise of 0.083% for a volunteer who consumed 17 standard drinks in one hour. On the other hand, in a simulation of social drinking conditions for up to three hours, Jones and Neri (1991) found a maximum rise of 0.045% for 16 volunteers, Moore (1991) a maximum rise of 0.02% for 14 volunteers and Ganert and Bowthorpe (2000) a maximum rise of 0.022% for 10 volunteers. Zink and Reinhardt (1988) allowed 14 volunteers to consume alcohol for between four and ten hours and found that eight (57%) showed no rise in blood alcohol concentration after the finish of drinking.
1.2.1Assuming steady consumption of alcohol immediately prior to the finish of drinking resulting in a rise of 0.045% in blood alcohol concentration after the finish of drinking, it is highly unlikely that the subject’s blood alcohol concentration at the time of the collision was less than 0.10%.
1.2.2Assuming rapid consumption of alcohol immediately prior to the finish of drinking resulting in a rise of 0.083% in blood alcohol concentration after the finish of drinking, it is highly unlikely that the subject’s blood alcohol concentration at the time of the collision was less than 0.06 %.
[1] Exhibit P12.
Mr Kostakis gave evidence at trial.
In examination-in-chief he told the Court:[2]
[2] Transcript pp 19-20.
Q.If there was no drinking patter (sic) prior to driving – and that’s what we are talking about, there was no pattern of drinking – there’s just a large intake of alcohol just prior to driving, your assessment, from my understanding, is 0.06.
A.That’s correct.
…
Q.So if we have got a situation where a person’s been out from 10 o’clock until 10 past 3, more or less the crash time, and more or less just moments before the crash time the person had been consuming over that evening, is it likely the person would have a reading of 0.06.
A.No, it’s not.
…
Q.So in assuming your point on page 2 at 1.2.2, a rapid intake of alcohol to therefore give a reading of no less than 0.06. What do you mean by that. What is a rapid intake and what quantities are we talking about.
A.There was a study that was reported where an individual consumed 17 standard drinks within the hour and they observed a rise of 0.083% alcohol after the subject stopped drinking, so that would be quite rapid and heavy drinking, 17 standard drinks within the hour.
Mr Kostakis gave further evidence in cross-examination.[3]
[3] Transcript pp 23-24.
Q.On the information that you’ve been given in relation to the accident time, the blood alcohol reading and the time the blood was taken, you couldn’t rule out that it was possible that the driver might have been 0.06 at the time of the accident.
A.That’s right. We can only go by the limits of ranges of experimental data that is reported, and using those limits that estimate is possible.
Q.Were you given any information in relation to the amount of alcohol that the driver in this scenario consumed.
A.No.
…
Q.If the driver in this scenario had consumed four 300ml vodka mixers, or vodka cruisers, between 10.30 p.m. until 3 a.m., is it possible that two and a half hours later the reading would be 0.152.
A.No.
Q.So you would say that the person who might have estimated how much drinks they have had, or when their first drink or last drink was, that that might be inaccurate.
A.I guess grossly underestimated, yes.
The Magistrate’s reasons
The learned magistrate identified the primary issue to be determined was whether or not it had been proven beyond reasonable doubt that the respondent drove with a blood alcohol concentration of 0.08 or more. The learned magistrate considered the evidence of Mr Kostakis to be extremely important in determining this issue.
The learned magistrate identified the assumptions made by Mr Kostakis for the purpose of providing his opinion as to the concentration of alcohol in the respondent’s blood at the time of the collision.
He then set out his reasoning as follows:
10.    Mr Kostakis gave evidence that assuming the correctness of the times and the analysis that have been referred to, if there had been steady drinking for 40 minutes prior to the time of the collision, it is likely that the blood alcohol concentration of the driver was about 0.13, assuming that he had been drinking steadily for 40 minutes immediately prior to the collision. Mr Kostakis went on to say that if the driver had consumed a large quantity of alcohol rapidly immediately before driving, then his alcohol level would still be rising after cessation of drinking, and in those circumstances the blood alcohol concentration at the time of driving and at the time of the collision would have been lower. In fact, he estimates that if there had been a large consumption just prior to driving it is possible that the blood alcohol concentration at that time would have been 0.06 grams in 100 millilitres of blood. He made it clear that the actual concentration at the time of driving depends entirely on the rate of consumption and the pattern of consumption in the 30 to 60 minutes prior to driving. He agreed that if the defendant or the driver had been drinking over time on a steady basis then it is unlikely that his reading would have been 0.06 at the time of driving. It would more likely have been in the range of between 0.13 and 0.19, but it all depends on the drinking pattern.
11.    In cross-examination Mr Kostakis was specifically asked if it was possible that the blood alcohol concentration at the time of driving was 0.06. In fact, he was asked in the negative, namely whether he could rule out that possibility and he said he could not rule out that possibility. Once again, it would depend on the drinking pattern.
12.    Prosecution rely on the statements of witnesses to say that it has been proved that the defendant did not consume a large amount of alcohol immediately prior to driving. In that regard prosecution refer in particular to the statement of Narissa Hales, who says in her statement that the defendant and another man attended at her house after 1.30 a.m. They had beer with them when they got there and they were there for about an hour, drinking during that time.
13.    As has been pointed out by Mr Colthorpe, there is nothing in the statement of Ms Hales to say the rate that the alcohol was being consumed, how much alcohol was consumed, or indeed whether one or more of those present consumed more alcohol than the other. I find what she says in paragraph three to be important. In that paragraph she says that she asked Jason, the defendant, to leave after he was making unwanted advances towards her. He did not appear drunk. If he had an alcohol concentration at that time of 0.151 or more then one would find it strange that Ms Hales would say that he did not appear drunk. If anything, that statement is more consistent with Mr Adams having consumed alcohol which had not yet had an effect, which is more consistent with the defence proposition.
14.    Mr Ellis, in his statement, says that he was with Mr Adams on the evening of Friday, 21 May; that they attended the Seaford Tavern; that they were there for the majority of the night; that he, Mr Ellis, was not drinking alcohol; as for Mr Adams he says ‘I think Jason was’, and then later, after they went back to Mr Ellis’s house he says ‘I can’t recall if Jason was drinking alcohol’ at his home; and then when they got to Emma’s house he says ‘I can’t recall if Jason was drinking’. His statement is significant in its lack of assistance in relation to the issue that I have to decide.
15.    Ms Stopp gives her summary of the evening in question and again, although she was at home and had been at the Seaford Tavern, she does not give any indication of the drinking pattern particularly of Mr Adams, and is unhelpful in deciding that issue.
16.    Kain Goldsmith, who was at the house where the group returned after they had been at the hotel, again is unhelpful in assisting me to determine whether there is any evidence to suggest that Mr Adams had not consumed a large amount of alcohol in a short period of time immediately before driving.
17.    It is, as I said earlier, for prosecution to prove its case beyond reasonable doubt. Whilst I may have a suspicion as to the state of affairs as they existed at the time, and whilst that suspicion may be heavily weighted against the defendant, a suspicion is not enough. I must be convinced beyond reasonable doubt. At the end of my consideration of the evidence in this matter I am left with a nagging doubt which was raised by Mr Kostakis, and that is that there is the possibility that if Mr Adams had consumed a large amount of alcohol immediately before driving his blood alcohol concentration would have been below 0.08, namely not less than 0.06 grams in 100 millilitres of blood.

The learned magistrate concluded that, as a result, he could not say beyond reasonable doubt that it had been proved that the respondent’s blood alcohol concentration at the time of the collision was 0.151 grams in 100 millilitres of blood. Neither could he say beyond reasonable doubt that it had been proved that the respondent had a blood alcohol of 0.08 grams or above in 100 millilitres of blood at the time of the collision.
Accordingly, he dismissed the charge of aggravated driving without due care. In addition he dismissed the charge of driving a motor vehicle while there was present in the respondent’s blood the prescribed concentration of alcohol as defined in s 47A.
Arguments on appeal
The appellant submitted that the learned magistrate erred in failing to find the respondent guilty of an aggravated offence of driving without due care and a breach of s 47B.
The appellant put the argument in relation to s 47B on two bases. First, it submitted that the learned magistrate should have found that the appellant had proved to the requisite degree that at the time of the collision the respondent was driving a motor vehicle with a blood alcohol reading in excess of 0.08 grams of alcohol in 100 millilitres of blood. Second, in the alternative, the appellant submitted that the learned magistrate should have found the respondent guilty of contravening s 47B on the basis that, at the very least, the evidence established that the respondent had been driving a motor vehicle at the relevant time with the prescribed concentration of alcohol in his blood, namely, 0.06 grams of alcohol in 100 millilitres of blood. Thus, the appellant submitted, the evidence established a Category 1 offence within the meaning of s 47B(1)(a)(i).
The primary submission of the appellant was that the learned magistrate failed to place the scientific evidence in its proper context by reference to the other evidence of the respondent’s drinking pattern.
The appellant submitted that the learned magistrate was in error in finding that he could not say beyond reasonable doubt that the respondent had a blood alcohol concentration of 0.08 or above at the time he drove. In reaching the conclusion he did, the appellant submitted the learned magistrate failed to take account of evidence which indicated that it was not reasonably possible that the respondent could have indulged in the drinking behaviour likely to have resulted in a blood alcohol level of only 0.06 grams of alcohol in 100 millilitres of blood at the time that he drove. The appellant submitted that on the contrary the evidence pointed to the respondent having a much higher blood alcohol level at the relevant time as a result of drinking over an extended period from 10 pm the previous evening, namely, at least 0.10 grams of alcohol in 100 millilitres of blood.
The appellant submitted that, having regard to the evidence as to the respondent’s pattern of drinking on the evening of 21 May and the early hours of the morning of 22 May 2010, as set out above, it was fanciful to consider there was a reasonable possibility that the respondent arrived at the Harbour Drive residence somewhere around 2 am with a zero blood alcohol level, and over the course of the next hour ingested the equivalent of 17 standard drinks, by drinking beer. Mr Grant, counsel for the appellant, put the proposition that the expert evidence would have required the respondent to have consumed a standard drink every four minutes over the period following his arrival at the Harbour Drive residence in order to satisfy the theoretical possibility raised by the expert evidence of Mr Kostakis that would have resulted in the respondent having a blood alcohol reading of 0.06 at the time he drove the car from the Harbour Drive residence. The learned magistrate erred in considering this was a real, as opposed to a theoretical, possibility by reference to the evidence of the respondent’s actual drinking over the course of the night.
In the alternative, the appellant submitted that the learned magistrate erred in failing to find the respondent guilty of an offence under s 47B on the basis that, on any view of the evidence, the respondent had been driving with a blood alcohol level in excess of 0.05 per cent. Mr Grant contended that the Court could only find that the respondent was driving with a blood alcohol level no less than 0.06 per cent. In these circumstances the Court was obliged to find the respondent guilty of driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol. The precise blood alcohol level was irrelevant to the commission of the offence once the Court was satisfied that the respondent had driven with the prescribed concentration of alcohol in his blood. In those circumstances, he should have been found guilty of contravening s 47B.
Mr Colthorpe, who appeared for the respondent on appeal, submitted that the only evidence of the respondent’s pattern of alcohol consumption that night came from three sources. First, the unreliable admission by the respondent to Senior Constable Furse that he had consumed four pre-mix vodka drinks starting at 10 pm. Second, the evidence of Mr Ellis that he had attended at the Seaford Tavern with the respondent on the evening of 21 May and thought that the respondent had been drinking alcohol there. He noted that Mr Ellis could not recall if the respondent had been drinking alcohol at any time after the two of them had left the Seaford Tavern. Third, the evidence of Ms Hayles that Mr Ellis and the respondent arrived at her residence at Harbour Drive some time after 1:30 am on 22 May 2010 and spent about an hour there drinking. She did not give any evidence as to what or how much the respondent drank during that time. However, immediately before she asked the respondent to leave her residence, she considered that he did not appear to be drunk.
It was submitted on behalf of the respondent that the evidence could not exclude the scenario advanced by Mr Kostakis that it was possible that at the time the respondent drove his vehicle from the Harbour Drive residence and collided with the house at the junction of Harbour Drive and Grand Boulevard, his blood alcohol reading may not have been more than 0.06 grams of alcohol in 100 millilitres of blood. As Mr Colthorpe put it, the appellant had not been able, on the evidence, to exclude the possibility that the respondent could have indulged in the drinking behaviour that was likely to have resulted in a blood alcohol reading of 0.06 per cent, and the learned magistrate was entitled to be left with the “nagging doubt”. He put the submission that the evidence as to the pattern of the respondent’s drinking was confused and on occasion contradictory, which left the learned magistrate in a position where he could properly entertain a reasonable doubt that the respondent had driven his vehicle with a blood alcohol reading in excess of 0.8 per cent. The nature of the evidence in relation to the pattern and timing of the respondent’s drinking was so vague as to preclude the learned magistrate from being satisfied that, at the relevant time, the respondent’s blood alcohol reading was greater than 0.06 per cent.
In relation to the alternative submission of the appellant that, in any event, accepting the possibility that the respondent’s blood alcohol reading at the relevant time might have been as low as 0.06 per cent, the respondent should nevertheless have been found guilty of a Category 1 s 47B offence, Mr Colthorpe submitted that that conclusion did not follow from the evidence.
The respondent had not been charged with a Category 1 offence. The appellant had made no application to amend the complaint to allege a Category 1 offence.
Pursuant to Schedule 9 of the Road Traffic (Miscellaneous) Regulations 1999 (SA), a Category 1 offence is an expiable offence. Subject to s 52 of the Summary Procedure Act 1921 (SA), proceedings for an expiable offence must be commenced within six months of the date on which the offence is alleged to have been committed (or, when a notice has been issued, six months after the expiation notice payment period has expired). By the time the trial commenced more than 12 months had elapsed since the date of the alleged breach of s 47B.
Section 47B(5) provides:
(5) If a person aged 16 years or more is alleged to have committed a category 1 offence that is a first offence, the person cannot be prosecuted for that offence unless he or she has been given an expiation notice under the Expiation of Offences Act 1996 in respect of the offence and allowed the opportunity to expiate the offence in accordance with that Act.
The respondent was 21 years of age at the time of the offence and had no prior convictions (that were relevant). The issue of an expiation notice for a Category 1 offence must precede any prosecution. No such notice had been issued. More than 12 months had elapsed since the date of the offence. Therefore, Mr Colthorpe submitted, any notice issued after the trial would have been ineffectual, as the limitation of time had passed. Accordingly, the learned magistrate could not have found the respondent guilty of a contravention of s 47B(1)(a) for a Category 1 offence, notwithstanding the evidence that at the relevant time his blood alcohol reading could not have been less than 0.06 grams of alcohol in 100 millilitres of blood.
Consideration
This appeal raises two issues:
1. did the learned magistrate err in failing to find that the evidence proved beyond reasonable doubt that at the time of the collision the respondent had a blood alcohol reading in excess of 0.08 grams of alcohol in 100 millilitres of blood; and
2. if the answer to the first issue is in the negative, nonetheless, did the learned magistrate err in failing to find the respondent guilty of a contravention of s 47B(1)(a) on the basis that he had driven with a blood alcohol level in excess of the prescribed concentration, namely, 0.05 grams of alcohol in 100 millilitres of blood.
The powers of the Court in reviewing appeals from courts of summary jurisdiction involving disputed findings of fact are wide[4]. The Court will examine for itself the magistrate’s assessment of the evidence. It is the duty of the Court to make up its own mind after considering the evidence that was before the magistrate, and undertake an independent review of it. If the Court reaches a different view on the evidence from that of the magistrate, it must give effect to that by substituting its view for that reached by the magistrate.   On issues which involve an assessment of the quality and reliability of a particular witness, the Court must make due allowance for the advantage of the magistrate in seeing and hearing the evidence given. However, the fact that a magistrate has reached his or her conclusion by an acceptance of the evidence of one party’s witnesses does not prevent this Court from carrying out its statutory function. In hearing and determining an appeal there may be cases in which incontrovertible facts, or uncontested testimony or the glaring improbability of the magistrate’s conclusions will, despite the magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or from evidence accepted by a magistrate, this Court can substitute its decision if it comes to a different conclusion as to the correct inference which should be drawn.[5]
[4]   Taylor v Hayes (1990) 53 SASR 282; Laurie v Nixon (1991) 162 LSJS 16.
[5]    Fox v Percy (2003) 214 CLR 118 at 126-8; Warren v Coombes (1979) 142 CLR 531 at 551.
In this matter the only evidence admitted viva voce at trial was from the expert, Mr Kostakis, and the two police officers, Senior Constable Furse and Senior Constable Hunt. The learned magistrate appears to have accepted the evidence of Senior Constable Hunt. He does not refer at all to the evidence of Senior Constable Furse. Certainly, there is no suggestion in the learned magistrate’s reasons that he rejected the evidence of Senior Constable Furse, and, in particular, the officer’s evidence of his observations of the respondent’s appearance following the collision. In my opinion it is open to this Court to proceed to decide this appeal in reliance on that evidence.
Accordingly, in relation to the evidence adduced by the prosecution of the relevant events preceding the respondent’s driving the subject of these charges, this Court is in as good as a position as the learned magistrate to draw inferences from the evidence accepted by the magistrate.
On the primary issue of whether the magistrate should have found that the appellant had proved the respondent was driving with a blood alcohol level in excess of 0.08 per cent, the factual question to be determined concerned the timing of the respondent’s consumption of alcohol. The evidence of the blood sample taken at 5:40 am on 22 May 2010 established that the respondent had consumed a substantial quantity of alcohol. The evidence of Mr Kostakis raised the theoretical possibility that, at the relevant time when the offending driving occurred, the respondent’s blood alcohol reading may have been no more than 0.06 per cent. This theoretical possibility depended upon a finding that the respondent had consumed the equivalent of 17 standard drinks in the space of approximately one hour, immediately prior to the offending driving, and that this pattern of drinking had occurred from a situation where he started with a blood alcohol level of nil.
The learned magistrate, at the conclusion of his consideration of the evidence, found that he was left with “a nagging doubt” that there was a possibility that “… if Mr Adams had consumed a large amount of alcohol immediately before driving his blood alcohol concentration would have been below 0.08, namely, not less than 0.06 grams in 100 millilitres of blood.”
In my opinion the learned magistrate fell into error in arriving at this conclusion.
While the opinion of Mr Kostakis suggested a hypothesis consistent with the respondent’s innocence, that hypothesis had to be considered against the lay evidence received by the Court. The learned magistrate, having identified a hypothesis consistent with innocence, had to determine whether the theoretical possibility referred to by Mr Kostakis was a reasonable possibility in the light of the whole of the evidence. The evidence considered in its totality excluded as a reasonable hypothesis the possibility that the respondent had consumed the equivalent of 17 standard drinks in the hour immediately before driving.
The evidence, when viewed in its totality, could only lead to the conclusion that the respondent had been drinking over a period of time from about 10 pm on the night of 21 May 2010 when he and Mr Ellis attended at the Seaford Tavern, and that drinking continued at the Harbour Drive residence shared by Ms Hayles and Ms Stopp. There was no evidence of the respondent drinking at the Harbour Drive residence at the rate required to conform to the theoretical possibility raised by Mr Kostakis’ evidence which would be consistent with a blood alcohol reading of 0.06 per cent at the relevant time, namely, the equivalent of 17 standard drinks over the course of the hour immediately preceding his driving. In addition, the evidence does not support any inference that at the time the respondent arrived at the Harbour Drive residence his blood alcohol level was nil.
In forming this view I do not overlook the evidence of Ms Hayles that at the time she asked the respondent to leave her house she did not consider he was drunk. While that was her perception, it was inconsistent with the evidence of Mr Goldsmith and Senior Constable Furse that the respondent’s appearance following the collision suggested he was intoxicated. I reject any argument that his appearance could be explained on the basis that he was concussed. There is no evidence that the respondent suffered a concussion in the collision. Such a claim is inconsistent with his statement to the police that he did not suffer any injury during the accident.
There was no evidence of the respondent bingeing at the Harbour Drive residence. In fact the evidence supported a conclusion of steady drinking from about 10 pm that night, with some interruptions, until the respondent left the Harbour Drive residence in his car about 3 am.
On the whole of the evidence the theoretical possibility considered by Mr Kostakis that the respondent’s blood alcohol level at the time of the collision might have been 0.06 per cent is excluded as a reasonable possibility.
In my view, the learned magistrate should have found that the evidence did not offer any support for the theoretical possibility raised by the evidence of Mr Kostakis which was consistent with a blood alcohol level of 0.06 per cent at the time of the collision. I consider the lay evidence, together with the evidence of Senior Constable Furse, excluded as a reasonable hypothesis the possibility that the respondent had consumed the equivalent of 17 standard drinks over the course of the hour immediately preceding his driving and had done so from a situation where his blood alcohol level was nil at the commencement of that period.
In my opinion, the learned magistrate should have found the evidence established beyond reasonable doubt that at the time of his driving, after leaving the Harbour Drive residence, the respondent’s blood alcohol was no less than 0.10 grams of alcohol in 100 millilitres of blood. I am satisfied that this is the case beyond reasonable doubt. I so find.
Accordingly, I find that the respondent is guilty of an aggravated offence of driving without due care in accordance with s 45(3)(b)(iii). Necessarily, I find the respondent has committed a breach of s 47B(1) on the basis that he drove a motor vehicle while there was present in his blood the prescribed concentration of alcohol as defined in s 47A. I find that the concentration of alcohol was no less than 0.10 per cent. Accordingly, I find the respondent has committed a Category 2 offence.
It follows that it is unnecessary to decide the second issue, however, in case this matter goes further I indicate that I am against the appellant’s argument that the learned magistrate should have found the respondent guilty of a breach of s 47B(1) on the basis of a finding that he had driven a motor vehicle while there was present in his blood a concentration of 0.06 grams of alcohol in 100 millilitres of blood.
I have set out s 47B(5) earlier in these reasons.
The respondent was 21 years of age at the time of the offence. He had no relevant prior convictions.
Nonetheless, the appellant submits that the learned magistrate should have found the respondent guilty of a Category 1 offence on the basis that the evidence accepted by the learned magistrate involved a concentration of alcohol of less than 0.08 grams in 100 millilitres of blood, but not less than 0.05 grams in 100 millilitres of blood, i.e. the prescribed concentration.
Mr Grant submits that, on its proper construction, s 47B(5) is directed not to the Court but to the prosecuting authority. He contends that the subsection is not an impediment to the Court convicting the respondent of a Category 1 offence under s 47B, notwithstanding that he would otherwise fall within the terms of the subsection but for the fact that he was not alleged to have committed a Category 1 offence. In the circumstances such as occurred here, where he was not alleged to have committed a Category 1 offence, if the Court hearing the charge was nonetheless satisfied that a Category 1 offence had been proved, it could proceed to convict notwithstanding the terms of the subsection and the fact that the respondent had not been given an expiation notice under the Expiation of Offences Act 1996 (SA) in respect of the offence and allowed the opportunity to expiate the offence in accordance with that Act.

I reject this submission.
The evident purpose of s 47B(5) is to permit a person, who has committed a Category 1 offence that is a first offence (and the person is aged 16 years or more), to expiate the offence in accordance with the Expiation of Offences Act.
While the subsection is somewhat curiously worded, in my view acceptance of the police submission would be contrary to a purposive construction of the subsection.[6]
[6] Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272-273, 275, 280, 290; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423, per McHugh JA, approved in Bropho v Western Australia (1990) 171 CLR 1 at 20.
The respondent was charged with a breach of s 47B(1)(a). The complaint alleged by way of particulars that the concentration of alcohol was 0.125 grams in 100 millilitres of blood. That is to say the particulars alleged that the respondent had committed a Category 3 offence.
Section 22A of the Summary Procedure Act 1921 provides as follows:
22A—Description of offence
(1)    Every information, complaint, summons, warrant, or other document under this Act in which it is necessary to state the matter charged against any person shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.
(2)    The statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence.
(3)    After the statement of the offence, necessary particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be required.
In L V Dohnt & Co Pty Ltd v Chambers[7] Bleby J explained that s 22A of the Summary Procedure Act requires that:
In short, an accused person must be told what law he is alleged to have broken and, with reasonable particularity, how he alleged to have broken it.
[7] (2009) 106 SASR 48 at 53.
The importance and sufficiency of particulars in a given case will depend on the circumstances of the case, the terms of any statutory offence and the conduct of the case at trial.[8]   In some cases, particulars may serve only as a guide to the essential matters that the prosecution must prove. In other matters, however, particulars assume greater significance because of the nature of the offence pleaded and the issues contested at trial. Where particulars become material to the conduct of a prosecution, departure from them should not be sanctioned by the Court. In such circumstances, as Gleeson CJ observed in R v VHP:[9]
… The requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars.
[8]   WGC v R (2007) 233 CLR 66 at 81 and 84.
[9]    Unreported, New South Wales Court of Criminal Appeal, 7 July 1997.
In Hayes v Kenning[10] Duggan J referred to the importance of particulars in defining the issues and contributing to the fairness of the proceedings. His Honour referred to Godbee v Samuels[11] in which Mitchell J said at [239]:
If there is any variance between the matters alleged in the particulars and the evidence tendered the Special Magistrate should at the time that evidence is tendered consider any prejudice which the defendant may suffer, and should also have regard to such variance in considering his verdict.
[10] (1992) S3616
[11] (1973) 5 SASR 236.
Duggan J drew a distinction between particulars on the face of the complaint which constitute the particular act alleged as the foundation of the charge and particulars provided in addition to the facts contained in the statement of the charge. In that context his Honour said:
If a material averment in the complaint itself has not been proved then the prosecution must fail.
This position was more recently confirmed in Kyriakopoulos v Police[12] by White J.
[12] [2006] SASC 71.
However, Mr Grant submitted that the learned magistrate, having heard the complaint alleging a Category 3 offence under s 47B, could have invited the prosecutor to amend the particulars. Alternatively, he submitted that the Court could have amended the complaint.
The Court’s power to amend a complaint is to be found in s 181 of the Summary Procedure Act. The power is discretionary and limited as follows:
(2) The Court may—
(a) amend an information or complaint to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or
(b) dismiss an information or complaint if the defect cannot appropriately be cured by amendment.
Section 181 does not permit an amendment in every case of a variation between particulars and the evidence at trial.
Some authorities are consistent with the proposition that courts will exercise the discretion to amend to correct a minor error on the face of a complaint.[13] Amendments may also be made where the evidence gives rise to uncertainty making an amendment necessary to avoid duplicity.[14]
[13] Crotty v Police [2008] SASC 308; Ireland v Police [2005] SASC 202; Ayles v The Queen (2008) 232 CLR 410 per Gummow and Kirby JJ at 418.
[14] Wellington v Police (2009) 105 SASR 215.
It is well accepted that a complaint that is not outside the limitation period can be amended to cure a defect of substance or form, “so long as the pith and substance of the charge remains constant”, and so long as the defendant is not prejudiced in defending the charge.[15]
[15] Crafter v McKeough [1943] SASR 371 at 375.
The test as to whether an amendment should or should not be made was also encapsulated in Camilleri v Wilkinson:[16]
Napier CJ referred in Crafter v McKeough to the “pith and substance of the charge” as being the factor to be considered in the sort of circumstances which have arisen in this case. The views expressed by Napier C.J. in Crafter v. McKeough were approved in Williams v. Wight and again in Bennetts v. Cunningham.
In my opinion the true test is that so long as the core offence remains untouched an amendment can be made to a particular so long as by so doing the defendant is not prejudiced in his defence.
[16] (1983) 35 SASR 270 at 284.
Whether the pith and substance is altered by an amendment of the complaint may be a matter of degree.[17]
[17] Schultz v Pettit (1980) 25 SASR 427 at 433.
In my opinion there is a fundamental difference between an allegation that the respondent had committed a Category 3 offence under s 47B and an allegation that he committed a Category 1 offence. That fundamental difference is reflected in the terms of s 47B(5). Indeed, I note that the Parliament in enacting s 47B(5) refers to a person being alleged to have “committed a Category 1 offence”. The terms of subsection (5) prohibit a person being prosecuted for a Category 1 offence unless he has first been allowed the opportunity to expiate this offence.
The respondent has not been afforded that opportunity.
In my opinion an amendment to the complaint alleging a contravention of s 47B on the basis of a Category 1 offence should not be permitted now. In my view it would be contrary to the clear purpose of s 47B(5) to permit an amendment to allege such an offence where the respondent has not been given the opportunity to expiate the offence in accordance with the Expiation of Offences Act as contemplated by the subsection. The respondent would be unfairly prejudiced by such an amendment.
While the learned magistrate did not address this issue, for these reasons I do not consider that he fell into error by failing to find the respondent guilty of a Category 1 offence under s 47B. Of course, for the reasons I have set out above, I consider he did fall into error in failing to find the respondent guilty of a Category 2 offence under s 47B.
Conclusion
I would allow the appeal. I would set aside the conviction of driving without due care. I would enter a verdict of guilty on the charge of an aggravated offence of driving without due care pursuant to s 45(3)(b)(iii). I enter a conviction for a breach of s 45(2) of the Road Traffic Act 1961 (SA). In light of my conclusion I will hear from counsel as to whether I should enter a conviction in relation to the charge of a breach of s 47B. I propose to remit the matter to the learned magistrate for sentence.