Police v Adams

Case [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

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Police v Adams [2011] SASC 155
Case
[2011] SASC 155
Decision Date

CaseChat Overview and Summary

In Police v Adams, the police appealed against the conviction and sentence of Adams, who was found guilty of driving without due care or attention. The charges of aggravated driving without due care and driving while having a prescribed concentration of alcohol in the blood were dismissed. The blood sample used as evidence was taken over two hours after the respondent’s offending driving. Scientific evidence was presented to estimate the blood alcohol concentration at the time of the incident. The appeal focused on whether the magistrate erred in finding reasonable doubt about the respondent’s blood alcohol concentration and whether the magistrate erred in dismissing the other charges.

The court considered the magistrate's power to amend the complaint to a Category 1 offence when the respondent had not been able to expiate the offence under s 47B(5) of the Road Traffic Act 1961 (SA). The appeal was allowed as the magistrate failed to properly assess the evidence. The scientific evidence of the blood alcohol concentration should be considered with regard to other evidence. The magistrate erred in finding there was a reasonable doubt. The conviction was set aside, and the respondent was found guilty of aggravated driving without due care and category 2 driving while prescribed concentration of alcohol in the blood. The matter was remitted to the magistrate for sentencing.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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; and2. 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.