Police v Barber

Case [2010] SASC 329

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v BARBER

[2010] SASC 329

Judgment of The Honourable Justice White

26 November 2010

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - AUTOMATISM

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS

Respondent was charged with the offences of operating a vehicle without headlights; driving without due care; failing to comply with the reasonable directions of a police officer in relation to breath analysis; and driving a vehicle while a prescribed concentration of alcohol was present in her blood, in contravention of a condition of her provisional driver's licence (the "PCA" charge) - Magistrate dismissed all charges.

Whether Magistrate correct in finding that the prosecution had not established a case to answer on the PCA charge - whether Magistrate correct in finding that the respondent's driving of the vehicle was involuntary because she was acting as an automaton, and correct in finding that the prosecution had not established non-compliance by the respondent with the reasonable directions of a police officer concerning breath analysis.

Held:  appeal allowed in respect of the first, second and fourth counts - Magistrate gave insufficient weight to the evidence of a police officer concerning the respondent's conduct - Magistrate relied inappropriately on the evidence of a psychiatrist whose expertise in relation to the drug Stilnox (which was said to have made the respondent an automaton) was limited and whose evidence did not, in a number of respects, comply with the requirements for expert opinion evidence - Magistrate should have found a case to answer on the PCA charge - appeal dismissed in relation to the third count as the Magistrate was correct in finding that the prosecution had not established that the breath analysis instrument used for the testing of the respondent was in good working order and condition - retrial ordered on first, second and fourth counts.

Australian Road Rules r 215; Road Traffic Act 1961 (SA) s 45, s 47E, s 47EB, s 47K, s 47H; Motor Vehicles Act 1959 (SA) s 81A; Criminal Law Consolidation Act 1935 (SA) s 267, s 268; Evidence Act 1929 (SA) s 35; Road Traffic (Miscellaenous) Regulations 1999 (SA) reg 8A, referred to.
Myers v The Director of Public Prosecution [1965] AC 1001, distinguished.

POLICE v BARBER
[2010] SASC 329

Magistrates Appeal

  1. WHITE J:             The respondent was acquitted of four charges arising out of her driving of a car in the early hours of 28 April 2008.  A Magistrate found that although the appellant was undoubtedly driving the car, she was at the time functioning as an automaton so that her driving had been involuntary.  He found that this state was caused by the effects of the drug Zolpiden, which is sold under the trade name Stilnox, and was exacerbated by the appellant’s consumption of alcohol,…

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Police v Barber [2010] SASC 329
Case
[2010] SASC 329
Decision Date

CaseChat Overview and Summary

The case of Police v Barber involved the respondent, Barber, who was charged with driving under the influence of alcohol and driving without due care and attention. The case was heard in the South Australian District Court. The central legal issues were whether the respondent was in a state of automatism at the time of the alleged offence, and whether the evidence provided by the police officer regarding the respondent's blood alcohol concentration was admissible and reliable. The respondent claimed that she was not in control of her actions due to an involuntary state, possibly induced by alcohol consumption.

The court examined the evidence provided by Sergeant Clark, who had interacted with Barber during the incident. Sergeant Clark observed signs of intoxication and conducted a breath analysis which indicated a blood alcohol level above the legal limit. The court was required to determine the admissibility of this evidence, considering the type of breath analysis instrument used and its approval status under the relevant traffic legislation. Additionally, the court needed to assess the credibility of the respondent's claim of automatism based on the totality of the evidence presented, including expert medical testimony and the respondent's behaviour during and after the incident.

The court concluded that the Magistrate's acceptance of the respondent's automatism defence was not supported by the evidence. The court found that the Drager 7110 instrument used for breath analysis was not an approved device under the relevant statute, rendering the breath test results inadmissible. Furthermore, the court noted that the respondent's behaviour, such as her deliberate responses to Sergeant Clark and her self-recrimination during the journey to the police station, indicated she was aware of her actions and their potential consequences, which was inconsistent with a state of automatism. Consequently, the court found that the prosecution had established a case against the respondent, and the decision to acquit on the charge of driving with a blood alcohol concentration above the legal limit was incorrect.

In light of the findings, the court ordered a new trial to reassess the charges against the respondent based on the admissible evidence. The court emphasized the importance of adhering to statutory requirements for breath analysis instruments and the need for a coherent and consistent narrative from the respondent to successfully claim automatism.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It is convenient to discuss these facets in turn.Sgt Clark’s Evidence As noted earlier, Sgt Clark followed the plaintiff into George Street. After the plaintiff had turned left to follow the continuation into Duthy Street, Sgt Clark activated the roof lights and siren of his police vehicle. Within a distance of about 50 metres the respondent pulled the Nissan to the left‑hand kerb and parked it (albeit that the car was not exactly parallel with the kerb). Sgt Clark then approached the driver’s door of the Nissan and spoke to the respondent. He thought that she was obviously affected by drugs or alcohol, and appeared to be sleepy He asked the respondent for her full name, her date of birth, her occupation and her home address. The respondent gave him those details and, at Sgt Clark’s request, produced her driver’s licence to him. Sgt Clark described the respondent as being “very deliberate in her responses” with a slight delay between the question and the response, but said that this was “nothing abnormal”. While talking to the respondent, Sgt Clark detected a slight smell of liquor and noticed that the respondent’s eyes were watering. Sgt Clark told the respondent that driving without lights was an offence and accordingly that he was requiring her to provide a sample of breath for analysis. He produced an alcotest instrument and instructed the respondent to take a long breath and to keep blowing until he told her to stop. The respondent complied and moved her head forward so as to facilitate blowing into the straw of the alcotest instrument. Sgt Clark described her compliance with the alcotest as being without hesitation and as comprising “a standard blow”. The alcotest indicated that the respondent had a blood alcohol content of more than 0.05 grams of alcohol in 100 millilitres of blood. On seeing that reading, Sgt Clark told the respondent that she had to accompany him to the Netley Police Station for the purposes of undergoing breath analysis. He told the respondent to lock her car and to go with him in the police vehicle. The respondent thereupon gathered her possessions from the front seat of the Nissan, got out of the Nissan and walked to the passenger side of the police car, where she entered the front passenger seat. Sgt Clark described the manner of her movement from the Nissan to the police vehicle as being “nothing abnormal”. Sgt Clark said that the distance from George Street at Parkside to the Netley Police Station was about 5km. During the course of the journey Sgt Clark did not initiate any conversation but he described the respondent as “beating herself up about driving without lights and being silly”. He was not asked to elaborate on this statement, but it appears to be a description of the respondent recriminating aloud with herself about her conduct. The evidence did not indicate whether the recrimination related to her possible involvement in offences, or to her having damaged her partner’s car, or to something else. Whatever the explanation, the fact that the respondent was recriminating seems to suggest that she was able to understand the potential consequences of her conduct, and to reflect on those consequences.

Decision

Reasons for decision

Shortly after waking at 7.00 am, the respondent said that she saw that four or five of the bottles had been consumed. She had no recollection of consuming them herself and believed, until shortly before the trial, that it was her partner who had consumed them. As the partner was not called to give evidence, there was no direct evidence about this. The respondent gave the following evidence on this topic:Q.It’s your understanding that [your partner] didn’t drink them?A.Yes, no, he did not drink them.This question was inappropriate. It was leading in nature and, on the respondent’s evidence, involved inevitably a hearsay answer. If the respondent had no memory, she could not give evidence as to who had consumed the bottles and, accordingly, could not say that it was not her partner. Her understanding of the position as at the date of trial was not a relevant matter in the trial.Conclusion on Involuntariness In my opinion, the appellant has made good its submissions concerning the Magistrate’s decision and reasons concerning the respondent’s state of automatism. The Magistrate should not have accepted Dr Raeside’s opinion evidence on the topic of the respondent’s automatism. The other evidence suggested strongly that the respondent was not an automaton at relevant times. I will address the consequences of this conclusion later.The Finding of No Case to Answer As noted earlier,[49] at the conclusion of the prosecution case the Magistrate found that the respondent had no case to answer on the charge of breaching a condition of her provisional driver’s licence by driving with the prescribed concentration of alcohol (namely, any concentration of alcohol) in her blood. He did so because he considered that the prosecution had not established that the Drager 7110 instrument used by Sgt Clark for the breath analysis was an approved breath analysis instrument for the purposes of s 47E of the RTA. This had the effect, so the Magistrate found, that the analysis of the one complete sample of breath provided by the respondent could not be used as evidence of her blood alcohol content. [49] See [10]. The Magistrate also considered that Sgt Clark’s observations of the respondent’s appearance (watery eyes, sleepiness and deliberateness in her speech), and the odour of alcohol which he detected, were not evidence of the presence of alcohol in the respondent’s blood, because they were just as consistent with the respondent having gargled, without swallowing, some liquid containing alcohol. Accordingly, he considered that this evidence was insufficient to establish a case to answer that the respondent had some concentration of alcohol in her blood. The appellant submitted that this conclusion was wrong. The test to be applied in relation to a submission of no case to answer is well known. On the assumption that all the evidence of primary facts in support of the prosecution case is accurate and, on the further assumption that all inferences most favourable to the prosecution which are reasonably open are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?[50][50] R v Bilick (1984) 36 SASR 321 at 337.Use of the Single Breath Analysis Result

Ratio Decidendi

Legal Principle Established

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