Police v Berry - [2014] SASC 33

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BERRY
[2014] SASC 33
Judgment of The Honourable Justice Blue
13 March 2014
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN BLOOD - SENTENCE AND PENALTY
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal by the Police against order for disqualification of drivers licence.
The defendant pleaded guilty in the Magistrates Court to driving a motor vehicle while there was present in his blood 0.104 milligrams of alcohol in 100 millilitres of blood. The defendant had consumed around ten alcoholic drinks over the course of the night. Immediately before driving, he blew into a personal hand held breathalyser which returned a reading of 0.04. He had been told that the instrument had a margin of error of 0.01.
The Magistrate found that the offence was trifling within the meaning of section 47B(3)(b) of the Road Traffic Act 1961 (SA) and reduced the prescribed minimum period of disqualification from six to two months.
The Police appeal against the order for disqualification on the ground that the Magistrate erred in finding that the offence was “trifling”.
Held (allowing the appeal):
1. In assessing whether a contravention of section 47B is “trifling”, the decision of the Full Court in Siviour-Ashman v Police requires that relatively little weight be given to the defendant’s state of mind compared to the weight given to the objective circumstances of the offence (at [21]).
2. The Magistrate erred in concluding that in the circumstances the offence was “trifling” (at [22]-[23]).
3. Appeal allowed. Order of disqualification set aside. Defendant to be re-sentenced to disqualification for at least six months (at [24]).
Road Traffic Act 1961 (SA) ss 30, 47B(1), 47B(3)(b), referred to.
Siviour-Ashman v Police [2003] SASC 29; (2003) 85 SASR 23, applied.
August v Fingleton [1964] SASR 22; Dayman v Proudman [1941] SASR 87; Proudman v Dayman (1941) 67 CLR 536, discussed.
CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440; He Kaw Teh v R (1985) 157 CLR 523, considered.

POLICE v BERRY
[2014] SASC 33
Magistrates Appeal: Criminal
BLUE J:

This is an appeal against an order for disqualification of a drivers licence by a Magistrate.
The appellant/complainant Police appeal against an order by a Magistrate that the respondent/defendant Adam Berry be disqualified from holding or obtaining a drivers licence for two months, being less than the prescribed minimum of six months, because the offence was trifling.[1]
[1] Road Traffic Act 1961 (SA) s 47B(3)(b).
The defendant pleaded guilty in the Magistrates Court to driving a motor vehicle on 24 August 2013 while there was present in his blood the prescribed concentration of alcohol, namely 0.104 milligrams of alcohol in 100 millilitres of blood.[2] The defendant gave evidence that, immediately before driving, he blew into a personal handheld breathalyser which returned a reading of 0.04 and he believed it was safe to drive home.
[2] Road Traffic Act 1961 (SA) s 47B(1).
The Magistrate found that the offence was trifling and reduced the period of disqualification from what would otherwise have been the prescribed minimum of six months to two months.
The Police appeal against the order for disqualification on the ground that the Magistrate erred in finding that the offence was “trifling” within the meaning of section 47B(3)(b) of the Road Traffic Act 1961 (SA) (“the Act”).
Background
On Friday 23 August 2013 at 9.00 pm, the defendant went to a friend’s residence and then to a hotel. He drank beer followed by mixed spirits. He did not recall how many drinks he consumed but estimated that it was two drinks of beer followed by eight to ten scotch and dry drinks. At about 4.30 am, he stopped drinking alcohol and started drinking water.[3]
[3] There was some confusion on the evidence before the Magistrate as to when the defendant stopped drinking alcohol. However, it is common ground on appeal that this was about half an hour before he left the hotel.
At about 5.00 am, the defendant got into his vehicle and blew into his personal breath testing device. He gave evidence that it showed a reading of 0.04 and that he believed that he was below the limit. He gave evidence that the instructions which came with the device said it had a margin of error of 0.01 and it should only be used as a guide.
At about 5.10 am, the defendant was stopped by a mobile random breath testing patrol in Victoria Square, Adelaide. He was subjected to a breath analysis test which returned a reading 0.104.
The reasoning of the Magistrate
In his remarks on penalty, the Magistrate said that the defendant had an honest and conscientious belief that he was under 0.05 based upon the reading given by his personal breath testing device.
The Magistrate concluded that in all the circumstances it was a trifling matter, not so trifling as to reduce the disqualification to one month, but the disqualification period should be reduced to two months.
The meaning of trifling
In Siviour-Ashman v Police,[4] the Full Court considered the meaning of the word “trifling” in section 47B(3)(b) of the Act. Doyle CJ (Besanko J agreeing) said:
I agree with the Judge that one should begin by bearing in mind the ordinary meaning of “trifling”. That meaning in this context is trifling in the sense of being of slight importance, insignificant or of little moment.[5]
Siviour-Ashman arrived at a hotel at 11.00 pm and left at about 3.30 am. Over that period, she consumed three standard drinks of mixed spirits. Shortly before she left, she asked the barman for a glass of water. He offered her instead a fruit drink which she consumed. Unbeknown to her, the drink contained alcohol. She would not have accepted the drink if she had known that it contained alcohol. If she had not consumed the fruit drink, her blood alcohol reading at the relevant time would have been less than 0.05. She drove home and was stopped by police at a random breath testing station at about 4.10 am. Her blood alcohol reading was 0.12. The Full Court (Mulligan J dissenting) held that, where an offence is one of strict liability, in assessing whether the offence is trivial, the offending conduct must be given very substantial weight and the defendant’s state of mind and belief is of very limited significance and is to be given little weight.[6]
[4] [2003] SASC 29; (2003) 85 SASR 23.
[5] Ibid at [24].
[6] Ibid at [43] per Doyle CJ (Besanko J agreeing).
When Siviour-Ashman v Police was decided, and indeed at the present time, it was not clear whether it was a defence to a charge of contravention of section 47B of the Act that the defendant had an honest and reasonable belief in facts which, if true, would not have involved a contravention.
In Dayman v Proudman,[7] Proudman was charged with permitting a person to drive her motor vehicle who was not the holder of a driver’s licence.[8] The Full Court was divided as to whether it was an element of the offence that the defendant knew that the person was unlicensed and as to whether it was a defence if the defendant honestly and reasonably believed that the person was licensed. Murray CJ held that the offence was one of absolute liability: there being no element of mens rea and no defence of honest and reasonable belief being available. Napier J held that the defence was one of strict liability: knowledge that the person was unlicensed not being an element of the offence but a defence being available if the defendant honestly and reasonably believed that the driver had a licence. Angas Parsons J held that mens rea was an element of the offence but held it was established by proof that the defendant knew that the driver was unlicensed or ought reasonably to have known. This approach was similar to that of Napier J except, perhaps, as to the evidentiary onus of proof. All three members of the Court agreed that on the facts Proudman did not have an honest and reasonable belief that the driver was licensed and she was guilty of the offence.
[7] [1941] SASR 87.
[8] Road Traffic Act 1934 (SA) s 30.
In Proudman v Dayman,[9] the High Court refused special leave to appeal. The three Justices comprising the Court were divided in their approach to the mens rea of the offence. Dixon J held that it was not an element of the offence that the defendant knew that the driver was unlicensed but it was a defence if she had an honest belief founded on reasonable grounds that he was licensed. McTiernan J held that no such defence was available. Rich ACJ decided the case on the basis that in any event on the facts the defendant did not have honest and reasonable belief that the driver was licensed. Dixon J said:
It is one thing to deny that a necessary ingredient of the offence is positive knowledge of the fact that the driver holds no subsisting license. It is another to say that an honest belief founded on reasonable grounds that he is licensed cannot exculpate a person who permits him to drive. As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence.
The strength of the presumption that the rule applies to a statutory offence newly created varies with the nature of the offence and the scope of the statute … Doubtless over a wide description of legislation the presumption in favour of its application [the defence] is but a weak one … But it still remains a presumption, and in relation to s 30 there appears to be no sufficient reason for treating it as rebutted.[10]
[9] (1941) 67 CLR 536.
[10] Ibid at 540-541.
While honest and reasonable belief is characterised as a defence where it is available, the defendant bears an evidentiary onus but the prosecution bears the ultimate onus of disproving the defence beyond reasonable doubt.[11]
[11] He Kaw Teh v R (1985) 157 CLR 523 at 534-535 per Gibbs CJ; CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 at [8] per Gleeson CJ, Gummow, Crennan and Kiefel JJ.
In August v Fingleton,[12] the Full Court held that the offence of driving under the influence of alcohol in contravention of section 47(1) of the Act is an offence of absolute liability: a defence of honest and reasonable belief is not available.[13] There is no decision by the Full Court whether the offence of driving while there is present the prescribed concentration of alcohol is an offence of absolute or strict liability. In Siviour-Ashman v Police, the Full Court did not find it necessary to decide this question. Doyle CJ and Besanko J expressly said that it was not necessary to decide this question and referred to the possibility that the liability might be strict.[14]
[12] [1964] SASR 22.
[13] Ibid at 25-26 per Napier CJ, Travers and Bright JJ.
[14] (2003) 85 SASR 23 at [21] and [33] per Doyle CJ and [62] per Besanko J. See also the approach of Mullighan J at [53] who dissented and for different reasons also found it unnecessary to decide this question.
On the present appeal, both parties submit that the offence of contravening section 47B is an offence of strict, not absolute liability. I therefore proceed upon the assumption that the defence of honest and reasonable belief is available. It is also common ground that, as evidenced by his plea of guilty, the defendant did not have available such a defence on the facts.
In Siviour-Ashman v Police,[15] Doyle CJ identified the factual basis upon which it was to be considered in that case whether the offence was trifling as follows:
The application to the magistrate had to be considered on the basis that the appellant reasonably believed that she had consumed three drinks containing alcohol, over the period described; on the basis that she reasonably and correctly believed that the drinks she thought she had consumed would have resulted in a concentration of alcohol less than the prescribed concentration of 0.05 grams of alcohol in 100 millilitres of blood when she began driving; on the basis that the appellant did not know, and had no reason to suspect, that she had consumed additional alcohol in the fruit drink, and on the further basis that it was that alcohol which caused her to have the prescribed concentration of alcohol in her blood when tested by the police.[16]
and identified the question to be decided as follows:
The question then becomes whether the fact that the appellant correctly believed that the amount of alcohol she thought she had consumed was such that she would not have the prescribed concentration of alcohol in her blood, and the fact that her belief was falsified by events for which she was not responsible and in respect of which she could not be criticised, together make the offence trifling.[17]
Doyle CJ concluded that the answer to that question was no. He said:
It can be said affirmatively that she reasonably believed that she was not offending, and that her belief was correct and was falsified in circumstances beyond her control, and in respect of which she was not at fault. To that extent, the offending is not typical of its kind. In the case of an offence in relation to which knowledge of the presence of alcohol in the blood, or advertence to that fact, is significant in assessing the seriousness of the offence, this aspect of the facts on which the appellant relies would probably be enough for one to conclude that the offence was trifling. But in the case of s 47B(1), I consider that the offending conduct is to be given more weight than the explanation for it, and in particular, more weight than the offender's awareness of the fact that an offence might be committed. To my mind, the offending conduct cannot be regarded as a trifling offence simply because of the appellant's state of mind and belief, because of the very limited significance of advertence and state of mind when making a qualitative assessment of an offence like the one in question.[18]
[15] Ibid.
[16] Ibid at [16].
[17] Ibid at [30].
[18] Ibid at [43].
Besanko J agreed with Doyle CJ and added the following explanation:
I think that there are offences which by their very nature are such that in determining if the offence is trifling the focus will be on the conduct which constitutes the offence. In fact, I think that this is such an offence.
In this case, the appellant was in many respects quite blameless and there are powerful mitigating circumstances in her favour. It was not an offence for the appellant to drive a motor vehicle with a concentration of alcohol in her blood. It was an offence to drive a motor vehicle with the prescribed concentration of alcohol in her blood. The appellant was careful in her approach to drinking alcohol on the night in question, and but for the consumption of what she thought was a non-alcoholic fruit drink, she would not have committed an offence.
The conduct which constitutes the offence in this case is in no way atypical. The appellant was driving on a main road with greater than the prescribed concentration of alcohol in her blood. In fact, her blood alcohol reading was well over twice the prescribed limit. The circumstances which explain how that came about are relevant, but I think the focus in considering the application of s 47B(3)(b) must be on the conduct which constitutes the offence. I say that because an important purpose, if not the most important purpose, behind the legislative provisions which create the offence is, to use the words of Debelle J in Police v Hughes "the establishment of safe driving conditions".[19]
[19] Ibid at [61], [62] and [63].
Mullighan J dissented:
As the offending conduct and the circumstances must be viewed as a whole, the reason for the driving can be relevant. There are two main elements of the offence, the driving and the required presence of alcohol in the blood. If there is unawareness as to the second of those elements, through no fault of the driver, I think the offence can be trifling and is more likely to be so, than when the offence was committed deliberately for a particular reason, even a humanitarian reason. It was an unintended or inadvertent breach of the law by a person who had taken sensible and responsible precautions to ensure that the offence would not be committed.[20]
[20] Ibid at [52].
Whatever construction of the word trifling in the context of a contravention of section 47B might have been adopted in the absence of binding authority, I am bound by the decision of the Full Court in Siviour-Ashman v Police. As the majority in the Full Court did not find it necessary to decide whether a contravention of section 47B is an offence of absolute or strict liability, they must have proceeded upon the assumption that it is an offence of strict liability. I say this because, based on the reasoning of the majority, the weight to be given to a defendant’s state of mind in weighing whether an offence is trifling ought logically to be higher in a case of an offence of strict liability (where state of mind is, to a degree, relevant to the existence of the offence) than an offence of absolute liability (where state of mind is completely irrelevant). The majority held that a defendant’s belief that his or her blood alcohol level is less than 0.05 is to be given little weight compared to the weight to be accorded to the objective circumstances of the offending in assessing whether the offence is trifling.
The Magistrate was bound, and on appeal I am bound, to assign relatively little weight to the defendant’s state of mind as to his blood alcohol reading in assessing whether the offence was trifling. The objective circumstances of the offending were serious, given that the defendant was driving in the city of Adelaide with a blood alcohol reading in excess of twice the legal limit. The factual circumstances in relation to Siviour-Ashman’s state of mind were stronger in her favour compared to the circumstances of the defendant. The Full Court proceeded on the explicit basis that Siviour-Ashman had no reason to suspect that the fruit drink contained alcohol or that her blood alcohol reading exceeded 0.05 milligrams. In the present case, on the face of the reading from his personal breath test instrument, the defendant did have reason to suspect that his blood alcohol concentration exceeded 0.05 milligrams because a reading of 0.04 on his hand held breathalyser was subject to a margin of error of 0.01. He also knew that he had consumed a least ten alcoholic drinks that night.
In these circumstances, the Magistrate erred in his conclusion that the offence was trifling.
Conclusion
I allow the appeal. I set aside the order of disqualification by the Magistrate. A fresh period of disqualification for at least six months will need to be imposed. I will hear the parties as to what order should be made in lieu of the Magistrate’s order.