Police v Bleeze

Case [2012] SASCFC 54

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

POLICE v BLEEZE

[2012] SASCFC 54

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Kourakis and The Honourable Justice Blue)

17 May 2012

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE - BREATH TEST AND ANALYSIS

EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - PROOF OF PARTICULAR MATTERS AND RELATIONSHIPS - BREATH ANALYSIS TESTS - BREATH-ANALYSING INSTRUMENTS

Defendant convicted by a Magistrate of failing to comply with all reasonable directions of a police officer in relation to a requirement to submit to a breath analysis - defendant appealed to a single Judge and acquitted on appeal - Police appeal to the Full Court against acquittal.

Whether Judge erred in finding that a direction under s 47E(2) of the Road Traffic Act 1961 (SA) is unlawful unless breath analysing instrument proved by prosecution to be in proper working order - whether Magistrate wrongly concluded defendant deliberately failed to comply - whether directions unreasonable because police officer knew or ought to have known that instrument was not in proper working order - whether Magistrate erred in rejecting the defendant had 'good cause' for non-compliance.

Held: Appeal allowed, conviction restored.

1. It is no part of the definition of a breath analysing instrument that it is accurate or in proper working order - the Judge erred in finding that the directions given to the defendant were not lawfully made because this had not been proved.

2. The Magistrate's conclusion that the defendant had failed to comply was correct disregarding any reference to the instrument being in proper working order.

3. The defendant did not adduce any evidence at trial that the officer knew or ought to have known that the instrument was not in proper working order to found a submission that the direction was 'unreasonable'.

4. The Magistrate's rejection of the defendant's testimony in the circumstances was fatal to the defendant's 'good cause' defence.

Road Traffic Act 1961 (SA) Ss 47, 47A, 47B, 47E, 47K; Road Traffic (Miscellaneous) Regulations 1999 (SA) Regs 8A, 8B, Schedule 1AA, referred to.
Evans v Benson (1986) 46 SASR 317; Shearer v Hills (1989) 51 SASR 243; Skalde v Evans [1966] SASR 176; Police v Barber (2010) 108 SASR 520, applied.
Czerwinski v Hayes (1987) 47 SASR 44; Dyson v Daire (1983) 106 LSJS 219; Fox v Percy (2003) 214 CLR 118; George v Rockett (1990) 170 CLR 104; Jasinski v Police [2004] SASC 183; Jones v Dunkel (1959) 101 CLR 298; Lajos v Samuel (1980) 26 SASR 514; Meertens v Falkenberg (1981) 92 LSJS 202; Mehesz v Redman (No 2) (1980) 26 SASR 244; Montgomery v Stewart (1967) 116 CLR 220; Police v A, TG [2006] SASC 299; Police v Ghuede (2007) 99 SASR 280; Police v Grozev [2006] SASC 353; Police v…

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Police v Bleeze [2012] SASCFC 54
Case
[2012] SASCFC 54
Decision Date

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal by the Police against an acquittal of a defendant, who had been convicted by a Magistrate of failing to comply with reasonable directions of a police officer in relation to a requirement to submit to a breath analysis. The defendant had successfully appealed to a single Judge, who acquitted him.

The central legal issue before the Full Court was whether the single Judge erred in finding that a direction given under section 47E(2) of the *Road Traffic Act 1961* (SA) was unlawful unless the prosecution proved the breath analysing instrument was in proper working order. Related issues included whether the Magistrate wrongly concluded the defendant deliberately failed to comply, whether the directions were unreasonable because the officer knew or ought to have known the instrument was faulty, and whether the Magistrate erred in rejecting the defendant's claim of 'good cause' for non-compliance.

The Court determined that the legislative regime did not require proof of the breath analysing instrument's proper working order as a precondition for a lawful requirement to submit to analysis. The offence under section 47E(3) concerns the obstruction or evasion of a lawful requirement by failing to comply with reasonable directions. The Court found that the single Judge had erred in imposing a requirement for proof of the instrument's working order, which was not mandated by the statute. The Court also addressed the defence of 'good cause' for non-compliance, noting the statutory limitations on relying on physical or medical conditions without a blood sample being taken or reasonably unable to be taken.

The Full Court allowed the appeal, set aside the single Judge's order of acquittal, and restored the Magistrate's conviction.

Orders

Orders of the court

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Background

Background to the litigation

The legislative regime in relation to a requirement to submit to breath analysis is and was as at June 2010 relevantly as follows.1.A police officer is empowered (if the preconditions are satisfied[28]) to require a person to submit to a breath analysis.[29]2.A police officer is empowered, for that purpose, to give reasonable directions (including to exhale into the relevant apparatus).[30]3.It is an offence to refuse or fail to comply with reasonable directions of a police officer in relation to the requirement to submit.[31]4.A person required to submit to a breath analysis must provide two separate samples of breath for analysis[32] and the lower reading is taken to be the reading produced by the breath analysing instrument.[33]5.A valid sample must comprise at least one litre of breath.[34]6.There must be an interval between samples of at least two minutes and not more than 10 minutes.[35]7.If a second sample is not provided within 10 minutes of the first sample, the first sample must be disregarded and the person may be required to provide two further samples of breath for analysis.[36]8.It is an element of the offence created by s 47E(3) that the requirement and the direction were lawfully made.[37]9.It is a defence to a prosecution for that offence that the person was not allowed the opportunity to comply after having been given a prescribed warning/advice of the consequences of not complying and of the person’s right to request the taking of a blood sample.[38]10.It is a defence to a prosecution for that offence that there was good cause for the refusal or failure to comply, whether by reason of some physical or medical condition or otherwise,[39] but a person cannot rely upon a physical or medical condition as good cause unless a blood sample was taken or could not reasonably have been taken due to specified circumstances beyond that person’s control.[40][28] This is not now in dispute on this appeal.[29] Road Traffic Act 1961 (SA) s 47E(1).[30] Road Traffic Act 1961 (SA) s 47E(2) and (3).[31] Road Traffic Act 1961 (SA) s 47E(3). Note that s 47E(2a) did not enact an offence until 1 July 2010 and can be ignored for present purposes.[32] Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A(1)(a) made pursuant to s 47E(2e).[33] Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A(3) made pursuant to s 47E(2e).[34] Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A(1)(b) made pursuant to s 47E(2e).[35] Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A(1)(c) made pursuant to s 47E(2e).[36] Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A(2)(d) made pursuant to s 47E(2e).[37] Road Traffic Act 1961 (SA) s 47E(4)(a); Lajos v Samuel (1980) 26 SASR 514 at 520 per Jacobs J; Czerwinski v Hayes (1987) 47 SASR 44 at 45 per King CJ, 50 per Prior J, 60 per Olsson J.[38] Road Traffic Act 1961 (SA) s 47E(4)(ab); Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8B and Schedule 1AA.[39] Road Traffic Act 1961 (SA) s 47E(4)(b) and (4a).[40] Road Traffic Act 1961 (SA) s 47E(5a).Background facts

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
The defendant raised one further issue on the appeal. It was contended that the complaint was bad because of latent duplicity. It was argued that section 47E(3) created a separate offence in respect of each refusal or failure to comply with directions of a police officer. In my view, this submission should be rejected. I agree with the conclusion of Kourakis and Blue JJ that the substance of the offence is the obstruction or evasion of the requirement given by a police officer pursuant to section 47E(1) by failing to comply with all reasonable directions given in relation to that requirement. I do not wish to add to their reasons for this conclusion. Conclusion I would allow the appeal, set aside the order made by the Judge on appeal and restore the orders made by the Magistrate. KOURAKIS & BLUE JJ: The respondent/defendant was convicted by a Magistrate of failing to comply with all reasonable directions of a police officer in relation to a requirement to submit to a breath analysis on 25 June 2010.[27][27] Road Traffic Act 1961 (SA) s 47E(3). A single Judge of this Court allowed the defendant’s appeal against the conviction and substituted an acquittal. The appeal was allowed because the Judge held that the power of the police to require a person to submit to a breath analysis is dependent upon the apparatus comprising the “breath analysing instrument” being in proper working order and that, absent proof thereof, the requirement was not lawfully made. The Police appeal, by permission, to the Full Court against the Judge’s order of acquittal.Mandatory breath analysis regime The legislative regime in relation to a requirement to submit to breath analysis is and was as at June 2010 relevantly as follows.1.A police officer is empowered (if the preconditions are satisfied[28]) to require a person to submit to a breath analysis.[29]2.A police officer is empowered, for that purpose, to give reasonable directions (including to exhale into the relevant apparatus).[30]3.It is an offence to refuse or fail to comply with reasonable directions of a police officer in relation to the requirement to submit.[31]4.A person required to submit to a breath analysis must provide two separate samples of breath for analysis[32] and the lower reading is taken to be the reading produced by the breath analysing instrument.[33]5.A valid sample must comprise at least one litre of breath.[34]6.There must be an interval between samples of at least two minutes and not more than 10 minutes.[35]7.If a second sample is not provided within 10 minutes of the first sample, the first sample must be disregarded and the person may be required to provide two further samples of breath for analysis.[36]8.It is an element of the offence created by s 47E(3) that the requirement and the direction were lawfully made.[37]9.It is a defence to a prosecution for that offence that the person was not allowed the opportunity to comply after having been given a prescribed warning/advice of the consequences of not complying and of the person’s right to request the taking of a blood sample.[38]10.It is a defence to a prosecution for that offence that there was good cause for the refusal or failure to comply, whether by reason of some physical or medical condition or otherwise,[39] but a person cannot rely upon a physical or medical condition as good cause unless a blood sample was taken or could not reasonably have been taken due to specified circumstances beyond that person’s control.[40][28] This is not now in dispute on this appeal.[29] Road Traffic Act 1961 (SA) s 47E(1).[30] Road Traffic Act 1961 (SA) s 47E(2) and (3).[31] Road Traffic Act 1961 (SA) s 47E(3). Note that s 47E(2a) did not enact an offence until 1 July 2010 and can be ignored for present purposes.[32] Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A(1)(a) made pursuant to s 47E(2e).[33] Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A(3) made pursuant to s 47E(2e).[34] Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A(1)(b) made pursuant to s 47E(2e).[35] Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A(1)(c) made pursuant to s 47E(2e).[36] Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A(2)(d) made pursuant to s 47E(2e).[37] Road Traffic Act 1961 (SA) s 47E(4)(a); Lajos v Samuel (1980) 26 SASR 514 at 520 per Jacobs J; Czerwinski v Hayes (1987) 47 SASR 44 at 45 per King CJ, 50 per Prior J, 60 per Olsson J.[38] Road Traffic Act 1961 (SA) s 47E(4)(ab); Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8B and Schedule 1AA.[39] Road Traffic Act 1961 (SA) s 47E(4)(b) and (4a).[40] Road Traffic Act 1961 (SA) s 47E(5a).Background facts

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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