Police v Bleeze
[2012] SASCFC 54
•17 May 2012
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 Henwood (2005) 92 SASR 15; Police v Kyriacou (2009) 103 SASR 243; Porter v Kobdezeij [1962] VR 75; Schild v Rees (1990) 158 LSJS 285, considered.
POLICE v BLEEZE
[2012] SASCFC 54Full Court Gray, Kourakis and Blue JJ
GRAY J.
This is an appeal against the dismissal of a complaint.
The defendant and respondent, Jared Shane Bleeze, was charged that on 25 June 2010 he failed to comply with the reasonable directions of a police officer in relation to the requirement to submit to a breath analysis contrary to section 47E(3) of the Road Traffic Act 1961 (SA). Following the trial before a Magistrate, the defendant was convicted.
The defendant appealed to a Judge of this Court. The Judge allowed the appeal, set aside the conviction and substituted a verdict of not guilty. The police, the appellant, have now appealed from the decision of the single Judge. The police seek the setting aside of the order made by the Judge and the restoration of the conviction recorded by the Magistrate.
The prosecution case at trial was that the defendant had, in breach of the provisions of the Road Traffic Act, failed to comply with the reasonable direction of Constable Horley to submit to a breath analysis. It was said that this refusal was repeated on several occasions. The defence case was supported by the defendant’s evidence which was summarised by the Judge as follows:[1]
The [defendant] told the Court that he arrived at [the premises of Monaghan’s Pty Ltd] at approximately 12.30pm in order to wash his truck. When he arrived he had not drunk any alcohol. The [defendant] said he then went to another premises to wash his truck and returned to Monaghan’s at about 1.20pm. He said that he intended to be collected by his friend and taken away for the weekend and therefore decided to drink from a bottle of port. The police arrived at about 2.20pm. The [defendant] gave evidence that when required to submit to an alcotest at Monaghan’s the batteries in the alcotest machine were flat and a new machine had to be obtained. Whilst he was waiting for the new machine to arrive, he had some more port. He then undertook a second alcotest at the scene which gave a positive result and then was asked to accompany the police back to the Parks Police Station, which he did. He maintained at all times that he had done nothing wrong.
The [defendant] gave evidence that, at the Parks Police Station, the breath analysing instrument gave a reading indicating an insufficient sample on two occasions and Constable Horley accused him of “mucking around” and blocking the instrument. The [defendant] gave evidence that he had told Constable Horley that he had no reason to block it and in Court indicated that his version of the conversation was accurate and it would all be on the audio, if that had been available. The [defendant] gave evidence that he told Constable Horley after being directed to blow that he had had a neck injury which could result in him producing too much saliva and blocking the tube. He told Constable Horley, as he told the Court, that a carbon fibre box with a stainless steel plate had been inserted in his spine. He said that he produced more saliva than he used to prior to the operation and certainly more saliva than a normal person. In evidence the [defendant] produced an x-ray which indicated that such an insertion had been made, although there was no evidence led as to the results of that insertion concerning the production of excess saliva.
He told the Court that when blowing into the instrument he could feel a lot of moisture as he kept blowing and the instrument did not work. He denied trying to deliberately abort the process. His defence was that he was genuinely trying to obey the directions of the police officer concerning the breath analysis but could not do so because of his medical condition.
[1] Bleeze v Police (2011) 11 SASR 280, [9]-[11].
The Magistrate made adverse findings concerning the credibility of the defendant and favourable findings with respect to the police evidence. The Judge summarised these findings as follows:[2]
In his reasons, the Magistrate found that even though there were unsatisfactory aspects of the evidence of Constable Horley due to his paucity of memory because of the loss of the audiotape, the Magistrate found him to be an honest witness. The Magistrate found his observations of the [defendant]’s conduct during the occasions the instrument indicated that the [defendant] did not provide a sufficient sample to be “compelling”. The Magistrate found the [defendant] to be an unimpressive witness. He found the [defendant] to be untruthful when he asserted in his evidence that he had a genuine belief that excessive saliva had contributed to failures to provide a sufficient sample and also that he made a genuine effort to comply with the directions of Constable Horley.
[2] Bleeze v Police (2011) 11 SASR 280, [12].
The Magistrate concluded that the defendant had not obeyed the directions of the police officer requiring him to submit to a breath analysis. The Judge on appeal did not set aside the Magistrate’s findings on credit or his finding that the defendant had not obeyed the police direction.[3]
[3] The Judge under appeal relevantly observed:
I am of the view that the failure to call evidence that the breath analysing instrument was in good working order is fatal to this conviction. I find that to be so even allowing, as I do in this case, for the Magistrate’s findings that the [defendant] was untruthful in his evidence and in fact did not obey the directions of Constable Horley.
The evidence of Constable Horley was sufficient to establish there was a case to answer. This evidence was to the effect that the defendant had stopped blowing into the breath analysing instrument such that a sufficient sample could not be obtained. The prosecution’s case was that the defendant was intoxicated and that Constable Horley had observed the defendant to have acted in a manner that sought to conceal his intoxication and was accordingly seeking to avoid the consequences of the analysis.
The Judge summarised Constable Horley’s evidence as to the sequence of events as follows:[4]
[4] Bleeze v Police (2011) 11 SASR 280, [7].
1The breath analysing instrument was activated for the first time according to a printout of the instrument at 2.42pm. At 2.49pm, Constable Horley directed the [defendant] to take a deep breath and settle his lips around the mouthpiece and exhale continuously through the mouthpiece into the instrument with one continuous breath until told to stop. On that occasion the [defendant] provided a sufficient sample of breath, which gave a reading of 0.250 grams of alcohol in 210 litres of breath.
2 Constable Horley then gave the same direction for a second time, to direct the [defendant] to give a second sample of breath. Constable Horley gave evidence that the [defendant] did not place the mouthpiece properly in his mouth when the blowing commenced and only one star was displayed on the instrument readout, indicating an insufficient sample. A sufficient sample will display 16 stars. He gave evidence that the instrument printout indicated that this occurred at about 2.51pm.
3Constable Horley then directed the [defendant] in the same terms as above for a third time and demonstrated to the [defendant] the method of placing a mouthpiece in his mouth, sealing his lips and blowing with one long continuous breath. Constable Horley then gave evidence that he heard a sound consistent with the mouthpiece being blocked by a tongue before observing that the blowing resumed. The instrument reading was about 14 stars. The instrument then displayed the readout “stop” and “insufficient sample”. Constable Horley gave evidence that he was familiar with the sound made by the blocking of the tube with the tongue. He was of the opinion that the [defendant] was deliberately trying to abort the process.
4At this stage, Constable Horley read out to the [defendant] a statement in compliance with s 47E(4)(ab) of the Act and reg 8B and Schedule 1AA of the Road Traffic (Miscellaneous) Regulations 1999 (SA) (“the Regulations”). That statement says:
It is a criminal offence to refuse or fail to provide a breath sample without good cause. You could be fined and lose your licence for 12 months or more.
It is a defence if you have some physical or medical condition that prevents you from providing a breath sample, but only if you ask for a sample of your blood to be taken instead or can show that your condition also prevents the taking of blood.
If you want a blood sample taken because of your condition, you should ask for that and the police will help you to have the sample taken at Government expense. Do you understand that question?
In response Constable Horley said that the [defendant] said, “Yes”.
5Constable Horley again directed the defendant in the same terms as the other three occasions, but this time the instrument displayed, “non‑compliant exceed 10 minutes”. Constable Horley gave evidence that this could not have been correct as the time was 2.54pm and the first breath sample was given at 2.49pm. There was no satisfactory evidence led, according to the findings of the Magistrate, to explain the readout and to allow the Court to understand the precise time at which this occurred or to explain why the instrument apparently timed out within 10 minutes of the first sample being provided. As a result, Constable Horley aborted the process and decided to start again.
6At 3.03pm Constable Horley gave the [defendant] a further direction in the same terms as previously as to the manner of providing a sample. The [defendant] blew and 16 stars were displayed on the instrument readout and a breath alcohol analysis of 0.261 grams in 210 litres of breath was indicated. According to the instrument printout the time of the sample was 3.06pm.
7Constable Horley then gave the [defendant] a further direction in the same terms. On his evidence, the [defendant] commenced to blow into the tube but then stopped blowing and the instrument displayed “stop” and “insufficient sample”. Constable Horley then read the same statement and asked the same question as he did on the previous occasion quoted above in point 4. He then asked the [defendant] the following question, “Have you any reason of a physical or medical nature for refusing or failing to comply with my directions in relation to submitting to this breath analysis?” and on his evidence the [defendant] answered, “No”. Constable Horley then said, “Do you request that a sample of your blood be taken by a medical practitioner?” and the [defendant] said on a number of occasions, “If you wish”.
8After a further conversation with the [defendant], a blood kit test was issued. Constable Horley denied in cross-examination that the [defendant] at any time raised with him a potential explanation for the failure of the testing, namely excessive saliva because of a carbon box which was inserted in his spine. Constable Horley then gave the blood kit test to the [defendant] who was then conveyed to the hospital for a blood test. A copy of a statement by a medical practitioner was admitted during the cross-examination of Constable Horley (Exhibit P2) and on that form it is clear that a medical practitioner who took blood from the [defendant] ticked a box which stated “At the request of the person who has refused alcohol breath analysis by reason of some physical or medical condition (pursuant to s 47E(4)(a)) a police officer must be present”.
The Judge reasoned that it was necessary for the prosecution to prove that at the time of the direction, the breath analysing instrument which was to be used to perform the breath analysis was in good working order. As this had not been established, the Judge considered that the prosecution had not proved the charge beyond reasonable doubt and, as a consequence, set aside the conviction. The Judge reasoned:[5]
I am of the view that the failure to call evidence that the breath analysing instrument was in good working order is fatal to this conviction. I find that to be so even allowing, as I do in this case, for the Magistrate’s findings that the [defendant] was untruthful in his evidence and in fact did not obey the directions of Constable Horley.
The power of police to require a person to submit to a breath analysis is contained in s 47E(1) of the Act. It is not in dispute in this case that the conditions precedent for that power to be enlivened were satisfied, and that Constable Horley was able to require the [defendant] to submit to a breath analysis.
Breath analysis is defined by s 47A as “an analysis of breath by a breath analysing instrument”. In my view, this definition of breath analysis must imply that the relevant breath analysing instrument is in working order. In particular, it is difficult to envisage how the procedure could be described as “an analysis of breath” if the instrument is not shown to be in working order, especially in circumstances such as the present where there has been a prima facie malfunction of the breath analysing instrument. In my view, the power of the police to require a person to submit to a breath analysis is fundamentally predicated on the assumption that the breath analysing instrument is in proper working order.
Therefore, in the absence of proof that the breath analysing instrument was in working order, the procedure undertaken by Constable Horley and the [defendant] was not concerning a lawful “breath analysis” for the purposes of the Act. Therefore it follows that the [defendant] would have the defence provided by s 47E(4)(a) available to him, namely that the direction to which the prosecution relates was not lawfully made.
[5] Bleeze v Police (2011) 11 SASR 280, [26]-[29].
The Legislative Scheme
Division 5 of Part 3 of the Road Traffic Act establishes a scheme that addresses drink driving and drug driving. The Division’s object would appear to be to reduce the incidence of death and injury consequent upon motor vehicle accidents caused by the intoxication of drivers. The scheme depends for its effective operation on the ability of police to require those operating motor vehicles to submit to testing.
An offence of failing to comply with all reasonable directions of a police officer once a person has been required to submit to a breath analysis has been in effect since the establishment of the breath testing regime in 1967.[6]
[6] This content was originally found in section 47e(3) but is now in section 47E(3) of the Road Traffic Act 1961 (SA).
The preconditions for the exercise of the power in section 47E(1) have, from the outset, been conditioned on a police officer’s reasonable belief of certain facts. Those facts have been expanded since 1967 from driving a motor vehicle where the behaviour of the driver indicates impairment, to that which has applied since 2005 – a belief on reasonable grounds that a person drove, or attempted to put in motion, a motor vehicle.[7]
[7] The history of amendments to section 47E(1) suggests careful attention has been paid over a long period to their terms. In addition to the single precondition available in 1967, in 1972, a requirement could be made where an accident has occurred. In 1979, a further precondition was added to permit a requirement where a prescribed offence has been committed. Various amendments were made in 1980, 1981 and 1999 to expand the class of offences that would permit a requirement to be made.
The provision creating the offence, section 47E(3), and the defence in section 47E(4)(a) concerning the lawfulness of the requirement or direction were amended in 1972 into a form substantially identical to the current provision.[8]
[8] For a readily available extract of section 47e in the form as it stood in February, 1980 see the reasons of Jacobs J in Lajos v Samuel (1990) 26 SASR 514, 518.
It has been accepted that the burden rests on the prosecution to prove beyond reasonable doubt that the preconditions for the lawful exercise of the power to require a person to submit to a breath analysis are satisfied.[9] This is so notwithstanding the terms of section 47E(4)(a) which are expressed as a “defence”.[10] The reference to a defence has been held to be a “mere negative” of the element the prosecution must prove.[11]
[9] See, Lajos v Samuel (1980) 26 SASR 514, 520 (Jacobs J); Czerwinski v Hayes (1987) 47 SASR 44, 45 (Full Court).
[10] See, Lajos v Samuel (1980) 26 SASR 514, 520 (Jacobs J); Czerwinski v Hayes (1987) 47 SASR 44, 45 (Full Court).
[11] Czerwinski v Hayes (1987) 47 SASR 44, 45 (Full Court).
As a consequence, the prosecution must prove its case by establishing both the belief of the relevant police officer and facts which are sufficient to induce that state of mind in a reasonable person.[12]
[12] George v Rockett (1990) 170 CLR 104, 112 (The Court). For application to section 47E(1), see Police v Grozev [2006] SASC 353, [24]-[25] (Doyle CJ).
If a defendant raises a defence of “good cause” under section 47E(4)(b) the burden rests upon the defendant to prove on the balance of probabilities that good cause exists.[13]
[13] Czerwinski v Hayes (1987) 47 SASR 44, 45, 48, 59; see also, Jasinski v Police [2004] SASC 183, [26].
At the time of the offending in 2010, section 47E relevantly provided:[14]
[14] Section 47A provides the following relevant definitions:
(1)In this Act—
alcotest means a test by means of an apparatus of a kind approved by the Governor for the conduct of alcotests;
…
breath analysing instrument means an apparatus of a kind approved as a breath analysing instrument by the Governor;
…
prescribed circumstances—a requirement to submit to an alcotest, breath analysis or drug screening test under section 47E or 47EAA, or a direction to stop a vehicle for the purpose of making such a requirement, is made or given in prescribed circumstances if the police officer who makes the requirement or gives the direction believes on reasonable grounds that the person of whom the requirement is, or is to be, made has, within the preceding 8 hours—
(a)committed an offence of a prescribed class; or
(b)behaved in a manner that indicates that his or her ability to drive a motor vehicle is impaired; or
(c)been involved as a driver in an accident;
…
(2a)For the purposes of this Act, a police officer exercises random testing powers if, in accordance with section 47E or 47EAA—
(a) the police officer requires a person to submit to an alcotest, breath analysis or drug screening test or directs a person driving a motor vehicle to stop the vehicle for the purpose of requiring a person to submit to an alcotest or breath analysis; and
(b)the requirement is made, or the direction is given, otherwise than in prescribed circumstances.
(1)Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person—
(a) is driving, or has driven, a motor vehicle; or
(b) is attempting, or has attempted, to put a motor vehicle in motion; or
(c) is acting, or has acted, as a qualified supervising driver for the holder of a permit or licence,
the police officer may require the person to submit to an alcotest or a breath analysis, or both.
(2)A police officer may direct a person driving a motor vehicle to stop the vehicle and may give other reasonable directions for the purpose of making a requirement under this section that a person submit to an alcotest or a breath analysis.
(2a) A person must forthwith comply with a direction under subsection (2).
(2ab)A person must not, in the exercise of random testing powers, be required to submit to a breath analysis unless an alcotest conducted under subsection (1) indicates that the prescribed concentration of alcohol may be present in the blood of the person.
(2b)Without derogating from section 47DA or 47EA, an alcotest or breath analysis to which a person has been required to submit under subsection (1) may not be commenced more than 8 hours after the conduct of the person giving rise to the requirement.
(2d)The performance of an alcotest or breath analysis commences when a direction is first given by a police officer that the person concerned exhale into the alcotest apparatus or breath analysing instrument to be used for the alcotest or breath analysis.
(2e)The regulations may prescribe the manner in which an alcotest or breath analysis is to be conducted and may, for example, require that more than one sample of breath is to be provided for testing or analysis and, in such a case, specify which reading of the apparatus or instrument will be taken to be the result of the alcotest or breath analysis for the purposes of this and any other Act.
…
Regulation 8A of the Road Traffic (Miscellaneous) Regulations 1999 (SA) is entitled “Conduct of breath analysis” and is in the following terms:
(1)Pursuant to section 47E(2e) of the Act (Police may require alcotest or breath analysis), where a person submits to a breath analysis, the breath analysis must be conducted in the following manner:
(a) the person must provide two separate samples of breath for analysis; and
(b) each sample must be provided in accordance with the directions of the operator of the breath analysing instrument and must consist of not less than one litre of breath; and
(c) there must be an interval of not less than two minutes and not more than 10 minutes between the provision of the samples.
(2) Despite subregulation (1)—
(a) if, on analysing a sample of breath, the breath analysing instrument indicates an error in the analysis of the sample—
(i)that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis using a different instrument (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(b) if, on analysing a sample of breath, the breath analysing instrument indicates the presence of alcohol in the mouth of the person—
(i)that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(c) if, on analysing two samples of breath, the breath analysing instrument indicates that the reading obtained on analysis of the second sample was more than 15% higher or lower than the reading obtained on analysis of the first sample—
(i) those samples must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(d) if, for any reason, a second sample of breath is not provided within 10 minutes of the provision of the first sample—
(i) the first sample is to be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)).
(3)Where a person submits to a breath analysis, the result of the breath analysis will, for the purposes of the Road Traffic Act 1961 and any other Act, be taken to be the reading produced by the breath analysing instrument, on analysis of the samples of breath provided by the person in accordance with this regulation, that indicates the lower concentration of alcohol in the person's breath (not taking into account any samples that, in accordance with this regulation, are to be disregarded).
Section 47E(3) of the Road Traffic Act provides that it is an offence to refuse or fail to comply with the reasonable directions of a police officer:
(3)A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a police officer.
The authorities concerning section 47E and its progenitor have never suggested that the matters which require proof for a direction to be lawful include proof of the objective fact of the proper working of the breath analysis instrument.[15]
[15] See for example, Czerwinski v Hayes (1987) 47 SASR 44.
Section 47E addresses possible defences in the following terms:
…
(4) It is a defence to a prosecution under subsection (3) that—
(a) the requirement or direction to which the prosecution relates was not lawfully made; or
(ab) the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to—
(i)the consequences of refusing or failing to comply with the requirement or direction; and
(ii)the person's right to request the taking of a blood sample under subsection (4a); or
(b) there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction.
(4a)If a person refuses or fails to comply with the requirement or direction under this section by reason of some physical or medical condition of the person and forthwith makes a request of a police officer that a sample of his or her blood be taken by a medical practitioner, a police officer must do all things reasonably necessary to facilitate the taking of a sample of the person's blood—
(a) by a medical practitioner nominated by the person; or
(b) if—
(i)it becomes apparent to the police officer that there is no reasonable likelihood that a medical practitioner nominated by the person will be available to take the sample within 1 hour of the time of the request at some place not more than 10 kilometres distant from the place of the request; or
(ii) the person does not nominate a particular medical practitioner,
by any medical practitioner who is available to take the sample.
(5)No person is entitled to refuse or fail to comply with a requirement or direction under this section on the ground that—
(a) the person would, or might, by complying with that requirement or direction, furnish evidence that could be used against himself or herself; or
(b) the person consumed alcohol after the person last drove a motor vehicle or attempted to put a motor vehicle in motion and before the requirement was made or the direction given.
(5a)A person may not raise a defence that the person had good cause for a refusal or failure to comply with a requirement or direction under this section by reason of some physical or medical condition of the person unless—
(a) a sample of the person's blood was taken in accordance with subsection (4a); or
(b) the person made a request as referred to in subsection (4a), but—
(i)a police officer failed to facilitate the taking of a sample of the person's blood as required by that subsection; or
(ii)a medical practitioner was not reasonably available for the purpose of taking such a sample; or
(c) the taking of a sample of the person's blood in accordance with subsection (4a) was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person.
…
Regulation 8B of the Road Traffic (Miscellaneous) Regulations provides:
The prescribed oral advice for the purposes of section 47E(4)(ab) of the Act (Police may require alcotest or breath analysis) is set out in Schedule 1AA.
Section 47E(3) only applies to a person who is required under section 47E to submit to an alcotest or breath analysis. The preconditions in section 47E(1) which relate to the requirement to submit to an alcotest or breath analysis must be established. Further, with respect to such persons, section 47E(2) empowers the giving of directions by a police officer that relate to the requirements.
Section 47E(3) makes any refusal or failure to comply an offence. The expression “breath analysis” as it is used in section 47E(3) controls the ambit of what can be required by a police officer. It also controls the ambit of a “reasonable direction”. A direction must relate to the requirement, being the requirement to submit to a breath analysis. Such a reading gives work to the expression “breath analysis”. To so read the provision is to give the words their statutorily defined meaning in the context of the Division as a whole.
The implication drawn by the Judge under appeal is that the words breath analysis go further. On his reading, those words “imply that the relevant breath analysing instrument is in working order”.[16] That is, the issue of the instrument’s accuracy becomes an element or precondition to the exercise of the direction-making power. In my view, there is no principle of interpretation that justifies reading the language as containing the words “working order” in this context.
[16] Bleeze v Police (2011) 11 SASR 280, [28].
A number of matters militate against the conclusion of the Judge that such an implication is to be drawn.
The statute contains detailed preconditions for the exercise of a power to require a person to submit to either an alcotest or breath analysis. As set out above, the preconditions in section 47E(1) to the making of a requirement have been modified over time. The same may be said of preconditions, such as the requirement for a preceding alcotest in some cases[17] or the conditions which operate negatively such as the time limitation.[18] An inference arises that Parliament has codified the requirements for a lawful direction. That is not surprising given the practical reality that this power needs to be routinely used and relied upon in order to achieve the Division’s wider purpose. A codification points against the drawing of implicit preconditions.
[17] Road Traffic Act 1961 (SA) section 47E(2ab).
[18] Road Traffic Act 1961 (SA) section 47E(2b).
Further, the preconditions for the exercise of the power to make a requirement under section 47E(1) are qualified by a belief on reasonable grounds. That is also the case for the facts that amount to “prescribed circumstances” for the purposes of section 47A. The implication drawn by the Judge below imports an objective fact – that a machine is in proper working order – not a subjective belief held on reasonable grounds. The requiring of proof of an objective fact is in the circumstances, in my view, a reason to doubt the necessity of this implication.
The Division’s scheme for breath analysis provides not only for the collection of evidence, but how that evidence will be proven in the event of a trial.[19] In particular, section 47K(3)(b)(ii) functions as an aid to proving the output of the instrument. It provides for certification that “the breath analysing instrument was in proper order and was properly operated”. It stands against the common law evidentiary requirement that proof of the proper order and operation of an instrument is required before the output can be relied upon.[20]
[19] Section 47K(3) of the Road Traffic Act 1961 (SA) provides:
(3)A certificate—
(a) purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments; or
(b) purporting to be signed by a person authorised under subsection (1) and to certify that—
(i)the apparatus used by the authorised person was a breath analysing instrument within the meaning of this Act; and
(ii) the breath analysing instrument was in proper order and was properly operated; and
(iii)the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with,
is, in the absence of proof to the contrary, proof of the matters so certified.
[20] Evans v Benson (1986) 46 SASR 317, 323 (King CJ).
Two issues arise from the terms of section 47K(3)(b)(ii). The scheme contemplates that there will be a “breath analysing instrument” that is not properly working or properly operated. That is contrary to the implication drawn that it will not be a “breath analysis” unless the instrument is in working order.
The statutory scheme treats the issue of proper order and operation of the instrument as an issue relevant to proof. It is not a matter that bears on the lawfulness of a direction. Accordingly, the implication drawn by the Judge under appeal transforms an evidentiary requirement into a precondition for a lawful direction. In doing so, the implication requires a reading of section 47E such that the fact of the instrument not being in working order means not only the requirement is unlawful, but that the output from the instrument cannot be used as a matter of evidence. This would suggest that the implication is not necessary.
Section 47E(3) applies in cases of an outright refusal by a driver to submit to a breath analysis. In such a case, no occasion will arise to have recourse to use any particular instrument. This aspect of section 47E explains why section 47K(18) of the Act does not permit the tender of a certificate in a prosecution of section 47E(3) to prove the proper order and operation of the instrument.[21] Put simply, the breach is about behaviour of the driver, independent of any output from an instrument.
[21] Section 47K(18) of the Road Traffic Act 1961 (SA) relevantly provides:
The provisions of this section apply in relation to proceedings for an offence against this Act or the Motor Vehicles Act 1959 or a driving-related offence, subject to the following exceptions:
…
(b)subsection (3)(b)(ii) does not apply in relation to an offence against section 47E(3);
…
The implication drawn by the Judge under appeal would apply to all prosecutions under section 47E(3). This follows because the implication arises from the definition of “breath analysis” in section 47A which “means an analysis of breath by a breath analysing instrument”.
The implication would therefore require that notwithstanding the fact that the instrument had not ever been used, its proper working order must still be established. Proof of the accuracy of the instrument is an appendix that serves no apparent purpose. This is to be contrasted to a prosecution under section 47B – namely, driving while having a prescribed concentration of alcohol in blood – which hinges on the accuracy of the instrument’s output. Further, the decision of the Judge under appeal does not identify at what point the prosecution would need to establish that the instrument is in proper working order.
The circumstance may arise when a person is required under section 47E(3) to submit to a breath analysis where that person refuses at the outset to participate at all. In those circumstances, it is not incumbent on the prosecution to prove that they proposed to utilise an instrument that was in proper working order. The direction given would be a lawful direction and it would not be incumbent upon the prosecution to go through the futile process of proving that if the instrument was used, it would perform properly.
In my view, no implication can be drawn from the Act that the proper working of the instrument is a precondition to the making of a lawful requirement.
Finally, on this aspect of the appeal counsel for the defendant contended that the evidence established that the police officer conducting the breath analysis was or ought to have been aware that the breath analysis instrument was malfunctioning. Earlier in these reasons I set out the Judge’s summary of the sequence of events. Although some questions have arisen as to the operation of the instrument, it is plain that on the occasion of the defendant’s second and third attempts, the police officer was unaware of any possible problem with the instrument. The defendant’s contention, in my view, is without substance.
The Alternative Contentions
The defendant sought to uphold the decision of the Judge on the basis that on an independent review of the evidence the Judge ought to have held, on the balance of probabilities, that there was “good cause” for the defendant’s failure to comply with the reasonable directions of Constable Horley.[22]
[22] See, Road Traffic Act 1961 (SA) section 47E(4)(b).
The Judge, in discussing this ground of appeal, reasoned:[23]
The [defendant]’s argument on that ground that the verdict is unsafe and unsatisfactory relates to whether there has been proved on the balance of probabilities that there was good cause for the refusal or failure of the [defendant] to comply with the requirement or direction of Constable Horley pursuant to s 47E(4)(b). It is undisputed that the onus is on the [defendant] to prove those circumstances of good cause existed. Here the only evidence provided to the Magistrate was the fact that on the form signed by the medical practitioner in relation to the blood test was that he ticked the box which said “At the request of the person who has refused alcotest or breath analysis by reason of some physical medical condition etc”. That, according to the [defendant], is evidence going towards the question of whether some physical or medical condition did exist which would provide good cause. There was also a document by way of x-ray tendered which supports the [defendant]’s contention that there was an insertion as he described. In my view, the Magistrate was correct in finding that none of those circumstances could provide evidence on the balance of probability to make out good cause.
[23] Bleeze v Police (2011) 11 SASR 280, [31].
As set out above, the defendant bore the onus of proving the relevant matters. Accordingly, the defence could not be made out in the absence of positive evidence adduced by a defendant. The nature of the defence in this case depended on the evidence of the defendant himself.
There is no reason to depart from the credit and ultimate findings of the Magistrate in relation to the defence of good cause, particularly having regard to the Magistrate’s advantage in seeing and hearing the witnesses and after giving weight to findings on credit which depend in part on demeanour.[24]
[24] Police v A, TG [2006] SASC 299, [15]; Fox v Percy (2003) 214 CLR 118.
The defendant was disbelieved on his evidence concerning his good cause and the Magistrate concluded that he in fact gave false evidence. The Magistrate held that the defendant was untruthful to the extent that he asserted in evidence a genuine belief that excessive saliva had contributed to failures to provide a sufficient sample and to the extent that he asserted a genuine effort to comply. The Magistrate concluded there was no medical evidence, apart from an x-ray, that could possibly substantiate the defendant’s claim that he suffered from a medical condition.[25]
[25] The Judge under appeal relevantly observed:
… It is undisputed that the onus is on the [defendant] to prove those circumstances of good cause existed. Here the only evidence provided to the Magistrate was the fact that on the form signed by the medical practitioner in relation to the blood test was that he ticked the box which said “At the request of the person who has refused alcotest or breath analysis by reason of some physical medical condition etc”. That, according to the [defendant], is evidence going towards the question of whether some physical or medical condition did exist which would provide good cause. There was also a document by way of x-ray tendered which supports the [defendant’s] contention that there was an insertion as he described. In my view, the Magistrate was correct in finding that none of those circumstances could provide evidence on the balance of probability to make out good cause.
In the within appeal, the defendant contends that the Magistrate and the Judge under appeal failed to draw a Jones v Dunkel[26] inference by reason of the prosecutor’s failure to call Sergeant Brown, a police officer present at the time of the breath analysis procedure. Assuming the preconditions to the drawing of such an inference existed, any inference to be drawn is not capable of giving rise to evidence in support of the defence of good cause. At best, it might bear on the strength of the prosecution case as it related to proof of non-compliance with the direction. But even then it does not mean Constable Horley ought to be disbelieved or that he is partly discredited. Critically, it does not create positive evidence to support the existence of a good cause.
[26] Jones v Dunkel (1959) 101 CLR 298; see also, Police v Kyriacou (2009) 103 SASR 243, [16].
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
On 25 June 2010, the defendant drove a truck from his employer’s premises to a truck wash and back. A police constable attended and subjected the defendant to one alcotest which was not completed and a second alcotest at the premises. The defendant gave evidence that he drank port after he arrived back at his work place from the truck wash and that he drank more port after he was subjected to the first alcotest and while he was waiting to be subjected to a second alcotest. The constable gave evidence denying that this occurred.
The constable conveyed the defendant to the local police station. He told the defendant (pursuant to s 47E(1) of the Road Traffic Act 1961 (SA)) that he required him to submit to a breath analysis. He referred to a Drager Alcotest 7110 serial number MRZEA001. The constable said:
You are required to provide two separate samples of breath for analysis in accordance with my directions. The lower of the two results will be your breath alcohol concentration.
The constable then gave to the defendant a direction (pursuant to s 47E(2) of the Act) for the purpose of the requirement that the defendant submit to a breath analysis. He said:
I now direct you to take a deep breath and to seal your lips around the mouthpiece and exhale continuously through this mouthpiece, into the breath analysing instrument with one continuous breath until I tell you to stop ... Please blow.
The defendant complied with the direction and blew through the mouthpiece satisfactorily. The instrument registered 16 stars. A reading of 16 stars is the instrument’s indication that the requisite one litre of air has been expelled into the instrument. The instrument subsequently recorded a presence of alcohol in the ratio of 0.25 grams per 210 litres. This ratio would have been deemed[41] (if two samples had been taken) to be the equivalent of an alcohol/blood percentage of 0.25 per cent.
[41] Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A(3).
The constable gave to the defendant a second direction in the same terms. The defendant commenced blowing but did not have the mouthpiece fully in his mouth and the flow of air into the instrument almost immediately stopped. The instrument registered one star. The instrument subsequently registered the second sample’s volume as 0.1 litre.
The constable gave the defendant a third direction. The defendant commenced blowing to a point at which the mouthpiece became blocked. The instrument registered 14 stars. The instrument subsequently recorded the third sample’s volume as 0.8 litres.
The constable gave to the defendant a warning (pursuant to s 47E(4)(ab) of the Act). He said:
It is a criminal offence to refuse or fail to provide a breath sample without good cause. You could be fined and lose your licence for 12 months or more. It is a defence if you have some physical or medical condition that prevents you from providing a breath sample, but only if you ask for a sample of your blood to be taken instead or can show that your condition also prevents the taking of blood. If you want a blood sample taken because of your condition, you should ask for that and the police will help you to have the sample taken at Government expense.
The constable then gave to the defendant another direction. However, before the defendant could commence to comply, the instrument displayed “non-compliant exceed 10 minutes”.
The machine printed out the time and results of the three samples. The details of the directions, samples and printed results are summarised in the following table:
Time Event Stars Volume per printout Printout 2.32 – 2.42 Requirement to submit 2.47 Direction 1 2.49* Sample 1 16 1.0 L 0.25 Direction 2 2.51* Sample 2 1 0.1 L “Insufficient Sample” Direction 3 2.54* Sample 3 14 0.8 L “Insufficient Sample” 2.54* “Sample 4: zero test non-compliant exceed 10 minutes” 2.58* Result “Subject’s Analysis: non‑compliant exceed 10 minutes” * Time per machine printout
The printout, read literally, showed the machine timing out after either five minutes in respect of “Sample 4” (which was never commenced) or nine minutes in respect of “Subject’s Analysis”. The constable was unable to explain this at trial. However, he was not asked if he noticed this at the time nor was it put to him that he should have done so.
The instrument was then recalibrated to re-commence the sampling sequence from the beginning. The constable gave the defendant a fourth direction. The defendant complied with the request and blew through the mouthpiece satisfactorily. The instrument registered 16 stars. The instrument subsequently recorded the fourth sample’s volume as 1.2 litres and an alcohol ratio of 0.261 grams per 210 litres of air.
The constable gave the defendant a fifth direction. The defendant commenced blowing but stopped blowing almost immediately. The instrument registered no stars. The instrument subsequently recorded the fifth sample’s volume as 0.0 litres. The constable gave the defendant a second warning in the same terms.
The constable gave the defendant a sixth direction. The defendant commenced blowing to a point at which the mouthpiece became blocked, which occurred almost immediately. The instrument registered no stars. The instrument subsequently recorded the sixth sample’s volume as 0.1 litres.
Before the constable could give another direction, the instrument displayed “non-compliant exceed 10 minutes”.
The machine printed out the time and results of the three further samples. The details of the directions, samples and printed results are summarised in the following table:
Time Event Stars Volume per printout Printout 3.03 Direction 4 3.06* Sample 4 16 1.2 L 0.261 Direction 5 3.08* Sample 5 0 0.0 L “Insufficient Sample” Warning 2 Direction 6 3.11* Sample 6 0 0.1 L “Insufficient Sample” 3.11* “Sample 4: zero test non-compliant exceed 10 minutes” 3.15* Result “Subject’s Analysis: non-compliant exceed 10 minutes” * Time per machine printout
The printout, read literally, showed the machine timing out after either five minutes in respect of “Sample 4” (which was never commenced) or nine minutes in respect of Subject’s Analysis. The constable was unable to explain this at trial.
The constable gave the defendant a third warning in similar terms to the previous warnings. The defendant requested that a sample of his blood be taken by a medical practitioner. He was conveyed to a hospital for that purpose. Two samples of his blood were taken and sent for analysis. However, no evidence was tendered of the result of the blood analysis.
On 3 August 2010, a complaint was issued by the Police against the defendant charging him with an offence under s 47E(3) of the Act.
The trial and the Magistrate’s reasons
The principal witness for the Police was the constable who imposed the requirement on and gave the directions to the defendant and who operated the Drager instrument. No evidence was adduced by the Police concerning the working order or accuracy of the instrument. The two printouts from the machine were tendered and admitted.
The defendant gave evidence. There were a number of conflicts between the evidence of the constable and the defendant. These included the following.
1.The constable gave evidence that he observed that the defendant did not place the mouthpiece properly in his mouth in respect of sample two, stopped blowing in respect of sample five and that he heard the mouthpiece become blocked (which in his opinion was due to the defendant’s tongue) in respect of samples three and six. The defendant did not dispute what happened in relation to samples two and five or that the mouthpiece became blocked in respect of samples three and six. However, he said that he tried genuinely to comply with the directions and believed that the mouthpiece must have become blocked with saliva on those two occasions.
2.The defendant gave evidence that he told the constable after sample three that he had had a neck injury, resulting in a carbon fibre box and steel plate being inserted in his cervical spine, that as a result he produced excessive saliva and that this might be blocking the tube. This was denied by the constable.
3.The defendant gave evidence that he had not consumed any alcohol before returning from the truck wash, but he drank port after doing so and after the constable arrived for the purposes of conducting an alcotest, including between the first (abortive) and second alcotest. The constable gave evidence that he had the defendant under observation from the time he first spoke to him at the premises and he did not consume any alcohol during that time.
4.The defendant gave evidence that he told the constable at the outset that he had been drinking while in the yard cleaning his truck. This was denied by the constable, who said that the defendant did not mention this until he was interviewed at the police station and after the conclusion of the breath analysis procedures.
The Magistrate made an adverse credibility finding in relation to the defendant’s evidence. The Magistrate accepted the constable’s evidence in preference to the defendant’s evidence.
The Magistrate then analysed the issues in the following passage:
[53]… I found [the constable] to be generally an honest witness. I found his evidence of observations of the defendant’s conduct during the occasions the instrument indicated that he did not provide a sufficient sample to be compelling, given his training, and his own use of the machine for providing breath samples during training, which led him to be able to recognise the noise of the tube being blocked. I note also the statement of [the constable] … that he had conducted about 35 breath analysis procedures, so he was by no means inexperienced as a breath analysis operator.
[54]I am cautious about the extent to which I should rely on the printout of the breath analysis instrument as indicating a failure to provide sufficient sample given the absence of any specific evidence that the instrument was operating correctly …
[55]Nevertheless, the starting point in relation to such an instrument is that evidence provided by such an instrument is not unreliable evidence and it is my view that I should give it some weight…However such evidence could not in these circumstances of itself be conclusive. In this case, the starting point in considering the evidence of refusal to comply is the evidence of Constable Horley which I found reliable as to his observations of the defendant’s conduct during the procedures.
[56] Further, I can only consider the evidence in the light of the defendant’s evidence. I found him to be an unimpressive witness for the reasons to which I have alluded. I find that he was untruthful to the extent that he asserted in that evidence a genuine belief that excessive saliva had contributed to failures to provide a sufficient sample and to the extent that he asserted that he made a genuine effort to comply..
…
[58]The effect of my findings to this point is that I have concluded that [the constable] complied in all respects with the lawful requirements for requiring a defendant to undertake a breath analysis and for the conduct of such breath analysis.
[59]In this regard, I am not of view that the failure of the prosecution to explain why, on one interpretation of the printouts of the breath analysis instrument, it might be seen to have shut down after nine minutes from the commencement of each breath analysis procedure, affects my conclusion that the legislative requirements and the regulations as to the conduct of its tests have been complied with.
…
[62]I find that the directions given to the defendant in the case of each failure to provide a sufficient sample were lawful. I find that the defendant was capable of understanding and considering the request in each case and that he refused to comply by deliberate act or omission involving a conscious decision, having heard and understood the requirement and direction.
[63]The prosecution has proved beyond reasonable doubt that the police officer gave lawful directions and the defendant has failed to establish on the balance of probabilities that there was good cause for refusing or failing to comply. Indeed, I am satisfied beyond reasonable doubt that there was no good cause.
The reasoning of the appeal Judge
We acknowledge that we have not heard the respondent give oral testimony. Notwithstanding that disadvantage, this is a case where the conviction should be affirmed. The Magistrate found the [defendant] to be an unimpressive witness and did not accept his evidence that he made genuine efforts to comply.
Reasonable directions
The defendant contends that the directions given by the constable to him to breathe into the apparatus after the instrument timed out the first time were unreasonable because the constable knew, or ought to have known, that the instrument was not in proper working order.
The defendant accepts that there is an evidential onus upon a defendant to adduce evidence that the police officer knew, or ought to have known, that the instrument was not in proper working order before contending that the direction was unreasonable. We proceed on that basis.
The defendant did not lay an evidential basis at trial for the submission. In particular, it was not put to the constable that he observed, or ought to have observed, during the first series of tests that less than 10 minutes had elapsed between the first sample and the machine timing out. Nor was it put to him that he observed, or ought to have observed, that the printout from the instrument apparently showed that less than 10 minutes had elapsed since the first test to the point at which the machine recorded “non compliant exceed 10 minutes”.
In these circumstances, the defendant has failed to establish this ground of appeal.
Defence of good cause
The defendant contends that he established by his evidence the defence that he suffered from a physical or medical condition associated with his spinal injury, namely excess saliva, which amounted to good cause for his failure to comply with the requirement or direction.
The defendant accepts that he bore the onus, on the balance of probabilities, of establishing the defence of “good cause”. He did not call any expert medical evidence concerning his medical condition. In those circumstances, establishing the defence depended entirely upon the Magistrate accepting his testimony. The Magistrate’s rejection of the credibility of the defendant’s evidence was fatal to his establishing the defence. In any event, for the reasons given at paragraph 102 above, the defendant did not lay an evidential basis at trial for the submission.
Conclusion
We would allow the appeal. We would set aside the order of acquittal and other orders of the Judge and restore the conviction imposed by the Magistrate.
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