Police v Broad No. Scgrg-98-1254 Judgment No. S6939

[1998] SASC 6939

POLICE v BROAD
[1998] SASC 6939

Magistrates Appeal: Civil

1. MILLHOUSE J.                 The facts in this matter are set out in the judgment of the learned special magistrate.  They have not been challenged.  That being so, I shall give merely an outline sufficient to deal with the point raised by the appeal. 

2. The respondent was driving his motor car along Princes Road, on the evening of 6 November 1997, having come from the Edinburgh Hotel at Mitcham.  He was stopped for an alcotest, which was positive.  He was then given the breathalyser and found to be well over the .05 limit, .126.  

3. The police had checked up on him and found that there was an outstanding warrant against him for some speeding offence interstate.  The amount was over $200 and he didn't have the cash on him to pay it.  Accordingly, he was told, before he had the breath analysis, that after the test was finished, he would be arrested and taken to the City Watchhouse. 

4. In accordance with police procedures, he was asked whether or not he wanted to have a blood test kit, so that he could arrange for a blood test.  At first he said he did not.  Later, he rather changed his mind and thought that maybe he should have one after all.  He asked the constable testing him what would happen about that when he was taken to the Watchhouse.  The constable was vague.  Certainly he gave the respondent no useful advice.  The result was that the respondent did nothing more about having a blood test. 

5. At the hearing, the learned special magistrate, of the view that a clear unfairness had occurred, excluded the evidence of the breathalyser, in the exercise of his discretion. 

6. The police have appealed.  Mr Michael Grant, for the appellant, has invited me to reverse this exercise of the discretion to allow the evidence of the blood analysis reading in.  He has argued that the police followed the correct procedures, gave the respondent all the advice to which he was entitled.  Mr Grant acknowledged though, that it is unusual for a person to be arrested after the test, as the respondent was. 

7. My answer, during argument, to Mr Grant, was that the respondent was in a very difficult, no doubt anxious and tense position.  He had been caught not only over the limit but also having not paid a fine.  He had been drinking and it was quite late in the evening.  I know how I would feel if ever I - I devoutly hope I shall not be - if ever I were in the same position as the respondent. 

8. In the circumstances, the police should have - I hope they usually do - bent over backwards to make sure the respondent knew exactly what was going to happen, how he could exercise his rights to an independent blood test.   The constable, if he didn't know, should have found out the position, what the respondent would be able to do and then one of the police officers should have explained that to the respondent.  They did not. 

9. The learned special magistrate exercised the discretion, which undoubtedly he had, to exclude the evidence.  I do not think his discretion in any way miscarried.  I should not interfere.

10. The appeal is dismissed.