Police v Brown - [2008] SASC 115

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
POLICE v BROWN
[2008] SASC 115
Judgment of The Honourable Justice Kelly
1 May 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal by prosecution against the dismissal of a charge of driving a motor vehicle with a prescribed concentration of alcohol contrary to s 47B of the Road Traffic Act 1961- the police officer who operated the breath analysing instrument left the police force before signing certificates proving certain matters under s 47G of the Road Traffic Act - meaning of the phrase "purporting to be signed by a person authorised" - whether the amendments to s 47G of the Road Traffic Act were procedural or substantive.
Held: appeal allowed - amendments to s 47G were procedural and did not affect the respondent's rights or liability. Effects of amendments to s 47G inconsequential to disposition of this appeal - police officer's resignation did not affect the validity of the certificates signed under provisions of s 47G of the Road Traffic Act - certificates signed by police officer are admissible - order of the magistrate set aside - respondent convicted of offence contrary to s 47B of the Road Traffic Act.
Road Traffic Act 1961 s 47B, s 47BA, s 47EAA, s 47K, former s 47G; Road Traffic (Drug Driving) Amendment Act 2005 s 14(8); Road Traffic (Miscellaneous) Regulations 1999 Reg 10, referred to.
Coles Foodmarket Pty Ltd v Boucher (1971) 2 SASR 323; Riera v Gore (1981) 28 SASR 228; Hinton Demolitions Pty Ltd v Young (1973) 6 SASR 129; Police v Henwood (2005) 92 SASR 15, discussed.
Miller v Roberts (1986) 22 ACrimR 331; Crawford Earth Movers Pty Ltd v Fitzsimmons (1972) 4 SASR 116; Maxwell v Murphy (1957) 96 CLR 261; Rodway v R (1990) 169 CLR 515; Police v Mott; Police v Rhodes (2005) 93 SASR 257; Cadd v Police (1988) 26 MVR 373, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Purporting to be authorised"

POLICE v BROWN
[2008] SASC 115
Kelly J
Introduction

This is an appeal by the police against the decision of a magistrate dismissing a charge against the respondent of driving a motor vehicle whilst there was present in her blood a prescribed concentration of alcohol contrary to section 47B of the Road Traffic Act 1961 (“RTA”).
There are two main issues of a technical nature which have arisen on this appeal: the first is the meaning of the phrase “purporting to be signed by a person authorised under subsection (1)” of section 47K (formerly section 47G) of the RTA.
A second issue which arises is whether the amendments in December 2005 to s 47G of the RTA affect the admissibility of certificates issued under that section in the respondent’s trial.
A Preliminary Issue
Before dealing with the main issues I shall deal with a preliminary matter which was argued by the respondent that it would be unfair to permit the appellant to now raise arguments supporting the admissibility of two certificates under s 47G(3)(b) and s 47G(7) of the RTA as neither of the arguments put on appeal had been argued before the learned magistrate. It was contended that to allow the appellant to do so now was to undermine the principle of autrefois acquit.
In making that submission, counsel for the respondent relied on the following authorities, Coles Foodmarket Pty Ltd v Boucher (1971) 2 SASR 323 at 325, Riera v Gore (1981) 28 SASR 228, Hinton Demolitions Pty Ltd v Young (1973) 6 SASR 129 at 132, Miller v Roberts (1986) 22 ACrimR 331 at 342 and Crawford Earth Movers Pty Ltd v Fitzsimmons (1972) 4 SASR 116 at 133.
In Coles Foodmarket, Wells J said at 325
On principle, it seems to me that the amendment ought to be allowed, subject to such order as to costs as justice demands. An appeal to this Court comes by way of a rehearing (see Almond v Allchurch⁽⁵⁾) and logically it should follow that, generally speaking, any proper argument of law or fact ought to be open on the appeal. Of course, if a new point or law or fact is taken on appeal that, if it had been taken at the hearing, could have been cured by evidence, ordinary fairness dictates that the party seeking to rely on that point ought to be precluded from doing so; but, subject to that exception, issues of law and fact are at large in the rehearing in the appeal court (subject to control by adjournment or orders as to costs). As Napier C.J. said in Gray v Jones⁽⁶⁾ :-¾
“In Hunter v Walsh⁽⁷⁾ the Full court held that the appeal was in the nature of a rehearing, upon which the Supreme Court could, in the exercise of a judicial discretion, order the witnesses to be recalled and examined in its presence. We reached that conclusion upon the language of the Act, aided by the history of the legislation, and the analogy of the appeal to Quarter Sessions, for which this appeal had been substituted.
It would be a strange conclusion if, upon an appeal of this nature, the Supreme Court is confined to the questions agitated in the court below, where necessary result is a manifest miscarriage of justice.”
In the subsequent cases referred to, the court applied the statement of principle enunciated in Coles Foodmarket. However an examination of each of those cases shows that the factual circumstances in each case are relevantly different from the circumstances here.
In Riera the appellant was convicted of an offence under the Country Fires Act 1976 and it was held to be unfair to allow him to raise a point on appeal which could have but was not taken on the hearing of the complaint, when had that point been raised at the hearing of the complaint, it could have been cured by evidence.
Hinton involved an appellant who had been convicted on complaint of a parking offence. Walters J, after citing the observation of Wells J in Coles Foodmarket, nevertheless proceeded to hear and determine the additional points raised by the appellant in any event.
In this case, the appellant did not develop either of the arguments in support of the admissibility of the certificates, exhibits P9, P10 and P11 before the magistrate.
However, the prosecution did present all of the evidence upon which it relied to prove the charge against the respondent. In particular, the appellant tendered each of the certificates under s 47G(3)(b), s 47G(5) and s 47G(7). In doing so the appellant must be taken to have relied, at least implicitly, on the proposition that the person referred to in those subsections as the person authorised under subsection (1), is the breath analysis operator, in this case, Mr Whitthoeft. The admissibility of the certificates was a crucial issue before the magistrate.
A similar problem arose in the converse in Police v Henwood (2005) 92 SASR 15. In that case the respondent submitted that the police should not be permitted to withdraw a concession made by the police prosecutor in the Magistrates Court. Doyle CJ at 28 observed that the matter conceded before the magistrate was a question of law and there was no relevant unfairness to the respondent in allowing the appellant to withdraw the concession on appeal. In particular, he noted that the concession did not affect the evidence which had been lead on the point that was decided by the magistrate.
In this case the appellant has not changed its position on appeal. The respondent has been on notice from the outset that the appellant’s contention is, and has always been, that the certificates exhibits P9, and P11 as a matter of law, are admissible at the trial of the respondent.
Even if the argument developed in this court supporting the admissibility of the certificates was to be categorised, strictly speaking, as a fresh argument, I cannot see that the respondent has been subjected to any unfairness as a result. I am also mindful of the remarks of the court in Coles Foodmarket that it would be a strange conclusion if, upon an appeal of this nature, the Supreme Court is confined to the questions agitated in the court below, where the necessary result is a manifest miscarriage of justice.
The Facts
The respondent Ms Brown was charged on complaint with two offences. The first alleged that on 24 September 2005 the respondent drove a motor vehicle while there was present in her blood a prescribed concentration of alcohol, contrary to s 47B of the RTA, the alleged concentration of alcohol being .173 grams of alcohol in one hundred millilitres of blood. The second alleged that on the same day the respondent disobeyed a “No u-turn” sign, contrary to Rule 39(1) of the Australian Road Rules.
The respondent pleaded not guilty to both charges. After a trial on 7 August 2007 she was found guilty of count 2 and a fine was imposed. The magistrate found the respondent not guilty of count 1 and dismissed the charge.
The prosecutor sought to prove the case against the respondent by relying on a number of certificates. The following certificates were tendered.
a.Exhibit P3 – certificate pursuant to s 47G(3c) certifying that a breath testing station was established pursuant to section 47DA;
b.Exhibit P4 – certificate pursuant to s 47G(3a) certifying that the apparatus referred to in the certificate was approved under the RTA for performing alcotests;
c.Exhibit P7 – certificate pursuant to s 47G(3)(a) certifying that the person named in the certificate was authorised to operate breath analysing instruments;
d. Exhibit P9 – certificate pursuant to s 47G(3)(b) certifying that:
(i)the breath analysing instrument was a breath analysing instrument within the meaning of the RTA;
(ii)that it was in proper order and properly operated; and (iii) that the provisions of the RTA with respect to breath analysing instruments were complied with;
e.Exhibit P10 – certificate pursuant to s 47G(5) certifying that the person named in the certificate submitted to a breath analysis, that a specified reading was obtained and that a statement in writing required by subsection (2) was delivered to the person; and
f.Exhibit P11 – certificate pursuant to s 47G(7) certifying that the provisions of subsection (2a)(a) were complied with. Namely, that the required oral and written advices were delivered.
In the course of the trial, there were challenges to three of the exhibits namely exhibits P9, P10 and P11. The magistrate ultimately concluded that those three exhibits were inadmissible.
The appellant conceded that in the particular circumstances of this case, the certificate P10 was properly excluded. However, it was open to the prosecution to prove those matters referred to in that certificate by oral evidence.
At the trial the breath analysis operator on 24 September 2005, the witness Tobias Witthoeft, was called and gave oral evidence to prove each of the matters referred to in s 47G(5)(a), s 47G(5)(b) and s 47G(5)(c). His evidence proved that the person named in the certificate, Ms Robyn Meredith Brown, submitted to an analysis of breath on 24 September 2005 by means of a breath analysis instrument, that the instrument on the same date produced a reading of 0.173 and finally, that the statement in writing as required by s 47G(2) of the RTA was delivered to Ms Brown. There was no issue on this appeal that those matters were properly proved by the oral evidence before the magistrate
The appellant challenges the correctness of the magistrate’s decision to exclude exhibits P9 and P11 on the basis that the person who signed those two certificates was not a member of the police force at the time he signed the certificates.
The breath analysis took place on 24 September 2005. Tobias Witthoeft was the breath analysis operator. On that date, he was a police officer. He was also authorised to operate a breath analysing instrument on that date. That was proved by oral evidence and by the tendering of exhibit P7.
Some time in 2006 after the date of the alleged offending and before the date of trial, Mr Witthoeft left the police force. Some of the certificates on which the prosecution relied were signed by Mr Witthoeft while he was still a police officer, others were signed after he had left the force. Exhibits P9 and P11 in particular, were printed while Mr Witthoeft was still a police officer, however, they were not signed by him until 1 June 2007 by which time he was no longer a police officer. Exhibit P9 and exhibit P11 were tendered by the prosecution at the trial under the provisions of s 47G(3)(b) and s 47G(7). Both certificates are reproduced below.
Exhibit P9
Exhibit P11
The phrase “purporting to be signed by a person authorised under subsection (1)” is found in each of the relevant subsections referred to in those certificates, namely s 47G(3)(b) and s 47G(7) of the RTA. Each of those provisions provides for proof of certain matters by way of certificates.
The issue therefore which arises on this appeal is whether it was necessary for the person signing the certificates to be authorised at the time the certificates were signed, or at some other time. To put it another way, the issue is whether the person referred to in s 47G(3)(b) and s 47G(7) of the RTA is, for the purpose of signing the certificates (P9 and P11), the person referred to in s 47G(1).
S 47G (as it then was) states:
(1)Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis.
(1a)No evidence can be adduced in rebuttal of the presumption created by subsection (1) except—
(a)evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I or in accordance with the procedures prescribed by regulation; and
(b)evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.
(1ab)If it is proved in proceedings that a concentration of alcohol was present in the defendant's blood at the time of a breath analysis, it must be conclusively presumed that that concentration of alcohol was present in the defendant's blood throughout the period of two hours immediately preceding the analysis.
(1b)No evidence can be adduced as to a breath or blood alcohol reading obtained from a coin-operated breath testing or breath analysing machine installed in any hotel or other licensed premises.
(2)As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying—
(a)the reading produced by the breath analysing instrument; and
(b)the date and time of the analysis.
(2a)Where a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith—
(a)give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person's blood; and
(b)at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.
(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.
(3a)A certificate purporting to be signed by a member of the police force and to certify that an apparatus referred to in the certificate is or was of a kind approved under this Act for the purpose of performing alcotests is, in the absence of proof to the contrary, proof of the matter so certified.
(3b)A certificate purporting to be signed by a member of the police force and to certify that a person named in the certificate submitted to an alcotest on a specified day and at a specified time and that the alcotest indicated that the prescribed concentration of alcohol may then have been present in the blood of that person is, in the absence of proof to the contrary, proof of the matters so certified.
(3c)A certificate purporting to be signed by a member of the police force and to certify that a breath testing station had been established pursuant to section 47DA at a place and during a period referred to in the certificate is, in the absence of proof to the contrary, proof of the matters so certified.
(4)Subject to subsection (6) a certificate purporting to be signed by an analyst, certifying as to the concentration of alcohol, or any drug, found in a specimen of blood identified in the certificate expressed in grams in 100 millilitres of blood is, in the absence of proof to the contrary, proof of the matters so certified.
(5)Subject to subsection (6) a certificate purporting to be signed by a person authorised under subsection (1) and to certify that—
(a)a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument on a day and at a time specified in the certificate; and
(b)the breath analysing instrument produced a reading specified in the certificate; and
(c)a statement in writing required by subsection (2) was delivered in accordance with that subsection,
is, in the absence of proof to the contrary, proof of the matters so certified.
(6)A certificate referred to in subsection (4) or (5) cannot be received as evidence in proceedings for an offence—
(a)unless a copy of the certificate proposed to be put in evidence at the trial of a person for the offence has, not less than seven days before the commencement of the trial, been served on that person; or
(b)if the person on whom a copy of the certificate has been served under paragraph (a) has, not less than two days before the commencement of the trial, served written notice on the complainant or informant requiring the attendance at the trial of the person by whom the certificate was signed; or
(c)if the court, in its discretion, requires the person by whom the certificate was signed to attend at the trial.
(7)A certificate purporting to be signed by a person authorised under subsection (1) and to certify—
(a)that, on a date and at a time specified in the certificate, a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument; and
(b)that the prescribed oral advice and the prescribed written notice were given and delivered to the person in accordance with subsection (2a)(a); and
(c)that—
(i)the person did not make a request for an approved blood test kit in accordance with the regulations; or
(ii)at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subsection (2a)(b),
is, in the absence of proof to the contrary, proof that the requirements of subsection (2a) were complied with in relation to the person…

The magistrate concluded that the police officer was, on the date of the breath analysis on 24 September 2005, an authorised officer under the provisions of s 47G(1). However, her Honour concluded that upon his resignation from the police force the witness Mr Witthoeft did not have authority to sign the certificates under s 47G(3)(b) and s 47G(7). She therefore concluded that the certificates were not admissible under s 47G(1).
The respondent submitted that the proper meaning sought to be conveyed by the words “purporting to be signed by a person authorised under subsection (1)” is that a certificate under that section must bear what appears to be the signature of someone actually authorised under s 47G(1). The respondent argued that to adopt any other interpretation would have the effect that anyone could purport to be authorised and this could not have been the intention of parliament. The respondent contended that this construction of the phrase is supported by the presence of the words “in the absence of proof to the contrary” in each of the subsections under consideration, namely s 47G(3)(b), s 47G(5) and s 47G(7).
The appellant argued that because the subsection contained the words “purport to”, all that was necessary for the certificates to be admissible under the section, was that the certificates profess or claim to be signed by a person authorised under s 47G(1). The certificates, on their face, did so profess or claim to be signed by such a person and therefore in the appellant’s submission they each complied with the provisions of the RTA.
I cannot accept the appellant’s submission in relation to this aspect of the argument. In each of the relevant subsections in s 47G the matters to be proved by the certificate are proved “in the absence of proof to the contrary”. Each of the certificates on their face refer to a number of matters and the declarant himself asserts “I, Tobias Leighton WITTHOEFT being a person authorised under subsection (1) of s 47G…”
In my view, it is implicit from the wording of the subsection that if it should be proved that the declarant is not in fact a person authorised under s 47G(1), then such a fact would amount to proof to the contrary. In other words it is still open to a defendant to lead proof that a particular signatory was not in fact a person authorised under s 47G(1), or indeed to challenge any of the other factual matters referred to in the certificate.
The safeguard has been incorporated into each of the relevant subsections providing for facilitation of proof of certain matters by similar certificates. I can see no reason why a defendant should be denied the safeguard in relation to proof of that essential matter, namely the authorisation of the signatory under s 47G(1).
Accordingly, the question arises as to whether the police officer was in fact, at the date when he signed the certificates, “a person authorised under subsection (1) of s 47G” of the RTA.
The breath analysis took place on 24 September 2005. The magistrate found that Mr Witthoeft was, on that date, the breath analysing instrument operator and as such was authorised to operate the breath analysing instrument. That much was proved by the tendering of exhibit P7 under the provisions of s 47G(3)(a) of the RTA and by oral evidence at the trial.
The respondent contended that the magistrate’s finding that the police officer’s authority under s 47G(1) ceased on the date he resigned, should be accepted.
It is not entirely clear from the magistrate’s reasons whether she concluded that the police officer was not a person authorised under s 47G(1) on the relevant date or whether she simply found that he did not have authority by virtue of ceasing to be a police officer, to have signed the certificate and on that basis she declined to admit exhibits P9, P10 and P11, each of which the police officer conceded had been signed by him after the date of his resignation.
It seems to me that the answer to the dilemma which confronted the magistrate is to be found in the provisions of s 47G as a whole. The scheme and purpose of s 47G as a whole is to facilitate the documentary proof of matters relating to testing and analysis of alcohol or other drugs in the blood of defendants in any proceedings for an offence. There are appropriate safeguards within those provisions to ensure that only those persons with appropriate expertise, knowledge and authority, are permitted to sign certificates to be used as evidence in proceedings for any driving related offences. One of the safeguards to citizens in relation to the testing is that the results of testing by a breath analysing instrument will only be admissible in a court if the instrument is operated by a person authorised to operate that instrument by the Commissioner of Police. That is the plain intent of s 47G(1).
In my opinion, the phrase “purporting to be signed by a person authorised under subsection (1)” which appears in s 47G(3)(b), s 47G(5) and s 47G(7) is a composite one, so that the words “purporting to” govern all of the words that follow down to the end of the phrase “subsection (1)”.
A person authorised under s 47G(1) is, according to the terms of that subsection, authorised to operate the breath analysing instrument by the Commissioner of Police. The evidence which may be given is evidence of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument. It follows from the natural meaning of the words grammatically, in that subsection, that the person referred to in s 47G(3)(b), s 47G(5) and s 47G(7), is the person who is authorised to operate the instrument at the time it was used to analyse the person’s breath.
In my view, the safeguard in s 47G(6) supports the construction of the language in s 47G(3)(b), s 47G(5) and s 47G(7) which I have adopted. S 47G(6) allows a defendant in the same position as the respondent to require the attendance at trial of the person by whom the certificate was signed under the provisions of s 47G(5), in order to prove that the provisions of s 47G(2) were complied with rather than allowing proof of that fact by way of the certificate.
It is apparent that the intention of s 47G(6) is to allow defendants in the same position as the respondent to call and test the evidence of the breath analysing instrument operator which would otherwise have been admissible by way of certificate. The efficacy of that safeguard would be considerably reduced if the person referred to in each of the subsections as a person authorised under subsection (1) does not refer to the person authorised to operate the breath analysing instrument at the relevant time when the sample was taken.
For these reasons I consider that the only sensible interpretation of the phrase appearing in each of the sections 47G(3)(b), 47G(5) and 47G(7) “purporting to be signed by a person authorised under subsection (1)”, is that it must refer to the person authorised to operate the breath analysing instrument which provided the indication of the concentration of alcohol in the blood of that particular defendant.
It follows that the resignation from the police force of the witness did not affect his authority to sign the certificates.
Effect of Amendments to s 47G RTA
On 8 December 2005 the Road Traffic (Drug Driving) Amendment Act 2005 ("Amendment Act”) came into effect.
The Amendment Act provides for a scheme to permit the drug testing of drivers using oral fluid and blood. S 47G of the RTA was amended to include evidentiary provisions relating to drug screening tests, oral fluid analyses or blood tests under the new s 47EAA. The new subsections provide for the admissibility of certificates relating to the testing and results of drug screening tests in a manner consistent with the provisions of s 47G relating to alcotests and breath analysis.
At the same time s 47G was redesignated as s 47K and was then relocated in the Act after s 47J instead. Sections 47G(3)(b) and 47G(7) were altered only to the extent that they are now described as s 47K(3)(b) and s 47K(7). In other words, each of the subsections are identical to the earlier subsections except for the designation as s 47K.
Of particular significance in the Amendment Act is s 14(8) which reads:
Section 47G – redesignate the section (as amended by this section) as section 47K and relocate the section so that it follows section 47J
It can therefore be seen that the particular subsections which affected the trial of the respondent were amended only to the extent that the section was redesignated with the letter ‘K’ and the safeguard formerly provided in s 47G(6) was also redesignated s 47K(17).
It could be argued that certain other amendments to the RTA in the Amendment Act, amount to substantive amendments e.g. the two sections concerning the creation of an offence of driving with a prescribed drug in either oral fluid or the blood (s 47BA). However, the amendments to s 47G are only to the extent necessary to include corresponding evidentiary aids to the proof of the new offence and to redesignate the numbering and lettering of the section.
For these reasons, I have concluded that the amendments to s 47G should be categorised as procedural in nature only. Those amendments do not affect any pre-existing right or liability and in particular, those amendments do not affect any change whatsoever to the rights or liability Ms Brown had on 25 September 2005, being the date when she was required to submit to a breath analysis by Constable Witthoeft. Therefore, the presumption against retrospectivity does not have any application to these amendments.
Counsel for the respondent submitted that, assuming the amendments to s 47G were applicable at the time of the respondent’s trial, the certificates P9 and P11 could only be admissible at her trial, if the signatory to those certificates was in fact a person authorised under s 47K(1) of the RTA. As the certificates refer to s 47G(1) they do not comply with the provisions of s 47K(1).
The respondent’s argument overlooks the fact that the admissibility of exhibits P9 and P11 depends on whether they complied with the pre-conditions for admissibility set out in s 47G(3)(b) and s 47G(7), (or current s 47K), however it is described. Those pre-conditions did not change with any amendments. Neither did the Amendment Act repeal the relevant provisions of s 47G of the RTA. All it purported to do was relocate and redesignate existing provisions contained within that section and to supplement the evidentiary aids already contained in that section to include the earlier addition of the s 47BA offence.
Counsel did not cite any authority in relation to s 47G of the RTA which deals with this particular point. However, in Cadd v Police (1988) 26 MVR 373 Duggan J dealt with an argument that s 47G(7) which came into effect on 4 April 1996, was a substantive amendment and therefore could not apply to the trial of an offence committed before that amendment came into force. Although it was not necessary for Duggan J to decide that point, in deference to the argument, his Honour dealt with the submission that the operation of the Act could not be retrospective and his remarks are instructive.
After referring to Maxwell v Murphy (1957) 96 CLR 261 and Rodway v R (1990) 169 CLR 515, his Honour concluded that the amendment which enacted the (then) new s 47G, did not affect existing rights. Those rights remained as pre-conditions to the presumption created by s 47G(1). In Duggan J’s view the amendment did no more than affect the way in which those rights or obligations were to be contested in court. He concluded therefore that the magistrate in that matter could have relied on a certificate issued under s 47G(7) even though that section came into operation well after the date of the offence in respect of which the trial was proceeding.
A similar issue arose in Police v Mott; Police v Rhodes (2005) 93 SASR 257. A request for an approved blood test kit was handed to a motorist as required by regulation 10 of the Road Traffic (Miscellaneous) Regulations 1999. It mistakenly made reference to a repealed regulation. Doyle CJ at 261 said:
As it happens, the form used in the case of Mr Mott was headed with a reference to repealed regulations, but nothing turns on that, as the form under the repealed regulations is identical to the form under the Regulations.
In my view, the reasoning in those two cases applies with even greater force to the most recent amendments of s 47G, because here nothing in the subsections have changed except the designation of that section and its place in the RTA. For these reasons I consider the respondent’s argument on this aspect, to be without substance.
Conclusion
For these reasons I have concluded that the magistrate was in error in rejecting exhibits P9 and P11. It follows that as to each of those exhibits, the certificate tendered was admissible and proved the evidence about the fact and matters stated in that certificate. The dismissal of count 1 by the magistrate resulted in a manifest miscarriage of justice.
It was conceded by the respondent that in the event that this court found the certificates were improperly excluded, the respondent would have and should have been convicted.
In these circumstances, I consider the appeal should be allowed. The orders will be:
1. appeal allowed;
2.the order of the magistrate dismissing the charge contrary to section 47B of the Road Traffic Act 1961 is set aside;
3.the respondent is convicted of driving a motor vehicle on 27 December 2005 while there was present in her blood the prescribed concentration of alcohol, contrary to s 47B of the Road Traffic Act 1961; and
4. the matter is remitted to the Magistrates Court for sentencing.