Police v CHAPMAN

Case [2008] SASC 283

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v CHAPMAN

[2008] SASC 283

Judgment of The Honourable Justice David

23 October 2008

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

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

Prosecution appeal against dismissal of charge by magistrate - magistrate excluded result of breath analysis from evidence - magistrate found police gave further oral advice regarding where and when to obtain blood test after prescribed oral advice and written notice given - whether police impropriety - whether unfairness or public policy discretions enlivened.

Held: Appeal allowed - no police impropriety - discretions to exclude evidence not enlivened.

Road Traffic Act 1961 (SA) s 47B, s 47G; Road Traffic (Miscellaneous) Regulations 1999 (SA) Sch 1, referred to.
Police v Maher (2007) 48 MVR 382, applied.
Police v Burton (2004) 88 SASR 152, distinguished.
Police v Hall (2006) 95 SASR 482, discussed.
Bunning v Cross (1978) 141 CLR 54, considered.

POLICE v CHAPMAN
[2008] SASC 283

Magistrates Appeal

DAVID J.

Introduction

  1. This is a prosecution appeal against the decision of a magistrate to dismiss a charge that the respondent drove a motor vehicle on a road while there was present in his blood the prescribed concentration of alcohol, contrary to s 47B of the Road Traffic Act 1961 (SA) (“the Act”).[1]

    [1]    As enacted at the date of the offending, 3 September 2005.

    Background

  2. The prosecution case at trial was that at about 2.15 am on 3 September 2005, police saw the respondent disobey a no U-turn sign. He was stopped and submitted to an alcotest, which indicated that he may have had more than the prescribed concentration of alcohol in his blood. He was taken to the Norwood Police Station and his breath was analysed at about 2.50 am. According to the breath analysis instrument, the respondent had .126 G of alcohol in 100 Ml of blood.

  3. The respondent pleaded not guilty and the matter proceeded to trial. It was not disputed that he was provided with the prescribed oral advice and a copy of the prescribed written notice, as required by former s 47G(2a)(a) of the Act. The respondent’s case at trial was that a police officer provided further advice, which compromised the advice given pursuant to s 47G(2a)(a) of the Act. The respondent argues that as a result, evidence could not be adduced,[2] which might be capable of rebutting the presumption that the concentration of alcohol indicated by the breath analysing instrument was accurate.[3]

    [2] Pursuant to s 47G(1a) of the Act.

    [3] Pursuant to s 47G(1) of the Act.

    The Evidence and Legislation

  4. The matter proceeded before the magistrate in the form of a voir dire. The purpose was to decide the admissibility of the evidence of the breath analysing instrument. After the hearing, the magistrate ruled…

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Police v CHAPMAN [2008] SASC 283
Case
[2008] SASC 283
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CaseChat Overview and Summary

The respondent appealed against the dismissal of a charge that they drove a motor vehicle on a road while there was present in their blood the prescribed concentration of alcohol, contrary to section 47B of the Road Traffic Act 1961 (SA). The prosecution appealed against the dismissal of this charge by the magistrate, who excluded the result of the breath analysis from the evidence. The magistrate found that the police gave further oral advice regarding where and when to obtain a blood test after the prescribed oral advice and written notice were given. The issue was whether this constituted police impropriety and whether the unfairness or public policy discretions were enlivened.

The appeal was allowed. The court held that there was no police impropriety. The magistrate’s findings were accepted, but even if they were not, the discretions to exclude evidence were not enlivened. The advice given by the police officer did not constitute impropriety. The statutory scheme did not create an enforceable right for the respondent to have a blood sample taken, and therefore, the delay in obtaining a blood sample did not make the use of the result of the breath analysis unfair. The court found that the discretions to exclude evidence were not applicable in this case.

The final orders of the court were that the appeal be allowed, the conviction be restored, and the matter be remitted to the Magistrates Court for sentencing.

Orders

Orders of the court

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Background

Background to the litigation

This is a prosecution appeal against the decision of a magistrate to dismiss a charge that the respondent drove a motor vehicle on a road while there was present in his blood the prescribed concentration of alcohol, contrary to s 47B of the Road Traffic Act 1961 (SA) (“the Act”).[1][1] As enacted at the date of the offending, 3 September 2005.Background The prosecution case at trial was that at about 2.15 am on 3 September 2005, police saw the respondent disobey a no U-turn sign. He was stopped and submitted to an alcotest, which indicated that he may have had more than the prescribed concentration of alcohol in his blood. He was taken to the Norwood Police Station and his breath was analysed at about 2.50 am. According to the breath analysis instrument, the respondent had .126 G of alcohol in 100 Ml of blood. The respondent pleaded not guilty and the matter proceeded to trial. It was not disputed that he was provided with the prescribed oral advice and a copy of the prescribed written notice, as required by former s 47G(2a)(a) of the Act. The respondent’s case at trial was that a police officer provided further advice, which compromised the advice given pursuant to s 47G(2a)(a) of the Act. The respondent argues that as a result, evidence could not be adduced,[2] which might be capable of rebutting the presumption that the concentration of alcohol indicated by the breath analysing instrument was accurate.[3][2] Pursuant to s 47G(1a) of the Act.[3] Pursuant to s 47G(1) of the Act.The Evidence and Legislation The matter proceeded before the magistrate in the form of a voir dire. The purpose was to decide the admissibility of the evidence of the breath analysing instrument. After the hearing, the magistrate ruled that the evidence could not be admitted. No further evidence was called, and the magistrate therefore dismissed the charge. It is against that dismissal that the appellant now appeals. At the hearing on 21 April 2008, the prosecution called three police officers. The respondent gave evidence that on the evening and morning in question he had been at the Robin Hood Hotel. Constable Townsend and Constable Ward gave evidence that they had cause to stop the respondent at approximately 2.15 am on 3 September 2005. The third police officer, Constable Scarce, who operated the breath analysing instrument at the Norwood Police Station, also gave evidence. Over and above the conversations implicit in the prescribed oral advice and written notice, none of the police officers could remember any specific details of their conversations with the respondent. The respondent said Constable Scarce gave him the blood test kit and the prescribed oral advice and written notice, which he read once while he was still at the police station. The respondent gave further evidence that after he was given the blood test kit, Constable Townsend told him that he could have a blood test taken at the Royal Adelaide Hospital. He gave evidence that he then asked Constable Townsend if there was any time limit within which the blood test had to be taken, and that Constable Townsend’s response was “along the lines of there was no real time limit but just as soon as you are able to do so”. The respondent said he asked this question because the word “promptly” was open to interpretation. He interpreted the written notice to mean he should get a blood test taken “rather soon”, but was unsure whether there was any particular time limit. To him, “promptly” meant if things were preventing him from having the test taken, he might have needed to seek alternative ways of having it taken, whereas “as soon as you are able to do so” meant if things were preventing him from having the test taken, it would not be an issue as long as it was ultimately taken. He said had he been told to have the blood test taken “immediately” or “promptly”, as distinct from “as soon as you are able to do so”, he would only have waited at the hospital for a couple of hours before considering other options. He said that he was aware that alcohol eliminates from the blood over time.

Evidence

Evidence Before The Court

The respondent pleaded not guilty and the matter proceeded to trial. It was not disputed that he was provided with the prescribed oral advice and a copy of the prescribed written notice, as required by former s 47G(2a)(a) of the Act. The respondent’s case at trial was that a police officer provided further advice, which compromised the advice given pursuant to s 47G(2a)(a) of the Act. The respondent argues that as a result, evidence could not be adduced,[2] which might be capable of rebutting the presumption that the concentration of alcohol indicated by the breath analysing instrument was accurate.[3][2] Pursuant to s 47G(1a) of the Act.[3] Pursuant to s 47G(1) of the Act.The Evidence and Legislation The matter proceeded before the magistrate in the form of a voir dire. The purpose was to decide the admissibility of the evidence of the breath analysing instrument. After the hearing, the magistrate ruled that the evidence could not be admitted. No further evidence was called, and the magistrate therefore dismissed the charge. It is against that dismissal that the appellant now appeals. At the hearing on 21 April 2008, the prosecution called three police officers. The respondent gave evidence that on the evening and morning in question he had been at the Robin Hood Hotel. Constable Townsend and Constable Ward gave evidence that they had cause to stop the respondent at approximately 2.15 am on 3 September 2005. The third police officer, Constable Scarce, who operated the breath analysing instrument at the Norwood Police Station, also gave evidence. Over and above the conversations implicit in the prescribed oral advice and written notice, none of the police officers could remember any specific details of their conversations with the respondent. The respondent said Constable Scarce gave him the blood test kit and the prescribed oral advice and written notice, which he read once while he was still at the police station. The respondent gave further evidence that after he was given the blood test kit, Constable Townsend told him that he could have a blood test taken at the Royal Adelaide Hospital. He gave evidence that he then asked Constable Townsend if there was any time limit within which the blood test had to be taken, and that Constable Townsend’s response was “along the lines of there was no real time limit but just as soon as you are able to do so”. The respondent said he asked this question because the word “promptly” was open to interpretation. He interpreted the written notice to mean he should get a blood test taken “rather soon”, but was unsure whether there was any particular time limit. To him, “promptly” meant if things were preventing him from having the test taken, he might have needed to seek alternative ways of having it taken, whereas “as soon as you are able to do so” meant if things were preventing him from having the test taken, it would not be an issue as long as it was ultimately taken. He said had he been told to have the blood test taken “immediately” or “promptly”, as distinct from “as soon as you are able to do so”, he would only have waited at the hospital for a couple of hours before considering other options. He said that he was aware that alcohol eliminates from the blood over time.

Decision

Reasons for decision

DAVID J
The respondent argued at trial, as he does now, that the advice he received over and above the compulsory prescribed oral advice and written notice given pursuant to s 47G(2a)(a) of the Act, caused confusion and diluted that advice, thereby enlivening the discretion to reject the evidence of the breath analysis.The Magistrate’s Decision The magistrate found the following:The defendant has given evidence he was told by Constable Townsend he was required to have the test done as soon as possible and he was told he could have the test done at the Royal Adelaide Hospital. Whilst none of the police officers recall such a conversation none have said it did not occur or it could not have occurred. Constable Scarce was clear he would not say those things but he could not deny such a conversation had taken place between the defendant and one or other of the other officers. I do not therefore have evidence which specifically refutes the sworn testimony of the defendant and I accept the conversations which were attested to by him occurred, that is he was told he should have the blood test done as soon as possible and he could have it done at the Royal Adelaide Hospital.The magistrate then went on and found:in the present case there has been unfairness to the defendant. The defendant has acted on the advice given to him by the police officer that the test could be carried out at the Royal Adelaide Hospital and needed to be done as soon as possible. I believe the defendant in proceeding to the hospital, even with the detour for his girlfriend to get changed and waiting until it was possible for the blood tests be carried out, has done what he believed he was being told by the police officers involved, was acceptable.The magistrate ruled that the evidence could not be admitted. No further evidence was called, and the magistrate therefore dismissed the charge.Appeal Mr Stratton‑Smith, on behalf of the appellant, argues that even if the magistrate’s findings of fact are correct, neither the Bunning v Cross,[7] “public policy discretion”, nor the “unfairness discretion” were enlivened. Mr Stratton‑Smith refers to the authority of Police v Hall where Doyle CJ said:[8]I do not accept that the fact that a blood sample is not taken, or that the taking of the sample is delayed, without fault on the part of the driver, makes the use of the result of the breath analysis at a later trial unfair. The statutory scheme leaves it to the driver to get a sample of blood taken. It simply permits that to be done. It does not create an enforceable right to have that done. That being so, only in the most general of senses can it be said to be unfair if, through no fault of the driver, the driver does not have a sample of blood taken, or the sample is taken after such a lapse of time that it cannot be of any forensic assistance. Unfairness in that general sense is not, in my opinion, unfairness in the relevant sense.Mr Stratton‑Smith also argues that because there was no impropriety by the police, the Bunning v Cross discretion does not arise. Even on the magistrate’s findings, Constable Townsend merely suggested an appropriate hospital for the respondent to attend to have the blood test taken, namely the Royal Adelaide Hospital, and said that he should have the blood test taken “as soon as possible”.[7] Bunning v Cross (1978) 141 CLR 54.[8] Police v Hall (2006) 95 SASR 482, 493‑494; [2006] SASC 28 [58].

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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