Police v CHAPMAN

[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 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.

5. 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.

6. 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.

7. The respondent gave evidence that after arranging transport with his girlfriend and stopping briefly at her home so that she could change, she drove him to the Royal Adelaide Hospital. He said he arrived at the hospital at approximately 4.00 am, but had to wait for approximately six and a half hours before the blood test could be taken. He said he enquired as to the delay two or three times, but was simply told to keep waiting. He said that based on the advice Constable Townsend had given him, he believed it was acceptable that he attend the Royal Adelaide Hospital and wait until the tests could be done. He said that although none of the officers had told him that he could not attend an alternative hospital or medical practitioner, based on that advice, he felt he could not do so.

8. When tested at 10.30 am the respondent’s blood alcohol level read zero. Because of the delay in obtaining the blood test, the result was not relevantly comparable to the breath analysis result obtained at about 2.50 am. The respondent therefore lost the opportunity of rebutting the presumption of the accuracy of the breath analysing instrument.

9. It is important to set out the relevant section of the Act:

   47G—Evidence etc

   (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.

   …

   (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.

   The prescribed oral advice and written notice referred to in s 47G(2a)(a) is set out in Sch 1 to the Road Traffic (Miscellaneous) Regulations 1999 (SA).[4] The prescribed oral advice states:[5]

   If you obtain a blood test kit and want to have your blood tested, you should take the kit promptly to a hospital or medical practitioner in order to have a sample of your blood taken.

   The prescribed written notice states that once supplied with a blood test kit:[6]

   You should then proceed promptly to a hospital or a medical practitioner [*or a registered nurse] of your choice and request that a sample of your blood be taken (using the blood test kit).

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

   [5]    Road Traffic (Miscellaneous) Regulations 1999 (SA) Sch 1 Pt A (as enacted at the date of the offending, 3 September 2005).

   [6]    Road Traffic (Miscellaneous) Regulations 1999 (SA) Sch 1 Pt B (as enacted at the date of the offending, 3 September 2005).

10. 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

11. 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

12. 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].

13. To further support this argument, Mr Stratton-Smith cited Police v Maher in which Debelle J said:[9]

    The question whether police officers have said anything which might dissuade a driver from participating in a blood test is to be determined objectively, that is to say, by considering the words spoken and the circumstances in which they were spoken and then determining what a reasonable person would have understood those words to mean in the circumstances in which they were uttered. There can be no other test given that the police officers are dealing with people at different levels of intoxication, ranging from a minimal level to a substantial level of intoxication. It is first necessary for the court to determine what words were said and the circumstances surrounding what was said.  Having made that finding, the question is what a reasonable person would understand those words in the context in which they were uttered to mean either expressly or by implication.

    As Mr Stratton-Smith argues, on the magistrate’s findings there was no suggestion the respondent was told he must attend the Royal Adelaide Hospital and nowhere else. The respondent complied with the prescribed oral advice and written notice by promptly attending the Royal Adelaide Hospital. He did not, but could have, attended another hospital to have the blood test taken. As to the taking of the blood test, the difference between “promptly” and “as soon as possible” is merely semantic. This is irrespective of how the respondent perceived the extraneous oral advice.

    [9]    Police v Maher (2007) 48 MVR 382, 385‑6

14. Ms Fuller, on behalf of the respondent, argues that nothing should be said over and above the statutory requirements of s 47G(2a)(a) of the Act. She argues that what was said after the prescribed oral and written notice was given caused confusion and was improper in that sense. She also argues that Doyle CJ left the applicability of the unfairness discretion open in Police v Hall when he said:[10]

    If the delay in the taking of a sample of Mr Hall’s blood had been the result of a failure by a member of the police force to comply with the requirements of s 47G(2a) of the RTA, the unfairness discretion might have been enlivened. If it was enlivened, that would be because of the implication of the member of the police force in the loss or denial of a possible safeguard provided by the RTA, and in the consequential production of a forensic disadvantage. But that is not the situation here, and such a case can be left to be considered if and when it arises, and in the light of all of the facts.

    [10]   Police v Hall (2006) 95 SASR 482, 496; [2006] SASC 28 [73].

15. In that matter Bleby J, dismissing the appeal, in separate reasons discussed the overlap of the different categories for the discretionary rejection of evidence, and said:[11]

    However, there can be no overlap in this case. The Bunning v Cross discretion cannot apply. There is not that necessary close connection between the obligation to submit to the breath test and any other act or default said to give rise to the exclusion of evidence in this case. The police complied in every respect with their obligations under the Act and Regulations. The breath analysis was lawfully performed. The prescribed oral explanation was given. The prescribed blood test kit was supplied and the prescribed written notice was given. What prevented the obtaining of a useful blood sample was the delay that the respondent encountered in his choice of facility in which to have the sample of blood taken. He was not required to have it taken at the Royal Adelaide Hospital. There was no evidence as to the availability of alternative facilities, but the legislation assumes, and one could take judicial notice of the fact, that in the Adelaide metropolitan area there are a number of public and private 24-hour outpatient hospital facilities … where a sample of blood could be taken in accordance with the requirements of the Act and Regulations.

    (Footnotes omitted.)

    [11]   Police v Hall (2006) 95 SASR 482, 496; [2006] SASC 28 [73].

16. Ms Fuller argues that if one looks at the criteria set out in Bunning v Cross and the balancing exercise required, the magistrate in this case correctly ruled that the evidence of the breath analysing instrument should not be admitted. She argues that the circumstances in this case are much like those in Burton v Police,[12] where after providing the blood test kit along with the prescribed oral advice and written notice, police provided further oral advice about where and when the blood test should be taken, namely, that the appellant could have the test taken by his general practitioner as soon as possible. In that matter Gray J considered the overlapping discretions to exclude the evidence at the same time and concluded:[13]

    It appears to have been Constable Tolinar’s usual and frequent practice to provide advice in terms that differ from the statutory prescription. Such a practice has the capacity to cause confusion. For example, the phrase “as soon as possible” in the context of having a blood sample taken by a general practitioner can be readily understood as meaning “as soon as an appointment is available”. Similarly, “within a reasonable time” could be generally understood as meaning as soon as arrangements can reasonably be made…

    …

    There is a clear public interest in the prescribed advice being given to drivers and not advice in other terms. As a matter of public policy, practices such as that engaged in by Constable Tolinar ought to be discouraged. Such advice has the capacity to dilute the effectiveness of the statutory prescribed oral and written advice and to lead to ambiguity and uncertainty.

    As a result of further advice provided to the appellant by the police officers the effectiveness of the statutory notice was diluted in this case. This was a cause of the appellant's subsequent conduct and loss of rights. Had the appellant not received the additional advice it is probable that he would have immediately attended a hospital to have a blood sample taken. The further advice led the appellant not to seek testing alternatives immediately available. As a result he lost the opportunity of testing or challenging the blood alcohol reading that had been obtained by the police.

    In this case, when objectively viewed, the extraneous advice was not to the effect that the respondent could only attend the Royal Adelaide Hospital. Further, the Royal Adelaide Hospital serves as one of many 24 hour outpatient facilities and the respondent attended that hospital “promptly”. It is common knowledge that there are a number of other 24 hour outpatient hospital facilities in the Adelaide metropolitan area and that alcohol eliminates from the blood over time. It was a combination of routine further advice as to when and where the blood test should be taken in Burton, which caused the confusion enlivening the discretion.

    [12]   Burton v Police (2004) 88 SASR 152; [2004] SASC 85.

    [13] Ibid (2004) 88 SASR 152, 158‑159, 160; [2004] SASC 85 [27], [33]‑[34].

1. In my view, the magistrate has erred. In the circumstances of this case, there was no impropriety in Constable Townsend passing on the further advice, following an enquiry by the respondent, that the blood test could be taken at the Royal Adelaide Hospital and should be taken as soon as possible. Objectively viewed, this further advice could not have cut across the statutory advice. Therefore, the result of the breath analysis instrument was incorrectly excluded.

   Conclusion

2. I allow the appeal and make the following orders:

   1.     The appeal is allowed.

   2.     The order dismissing the Complaint is set aside.

   3.The matter is remitted for rehearing before a different magistrate.