Police v Collins No. Scgrg-98-1128 Judgment No. S6884
[1998] SASC 6884
•2 October 1998
POLICE v COLLINS
[1998] SASC S6884
Magistrates Appeal
Perry J
This is an appeal by the Police against the dismissal by a magistrate constituting the Magistrates Court sitting at Holden Hill of a charge of driving with the prescribed concentration of alcohol.
The respondent was charged on complaint with three counts. They are all related to a passage of driving which occurred on 15 May 1997 at Tranmere. The charges were that the respondent drove without due care (Road Traffic Act 1961 s45), drove under the influence of intoxicating liquor (s47) and drove while there was present in his blood the prescribed concentration of alcohol (ss.47(a) and (b).)
The respondent pleaded guilty to the charge of driving without due care but not guilty to the charge of exceeding the prescribed concentration of alcohol. The appellant then withdrew the charge of driving under the influence.
At about 7.00 pm on the day in question the respondent drove a motor car into collision with another car which was parked in Arthur Street at Tranmere, opposite No.53. After the collision the respondent's car travelled a little further down the road and stopped in front of No.45. The house at that address was occupied by Mr Govan. He was outside his house at the time, and his attention was attracted by the noise of the collision.
He walked over to the respondent who was still sitting in the driver's seat. He asked the respondent whether he would like to make a phone call. The respondent accepted the offer and walked into the house. Mr Govan asked him whether he wanted a drink of water, to which the respondent replied by asking if he had anything “harder?" Mr Govan had a bottle of Scotch Whisky in the kitchen, and invited the respondent into the kitchen, where he poured him a drink. In fact he gave him more than one. The respondent ended up drinking at least four glasses of whisky.
There was a dispute at the trial of just how many glasses were drunk and what total volume was consumed. As to total volume, estimates vary between 240 and 400 millilitres. The drinks were consumed in a short space of time.
Subsequently, at about 8.53pm, a breath analysis test was conducted on the respondent. The result was a reading of 0.298 grammes of alcohol in 100 millilitres of blood (hereafter I will refer to blood alcohol concentrations simply by use of a % sign).
A forensic scientist, Robert Lokan, gave evidence for the prosecution. He was asked to estimate the likely blood alcohol reading of the respondent at 7.00 pm, given the outcome of the breath analysis almost two hours later. Put shortly, if the assumption was that the respondent only consumed 240 millilitres of Scotch whisky during the 20 minutes or so that he was drinking at Mr Govan's house, Mr Lokan considered that the minimum possible level of blood alcohol at 7.00 pm would have been 0.12%, and that the probable reading would have been 0.18%.
If the amount of Scotch whisky which had been consumed was more than 240 millilitres, the blood alcohol reading at 7.00 pm would have been lower. If it was greater than 350 millilitres, Mr Lokan estimated that the blood alcohol reading at 7pm could have been 0.07 per cent. Furthermore, if the respondent had consumed one Echo of beer only between 5.30 and 6.30pm on the evening in question, the estimate of 0.07 per cent would drop to 0.02 or less.
As to the history of drinking, the learned trial Magistrate observed in his reasons for dismissal:
"I am not prepared to dismiss Mr Collins' evidence about having had only one Echo of beer prior to the accident".
As for the appellant’s consumption of whisky the learned magistrate went on to find:
"There was no exact measure and I consider it is open on the evidence before me to find that Mr Collins was left alone with the scotch bottle and had the opportunity to pour himself another drink over and above the four referred to by Mr Govan. ....... I can have no precise idea or confidence of just how large or small a drink Mr Collins might have poured himself. On that basis I can have no precise idea what Mr Collins' blood alcohol level was at 7.00 pm on 15 May 1997. On the evidence before me it could have been anything from 0.02 or slightly less, to 0.18 grams in 100 millilitres of blood. In those circumstances I cannot make a finding on that topic beyond reasonable doubt."
The learned trial magistrate went on to dismiss the offence of exceeding the prescribed concentration of alcohol.
In its Notice of Appeal the appellant complains:
"5..... Grounds of Appeal.
1. The Learned Magistrate erred in not considering whether or not
the respondent consumed alcohol during the relevant period
'while at the scene of the accident.'2. The Learned Magistrate erred in requiring the prosecution, and
not the respondent, to prove the effect and quantity of
consuming alcohol during the relevant period on the
concentration of alcohol indicated as being present in the
respondent's blood by breath analysis.
3. The Learned Magistrate erred in not considering whether the
respondent should be found guilty of an offence of a less
serious category.
4. The Learned Magistrate erred in dismissing the charge."
On the hearing of the appeal attention focused on ground 1.
As to that ground, the words "while at the scene of the accident" are words which appear in the section 47GA(2)(b)(ii) of the Road Traffic Act 1961.
In order to understand this ground of appeal it is desirable that I set out the section in full:
"47GA(1) This section applies to proceedings for an offence against section 47(1) or 47B(1) in which the results of a breath analysis under this Act are relied on to establish the commission of the offence.
(2) If in proceedings to which this section applies the defendant satisfies the court -
(a) that the defendant consumed alcohol during the period ("the relevant period") after the defendant last drove a motor vehicle or attempted to put a motor vehicle in motion and before the performance of the breath analysis; and
(b) in a case where the defendant was required to submit to the breath analysis under section 47E(1)(d) -
(i) that the defendant complied with the requirements of section 43(3)(a),(b) and (c) in relation to the accident; and
(ii) that alcohol was not consumed by the defendant during the relevant period while at the scene of the accident; and
(c) in a case where the defendant was required to submit to the breath analysis under section 47E(2a) - that the alcohol was not consumed by the defendant during the relevant period in the vicinity of the breath testing station; and
(d) that, after taking into account the quantity of alcohol consumed by the defendant during the relevant period and its likely effect on the concentration of alcohol indicted as being present in the defendant's blood by the breath analysis, the defendant should not be found guilty of the offence charged or, in the case of an offence against section47B, should be found guilty of an offence of a less serious category, the count may, despite the other provisions of this Act, find the defendant not guilty of the offence charged or guilty of an offence of a less serious category."
As to section 47GA(1), the offence of driving with the prescribed concentration of alcohol is an offence against section 47B(1) of the Act.
As to section 47GA(2)(a), it was common ground that the respondent consumed alcohol, namely the Scotch whisky, during the relevant period as defined in that sub-section.
As to section 47GA(2)(b)(i), this was a case where the requirement that the respondent submit to breath analysis was made under section 47E(1)(d), and it was not suggested that he had not complied with the requirements of s43(3)(b)(a),(b) and (c).
As to section 47GA(2)(b)(ii), it was incumbent upon the respondent to satisfy the Court that alcohol (in this case the Scotch whisky) was not consumed by him during the relevant period "while at the scene of the accident."
As to s47GA(2)(c), this sub-section is not of application as the requirement to submit to the breath analysis was not made under s47E(2a), which relates to breath testing stations.
As to section 47GA(2)(d), the alternative of finding the respondent guilty of "an offence of a less serious category" did not arise on the findings made by the learned magistrate, given that he was unable to find beyond reasonable doubt that the blood alcohol concentration at the relevant time was in excess of 0.02.
The question then was whether the whisky was consumed by the respondent while "at the scene of the accident". At least that was the central question agitated an appeal. It was not a question which the learned Trial Magistrate was invited to address. At the trial the question of the applicability of section 47GA(2)(b)(ii) was not raised by either party. It is however raised now, and it is necessary for me to deal with it.
Counsel offered various interpretations of the expression "at the scene of the accident". For example Mr Hinton for the appellants submitted that the words meant:
"...... any location proximate to the actual point of collision such that the physical and temporal relationship between the point of collision and the person involved remains and the ordinary person would expect in the circumstances that were the police to attend the parties to the accident could be called upon to provide a sample of breath."
In my opinion it would be unwise to attempt any such all embracing definition of the phrase of the words. The phrase "at the scene of the accident" is made up of ordinary words which have a plain enough meaning. The difficulty which arises, is in the applying the words to a particular fact situation.
It becomes a question of degree as to whether or not the test is satisfied. In determining whether it is satisfied or not, it is wrong to seek refuge in some other form of words. To do so simply puts a gloss on the words of the section.
The words should be given their ordinary and natural meaning. As I have said, they connote a question of degree.
In some cases it will be plain that the physical proximity is such that the test would clearly be satisfied. In other more borderline situations there may be a difficulty. The difficulty is inherent in the section. It becomes a matter of judgment as to how it is resolved.
In this case I have no doubt about the application of the words in the particular circumstances as disclosed by the evidence. It is common ground that the respondent consumed the alcohol in the kitchen to the rear of the house at no. 53 Arthur Street. The accident occurred outside of no. 45 Arthur St. In those circumstances the place at which the alcohol was consumed, could not on any fair meaning of the words be regarded as "at the scene of the accident."
The learned trial magistrate should have found that the respondent satisfied the court that alcohol was not consumed by him "at the scene of the accident". The other requirements of section 47GA(2) having been met, and there being no warrant to find the respondent guilty of a "less serious category" of offending, it was incumbent upon the magistrate to dismiss the charge.
He did so, albeit for different reasons. The appeal by the Police from his decision must therefore in turn be dismissed.
I will hear the parties as to costs.
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