Police v Douglas - [2011] SASCFC 148

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v DOUGLAS
[2011] SASCFC 148
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Stanley)
1 December 2011
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO FULL COURT
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION
Police appeal against a decision of a Judge of this Court allowing the defendant's appeal and setting aside the defendant's conviction - the defendant was charged with driving a motor vehicle with the prescribed concentration of alcohol present in his blood contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA) - the defendant was subjected to a breath analysis test at 10:20 pm on 10 April 2010 and that test indicated that the defendant had 0.098 grams of alcohol in 100 millilitres of blood - a blood sample was taken at 12:30 am and analysis of that sample indicated that the defendant had 0.034 grams of alcohol in 100 millilitres of blood - an expert gave evidence that it was his opinion that the defendant's blood alcohol concentration was of the order of 0.06 per cent at the time of the breath analysis - the expert also gave evidence that the rate of elimination of alcohol in the normal adult population varied within a range of 0.006 per cent to about 0.026 per cent per hour - assuming the accuracy of the breath analysis, the expert calculated the defendant's elimination rate as 0.027 per cent per hour - the expert also testified that the average elimination rate for a social drinker was between 0.015 per cent and 0.017 per cent per hour and that the majority of people lie within this range - the defendant was convicted of the offence charged by a Magistrate at trial - the defendant appealed to a Judge of this Court who concluded that the Magistrate had erred in concluding the breath analysis was not exaggerated within the meaning of section 47K(1a)(b) of the Road Traffic Act - whether the conclusions of the single Judge of this Court were open to him on the evidence.
Held: Appeal dismissed - the expert's opinion that at the time of the defendant's breath analysis test his blood alcohol reading would have been of the order of 0.06 per cent is irreconcilable with the breath analysis reading obtained by the police of 0.098 per cent - the conclusions of the Judge of this Court were open to him on the evidence - further, the evidence established on the balance of probabilities that the breath analysis reading was exaggerated.
Road Traffic Act 1961 (SA) s 47A, s 47B and s 47K, referred to.
Police v Douglas [2010] SAMC 66; Douglas v Police [2011] SASC 50; State Government…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Douglas

Details

AGLC: Police v Douglas [2011] SASCFC 148
Case: [2011] SASCFC 148
Decision Date: 1 December 2011

CaseChat Overview and Summary

The Police appealed to the Full Court of the Supreme Court of South Australia against a decision of a single Judge of that Court. The single Judge had allowed the defendant's appeal and set aside his conviction for driving a motor vehicle with a prescribed concentration of alcohol in his blood, contrary to section 47B(1)(a) of the *Road Traffic Act 1961* (SA). The defendant had initially been convicted by a Magistrate.

The legal issues before the Full Court were whether the conclusions reached by the single Judge were open to him on the evidence presented. Specifically, the Court considered whether the Magistrate had erred in concluding that the breath analysis reading was not exaggerated within the meaning of section 47K(1a)(b) of the *Road Traffic Act 1961* (SA).

The Full Court reasoned that the expert evidence, which suggested the defendant's blood alcohol concentration was approximately 0.06 per cent at the time of the breath analysis, was irreconcilable with the police breath analysis reading of 0.098 per cent. The Court found that the single Judge's conclusions were open to him on the evidence. Furthermore, the Court determined that the evidence, on the balance of probabilities, established that the breath analysis reading was exaggerated. Consequently, the appeal was dismissed.

Orders