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 Insurance Commission v Laube (1984) 37 SASR 31; Arnold v Police [2011] SASC 149; R v Jarrett (1994) 62 SASR 443; R v Karger (2001) 83 SASR 1; R v Karger (2001) 83 SASR 135; R v GK (2001) 53 NSWLR 317; Tonkin v Police (2006) 95 SASR 36; Evans v Benson (1986) 46 SASR 317; Police v Shelmerdine (2000) 76 SASR 199, considered.

POLICE v DOUGLAS
[2011] SASCFC 148
Full Court Gray, David and Stanley JJ
GRAY J

The defendant and respondent, Jason Robert Ian Douglas, was charged with driving a motor vehicle on a road while there was present in his blood the prescribed concentration of alcohol as defined in section 47A of the Road Traffic Act 1961 (SA). The charged conduct occurred on 10 April 2010 at Scott Creek and was said to be a breach of section 47B(1)(a) of the Road Traffic Act. It was alleged that the concentration of alcohol was 0.098 grams in 100 millilitres of blood.
The defendant was convicted following a trial in the Mount Barker Magistrates Court.[1] A Judge of this Court allowed the defendant’s appeal and set aside the conviction.[2] This is an appeal by the police against the order of the Judge of this Court.
[1] Police v Douglas [2010] SAMC 66.
[2] Douglas v Police [2011] SASC 50.
On 10 April 2010, the defendant had been at home with his partner. At about 9.40 pm while driving at Scott Creek he was stopped by a police officer and subjected to an alcotest. The result was positive. The defendant was conveyed to the Mount Barker police station to undergo breath analysis. The breath analysis took place at 10:20 pm and a reading of 0.098 grams of alcohol in 100 millilitres of blood was recorded.
The defendant was provided with a blood test kit which he took to the Mount Barker hospital where a sample of his blood was taken at 12:30 am. It was agreed that an analysis of that sample by Forensic Science SA revealed that there was 0.034 grams of alcohol in 100 millilitres of blood.
At trial, the defence accepted that the breath analysis test was conducted in accordance with the appropriate regulations and guidelines and that there was no operator error. The issue at trial was whether instrument error had occurred.
The defendant gave evidence of the events of 10 April 2010. The early part of the day was spent with his partner attending to domestic chores. Late in the afternoon, between 4:30 pm and 6:00 pm, the defendant consumed four cans of full strength beer. This was the only alcohol he consumed that day. He had a meal prior to leaving home and after he had finished drinking the beer. At about 9:00 pm, he left with his partner and, in the course of travelling to a party he was stopped by the police.
The defendant at the time of trial was 28 years of age, held qualifications in electrotechnology and was in regular employment. He was in good health. He did not consume alcohol on a daily basis and had never done so. He did not drink to excess. He was an occasional consumer of alcohol.
The defendant called Peter David Felgate, a forensic scientist with expertise in blood alcohol analysis. Mr Felgate gave evidence of his considerable experience considering blood alcohol analysis. He held the position of Manager of the Toxicology Section of the South Australian Forensic Science Centre. No objection was taken to the expertise of Mr Felgate. His evidence and opinions were accepted as both relevant and admissible. Mr Felgate explained the way in which the body absorbs, metabolises and eliminates alcohol. It was Mr Felgate’s opinion that, having made a number of assumptions, the defendant’s blood alcohol concentration was of the order of 0.06 per cent at the time of the breath analysis. He considered it highly unlikely that the defendant’s blood alcohol concentration at the time of the breath analysis was less than 0.04 per cent.
In forming these opinions in his tendered written report, Mr Felgate assumed that the alcohol consumed by the defendant had been fully absorbed by the time of the breath analysis at 10:20 pm on 10 April 2010. He assumed the result of the breath test to be 0.098 per cent and that the analysis of the blood sample taken at 12:30 am to be not less than 0.034 per cent. He made an adjustment to increase the reading of 0.034 per cent to 0.040 per cent in accordance with what he described as normal statistical practice. He further assumed that the defendant’s blood alcohol concentration was falling at a roughly steady rate in the interval between the breath analysis and the blood test.
Mr Felgate expressed the opinion that the rate of elimination in the normal adult population varied within a range of 0.006 per cent to about 0.026 per cent per hour. Mr Felgate then made a calculation of the elimination rate produced by assuming the accuracy of the breath analysis. This calculation led to the result of 0.027 per cent per hour, which lay outside the normal reported range.
Mr Felgate then proceeded to calculate the defendant’s blood alcohol reading at the time of the breath analysis, taking as a starting point the blood sample reading taken at 12:30 am on 11 April 2010 of 0.034 per cent. He assumed a reasonable average value for the rate of elimination of 0.016 per cent per hour. On this basis, the defendant’s blood alcohol reading at the time of the breath analysis in Mr Felgate’s opinion was 0.06 per cent. Mr Felgate qualified this opinion by explaining that the figure of 0.06 per cent could not be regarded as a firm figure.
In the course of his oral testimony, Mr Felgate explained that the bodies of seasoned drinkers adapt to coping with alcohol in their body. The body produces extra enzymes leading to quicker metabolisation and hence, seasoned drinkers can have much higher rates of elimination. Mr Felgate described seasoned drinkers as those who drink a reasonable quantity everyday and on weekends may subject themselves to excessive alcohol intake.
Mr Felgate, when pressed about the studies that had been undertaken, explained that in the studies about 95 per cent of the participants would be within the elimination rate of 0.01 per cent to 0.02 per cent per hour. When pressed by the Magistrate, Mr Felgate emphasised 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. It is to be observed that Mr Felgate chose the middle of this range 0.016 per cent when reaching his conclusion that the defendant’s reading as at the time of the breath analysis would have been of the order of 0.06 per cent.
Before coming to discuss the issues on the appeal, it is convenient to make reference to the relevant statutory provisions. The offence was alleged to be contrary to section 47B(1)(a) of the Road Traffic Act. Section 47B(1) relevantly provides:
A person must not—
(a) drive a motor vehicle; or
(b) attempt to put a motor vehicle in motion,
while there is present in his or her blood the prescribed concentration of alcohol as defined in section 47A.
…
Compliance with the requirements of section 47K(1) of the Road Traffic Act allows the prosecution to rely on a presumption as to a defendant’s blood alcohol reading at the time of driving. That section provides:
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 and throughout the preceding period of 2 hours.
The Road Traffic Act limits the manner in which this presumption may be challenged. Relevantly, section 47K(1a) provides:
(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 and Schedule 1 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.
Section 47K(1ab) of the Road Traffic Act provides a second presumption:
(1ab) If, in any proceedings for an offence, it is proved—
(a)     that the defendant drove a vehicle, or attempted to put a vehicle in motion; and
(b)     that a concentration of alcohol was present in the defendant's blood at the time of a breath analysis performed within the period of 2 hours immediately following the conduct referred to in paragraph (a),
it must be conclusively presumed that that concentration of alcohol was present in the defendant's blood at the time of the conduct referred to in paragraph (a).
It is difficult to understand the purpose of section 47K(1)(ab) having regard to the terms of sections 47K(1) and 47K(1a). The use of the phrase “conclusively presumed” does not in my view limit or restrict the operation of section 47K(1a). The Solicitor-General made no submission to the contrary.
Against the background of the legislative scheme, I now turn to the decision of the Magistrate. In reaching his conclusion that the offence had been proved, the Magistrate said:[3]
[3] Police v Douglas [2010] SAMC 66, [25]-[33].
In Tonkin v Police Doyle C.J. referred to a two stage process. The first stage requires the defendant to establish on the balance of probabilities that his alcohol elimination rate was not a rate that enabled the result of the blood analysis to be reconciled with the result of the breath analysis. In the Chief Justices words the defendant has “to prove on the balance of probabilities that (at the time of the breath analysis) his blood did not contain the concentration of alcohol indicated by the breath analysing instrument. If that (is) established, one would then know that the two results could not be reconciled.”
Short of a person undergoing breath analysis and having a sample of blood taken contemporaneously what the Chief Justice suggests can only be achieved by a count back process based on the result of the blood analysis result.
The second stage requires consideration of whether the breath analysing instrument had given an “exaggerated reading”.
That is there is such a disparity between the blood result after the count back process and the breath analysis that the two results cannot be reconciled.
Mr Felgate’s evidence does not in my opinion establish that the result of the breath analysis and the result of the blood analysis cannot be reconciled.
It is possible the defendant’s elimination rate on the evening of 10 April 2010 was toward the higher end of the normal range. If that is possible then the defendant has eliminated alcohol at a different rate than Mr Felgate has postulated.
In my opinion the breath analysis result and the blood analysis result are reconcilable allowing for the defendant having a normal elimination rate albeit at the higher end of the normal range.
Even if I am wrong in that conclusion I am not persuaded the breath analysis result was an “exaggerated reading”. It cannot be said that the breath analysis result was “abnormally large or unduly magnified” when compared with the blood analysis result allowing a 2 hour and 10 minute gap between the breath analysis and the taking of the blood sample.
Finally while it is not relevant to the issue before me, I doubt the defendant consumed only four cans of Hahn Super Dry beer and I doubt he stopped drinking just before 6 pm. At 10.20pm his blood alcohol level was .098% and at 12.30am it was still not less than .038%. Common sense suggests he consumed more alcohol than he says he did.
As noted above, the defendant appealed to a Judge of this Court. Such an appeal is in the nature of a rehearing. The Judge’s function is to review the evidence in the trial and to reach his own conclusions paying due regard to any advantage that the trial Magistrate may have had and the views formed by the Magistrate.
The Judge considered whether the Magistrate erred in concluding that the result of the breath analysis was not exaggerated. The Judge having reviewed the evidence in the case, the relevant statutory provisions and the relevant authorities, concluded:[4]
I consider that the Magistrate erred in finding that it was not proven on the balance of probabilities that the result of the breath analysis was exaggerated. The difference between 0.098 per cent and 0.06 per cent is significant. It results in a difference of approximately 30 per cent. In my view, a 30 per cent difference is a difference which is inflated beyond acceptable limits, having regard to an allowance for a reasonable degree of error in calculations of this nature.
In concluding that the defendant must have had more to drink than he disclosed, the Magistrate appears to have attempted to reconcile the disparity in the readings by reaching a conclusion which was not supported by the evidence. Counsel for the Police accepted that the Magistrate’s reasoning was not supported by the evidence.
The Magistrate failed to resolve how the irreconcilable results could be explained. His finding that the defendant must have drunk more than he disclosed is a conclusion based upon the rejection of the defence case, without sufficient analysis of the evidence. In my view, it was based on speculation that the defendant must have consumed more alcohol than he had disclosed.
I consider that the result of the breath analysis could not be reconciled with the result of the defendant’s blood test based on accepted, and unchallenged, alcohol elimination rates for social drinkers such as the defendant. The Magistrate erred in arriving at his decision that it was ‘possible’ to reconcile the two readings and, if not, that the breath analysis was not ‘exaggerated’ within the meaning of section 47K(1a)(b).
[4] Douglas v Police [2011] SASC 50, [33]-[36].
The Full Court Appeal
The appeal from the first instance Judge of this Court is pursuant to a grant of permission. However, this Court will only interfere on this second appeal if an error of fact or law is established or if in some other way the decision is shown to be unsustainable or unjust.
The issue which arose before the Full Court was whether the conclusions reached by the Judge of this Court were open to him on the evidence; that is, whether the evidence led by the defendant established on the balance of probabilities that the concentration of alcohol indicated as being present in the defendant’s blood at 10:20 pm by a breath analysis instrument reading was exaggerated such that the presumption contained in section 47K(1) of the Road Traffic Act was rebutted.
The Solicitor-General, appearing for the police, submitted that the Judge erred in his reliance on the evidence and opinion of Mr Felgate. It was contended that his opinion was built on assumptions that had not been adequately established and that aspects of Mr Felgate’s evidence were little more than speculation. It was submitted that it was not possible to draw any conclusion as to the likely elimination rate applicable to the defendant. It was said that it was unsafe to rely on the statistical analyses referred to by Mr Felgate. It was argued that it was open to the defendant to undergo a series of tests to have his own particular elimination rate established. Counsel went so far as to suggest that if a defendant wished to establish that the breath analysis was exaggerated by the use of elimination rates, he needed to undergo such a process. The Solicitor-General was unmoved by considerations of the time and expense associated with such a process or the fact that many members of the public would not be able to afford time to undergo such testing.
In my view, the expert evidence of Mr Felgate was relevant and probative notwithstanding that his opinion relies in part on statistical analyses. This was not evidence about the behaviour of a person such as was considered by King CJ in State Government Insurance Commission v Laube when considering the likely behaviour of persons with high blood alcohol readings.[5] The statistical analyses referred to by Mr Felgate were published results, it may be inferred, of studies within the discipline of medical science, where members of the adult population had been tested and as a result, a range of elimination rates had been determined. To my mind, it is significant that the majority of social drinkers tested revealed an elimination rate of between 0.015 per cent and 0.017 per cent per hour. Statistical evidence based on matters of medical science is commonly presented in Court through expert opinion.[6]
[5] State Government Insurance Commission v Laube (1984) 37 SASR 31; see also, Arnold v Police [2011] SASC 149.
[6] See, R v Jarrett (1994) 62 SASR 443; R v Karger (2001) 83 SASR 1 (Mullighan J); R v Karger (2001) 83 SASR 135 (Court of Criminal Appeal); R v GK (2001) 53 NSWLR 317, [51]-[61].

The Judge under appeal referred to the observations of Doyle CJ in Tonkin.[7] In that decision, an attempt was made by the defendant to establish that a breath analysis reading was exaggerated. An expert carried out an ethanol elimination test on the defendant which revealed an elimination rate of 0.0145 per cent per hour. Importantly, it was accepted by an expert that a variation between 0.0145 per cent and 0.0188 per cent per hour was within the range of variation for individuals reported in the literature. An elimination rate of 0.0188 per cent per hour did allow reconciliation between the blood test and the breath analysis. In these circumstances, Doyle CJ concluded that the defendant had not established the onus of showing on the balance of probabilities that the breath analysis reading was exaggerated.
[7] Tonkin v Police (2006) 95 SASR 36.
The Judge under appeal referred to the following extract from the judgment of Doyle CJ:[8]
To some extent Ms Downey's submission was that her primary submission should be accepted, because otherwise it was impossible to rebut the statutory presumption. But that is not necessarily so. For all I know it may be possible to show, in a given case, that the results of the breath analysis and of the blood analysis could be reconciled only by postulating an alcohol elimination rate that was outside the known rates of variation. Another possibility is that it might be possible, in a given case, to lead evidence that having regard to the circumstances or characteristics of the defendant, although the variation between the postulated rate and the test rate was not outside the range of experience, nevertheless having regard to particular circumstances the rate could not have varied by the amount that would be necessary for one to be able to reconcile the two results.
[Emphasis added.]
[8] Tonkin v Police (2006) 95 SASR 36, [21].
The Judge under appeal pointed out that in the present proceeding the evidence of Mr Felgate was that the postulated elimination rate was beyond the upper extreme of the variation range.
The evidence established that the defendant was a young man engaged in full time employment. His evidence further established that he was a moderate social drinker. In these circumstances, it may be expected that it would be likely that he would have had an elimination rate in the range of 0.015 per cent to 0.017 per cent per hour comparable to that as discussed by Mr Felgate.
A blood test is the more accurate and reliable means of determining the percentage of alcohol in blood.[9] In the present proceeding if the breath analysis reading is postulated to be correct it would follow that, having regard to the blood test analysis, an elimination rate beyond the established upper range of elimination rates would be required to allow there to be a reconciliation. This fact alone demonstrates that the breath analysis reading could not be correct. Further, the postulated elimination rate is so far beyond the range for the vast majority of the normal population that the conclusion that the breath analysis was exaggerated gains further support.
[9] Evans v Benson (1986) 46 SASR 317, 324; see also, Tonkin v Police (2006) 95 SASR 36, 41.
More importantly, however, was Mr Felgate’s unchallenged expert 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. This is irreconcilable with the breath analysis reading obtained by the police of 0.098 per cent. The breath analysis was substantially higher and, having regard to the authorities, was exaggerated within the meaning of section 47K(1a).[10]
[10] See, Police v Shelmerdine (2000) 76 SASR 199, [12]-[13], [43]-[46]; Tonkin v Police (2006) 95 SASR 36.
To my mind, the conclusions reached by the Judge under appeal were open on the evidence. I would go further. I consider that the evidence did establish, on the balance of probabilities, that the breath analysis reading was exaggerated.
The presumption contained in section 47K(1) could not be called in aid by the prosecution. In these circumstances the Judge was correct to allow the appeal from the Magistrate, to set aside the orders made by the Magistrate and to direct that a verdict of not guilty be substituted.
For these reasons, I would dismiss this appeal.
DAVID J: I would dismiss the appeal. I agree with the reasons of Gray J.
STANLEY J: I have had the advantage of reading the reasons of Gray J. I agree with his Honour’s reasons.