Police v Dunstall

Case [2014] SASCFC 85

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

POLICE v DUNSTALL

[2014] SASCFC 85

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Sulan)

25 July 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - EVIDENCE - OTHER MATTERS

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - GENERALLY

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE - BLOOD TEST AND ANALYSIS

Appeal by police in relation to the decision of a Magistrate to dismiss a complaint against the defendant and respondent.  The defendant was charged with driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol.  The defendant was stopped by a mobile traffic patrol and required to take an alcotest.  The test returned a positive result.  The defendant was taken to a police station and subjected to a breath analysis test, which recorded a concentration of 0.155 grams of alcohol in 100 millilitres of blood.  The defendant was provided with a blood test kit and driven to a hospital, where a medical practitioner took two blood samples.  The samples were submitted for analysis, but both were denatured and unsuitable for analysis.  An expert gave evidence that the most likely cause of the denaturing was the taking of insufficient blood by the medical practitioner.  The Magistrate excluded the evidence of the breath analysis certificate in the exercise of the unfairness discretion and dismissed the complaint against the defendant.  An appeal to a single Judge of the Supreme Court by the police was dismissed.

Whether the general unfairness discretion was enlivened such that the evidence of the breath analysis undertaken was properly excluded.

Held per Gray and Sulan JJ (Kourakis CJ dissenting):

1.  Appeal dismissed.

Held per Gray J:

1.  The safeguards provided by the statutory regime were rendered nugatory as a result of the medical practitioner taking insufficient blood.  The defendant was placed in the same position as if a police officer had not informed him of his rights, or had inadequately informed him of those rights, or had provided a defective blood kit

2.  A review of the relevant authorities allows the conclusion that the Magistrate was entitled to consider the exercise of the general unfairness discretion when considering the admissibility of the breath analysis evidence. 

3.  The Magistrate was entitled as a matter of discretion to exclude the evidence.

Held per Sulan J:

1.  The statutory scheme gives a defendant a limited ability to test the accuracy of a breathalyser analysis.  If there is a failure, through no fault or conduct of the defendant, to exercise his right then that is a proper basis to enliven the unfairness discretion as the trial will be…

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Police v Dunstall [2014] SASCFC 85
Case
[2014] SASCFC 85
Decision Date

CaseChat Overview and Summary

The appeal concerned a charge against the respondent, Jason Andrew Dunstall, for driving a motor vehicle with the prescribed concentration of alcohol in his blood, contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA). The respondent was stopped by police, provided a positive roadside alcotest, and subsequently underwent a breath analysis which indicated a blood alcohol concentration of 0.155 grams of alcohol in 100 millilitres of blood. The appeal was brought by the police to the Supreme Court of South Australia, with Kourakis CJ, Gray and Sulan JJ presiding.

The central legal issue before the court was whether the general discretion to exclude prosecution evidence on the grounds of unfairness was enlivened in the circumstances of the trial, thereby justifying the exclusion of the breath analysis evidence. This involved considering the application and effect of section 47K of the Road Traffic Act 1961, which provides for the admissibility and presumptive proof of breath analysis results, and the limited circumstances under which such evidence could be rebutted or proceedings stayed.

The Court allowed the appeal, setting aside the order of dismissal made in the Magistrates Court and directing that a conviction be recorded. The reasoning was that Regulation 11 did not confer a procedural right to adduce evidence of a blood sample analysis, and the failure to obtain a blood sample was not attributable to police misconduct. Furthermore, the police bore no responsibility for the respondent's choice of medical practitioner or that practitioner's alleged failure to obtain adequate samples. Crucially, there was no evidence casting doubt on the accuracy of the breath analysis itself, and the trial of the elements required to be proven under section 47K RTA had not been compromised. The Court noted that while there might be very limited circumstances where a prosecution could be an abuse of process, such as where the prosecution acted in bad faith by relying on flawed readings due to known issues with an instrument or operating practices, those circumstances were not present in this case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Proof of offences against s 47B RTA are substantially facilitated by the provisions of s 47K RTA.47K—Evidence(1)Without affecting the admissibility of evidence that might be given otherwise than under 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.(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.(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).… (2)As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying—(a) the reading produced by the breath analysing instrument; and(b) the date and time of the analysis.(2a)If 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.(3) A certificate—(a) purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments; or(b) purporting to be signed by a person authorised under subsection (1) and to certify that—(i)the apparatus used by the authorised person was a breath analysing instrument within the meaning of this Act; and(ii)the breath analysing instrument was in proper order and was properly operated; and(iii)the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with,is, in the absence of proof to the contrary, proof of the matters so certified.(3a)A certificate purporting to be signed by a police officer and to certify that an apparatus referred to in the certificate is or was of a kind approved under this Act for the purpose of performing alcotests, a drug screening test or an oral fluid analysis is, in the absence of proof to the contrary, proof of the matter so certified.(3b)A certificate purporting to be signed by a police officer and to certify that a person named in the certificate submitted to an alcotest on a specified day and at a specified time and that the alcotest indicated that the prescribed concentration of alcohol may then have been present in the blood of that person is, in the absence of proof to the contrary, proof of the matters so certified.…(4)Subject to subsection (17) a certificate purporting to be signed by an analyst, certifying as to the concentration of alcohol, or any drug, found in a specimen of blood identified in the certificate expressed in grams in 100 millilitres of blood is, in the absence of proof to the contrary, proof of the matters so certified.(5)Subject to subsection (17) a certificate purporting to be signed by a person authorised under subsection (1) and to certify that—(a) a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument on a day and at a time specified in the certificate; and(b) the breath analysing instrument produced a reading specified in the certificate; and(c) a statement in writing required by subsection (2) was delivered in accordance with that subsection,is, in the absence of proof to the contrary, proof of the matters so certified.(7)A certificate purporting to be signed by a person authorised under subsection (1) and to certify—(a) that, on a date and at a time specified in the certificate, a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument; and(b) that the prescribed oral advice and the prescribed written notice were given and delivered to the person in accordance with subsection (2a)(a); and(c) that—(i)the person did not make a request for an approved blood test kit in accordance with the regulations; or(ii)at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subsection (2a)(b),is, in the absence of proof to the contrary, proof that the requirements of subsection (2a) were complied with in relation to the person.(8)A prosecution for an offence will not fail because of a deficiency of a kit delivered to the defendant in purported compliance with subsection (2a)(b) and the presumption under subsection (1) will apply despite such a deficiency unless it is proved—(a) that the defendant delivered the kit unopened to a medical practitioner for use in taking a sample of the defendant's blood; and(b) by evidence of the medical practitioner, that the medical practitioner was, because of a deficiency of the kit, unable to comply with the prescribed procedures governing the manner in which a sample of a person's blood must be taken and dealt with for the purposes of subsection (1a).…(11)Subject to subsection (17), an apparently genuine document purporting to be a certificate under Schedule 1 and purporting to be signed by a police officer, medical practitioner or analyst, or copy of such a certificate, is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters stated in the certificate.(12)If a certificate of an analyst relating to a sample of blood taken under section 47E or 47I is received as evidence in proceedings before a court and states that the prescribed concentration of alcohol has been found to be present in the sample of blood to which the certificate relates, it will be presumed, in the absence of proof to the contrary, that the concentration of alcohol stated in the certificate was present in the sample when the sample was taken.…(17)A certificate referred to in subsection (4), (5) or (11) cannot be received as evidence in proceedings for an offence—(a) unless a copy of the certificate proposed to be put in evidence at the trial of a person for the offence has, not less than 7 days before the commencement of the trial, been served on that person; or(b) if the person on whom a copy of the certificate has been served under paragraph (a) has, not less than 2 days before the commencement of the trial, served written notice on the complainant or informant requiring the attendance at the trial of the person by whom the certificate was signed; or(c) if the court, in its discretion, requires the person by whom the certificate was signed to attend at the trial.…

Decision

Reasons for decision

I acknowledge that there may be some very limited circumstances which would render a prosecution of a defendant who is unable to adduce evidence of a blood analysis an abuse. If it were shown, for example, that the prosecution had strong reason to doubt the accuracy of a breath analysis instrument because of the subsequent discovery of a latent fault in a breath analysis instrument or the adoption of bad operating practices, and nonetheless proceeded with a prosecution, a different result might ensue. Such evidence might, either alone or together with the inability to obtain a blood sample analysis, provide a foundation for a favourable exercise of the discretion to stay the proceedings as an abuse of process. The stay of the prosecution in such circumstances would be grounded in the prosecution’s bad faith in engaging the criminal jurisdiction of the court intending, or being reckless as to, the use of statutory presumptions, on flawed readings, to secure the imposition of a criminal sanction against a motorist who is shown by credible other evidence to have been unlikely to have exceeded the prescribed concentration of alcohol.Conclusion In summary I would allow the appeal for the following reasons. First Regulation 11 does not confer a procedural right to adduce evidence of a blood sample analysis. Secondly, the failure to obtain a sample was not caused by any police misconduct. Thirdly, the police carry no responsibility for the respondent’s choice of medical practitioner or that practitioner’s failure to obtain adequate samples. Fourthly, there is no evidence casting doubt on the breath analysis. Finally, the trial of the elements which the police were required to prove pursuant to s 47K RTA has not been compromised in any relevant way. I would set aside the order of the Judge and order instead that the appeal against the Magistrate’s order of dismissal be allowed. I would set aside the order of dismissal made in the Magistrates Court. I would direct that a conviction be recorded on the complaint and remit the matter to the Magistrates Court for sentence.GRAY J: This appeal by the police raises an issue as to the circumstances in which a court may exclude prosecution evidence. The particular question for this Court is whether the general unfairness discretion was enlivened in the circumstances of the trial such that the evidence of breath analysis undertaken was properly excluded. The defendant and respondent, Jason Andrew Dunstall, was charged with driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol in breach of section 47B(1)(a) of the Road Traffic Act 1961 (SA). At about 12.30 am on 8 January 2012, the defendant was driving on Angel Avenue, Seaford, when he was stopped by a mobile traffic patrol and required to submit to an alcotest. The test returned a positive result. The defendant was taken to a police station and subjected to a breath analysis test at about 12.55 am. The result recorded was a concentration of 0.155 grams of alcohol in 100 millilitres of blood.

Ratio Decidendi

Legal Principle Established

Section 47B RTA provides:47B—Driving while having prescribed concentration of alcohol in blood(1) 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. The police are empowered to administer tests to detect the commission of offences against s 47B RTA by s 47E RTA which provides:47E—Police may require alcotest or breath analysis(1)Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person—(a) is driving, or has driven, a motor vehicle; or(b) is attempting, or has attempted, to put a motor vehicle in motion; or(c) is acting, or has acted, as a qualified supervising driver for the holder of a permit or licence,the police officer may require the person to submit to an alcotest or a breath analysis, or both. Proof of offences against s 47B RTA are substantially facilitated by the provisions of s 47K RTA.47K—Evidence(1)Without affecting the admissibility of evidence that might be given otherwise than under 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.(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.(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).… (2)As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying—(a) the reading produced by the breath analysing instrument; and(b) the date and time of the analysis.(2a)If 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.(3) A certificate—(a) purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments; or(b) purporting to be signed by a person authorised under subsection (1) and to certify that—(i)the apparatus used by the authorised person was a breath analysing instrument within the meaning of this Act; and(ii)the breath analysing instrument was in proper order and was properly operated; and(iii)the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with,is, in the absence of proof to the contrary, proof of the matters so certified.(3a)A certificate purporting to be signed by a police officer and to certify that an apparatus referred to in the certificate is or was of a kind approved under this Act for the purpose of performing alcotests, a drug screening test or an oral fluid analysis is, in the absence of proof to the contrary, proof of the matter so certified.(3b)A certificate purporting to be signed by a police officer and to certify that a person named in the certificate submitted to an alcotest on a specified day and at a specified time and that the alcotest indicated that the prescribed concentration of alcohol may then have been present in the blood of that person is, in the absence of proof to the contrary, proof of the matters so certified.…(4)Subject to subsection (17) a certificate purporting to be signed by an analyst, certifying as to the concentration of alcohol, or any drug, found in a specimen of blood identified in the certificate expressed in grams in 100 millilitres of blood is, in the absence of proof to the contrary, proof of the matters so certified.(5)Subject to subsection (17) a certificate purporting to be signed by a person authorised under subsection (1) and to certify that—(a) a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument on a day and at a time specified in the certificate; and(b) the breath analysing instrument produced a reading specified in the certificate; and(c) a statement in writing required by subsection (2) was delivered in accordance with that subsection,is, in the absence of proof to the contrary, proof of the matters so certified.(7)A certificate purporting to be signed by a person authorised under subsection (1) and to certify—(a) that, on a date and at a time specified in the certificate, a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument; and(b) that the prescribed oral advice and the prescribed written notice were given and delivered to the person in accordance with subsection (2a)(a); and(c) that—(i)the person did not make a request for an approved blood test kit in accordance with the regulations; or(ii)at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subsection (2a)(b),is, in the absence of proof to the contrary, proof that the requirements of subsection (2a) were complied with in relation to the person.(8)A prosecution for an offence will not fail because of a deficiency of a kit delivered to the defendant in purported compliance with subsection (2a)(b) and the presumption under subsection (1) will apply despite such a deficiency unless it is proved—(a) that the defendant delivered the kit unopened to a medical practitioner for use in taking a sample of the defendant's blood; and(b) by evidence of the medical practitioner, that the medical practitioner was, because of a deficiency of the kit, unable to comply with the prescribed procedures governing the manner in which a sample of a person's blood must be taken and dealt with for the purposes of subsection (1a).…(11)Subject to subsection (17), an apparently genuine document purporting to be a certificate under Schedule 1 and purporting to be signed by a police officer, medical practitioner or analyst, or copy of such a certificate, is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters stated in the certificate.(12)If a certificate of an analyst relating to a sample of blood taken under section 47E or 47I is received as evidence in proceedings before a court and states that the prescribed concentration of alcohol has been found to be present in the sample of blood to which the certificate relates, it will be presumed, in the absence of proof to the contrary, that the concentration of alcohol stated in the certificate was present in the sample when the sample was taken.…(17)A certificate referred to in subsection (4), (5) or (11) cannot be received as evidence in proceedings for an offence—(a) unless a copy of the certificate proposed to be put in evidence at the trial of a person for the offence has, not less than 7 days before the commencement of the trial, been served on that person; or(b) if the person on whom a copy of the certificate has been served under paragraph (a) has, not less than 2 days before the commencement of the trial, served written notice on the complainant or informant requiring the attendance at the trial of the person by whom the certificate was signed; or(c) if the court, in its discretion, requires the person by whom the certificate was signed to attend at the trial.…