Police v Fountaine

POLICE v FOUNTAINE
[1999] SASC 227

Full Court: Doyle CJ, Prior, Lander, Bleby and Martin JJ

DOYLE CJ.

Introduction

A Magistrate dismissed a charge that the respondent had driven a motor car while there was present in her blood the prescribed concentration of alcohol, contrary to s47A of the Road Traffic Act (“the Act”).
The Magistrate had, after hearing evidence and argument, ruled inadmissible evidence that the respondent’s blood had been analysed and found to contain 0.159 grams of alcohol in a hundred millilitres of blood. After that ruling the prosecution closed its case (a number of matters had been proved but there was no hope of a conviction without the excluded evidence), and the Magistrate then dismissed the charge.
The Magistrate ruled the evidence inadmissible because a statutory requirement, imposed by s47I(7)(b) of the Act, to give to the respondent or to leave with her effects a notice relating to the taking of blood from the respondent, had not been observed. In so ruling the Magistrate treated herself as bound by the decision of this Court in R v Turner (1975) 12 SASR 373.
The prosecutor has appealed. The appeal was referred to the Full Court because the appellant challenged the correctness of the decision in Turner. To consider that challenge, the Full Court sat as a court of five judges.

The provisions of s47I of the Act

Section 47I has been amended from time to time. As it now stands it relevantly provides as follows.
“47I.    (1)    Where a motor vehicle is involved in any accident and, within eight hours after the accident, a person apparently of or above the age of 14 years who suffered injury in the accident attends at, or is admitted into, a hospital for the purpose of receiving treatment for that injury, it is, subject to this section, the duty of the legally qualified medical practitioner by whom that patient is attended to take, as soon as practicable, a sample of that patient’s blood (notwithstanding that the patient may be unconscious) in accordance with this section.
(2)    A medical practitioner must not take a sample of blood under this section where, in his or her opinion, it would be injurious to the medical condition of the patient to do so.
(3)    A medical practitioner is not obliged to take a sample of blood under this section where the patient objects to the taking of the sample of blood and persists in that objection after the medical practitioner has informed the patient that, unless the objection is made on genuine medical grounds, it may constitute an offence against this section.
... .
(7)    A medical practitioner by whom a sample of blood is taken under this section must-
(a).... place the sample of blood, in approximately equal proportions, in two separate containers marked with an identification number distinguishing the sample of blood from other samples of blood taken under this section and seal the containers; and
(b)give to the person from whom the sample was taken, or leave with that person’s personal effects at the hospital, a notice in writing advising that-
(i).... the sample of blood has been taken under this section; and
(ii)    a container containing part of the sample of blood and marked with the identification number specified in the notice will be available for collection by or on behalf of the person at a specified place; and
(c).... complete and sign a certificate containing the information required under subsection (10); and
(d)make the containers and the certificate available to a member of the police force.
(8)    Each container must contain a sufficient quantity of blood to enable an accurate evaluation to be made on any concentration of alcohol present in the blood and the sample of blood taken by the medical practitioner must be such as to furnish two such quantities of blood.
(9)    It is the duty of the medical practitioner by whom the sample of blood is taken to take such measures as are reasonably practicable in the circumstances to ensure that the blood is not adulterated and does not deteriorate so as to prevent a proper assessment of the concentration of alcohol present in the blood of the person from whom the sample was taken.
(10)    The certificate referred to in subsection (7) must state-
(a).... the identification number of the sample of blood marked on the containers referred to in that subsection; and
(b)the name and address of the person from whom the sample of blood was taken; and
(c).... the name of the medical practitioner by whom the sample of blood was taken; and
(d)the date, time and hospital at which the sample of blood was taken; and
(e).... that the medical practitioner gave the notice referred to in that subsection to the person from whom the sample of blood was taken, or, as the case may be, left the notice with the person’s personal effects.
(10a)   One of the containers containing the sample of the person’s blood must-
(a).... as soon as reasonably practicable be collected by a member of the police force and delivered to the place specified in the notice given to the person or left with the person’s personal effects under subsection (7); and
(b)be kept available at that place for collection by or on behalf of the person for the prescribed period.
(11)    After analysis of the sample of blood in a container made available to a member of the police force pursuant to subsection (7), the analyst who performed or supervised the analysis must sign a certificate containing the following information:
(a).... the identification number of the sample of blood marked on the container; and
(b)the name and professional qualifications of the analyst; and
(c).... the date on which the sample of blood was received in the laboratory in which the analysis was performed; and
(d)the concentration of alcohol or other drug found to be present in the blood; and
(e).... any factors relating to the blood sample or the analysis that might, in the opinion of the analyst, adversely affect the accuracy or validity of the analysis; and
(f)any other information relation to the blood sample or analysis or both that the analyst thinks fit to include.
(12)    On completion of an analysis of a sample of blood, the certificate of the medical practitioner by whom the sample of blood was taken and the certificate of the analyst who performed or supervised the analysis must be sent to the Minister or retained on behalf of the Minister and, in either event, copies of the certificates must be sent-
(a).... to the Commissioner of Police; and
(b)to the medical practitioner by whom the sample of blood was taken; and
(c).... to the person from whom the sample of blood was taken or, if the person is dead, a relative or personal representative of the deceased.
(13)    If the whereabouts of the person from whom the sample of blood is taken, or (that person being dead) the identity or whereabouts of a relative or personal representative of the deceased, is unknown, there is no obligation to comply with subsection (12)(c) but copies of the certificates must, upon application made within three years after completion of the analysis, be furnished to any person to whom they should, but for this subsection, have been sent.
(13a)   Subject to subsection (13c), an apparently genuine document purporting to be a certificate, or copy of a certificate, of a medical practitioner or analyst under this section 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.
(13b) Where certificates of a medical practitioner and analyst are received as evidence in proceedings before a court and contain the same identification number for the samples of blood to which they relate, the certificates will be presumed, in the absence of proof to the contrary, to relate to the same sample of blood.
(13ba) Where a certificate of an analyst is received as evidence in proceedings before a court, it will be presumed, in the absence of proof to the contrary, that the concentration of alcohol stated in the certificate as having been found to be present in the sample of blood to which the certificate relates was present in the sample when the sample was taken.
(13c) A certificate referred to in subsection (13a) 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 seven 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 has, not less than two 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.
... .
(15) a medical practitioner who fails, without reasonable excuse, to comply with a provision of, or to perform any duty arising under, this section is guilty of an offence.
.....
(18) No proceedings lie against a medical practitioner in respect of anything done in good faith and in compliance, or purported compliance, with the provisions of this section.
(19) In this section-
‘accident’ includes a collision caused either intentionally or unintentionally;
‘hospital’ means any institution at which medical care or attention is provided for injured persons, declared by regulation to be a hospital for the purposes of this section.”
The Magistrate’s findings and decision
What follows is drawn from the Magistrate’s findings. In the early hours of the morning of 28 September 1997, a vehicle driven by the respondent collided with a stobie pole. The respondent was taken by ambulance to the Royal Adelaide Hospital. One of the team of doctors who treated the respondent for her injuries took a sample of blood from her as required by s47I(1) of the Act while she was unconscious. The sample was placed in two separate containers.
The doctor completed the notice and the certificate required by s47I(7) of the Act and placed the original of the certificate with the blood samples in a plastic sachet. He then placed the sachet in a locked box ready for transmission to the Forensic Science Centre for analysis. In this respect the doctor complied with s47I(7) of the Act.
The doctor handed the respondent’s copy of the notice required by s47I(7)(b) to a nurse who was looking after her. The respondent was unconscious. The appellant concedes that in doing so the doctor did not comply strictly with the requirements of s47I(7)(b), which requires the medical practitioner to give a copy of the notice to the person from whom the blood is taken or leave it with that person’s personal effects at the hospital. (Section 47I(7) requires delivery to the person from whom a sample of blood is taken of a notice about the taking of the blood, and completion of a certificate that stays with the sample for the time being. The exhibit tendered in this case suggests that the notice and certificate comprise a single document. Nothing seems to turn on that. The Magistrate, in her reasons, refers to the notice on occasions as a certificate. Although nothing turns on that, I will distinguish between the two.)
Subsequent analysis at the Forensic Science Centre revealed a blood alcohol content of “0.159 grams of alcohol per 100 ml of blood”.
The respondent faced charges of driving under the influence of alcohol and driving with more than the prescribed concentration of alcohol in her blood. She pleaded not guilty and objection was taken to the admissibility of evidence that would prove the result of the blood alcohol analysis of her blood.
This objection was considered by the Magistrate at the outset. The Magistrate embarked upon what she described as a voire dire to determine the admissibility of the evidence of the result of the analysis of the respondent’s blood.
For that purpose the respondent consented to the tender of an analyst’s certificate completed pursuant to s47I(11). The accuracy of the analysis was not disputed. Before the Magistrate it was not admitted that the blood analysed was the respondent’s blood, although as I mention towards the end of these reasons that no longer appears to be in dispute. The prosecutor called the doctor who had taken blood from the respondent. He gave evidence of what he did to comply with his obligations under s47I. The certificate completed by the doctor pursuant to s47I(97) was tendered, but my impression is that in the proceedings before the Magistrate the case was conducted on the basis of the oral evidence given by the doctor rather than in reliance upon the contents of the certificate completed by the doctor.
The Magistrate made the findings that I have summarised above. The Magistrate made further findings to which I now turn.
The Magistrate found that the respondent was unconscious at the time the notice was handed by the doctor to the nurse. There was no evidence as to whether the respondent had any personal effects at the hospital. The doctor did not know what happened to the notice after he gave it to the nurse.
It seems that the Magistrate was prepared to find that the respondent received her copy of the notice. The Magistrate did not so find in terms. However, the Magistrate found that on 17 November 1997 the respondent attended at the Forensic Science Centre and obtained her part of the blood sample. As the Magistrate said, in order to do so she would have been obliged to provide a number which was the number referred to on the copy of the notice given by the doctor to the nurse. Further, counsel for the respondent before the Magistrate stated (T85) that it was agreed:
“It is the view of those in the Forensic Science Centre that she, in order to obtain the sample and obtain the certificate, would have had to produce the notice, or a copy of the notice, that was prepared by Dr Towler; namely, P1. That is the position of the Forensic Science Centre”.
From all that I conclude that the Magistrate intended to find that the notice given by the doctor to the nurse found its way to the respondent at some time before 17 November 1997.
The Magistrate also found that on 28 November 1997 the respondent was interviewed by the police for a second time and “...agreed that she had had some dealings with the blood sample...”. There was evidence that on this occasion the police provided her with a copy of the certificate of analysis of her blood.
The Magistrate found that this was not a case where the failure of the doctor to give the notice to the respondent or to leave it with her personal effects as required by s74I(7)(b) resulted in the loss of any statutory safeguard. Her Honour was of the view, however, that the failure to comply with the statutory requirement in relation to the notice was fatal to the admissibility of the evidence of the result of the analysis of the blood.
The Magistrate added that if she were at liberty to exercise a discretion in accordance with the principles enunciated by the High Court in Bunning v Cross (1978) 141 CLR 54, she would have admitted the evidence because the breach did not result in the respondent being deprived of an opportunity to check the analysis of the blood sample.
The Magistrate thus held that she was obliged to exclude evidence proving the result of the analysis of the respondent’s blood because the doctor who took that blood did not comply with one of the requirements of s47I. The Magistrate was satisfied that the blood analysed was the respondent’s blood. As I understand the Magistrate’s reasons, the chain of evidence was satisfactorily proved and the Magistrate was prepared to accept the accuracy of the analysis carried out. Thus, there was proper proof, by oral evidence and by certificate, of the result of the analysis of the respondent’s blood. The only reason for excluding the evidence of the result of the analysis was that a statutory requirement, relating to the notice intended for the respondent, had not been complied with.

Submissions on appeal

The Crown challenges the Magistrate’s view of the law and invites the Court to overrule R v Turner (1975) 12 SASR 373. In essence, the Crown argues that an examination of the intention and purpose of s47I indicates that substantial but not strict compliance with its provisions is required to render admissible evidence of the results of analysing blood taken under the section. The Crown contends that a failure to comply with the requirements of s47I does not automatically render the evidence inadmissible, but gives rise to a discretion to exclude the evidence. The respondent submits that the law applied by the Magistrate was established by this Court in Turner, that that decision has not been overruled and that it should not be overruled.

Previous decisions

In Turner, on a charge of causing death by dangerous driving contrary to s14 of the Criminal Law Consolidation Act 1935, the Crown sought to lead evidence of the results of the analysis of a blood sample taken from the accused at a hospital approximately three and a quarter hours after the road accident. The Crown relied upon s47I of the Act, as it then stood, to support the admission of the evidence. At the time, s47I(7), (10) and (11) provided as follows:
“          (7)    A medical practitioner by whom a sample of blood is taken under this section shall place it, in approximately equal proportions, in two separate containers, shall seal the containers and-
(a).... shall make available one of those containers, clearly identified as containing the blood of that patient, by notice signed by the medical practitioner and attached to the container, to a member of the police force;
and
(b).... shall cause the other container to be delivered to, or retained on behalf of, the person from whom the sample of blood was taken, or if he is dead, a relative or personal representative of the deceased.
... .
(10) The notice referred to in paragraph (a) of subsection (7) of this section must be in the prescribed form and -
(a).... must be signed by the medical practitioner by whom the sample of blood was taken and endorsed by him with the following information:-
(i).... the name and address of the person from whom the blood was taken;
(ii)    the name of the medical practitioner by whom the sample of blood was taken;
and
(iii)   the time at which the sample of blood was taken.
and, after analysis of the blood-
(b).... must be signed by the person by whom the blood is analysed and endorsed by him with the following information:-
(i).... the name and professional qualifications of the analyst;
(ii)    the day on which, or the period over which, the analysis was carried out;
(iii).. the concentration of alcohol or other drug found to be present in the blood;
and
(iv).. any factors relating to the blood sample or the analysis that might, in the opinion of the analyst, adversely affect the accuracy or validity of the analysis.
(11) Upon completion of the analysis of the blood, the completed notice must be sent to the Minister who shall send copies of the notice personally or by post-
(a).... to the Commissioner of Police-
(b)to the medical practitioner by whom the sample of blood was taken;
and
(c)to the person from whom the sample of blood was taken, or if he is dead, a relative or personal representative of the deceased.”
It will be seen that s47I originally provided that the person from whom blood was taken was to be given a container containing blood and not just notification of the taking of blood. Under the original provision, the notice signed by the medical practitioner stayed with the container but was made available to a member of the police force. Despite these differences, the provision of a second sample and the completion of a notice were originally, as now, vital steps in the mechanism for protecting the rights of the person from whom blood is taken.

It was conceded that the Crown could not establish that a sample of the blood taken by the medical practitioner had been delivered to the accused. The Court was asked to assume that the accused was unconscious at the time the sample was taken and had no knowledge of it having been taken until some months later. It was also asked to assume that the notice required to be given to the accused pursuant to s47I(11) was not received by the accused until some months after the blood had been taken.
The Court held that if the Crown was able to prove there had been strict compliance with s47I, the evidence as to the content of the alcohol in the blood of the accused would have been admissible. The Crown was unable, however, to establish that there had been strict compliance with s47I. The Court referred to a number of authorities concerned with statutes dealing with the adulteration of food and drugs in which it had been held that in the absence of strict compliance with the statutory provisions requiring a sample of an article purchased for analysis to be handed to the seller, a conviction could not be sustained as strict compliance was a condition precedent to conviction. The Court then said (p381):
“When the legislature enacted s47I and included in it the requirement that a sample of blood be delivered to or retained on behalf of the person from whom the sample of blood was taken it did so in the light of the decisions under similar provisions in food and drugs legislation, and must be taken to have intended that the same consequences would follow from the failure to supply a sample of blood sufficiently great to enable an analysis to be made of it on behalf of the person from whom the blood was taken or his personal representative. Further there are, as it seems to us, compelling reasons to say that the legislature must have intended that there should be an opportunity for the person against whom the evidence was to be tendered to check the analysis of the blood upon which such evidence would be based. Therefore the fact that the Crown is unable to establish that there has been compliance with s47I(7)(b) renders inadmissible the evidence as to the alcoholic content of the blood. It seems to us unnecessary to decide whether the mere delay in sending the notice required to be sent under sub-s.(11) would of itself render such evidence inadmissible.”
That decision was considered by a differently constituted Full Court in R v Little (1976) 14 SASR 556. The appellant had been convicted of causing death by dangerous driving. He was severely injured and a blood sample was taken from him at hospital when he was at best semi-conscious and not capable of understanding what was said to him when the doctor told him he was intending to take the sample. Evidence was given at the trial as to the amount of alcohol in his blood at the time of the accident, based upon the result of the analysis of the sample taken at hospital.
The appellant complained that there had been a failure to comply with s47I in three respects (one of them was the failure to deliver to the appellant a container holding a sample of his blood). The Court considered it was bound by Turner. Bray CJ described the result of Turner as “drastic” but “not unreasonable” (p567). In a joint judgment, Walters and Jacobs JJ agreed that, in the light of the decision in Turner, the Court was bound to hold that as there had not been strict compliance with the “administrative duties” prescribed by s47I, the evidence of the result of the analysis of the blood sample was inadmissible. They expressed reservations, however, about the approach taken in Turner in the following passage (p573):
“It seems to us, with due respect, that Reg. v Turner goes further than other cases in this Court have gone in excluding evidence unlawfully or improperly obtained, for in making strict compliance with the statute a condition precedent to the admissibility of the evidence, it leaves no room for the exercise of the Court’s discretion, even in the case of a “pure technicality” (Faulkes v Baker). If the apparently capricious result to which we have referred is to be avoided, it can, in our opinion, best be done by bringing all cases in which there is evidence of non-compliance with the statutory requirements under the umbrella of the Court’s discretion, in conformity with well-recognised principles, but that may well require some reconsideration of Reg. v Turner. This is not an appropriate case in which to do that, since the impugned evidence falls to be excluded, however the problem is approached.”
Further reservations were expressed by the Full Court in Mazinski v Bakka (1979) 20 SASR 350. The appellant’s claim for damages for personal injuries sustained when run over by the respondent’s vehicle had been dismissed by the trial Judge. Evidence had been admitted of the appellant’s blood alcohol content and this evidence was a significant factor in the trial Judge’s finding as to the position of the appellant when struck by the respondent’s vehicle.
The admission into evidence of the appellant’s blood alcohol content brought into focus the purpose and operation of s47I. It had been conceded at trial that the respondent did not prove and was unable to prove that the required portion of the blood sample had been furnished to the appellant as required by subsection (7) or that the Minister had sent out the notice as required by subsection (11). In those circumstances it was contended that the Court was bound by the decision in Turner to hold that the evidence was inadmissible.
King CJ said that the cumulative effect of expressions of judicial opinion gave rise to “... uncertainty concerning the correctness and authority of The Queen v Turner ...” (at 360). His Honour said (at 360):
“Until this uncertainty is dispelled it is best to treat The Queen v Turner as authority only for what, on a strict view, it actually decides. In my opinion, the case decides that on the true construction of s47I evidence of the result of the analysis of a blood sample tendered by the prosecution on the hearing of a charge is inadmissible if (a) the sample was taken from the defendant when he was by reason of lack of consciousness incapable of objecting to the taking of the blood sample; (b) the sample was taken in performance of the obligation imposed by the section; (c) the defendant was not supplied with a sufficient quantity of blood to enable an accurate evaluation of blood alcohol concentration to be made; and (d) the effect of the failure to supply such quantity of blood was to deprive the defendant of a reasonable opportunity of checking the analysis”.
Wells J engaged in a thorough and careful analysis of the section and its purposes. He observed that samples obtained through the operation of the section could become useful in all manner of civil and criminal causes or matters, to coronial inquests, to administrative enquiries and to police investigations. In his view the section was not directed towards a single end but was “...capable of serving a whole gamut of uses in the administration of the legal system...” (p369). His Honour then said:-
“It seems to me that the structure, the language, and the operation of the section justify the inference, which I confidently draw, that its predominant purpose was to provide, both to specified authorities, and to those of the community legitimately concerned with it, a public facility in the form of compulsorily collected, preserved, and recorded, real evidence whose reliability has been safeguarded by appropriate statutory sanctions. In my opinion the whole cast and tenor of the section would have been different if the legislature had had in contemplation the creation, through its provisions, of a new rule of evidence. In particular, and most importantly, it is manifest from the inherent limitations to the operation of the section, that no attempt was made to enact a new or separate law of general application governing the admissibility of evidence of the alcohol content of a person’s blood.”
His Honour elaborated on his view that s47I does not lay down an evidentiary rule and then said (p370):
“Because s47I does not lay down an evidentiary rule, whenever an attempt is made, in the course of proceedings in a civil or a criminal cause or matter, to introduce evidence of blood alcohol content that has become available through the regular or purported administration and operation of that section, the relevant question for a Court to ask itself is not, “What has s47I enacted by way of a new rule of evidence or of modification of existing rules?” but rather, “How should existing rules of evidence apply to and in relation to information which is, or is alleged to be, the product of the administrative machinery established by the section?” The distinction is, I apprehend, clear between a new rule of evidence (or the modification of an existing one) and the operation of an existing rule upon new and special subject matter.
In any given case where that fundamental question is to be answered, therefore, it is necessary to look first, not at what s47I provides, but at the character and scope of the rule of evidence that is sought to be invoked. Obviously, for example, where evidence of blood alcohol content, collected and preserved pursuant to s47I, is to be used against a person accused of a serious indictable offence, an approach will be made to that evidence that is quite different from the approach that will be made if the evidence is to be used in a civil case to challenge the capacity of a witness to depose to events said to have been perceived by him. It is not that the effect of s47I varies; it is rather that the use of it must vary.”
His Honour then turned his attention to the decision in Turner and expressed some difficulty in completely understanding the course of reasoning that led to the decision. He said he was “...unable to eradicate some misgivings over the important place accorded by the Full Court to the decisions on the food and drugs legislation in the reasoning that led to its conclusions...” (p373). Having considered the authorities cited by the Court in Turner concerning food and drugs legislation, his Honour concluded that s47I stands very differently from that legislation. He repeated his view that there was nothing in s47I necessarily linking it with any particular kind of cause or matter, including offences against the Act. He expressed concern as to the general principle that must have been invoked by the Court in Turner.
His Honour then considered the decision in Little and cited the remarks of Walters and Jacobs JJ that I have already quoted.
Having agreed that the Court was bound by the rationes decidendi of Turner and Little, his Honour said he was concerned to formulate, as precisely as possible, the propositions established by Turner and Little and to delineate the limits beyond which the authority of those two cases does not extend. It is necessary to set out his conclusions in full (pp379-380):
“1....... To my mind, the judgments in those cases reveal that not one of the six Judges purported to lay down any law beyond what was strictly required for the purpose of deciding the particular case before them. The decisions should therefore be confined to criminal cases where the patient from whom the sample was taken was not then conscious (or was not then sufficiently conscious to be aware of his rights), where he is subsequently charged with a serious criminal offence, and where the prosecution seeks to tender against him evidence of the alcohol content of his blood. In particular, no move was made anywhere in the judgments to foreshadow what would be the consequence of tendering such evidence in a civil case.
2...... Neither of the two Full Courts held or suggested, expressly or impliedly, that, per se, s.47i lays down a new rule of evidence.
3.In circumstances such as those exemplified in the two cases, a trial Judge ought ordinarily to reject evidence of blood alcohol content tendered, as relevant, against a patient who is subsequently accused of a serious offence where one or more of the procedural steps laid down by s.47i has or have not been complied with, and the effect of that non-compliance is to deprive the patient - later the defendant - of a reasonable opportunity of checking the analysis relied on by the prosecution.
4...... It would seem - though this is nowhere spelt out - that the two Full Courts were applying ordinary evidentiary rules to real evidence whose collection, preservation, and analysis, had been undertaken in special circumstances, that is to say, pursuant to s.47i, and should have been completed pursuant to that section.
5.It is of particular importance to bear in mind that in both cases the sample of blood was taken when the patient was not in a fit state to consider whether he should give or refuse permission. There are, however, countless other situations and purposes in and for which samples taken pursuant to s.47i may become material to causes and matters, criminal and civil. The expression “pursuant to s.47i” should therefore, in my opinion, be understood to refer to circumstances in which either the medical practitioner takes the sample avowedly in obedience to his duty under s.47i, or perhaps where, having taken the sample without reference to that duty, he subsequently prays in aid the provisions of that section to justify what he has done. It should not be overlooked that a sample of blood may be taken in circumstances of the kind posed by s.47i, but without the medical practitioner’s invoking or referring to that section at all - perhaps for the purpose of an emergency operation, and I should wish to reserve the question of what rules should then apply.
It seems to me, therefore, that an examination of the legislation, and a consideration of authority at present binding on us, warrant the formulation of a general rule about the operation and effect of s.47i which may be thus expressed: Where an attempt is made to tender evidence of the blood alcohol content of a patient based upon a sample of blood taken, preserved, and analysed, in consequence of acts done, or purported or claimed to have been done, in pursuance of s.47i, the Court must determine, in each particular case, how the rules of evidence governing relevance and admissibility ought to be applied to the special subject matter. For that purpose those rules of evidence should first be identified and formulated, and the question should then be asked: How should those rules operate on and with respect to the evidence tendered, having regard to the effects of any non-compliance with s.47i in the particular circumstances of the case? No general rule - a fortiori, no rule of thumb - can be enunciated that is capable of being indiscriminately applied; in every case, the sample, its history, the results of its analysis, and the requirements of s.47i, are simply elements in a complex of material which the trial Judge must assess in order to apply the apposite rules of evidence.”
The other member of the Court, White J, did not find it necessary to deal with the application of Turner to a civil case.
In the end, in Mazinski the evidence of the result of the analysis of the appellant’s blood was held to be admissible. The reasoning of the Court, contained in the reasons of Wells J, was that because the case was a civil case the principle established by Turner, as explained and limited, did not call for exclusion of the evidence. Nor was there any other relevant principle of the law of evidence, applicable to a civil case, that required the exclusion of the evidence.
The decision in Turner has been considered by single judges of this Court on a number of occasions subsequent to the decision in Mazinski. In Nixon v Hewes (1992) 164 LSJS 116 the judge treated compliance with the requirements of subsection (7)(b) of the Act as a condition precedent to the admissibility of evidence of the result of the analysis of blood that had been taken. On the other hand, in Ouwerkerk v Whalan (1986) 41 SASR 287 it was held that the taking of blood was not authorised by s47I, because the person in question had not suffered an injury. Nevertheless, the judge considered whether the evidence should be excluded in the exercise of the common law discretion identified in Bunning v Cross (1978) 141 CLR 54. It might seem odd that evidence, the obtaining of which could not be supported under the section, should nevertheless be admissible subject to the exercise of a discretion to exclude it. In R v Johnson (1997) 70 SASR 268 a judge took the view that the failure to comply with the requirements of s47I did not require the Court to exclude evidence of the result of the analysis of blood, but gave rise to the exercise of the discretion identified in Bunning v Cross. He took the view that the decision in Bunning v Cross had overridden the decision in Turner (at 273). The various decisions by single judges, of which these are just examples, may to some extent be rationalised or distinguished on their particular facts. But the end result is an unsatisfying level of uncertainty, and the potential for cases to be decided on the basis of fine distinctions that reflect no sound policy.

Was the Magistrate correct?

The case before the Magistrate was a criminal case, and the circumstances of the taking of the sample of the respondent’s blood were such that the principle derived from Turner was applicable.
However, if one takes Mazinski as determining the principle to be applied, it is a principle that calls for the exclusion of the result of the analysis when the effect of the failure to comply with the statutory requirement is to deprive the person from whom the blood is taken of a reasonable opportunity to check the analysis (King CJ at 360, Wells J at 379 proposition number three).
In the present case the Magistrate found that the respondent, in due course, obtained her part of the sample of blood that had been taken from her. There is no suggestion that that part of the sample was not suitable for analysis. In fact, the Magistrate found that the case was not one in which the “...effect of the failure to supply the certificate [the notice] in the personal manner required of the doctor, by the section, has led to a loss of a statutory safeguard.” In my opinion, under those circumstances, Turner did not require the exclusion of the evidence of the result of the analysis of the blood. Nor does there appear to be any reason to do so in the exercise of the discretion that a court has in a criminal case, although that issue is not before us. I consider that the Magistrate gave to Turner a wider application than was appropriate, in light of the manner in which Turner has been limited by later decisions. The evidence should not have been excluded on the basis upon which the Magistrate did so.
What, then, is the status of the proposed evidence of the result of the analysis of the blood taken from the respondent? If I am right in concluding that Turner does not oblige the Court in the circumstances of this case to exclude the evidence, it follows, in my opinion, that the admission of the evidence is to be decided by applying the ordinary principles of the law of evidence, including (to the extent relevant) the discretions identified by the High Court in R v Swaffield (1998) 72 ALJR 339. On the other hand, it might be argued that logically the principle underlying Turner cannot be confined in the manner proposed in Mazinski, and that properly understood the decision in Turner does require the exclusion of the evidence in the present case.

Should the Court review the decision in Turner?

I consider that this Court should review the reasoning in Turner afresh.
At present the proper application of s47I is unclear. The law in this respect is in an unsatisfactory state.

The reasoning of the majority in Turner suggests a relatively general rule. The general rule is that the admissibility of the evidence of the analysis of blood taken pursuant to s47I depends upon proof that provisions relating to the sample intended for the person from whom the blood is taken (and also the provisions relating to the giving of notice to that person) are strictly complied with.
The decisions in Little and Mazinski confine Turner to its facts. This, however, leaves the law unclear, and it is clear that the reasoning in Turner is under a cloud. Later decisions by single judges of this Court have indicated uncertainty about the status of the decision in Turner.
In my opinion it is time to resolve the doubts and uncertainties in relation to a provision which is quite often applied. It is an important provision of the Act. I consider that the Court should determine whether s47I establishes any conditions for the admissibility of evidence, or whether the admissibility of evidence gained by relying upon its provisions depends upon the general principles of the law of evidence applicable in criminal cases.
It was also submitted to us that the amendments that have been made to s47I now warrant a different approach, and that they undermine the reasoning in Turner. It is true that there have been a number of changes to the section. However, if the reasoning in Turner is sound I consider that it survives the amendments. The sample of blood intended for the person from whom blood is taken, and the notice of the taking of blood, remain as vital statutory protections for the person from whom blood is taken. There is no reason why, in principle, the reasoning in Turner cannot apply to the section as it now stands.

The operation of s47I

I begin by summarising the operation of s47I, focusing upon its application to a prosecution of the person from whom blood is taken. Reduced to its essentials it provides for the taking and analysis of a sample of blood; notification of the taking of blood to the person from whom the sample is taken; notification of the result of the analysis to various persons, including the person from whom the sample is taken; an opportunity for the person from whom the sample is taken to have the sample analysed independently; an ability to prove by means of a certificate the obligations imposed by the section on the medical practitioner who takes the blood and the result of the analysis conducted by the analyst, although the certificate operates only in the absence of proof to the contrary; a limited presumption linking the result of the analysis to the amount of alcohol present when the sample was taken, and procedural provisions set out in subsection (13c) governing the receipt as evidence of the certificate referred to above. Although I am now focusing upon the use of the result of the analysis in a prosecution, it needs to be borne in mind that the result of an analysis may be used for various purposes. For example, civil proceedings, proceedings before a coroner, analysing the causes of road accidents and so on.
When one considers the machinery or administrative provisions of s47I, relating to the taking of and dealing with a sample of blood, they are all pretty much what one would expect to find, bearing in mind that what is being done, and the use to which the analysis may be put. Blood is taken for analysis and, in particular, to provide possible evidence against the person from whom it is taken. In that context one would expect Parliament, come what may, to make provision along the lines found in s47I to protect the rights of the person from whom the blood is taken. The provision for proof of certain matters by a certificate is common in this field. To my mind there is nothing in the section to suggest that Parliament went to great pains to limit or to condition the use of evidentiary material gained in this way. The relevant provisions are procedural safeguards that one would expect to find in any event.
Of course s47I permits (and requires) the overriding of a fundamental common law right to refuse to submit to a medical procedure. Having overridden that right, the section contemplates the use of the results of the analysis so as to obtain a conviction. That is, in effect, an overriding of a fundamental common law principle protecting a person against self-incrimination. There is a presumption against interference with these fundamental rights, and when they are interfered with Parliament is presumed to intend to interfere with them only to the extent necessary to achieve the object of the relevant provision. The intention to override the relevant common law rights is clear in the present case. In a sense it can be said that once one reaches that conclusion, that effect of the presumption is exhausted. However, there remains the presumption that the extent of the intrusion upon common law rights is presumed to be as little as necessary to accommodate the terms of the provision and its objects. So it is a related but different question whether Parliament is to be presumed to have made the use of evidentiary material conditional upon strict compliance with the statutory provisions that constitute procedural safeguards.
The only reference to the forensic use of the results of the analysis is found in the provisions relating to the tender of certificates by the medical practitioner and by the analyst. The section says nothing about proof of the results of analysis without relying upon a certificate. There is certainly nothing in the section that in terms makes compliance with, in particular, subsections (7), (11) and (12) a condition of the admissibility of evidence of the result of the analysis.
The evidentiary use of the result of the analysis will depend in any event upon proof of a chain of matters linking the sample to the person charged, and proof that the sample was handled in a proper manner so that later analysis of the sample is reliable. Much of what is found in subsections (7) and (11) would in any event be proved as part of that chain. However, the provisions relating to the giving of notice to the person from whom the sample is taken, and the provisions relating to the safe keeping of a second sample, are purely protective of the person from whom the sample is taken. These are not matters that would have to be proved under the ordinary rules of evidence, in any event, to make admissible evidence of the result of the analysis of a sample. The only rationale for these particular provisions is the protection of the interests and rights of the person whose blood is taken.
The provision for proof by way of certificate of all of these matters suggests that Parliament considered it relevant to prove all of these matters, including the matters that would not have to be proved as part of what I might call the ordinary chain of evidence. However, the reason for proof of these things is another matter. It might be that their proof was envisaged because they were regarded as conditions of admissibility of the result of the analysis of the sample, or it might be that their proof was envisaged because they were relevant to the exercise of a discretion to exclude evidence of that result.
It is necessary to consider why proof of the matters that would not have to be proved in any event, as part of the chain of evidence, was considered to be relevant, and what flows from a failure to prove compliance with those particular statutory provisions.
I wish to make it clear that in what follows I am directing my attention to the admissibility of evidence of the result of the analysis of blood taken under s47I. I am not dealing with issues that might arise because the prosecutor relies upon a certificate under subsection (13a), being issues that arise only if the prosecutor tenders such a certificate.

The application of s47I

The starting point is that Parliament has not in terms required proof of any matter as a condition of the admissibility of the result of the analysis of blood. Any conclusion that it has so required must be the result of the application of an established principle of statutory interpretation, or the result of an implication from the subject matter and language used.
As to the presumption that Parliament does not intend to intrude upon or infringe common law rights, as I have already said the intention to so interfere is clear. The presumption will be applied in such a manner as to minimise the scope of the relevant intrusion, but in my opinion that presumption does not provide a basis for inferring that proof of compliance with subsections (7) and (11) in all respects is a condition of admissibility. The presumption is not one that as a matter of course turns statutory provisions relating to the terms upon which such rights are interfered with, into conditions of the admissibility of evidence. I do not draw any particular assistance in the present case from the presumption.
Like Wells J in Mazinski, and with all respect to the learned judges who decided Turner, I do not find the analogy to legislative provisions relating to food and drug prosecutions at all persuasive. In that respect I am content to adopt what Wells J said in Mazinski.
I then turn to consider the subject matter and the manner in which Parliament has expressed itself. I find no reason to imply an intention that the matters set out in subsection (7) and (11) are preconditions of the admissibility of the results of an analysis. The fact is that the forensic use of the section will occur in the context of well-established principles relating to the admission of evidence gathered in reliance upon statutory provisions that enable common law rights to be overridden. There is a well-established principle that gives a court a discretion to exclude evidence of the result of an analysis, if there has been a failure to comply with the statutory conditions, and s47I is to be approached in that light. If Parliament had intended a particular rule for evidence gathered pursuant to this section, and a rule that deprived the court of its discretion and made the result inevitable once failure to comply was made out, one would have expected Parliament to have spelt that out fairly clearly. It has not done so.
Nor, in my opinion, does the subject matter suggest that compliance would be a condition of admissibility. This is an area in which strict rules of admissibility can operate erratically. One expects Parliament to be mindful of common law rights. However, Parliament and the Courts are well-aware of the havoc wreaked upon the roads by drivers who have consumed alcohol, and the provisions which the Court is currently considering are part of a statutory scheme clearly intended to discourage drinking and driving. There is no particular reason, in this context, why one would expect Parliament to intend that non-compliance with the statutory provisions, in a manner that might be of no practical importance, should irretrievably affect the admissibility of evidence gained in reliance upon s47I.
It is notable that the lawfulness of the taking of blood is not made conditional upon the doctor who takes the blood complying with the requirements of subsection (7) and upon compliance with later provisions. It would be surprising if the use of the results of the analysis of blood were so conditional, if the taking of the blood remained lawful.
The fact that provision is made in s47I for the proof of the giving of the statutory notice by the medical practitioner, is explicable on the basis that failure to comply with the statutory requirement is relevant to the exercise of a discretion to exclude evidence of the result of the analysis of blood. Provision for the proof of this matter does not necessarily lead to the conclusion that its proof is a condition of the admissibility of evidence of the result of the analysis of blood.
Having considered the matter afresh, and with all respect to the Court in Turner, I find the basis of the decision unpersuasive. It does not appear to me to be supported by any established principle that leads to the result reached in that case. There is nothing in the subject matter of the section or the language used to suggest the result reached. The law provides adequate protections for the person from whom blood is taken through the discretion which the court has to exclude evidence obtained in disregard of statutory requirements.
Although Turner has stood for some time, I am satisfied that the decision is wrong. That in itself might not be enough to warrant it being now overturned. But, as I have already observed, it has been confined to its own facts in a manner that gives rise to uncertainty. It has been subject to considerable implicit and explicit criticism. Later decisions have revealed an element of uncertainty about its effect.
Turner cannot be regarded as a decision of longstanding. It cannot be so regarded because it does not establish an approach to the interpretation of s47I that has been treated as settled by this Court. Quite the contrary. It is true that the section has been amended, subsequent to the decision in Turner, and that when Parliament has amended the section it has not introduced a provision apparently intended to override the decision in Turner. That sequence of events might give rise to a presumption of Parliamentary approval of the approach taken by Turner, notwithstanding s18 of the Acts Interpretation Act 1915: see Platz v Osborne (1943) 68 CLR 133. But in the present case reservations were expressed about the reasoning in Turner so early in its life that I consider that it is not safe to draw any particular inference from the fact that Parliament has amended s47I but has not attempted to deal with the decision in Turner.
For all those reasons, I consider that the Court should now hold that Turner was wrongly decided.

The proper application of s47I

I make the following general observations about the approach to be taken.
When a prosecution comes before a Court, and the prosecutor tenders evidence of the result of the analysis of blood taken from a person in reliance upon the provisions of s47I, the Court should deal with the evidence, and with any objection to its admissibility, as it would with any other item of evidence. No rule of evidence peculiar to s47I, and no principle of exclusion peculiar to that section, is attracted to the case.
I offer the following general observations about the approach to be taken by a Court in a prosecution, emphasising that they are no more than general remarks. They are not to be taken as intended to cover all conceivable circumstances.
The admissibility of the result of the analysis of blood taken in reliance upon the provisions of s47I does not depend upon proof by the prosecutor of compliance with the requirements of subsections (7) to (13) of the section. Assuming that the taking of the blood was lawful, the admissibility of the results of the analysis of the blood will depend upon the ordinary principles of the law of evidence. Those principles require satisfactory proof of the chain of evidence linking the blood analysed to the person charged. Of course, the analysis will also have to be proved as will its meaning. Evidence will have to be led to establish the significance of the presence of alcohol in the blood at the time at which the blood was taken, in relation to the charge of driving with the prescribed concentration of alcohol present in the blood of the person in question.
The prosecutor may, but need not, rely upon the tender of the certificates referred to in subsection (13a), and upon the limited presumptions created by subsections (13b) and (13ba), to establish the necessary chain of evidence and the amount of alcohol present in the blood at the time at which blood was taken.
While the admissibility of evidence of the result of the analysis does not depend upon proof of compliance with the statutory requirements referred to by me, proof of those matters will suffice to make the evidence admissible in accordance with ordinary principles of the law of evidence. In other words, proof of compliance with the statutory requirements would provide proof of matters that, applying the ordinary principles of the law of evidence, would make admissible the result of the analysis of the blood taken from the person in question. The evidence of the result is admissible because it is made admissible by the application of the ordinary principles of the law of evidence, and not because a statutory barrier to admissibility has been overcome.
If the Court is asked to exclude the evidence of the result of the analysis, in the exercise of one or other of the discretions referred to in R v Swaffield (1998) 192 CLR 159, on the basis that one or more of the statutory provisions referred to has not been complied with, the onus will rest upon the person charged to establish the relevant non-compliance and to persuade the Court to exercise the discretion in question to exclude the evidence in question. The procedure to be followed by the Court in the event of such an application, and the approach to be taken, will be the same as in any other case in which an application is made for the exclusion of the prosecution evidence in the exercise of the Court’s discretion.
Section 47I does not itself create rules regulating the admissibility of evidence. The admissibility of evidence of the result of the analysis, and the disposition of any objection to the admission of that evidence, is to be regulated by the ordinary procedures of the Court and the ordinary rules of evidence applied in the criminal courts. Section 47I makes lawful the taking of and analysis of blood in certain circumstances, and so makes it possible to tender evidence of that having been done, without giving rise to an objection that the blood analysed was obtained unlawfully.
However, the requirements of s47I may provide a basis for invoking a court’s discretion to exclude evidence, but that is the limit of the assistance that the provisions of s47I provide to the defence in the forensic context. In a straightforward case in which there is no doubt that the blood was obtained lawfully under s47I, the prosecutor will still have to link the result of the analysis to the person charged. In that context, proof of compliance with the procedures stipulated by s47I is not required because those procedures are conditions of admissibility, but only to the extent that proof of those matters is in any event part of the chain that needs to be proved in any event to make the evidence admissible. The prosecutor may rely upon statutory certificates to prove that chain.
Since preparing these reasons I have had the benefit of reading the reasons of Lander J. He considers in some detail the use of certificates tendered pursuant to s47I(13a). I have not dealt in any detail with the use of certificates, the matter not having been the subject of full submissions on this appeal. While I am inclined to agree, with respect, that Lander J is correct, I do not propose to decide those issues in this case.

Disposition of the case

The Magistrate erred in excluding the evidence on the basis that she was obliged to do so because the procedural requirement of s47I had not been observed. The decision dismissing the charge should be set aside.
The matter should be remitted for rehearing by the Magistrates Court. As I understand it, it is no longer disputed that the blood analysed was blood taken from the respondent. It was conceded in argument before us that, if the evidence of the result of the analysis was admissible subject to the exercise of a discretion to exclude the evidence, there were no grounds upon which that discretion should be exercised adversely to the prosecution. It seems that when the matter is remitted, the Magistrate will proceed to make a finding of guilt. However, because the hearing of the matter was interrupted at a relatively early stage by the successful application for the exclusion of the evidence in question, it is not appropriate for this Court to determine the outcome of the matter.

I would allow the appeal, set aside the dismissal of the complaint, and remit the matter to the Magistrates Court for rehearing.
PRIOR J. I agree with the orders proposed by the Chief Justice for the reasons he has given.
LANDER J. I have had the advantage of reading in draft the reasons for judgment of the other members of the Court. I agree that this Court should review the decision of this Court in R v Turner (1975) 12 SASR 323 and I agree that this Court should hold that R v Turner was wrongly decided.
I adopt the facts as summarised in those reasons.
I desire to add a few remarks of my own.
Section 47I(1) makes it mandatory for a legally qualified medical practitioner who is treating a patient of the kind referred to in that section to take a sample of that patient’s blood “in accordance with this section”.
When a medical practitioner takes a sample of blood the medical practitioner is then obliged to comply with s47I(7) by placing the sample of blood in two separate containers marked with identification numbers. The medical practitioner must also give to the person from whom the sample of blood was taken or leave with that person’s personal effects a notice in writing advising that a sample of blood has been taken under this section and that a container of blood marked with an identification number will be available for collection at a specified place.
Next the medical practitioner must complete and sign a certificate containing all the information required under subsection (10). Lastly the medical practitioner must make the containers and the certificate available to a member of the police force.
The certificate which must be provided in accordance with s47I(10) in order that the medical practitioner complies with s47I(7) must state:
“(a).. The identification number of the sample of blood marked on the containers referred to in that subsection; and
(b)the name and address of the person from whom the sample of blood was taken; and
(c).... the name of the medical practitioner by whom the sample of blood was taken; and
(d)the date, time and hospital at which the sample of blood was taken; and
(e).... that the medical practitioner gave the notice referred to in that subsection to the person from whom the sample of blood was taken, or, as the case may be, left the notice with the person’s personal effects.”
A medical practitioner’s failure to provide a notice as required by s47I(7)(b) of the Act has the consequence that the medical practitioner cannot comply with s47I(10)(e) of the Act. This is because the medical practitioner cannot provide a valid certificate certifying that a notice was provided in compliance with s47I(7)(b). Therefore, no certificate can be signed which can become admissible under s47I(13). In those circumstances any certificate purportedly signed in compliance with ss47I(7) and (10) must contain false information.
After the medical practitioner has taken the blood, put it in its separate containers, placed an identification number on the containers, sealed the containers, given the notice to the person from whom the sample was taken and completed and signed a certificate containing the information required under subsection 10 then the medical practitioner must make the containers and the certificate available to a police officer.
The police officer who receives the container and the certificate then has an obligation to deliver one of the containers to the place specified in the notice given by the medical practitioner pursuant to s47I(7)(b) or leave one of those containers with the person’s personal effects.
If one of the containers is kept available at a place for collection it must be kept available for the prescribed period.
There is no obligation upon the police officer to deliver the other container to an analyst. It is assumed, however, that the second container will be delivered to an analyst for the purpose of an analysis of the sample of blood in the container.
After analysis the analyst who performed the analysis must sign a certificate in accordance with the provisions in s47I(11).
The matters contained in subsection (11) would complete the chain of evidence in relation to the container of blood from the time when the container was filled and marked with an identification number in accordance with s47I(7)(a) to the point of analysis. The certificate also indicates the result of the analysis of the blood in the container.
After the analyst has given his or her certificate, the medical practitioner’s certificate signed pursuant to s47I(10) and the analyst’s certificate signed pursuant to s47I(11) must be sent to the appropriate Minister or retained on behalf of the Minister. In any event copies of the certificates must be sent:
“(a) To the Commissioner of Police; and
(b).... to the medical practitioner by the whom the sample of blood was taken; and
(c)to the person from whom the sample of blood was taken or if the person is dead, a relative or personal representative of the deceased.”
The scheme of the section provides that the medical practitioner’s certificate will be given to the police officer who has the responsibility of ensuring that a container of blood is provided to the person from whom the sample of blood has been taken or storing a sample of blood so that that person might in due course obtain that sample.
The medical practitioner therefore does not have any responsibility to send a copy of his or her certificate to the Minister. That responsibility must rest with the police officer who holds the certificate.
Curiously s47I(12) provides that, when the analyst and the police officer have respectively provided the analyst’s certificate and the medical practitioner’s certificate to the Minister, copies must then be sent to the persons to whom I have referred. The medical practitioner will then receive a copy of his or her own certificate.
There is no doubt that the section infringes a person’s common law rights.
It makes it mandatory upon a person who has suffered injury in an accident and who has been admitted to hospital to submit to a procedure whereby blood is taken from that person. The procedure would, apart from the section, be an assault upon that person.
Section 47I(14) provides:
“(14)Any person who, on being requested to submit to the taking of a sample of blood under this section, refuses or fails to comply with that request and who -
(a)     fails to assign any reason based on genuine medical grounds for that refusal or failure; or
(b)    assigns a reason for that refusal or failure that is false or misleading; or
(c)    makes any other false or misleading statement in response to the request,
is guilty of an offence.”
The penalty provisions of the section (s47I (14a)) make it clear that Parliament equates the refusal of a person to allow a sample of blood to be taken with the refusal of a person to submit to an alcotest and to an offender in relation to a prescribed concentration of alcohol offence.
It is clear that the failure by the medical practitioner to carry out the obligations in s47I renders the medical practitioner guilty of an offence. Section 47I(15) provides a medical practitioner who fails, without reasonable excuse, to comply with the provision of, or to perform any duty arising under, the section is guilty of an offence.
There is a safeguard in relation to the prosecution of that medical practitioner in that no proceedings can be commenced against the medical practitioner without the authority of the Attorney General but nevertheless the failure to carry out the obligation under s47I(1) to take blood is an offence.
A failure by the medical practitioner to do any of the matters in s47I(7) and s47I(10) of the section would also amount to an offence.
A medical practitioner is therefore under an obligation to carry out what otherwise would be an assault upon his or her patient and he or she is liable to prosecution if he or she fails to do that and fails to carry out the other obligations under s47I.
The section, in my opinion, provides for a number of matters:
(1)... An obligation on a party injured in an accident to submit to a procedure where a medical practitioner takes that party’s blood.
(2) An obligation on a medical practitioner to take blood.
(3)... An obligation on a medical practitioner to preserve the sample of blood taken and to ensure its integrity in an evidential sense.
(4)... An obligation on the medical practitioner to advise the person from whom the sample was taken in writing that a sample of blood has been taken or leave with that person’s personal effects at the hospital a notice in writing to the same effect.
(5)... An obligation on a police officer to preserve the evidential integrity of the sample taken and by delivering the sample to the appropriate person for analysis.
(6)... An obligation on that police officer to ensure that the sample of blood taken is available to the person from whom the sample of blood has been taken by either giving the sample of blood to the person from whom the sample was taken, by leaving the sample of blood with that person’s personal effects or keeping the sample available at a place for collection by that person for the prescribed period.
(7)... An obligation on the analyst who has performed an analysis on the sample of blood contained in the container taken from the person from whom the sample was taken to provide a certificate in accordance with s47I(11).
(8)... An obligation on that analyst then to provide that certificate to the Minister or retain the certificate on behalf of the Minister and in either event to send a copy of the certificate to the Commissioner of Police, to the medical practitioner and to the person from whom the sample of blood was taken.
(9)... An obligation on the police officer who has been provided the medical practitioner’s certificate to send a copy of that certificate to the Minister or retain a copy of the certificate on behalf of the Minister but in either event to send a copy of the certificate to the Commissioner of Police, to the medical practitioner who took the sample of blood and to the person from whom the sample of blood was taken.
It can be seen therefore that the medical practitioner is under an obligation (a) to obtain evidence and (b) to preserve the integrity of the evidence so that that evidence may be subject to analysis for the purpose of establishing in due course, the concentration of alcohol or other drug present in the blood in a court of law.
There is also an obligation on the medical practitioner to ensure that the person from whom the blood has been taken is made aware that a sample of blood has been taken.
There is the further obligation on the medical practitioner to ensure that the person, from whom the sample of blood was taken, is aware that a sample of the blood is available to that person so that person may submit that sample to analysis.
A police officer then has an obligation to collect one of the containers containing the blood and deliver the container to the place specified in the notice given by the medical practitioner to the person or left with the person’s belonging. The container of blood must be kept available at that place for collection by the person from whom the blood was taken for the prescribed period.
The scheme of the section is intended to ensure that the person from whom the sample of blood is taken can obtain for himself or herself an analysis of blood which was taken from that person.
Thereafter the section provides for the use of the medical practitoner’s and analyst’s certificates to be used for the purpose of proving the facts stated in those certificates in a court of law.
Whilst the matter presently before this Court does not deal directly with the admissibility of the certificates, it is clear from the section itself that the admissibility of the certificates depends upon the certificates complying with s47I(13a). If they satisfy s47I(13a) (subject to what I am about to say in relation to s47I(13c)) then the certificates have the effect of raising the presumptions in s47I(13b) and s47I(13ba).
However the certificates are only admissible when the provisions of s47I(13c) are complied with.
Section 47I(13c) provides:
“(13c)....... A certificate referred to in subsection (13a) 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 has, not less than 2 days before the commencement of the trial, served written notice on the complainant or the 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.”
Section 47I (13a) makes the certificates admissible in proceedings before a court. Section 47I (13c) only applies to proceedings for an offence.
“Offence” is not defined in the Road Traffic Act so s47I(13c) does not only apply to offences under the Road Traffic Act but any offence.
However, s47I(13c) has no application in civil proceedings where a party seeks to rely upon a medical practitioner’s or an analyst’s certificate for the purpose of raising the presumptions in s47I(13b) and s47I(13ba).
It can be seen therefore that no certificate under s47I(13a) can be admitted in proceedings for an offence unless copies of the certificate have been provided to the person charged not less than seven days before the commencement of the trial.
Section 47I(13c)(a) does not expressly state that the copy of the certificate to be served has to be in addition to the certificate provided in s47I(12). However I think, for the reasons which I will state, that s47I(13c)(a) contemplates the service of a further certificate being a copy of the certificate created pursuant to s47I(13a). First because, pursuant to s47I(13a) the complainant has an obligation to provide a copy of the certificate which is sought to be relied upon. One would expect the certificate to be in the same or like terms to the certificate provided to the person from whom blood was taken pursuant to s47I(12). However the only certificate which can be tendered is the certificate in s47I(13a), not the certificate sent to the person pursuant to s47I(12) because a copy of that certificate can be the certificate for the purpose of s47I(13a). Secondly, because unless the accused received a copy of the certificate pursuant to s47I(13c)(a) the accused would not be aware that the complainant or informant proposed to tender the medical practitioner’s or analyst’s certificate. Thirdly, unless the accused was aware that the complainant or informant intended to rely upon a certificate at trial, the accused could not know whether to serve written notice on the complainant or informant requiring the attendance at the trial of the person by whom the certificate was signed: s47I(13c)(b). Fourthly, if Parliament had intended that the sending of the certificates to the person from whom blood was taken pursuant to s47I(12) was sufficient notice for the purpose of s47I(13c)(a) it would have said so. Instead it made a copy of a certificate prepared in accordance with s47(13a) admissible.
That would mean, if the section has been complied with by all of the persons upon whom obligations are imposed, that the accused will receive for the second time a copy of the certificates signed by the medical practitioner and the analyst. The accused should have previously received a copy of those certificates pursuant to s47I(12).
The accused should also have previously received a notice from the medical practitioner under s47I(7)(b) and may have previously received a sample of the accused’s own blood in accordance with s47I(10a)(a).
Therefore before the evidence obtained by the medical practitioner, which has been subject to the analysis, can be received by way of certificate before a court for proceedings for an offence the person charged should have received three notifications of the fact of blood having been taken, two notifications of the availability of a sample of the blood and two copies of the certificate sought to be relied on.
The certificates will not be admissible if the prosecutor does not comply with s47I(13c)(a). Even if there has been compliance with that paragraph the certificates will cease to be admissible if the accused, within the prescribed period, serves on the complainant or informant a notice requiring the attendance at the trial of the person by whom the certificate was signed.
So, an accused can prevent a complainant or informant relying upon the certificate of either the medical practitioner or the analyst by simply giving notice two days before the commencement of that person’s trial that the medical practitioner or analyst is required to attend.
When an accused has requested the attendance of the person who signed the certificate it seems to me that the certificate loses all of its evidential value.
The accused does not have to establish any reason why he or she objects to the use or tender of the certificate of the medical practitioner or the analyst but it is enough if the person simply gives a notice in writing requiring the attendance of the persons who signed those certificates.
Even if the accused does not require the attendance at trial of the persons who signed the certificates there is a residual discretion in the court to require the person by whom the certificate was signed to attend at the trial. In the context of s47I, in my opinion, if the court, in the exercise of its discretion, requires the person by whom the certificate was signed to attend at the trial then the certificate cannot be received as evidence in any proceedings for an offence.
It seems to me therefore that the proof of the facts stated in the certificate by the tender of the certificate in any proceedings for an offence depends upon the certificates themselves satisfying s47I(13a) by first being apparently genuine documents purporting to be certificates of a medical practitioner or analyst, secondly the complainant or informant satisfying s47I(13c)(a), thirdly the accused not invoking the provisions of s47I(13c)(b) and fourthly the Court not requiring the person by whom the certificate was signed to attend for trial (s47I(13c)(c)).
There are a number of safeguards built into the section to prevent a complainant or informant relying upon a certificate of a medical practitioner or analyst in inappropriate circumstances.
There will be times when a complainant or informant will attempt to prove the prosecution case by seeking to tender an analyst’s certificate but call a medical practitioner to give oral evidence to prove the necessary chain of evidence.
If the medical practitioner’s evidence shows that he or she has failed to comply with all of his or her obligations under the section the Court could exercise the discretion given under s47I(13c)(c) and refuse to admit the analyst’s certificate which would otherwise prove the ultimate fact.
Of course it is also open to the complainant or to the informant to prove the prosecution case by direct oral evidence rather than by reliance upon any certificates.
In those circumstances it is open to the complainant or informant to call the medical practitioner who has taken the blood, the police officer who has had the responsibility for the delivery of the blood and the analyst who has performed the analysis of the blood to establish the concentration of alcohol or other drug found to be present in the blood.
If the complainant or informant depends upon the direct evidence of those three persons it will be necessary for the complainant or informant to prove the chain of evidence from the time of taking of the blood to the time of analysis by the analyst. If the complainant or informant cannot prove that chain of evidence then, of course, the complainant or informant will not be able to prove the concentration of alcohol or other drug found to be present in the blood tested by the analyst.

It will be necessary therefore in every case in which the complainant or informant depends upon the direct oral evidence of the medical practitioner, police officer and analyst that the complainant or informant prove directly the chain of evidence so as to prove the ultimate fact, namely the concentration of alcohol or other drug found to be present in the blood.
There will be cases where the complainant can prove the chain of evidence but not that the medical practitioner, police officer or analyst complied with all of their obligations under the section. There will be circumstances, and this case is one, where the complainant can establish the chain of evidence from the time of the taking of the blood to the point of analysis but the complainant cannot establish that the medical practitioner gave the respondent notice in accordance with s47I(7)(b).
The complainant can further establish that notwithstanding that notice was not given in accordance with s47(7)(b) the respondent came into possession of the container of the sample of blood and therefore was not disadvantaged in any way. The complainant called the medical practitioner to establish the fact that the sample of blood was taken and that the medical practitioner delivered the sample of blood to a police officer. Presumably a police officer will be called in the trial to establish that he or she delivered the container of blood to the analyst. It is no part of the complainant’s case to establish that the medical practitioner complied with s47(7)(b) and signed or completed a certificate which complies with s47I(10). That will not prove any of the facts relevant to the prosecution of the respondent.
The question in this case is whether the evidence of the medical practitioner should be admitted in circumstances where the medical practitioner has failed to comply with all of the provisions of s47I.
It was contended by the respondent that because the medical practitioner had not complied strictly with s47I(7)(b) the medical practitioner’s evidence was inadmissible. It was not a question of discretion, so it was argued, the evidence was inadmissible simply because the medical practitioner had not complied with s47I(7)(b).
The argument that the evidence of the medical practitioner is inadmissible can only succeed, in my opinion, if each and every obligation imposed upon the medical practitioner pursuant to s47I is a pre-condition to the admissibility of the medical practitioner’s evidence.
In my opinion the obligations imposed upon the medical practitioners are not pre-conditions to the admissibility of the medical practitioner’s evidence.
The section imposes upon the medical practitioner the obligation of taking blood and delivering the sample of blood in a container to the police officer. That is all part of the proof of the chain of evidence necessary to establish the analyst’s ultimate opinion.
The section also provides that the medical practitioner should acquaint the person, from whom the blood is taken, with the fact of the taking of the blood. That is for the protection of the person from whom the blood is taken.
It is necessary, if the complainant or informant relies upon a medical practitioner’s certificate under s47I(10) of the Act, that the certificate includes a representation that there has been compliance with the obligation to acquaint the person from whom the blood is taken of the fact that the blood has been taken (s47I(7b) and s47I(10)). Parliament has specifically made it a pre-condition to the admissibility of the medical practitioner’s certificate that the medical practitioner state in writing in that certificate that he or she has complied with s47I(7)(b).
However, on the contrary Parliament has not made compliance with s47I(7) or s47I(10) a pre-condition to the admissibility of the medical practitioner’s oral evidence. The taking of the blood from the person to whom s47I applies occurs before the medical practitioner can comply with s47I(7) or s47I(10). If Parliament had intended to make compliance with those further subsections a pre-condition to the admissibility of the medical practitioner’s evidence in relation to the taking of blood under s47I(1) it would have said so. It could have done so by providing that the medical practitioner’s evidence would not be admissible in any proceedings for an offence or otherwise in the event that there has not been compliance with s47I(7) or s47I(10). Alternatively it could have done so by providing that if a medical practitioner does not comply with s47I(7) or s47I(10) then the taking of blood from the person to whom s47I applies becomes unlawful. It has not done either of those two matters and, in my opinion, it has not done so because it has not intended compliance with s47I(7) or s47I(10) to be a pre-requisite to the admission of the evidence obtained under s47I(1).
It follows, in my opinion, that a medical practitioner may give evidence of the taking of blood and of the delivery of the sample of blood to a police officer or to an analyst in circumstances where the medical practitioner has not given the required notice under s47I(7)(b) or even in circumstances where the medical practitioner has not complied with the provisions of s47I(10).
That does not mean that an accused person cannot object to the admissibility of the medical practitioner’s evidence in relation to the taking of the blood or the delivery of the container of blood to the police officers. Nor does it mean that there cannot be objection to the ultimate conclusion which is sought to be proved by the obtaining of the evidence; namely the concentration of alcohol or other drug in the blood.
In proceedings for an offence where s47I has not been strictly complied with an accused would be entitled to ask the Court not to admit the evidence of the medical practitioner if the accused could persuade the Court that the admission of the evidence should be rejected in the exercise of the Court’s discretion.
If the admission of the evidence would be unfair to the accused then the Court has a discretion to reject the evidence. If the admission of the evidence would not be unfair to the accused but the evidence has been obtained in such a way that considerations of public policy make it unacceptable to admit the evidence then it may be rejected.
If the admission of the evidence was not unfair to the accused and the evidence has not been obtained in circumstances which would raise matters of public policy a court still has a discretion to reject evidence if the prejudicial value of the evidence is greater than its probative value: R v Swaffield (1998) 192 CLR 159.
In this type of case, if the tender of the evidence becomes unfair to the accused because of non-compliance with any of the obligations under s47I of the Act, a court may, in the exercise of its discretion, refuse to admit the evidence. It may be unfair to an accused person to admit evidence in circumstances where the accused person has not been given notice that blood has been taken or that a sample of blood was available for that accused person to submit to an analyst.
It is not possible to categorise the circumstances in which the admission of a medical practitioner’s evidence might be unfair to the accused. However if the circumstances are that the admission of the evidence would jeopardise an accused’s right to a fair trial then the Court would refuse to admit the evidence: Van der Meer v The Queen (1988) 62 ALJR 656 at 666.
Even if the admission of the evidence would not be unfair to the accused the Court might, in the exercise of its discretion, reject the evidence if, on balance, public policy requires that the evidence should be excluded: Bunning v Cross (1978) 141 CLR 54 at 74. Again it is not possible to categorise the circumstances in advance which might move the Court to exercise its discretion to reject the evidence. On this aspect the consideration is not so much directed to the unfairness to the accused in admitting the evidence but more a consideration whether the evidence has been obtained or the accused’s rights disregarded in such a way that the price of obtaining the evidence, even though perhaps reliable, is too high.
In theory a third consideration could arise where the Court might exclude the evidence in the exercise of its discretion where the prejudicial effect of the evidence exceeds its probative value; R v Swaffield at 355. It is difficult to envisage circumstances in cases of this kind where the evidence which would establish the concentration of alcohol or other drug in a person’s blood is not unfair to the accused and the admission of which is not contrary to public policy but the evidence is more prejudicial than it is probative.
However because evidence of this kind might be tendered in relation to offences other than road traffic offences the possibility of such a discretion being enlivened cannot be ruled out.
The necessity to consider whether the Court should, in the exercise of its discretion, reject the evidence only arises because the evidence is not inadmissible simply because a medical practitioner has not strictly complied with all of the requirements of s47I.
It goes without saying that my remarks in relation to the exercise of a discretion to reject evidence are directed only to criminal trials and have no application to civil trials: Mazinski v Bakka (1979) 20 SASR 350.
In this matter the medical practitioner who took the sample of blood gave evidence that he completed the notice in writing pursuant to s47I(7)(b) but did not give the notice to the respondent or leave it with her personal effects. Instead he gave the notice to a nurse to be placed with the patient’s effects. In that respect the medical practitioner did not comply with s47I(7)(b).
It was an agreed fact that the respondent attended at the Forensic Science Centre and obtained a copy of the analyst’s certificate and a sample of her own blood which had been forwarded to the Forensic Science Centre by the hospital at which the blood was taken.
The learned Magistrate then, at the request of both parties, conducted a voire dire examination. A police officer was called on that examination. He gave evidence that he delivered a copy of the medical practitioner’s notice and the analyst’s certificate to the respondent.
The learned Magistrate then ruled on the admissibility of the analyst’s certificate. She ruled that the certificate was inadmissible because the medical practitioner had not complied with all of the medical practitioner obligations under s47I(7)(b).
The learned Magistrate felt herself bound by R v Turner to reject the tender of the analyst’s certificate without applying her mind as to whether the tender of that certificate should, in the exercise of her discretion, be refused.
Whilst on the evidence in the trial and on the voire dire examination, which will no doubt be called in the trial, it appears there are no grounds for the exercise of the discretion to refuse the admission of the analyst’s certificate that is strictly a matter for the Magistrate and the matter should be remitted to her for further hearing.
I agree with the orders proposed by the Chief Justice.
BLEBY J. I agree with the orders proposed by the Chief Justice and with the reasons he has given.
MARTIN J. I also agree with the orders proposed by the Chief Justice and with the reasons he has given.

[1999] SASC 227

1 June 1999