Police v Fountaine - [1999] SASC 227

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [1999] SASC 227
Decision Date: 1 June 1999

CaseChat Overview and Summary

In Police v Fountaine, the Full Court of the Supreme Court of South Australia addressed the admissibility of blood alcohol analysis results obtained under s47I of the Road Traffic Act. The case involved a charge against the respondent for driving with a prescribed concentration of alcohol in her blood. The Magistrate dismissed the charge after ruling that the evidence of the analysis was inadmissible due to a failure to strictly comply with the statutory requirement to notify the respondent of the blood sample taking, as mandated by s47I(7)(b) of the Act. The prosecution appealed, arguing that the decision in R v Turner, which required strict compliance with s47I as a condition for admissibility, was incorrect.

The Full Court reviewed the decision in Turner and concluded that it was wrongly decided. The Court held that the admissibility of evidence under s47I does not depend on strict compliance with its procedural requirements. Instead, the admissibility of such evidence is governed by the ordinary principles of the law of evidence. The Court emphasised that the provisions of s47I serve as procedural safeguards for the person from whom the blood is taken, and their non-compliance does not render the evidence inadmissible but may give rise to a discretion to exclude it. The Full Court set aside the Magistrate's decision, allowing the appeal, and remitted the matter to the Magistrates Court for rehearing.

Orders