Police v Grozev (No 2) - [2008] SASC 53

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v GROZEV (No 2)
[2008] SASC 53
Judgment of The Honourable Justice Gray
29 February 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - ONUS OF PROOF
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG
Crown appeal against Magistrate’s dismissal of charge of driving with a prescribed concentration of alcohol (section 47B Road Traffic Act 1961 (SA)) – police observed respondent driving motor vehicle in bicycle lane – respondent stopped and directed to submit to alcotest and breath analysis – result of breath analysis revealed 0.154g alcohol/100mL blood – prosecution contended that direction to respondent to submit to alcotest was authorised by section 47E(2a)(b) of Road Traffic Act – section 47E(2a)(b) provides that during “prescribed period” police officer may require driver to submit to alcotest – section 47E(8) provides that Police Commissioner must publish notice in newspaper and at website of commencement of “prescribed period” not less than 2 days before commencement – section 47E(10) provides proof, by certificate, of commencement and duration of “prescribed period” – magistrate found that prosecution bore onus of establishing that alcotest lawfully conducted – magistrate admitted tender of section 47E(10) certificate and found that offence occurred during “prescribed period” – magistrate found that section 47E(8) notice requirement had not been complied with, which invalidated requirement for respondent to submit to alcotest – whether compliance with section 47E(8) notice requirement – alternatively, whether non-compliance with section 47E(8) notice requirement invalidated requirement for respondent to submit to alcotest – whether prosecution bore onus of proof to establish compliance with section 47E(8) – whether section 47E(10) certificate admissible – whether offence occurred during “prescribed period” – whether evidence of breath analysis results relevant, probative and admissible.
Held: Appeal allowed – dismissal of charge set aside and conviction imposed – matter remitted for sentence – alcotest lawfully conducted – section 47(8) notice requirement complied with – section 47(10) certificate in proper form and admissible – offence occurred during “prescribed period” – evidence of breath analysis relevant, probative and admissible – party seeking to exclude results of breath analysis on grounds of non-compliance with legislative provision bears onus of proof on balance of probabilities - no basis for exclusion of evidence in exercise of Bunning v Cross discretion.
Road Traffic Act 1961 (SA) s 47B, s 47E(1), s 47E(2a), s 47E(2a)(b), s 47E(8), s 47E(9) and s 47E(10); Australian Road Rules r 153(1); Education Act 1997 (SA) s 107; Education Regulations 1997 (SA) s 65, referred to.
Police v Grozev (2006) 246 LSJS 251; Police v Modra (2000) 32 MVR 326; Police v Owens (2007) 248 LSJS 62; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Bunning v Cross (1978) 141 CLR 54,…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Police v Grozev (No 2)

Details

AGLC: Police v Grozev (No 2) [2008] SASC 53
Case: [2008] SASC 53
Decision Date: 29 February 2008

CaseChat Overview and Summary

The case involves an appeal by the Crown against the dismissal of a charge of driving with a prescribed concentration of alcohol under the Road Traffic Act 1961 (SA). The defendant was observed driving in a bicycle lane and subsequently stopped by police who directed him to submit to an alcotest and a breath analysis. The results indicated that the defendant had the prescribed concentration of alcohol in his blood. The prosecution argued that the direction to submit to the alcotest was authorised by section 47E(2a)(b) of the Road Traffic Act. The magistrate found that the prosecution had the onus of establishing that the alcotest was lawfully conducted, and since the notice requirement under section 47E(8) had not been complied with, the requirement for the defendant to submit to the alcotest was invalidated. The Crown appealed this decision, arguing that the burden of proof lay with the defendant to establish that the direction was unauthorised, and that the notice requirement had in fact been complied with.

The legal issues before the court were whether the prosecution bore the onus of proof to establish that the alcotest was lawfully conducted, whether the section 47E(8) notice requirement had been complied with, whether non-compliance with section 47E(8) invalidated the requirement for the defendant to submit to the alcotest, and whether the section 47E(10) certificate was admissible and relevant. Additionally, the court considered whether the evidence of the breath analysis results was relevant, probative, and admissible.

The court held that the appeal should be allowed, setting aside the magistrate's dismissal of the charge. It was determined that the alcotest was lawfully conducted, the section 47E(8) notice requirement had been complied with, and the section 47E(10) certificate was in proper form and admissible. The offence occurred during the prescribed period, and the evidence of the breath analysis was relevant, probative, and admissible. The court found that the party seeking to exclude the results of the breath analysis on grounds of non-compliance with the legislative provision bore the onus of proof on the balance of probabilities, and there was no basis for excluding the evidence in the exercise of the Bunning v Cross discretion. Consequently, the appeal was allowed, the dismissal of the charge was set aside, and a conviction was imposed. The matter was remitted to a magistrate for sentencing.

Orders

Orders of the court

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Background

Background to the litigation

At trial, the lawfulness of a police requirement that the defendant undertake an alcotest, the precursor to the breath analysis, was challenged. This appeal involves the resolution of the dispute as to which party carried the onus of proof. Did the police have to prove that the direction that the defendant submit to an alcotest was authorised or did the defendant have to prove that it was unauthorised? An issue then arose as to the legal consequences of any unauthorised direction. Further questions arise on the hearing of this appeal as to the adequacy of the evidence on this topic, and as to the proper exercise of the discretion to exclude evidence in the event of any relevant unlawfulness being established. BackgroundThe First Hearing The police case was that, on 8 October 2004, police on mobile patrol were travelling west on a suburban street. They observed a motor vehicle travelling in front of them drift to the left and cross over a continuous white line, signifying a bicycle lane, and travel ten metres before returning to the centre of the vehicle lane. The officers observed the vehicle drift over the white line once more and travel for about ten metres before again returning to the centre of the vehicle lane. The police officers stopped the vehicle and directed the driver to submit to an alcotest. The driver, the defendant, submitted to an alcotest, which indicated that he may have in his blood the prescribed concentration of alcohol. The defendant was then taken to a police station where he submitted to a breath analysis. As earlier observed, the result disclosed that the defendant had in his blood the prescribed concentration of alcohol. The trial proceeded before a magistrate. The defendant pleaded not guilty to both charges and did not give evidence. The first suggested source of power to issue the alcotest was section 47E(1) of the Road Traffic Act 1961 (SA), which at the relevant time provided:Where a member of the police force believes on reasonable grounds that a person, while driving a motor vehicle or attempting to put a motor vehicle in motion— (a)has committed an offence of a prescribed class of which the driving of a vehicle is an element; or(c)has behaved in a manner that indicates that his or her ability to drive the motor vehicle is impaired; or(d)has been involved in an accident, that member of the police force may, subject to subsection (2), require that person to submit to an alcotest or breath analysis, or both. The Magistrate found that the police officer who directed the defendant to submit to an alcotest did not have a reasonable belief that he had committed an offence within the terms of section 47E(1). The Magistrate, in the exercise of his discretion, excluded the evidence of the concentration of alcohol present in the defendant’s blood. The Magistrate reasoned:Where the driver complies with such a direction and an Alcotest or breath analysis test is conducted and the driver is subsequently charged with an offence against Section 47b, the prosecution must nonetheless prove that the direction was lawfully made. Where it is asserted that the requirement was made as a consequence of entertaining a belief referred to in Section 47E(1), the onus rests with the prosecution to establish:(a) the police officer genuinely entertained a belief; and(b) the requirement to submit was based upon that belief; and(c) the belief was, objectively viewed, based upon reasonable grounds....On the totality of the evidence I find that Senior Constable Lord’s request failed to comply with the provisions of Section 47E(1) of the Road Traffic Act and thus, the directions or requirements for the defendant to submit to the Alcotest and subsequently to the breath analysis test were unlawful....It is clear from the authorities that where the request to the driver to submit to a breath analysis test is unlawful, the Bunning v Cross discretion to exclude the evidence of the result of the breath analysis test has to be considered by the court. It is also well-recognised that this legislation, even though it was enacted in the public interest, nevertheless it is regarded as an intrusion upon the civil rights of the individual, so therefore strict compliance with the legislation is required to provide ‘safeguards against an arbitrary or unreasonable or ill-informed exercise of the power conferred’ … ....In the exercise of my discretion, I exclude the breath analysis result from the evidence and therefore I find that there is no case to answer on Count 1.The Magistrate rejected the police submission that the defendant drove in a bicycle lane as he concluded there was no danger or embarrassment by that manoeuvre.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J (dissent)

Even if the alcotest was not lawfully conducted, a proper exercise of an enlivened discretion would be a refusal to exclude the breath analysis evidence. The breath analysis would be admitted into evidence in the trial. Conclusion The appeal is allowed. The order of the Magistrate dismissing the section 47B charge is set aside. The defendant is convicted of driving a motor vehicle on 8 October 2004 while there was present in his blood the prescribed concentration of alcohol contrary to section 47B of the Road Traffic Act. I remit the matter to a magistrate for sentencing.

Ratio Decidendi

Legal Principle Established

Established by:

It follows that the Magistrate was in error in dismissing the complaint on the basis that the prosecution had failed to establish that the alcotest had been lawfully conducted. In any event, even if the direction to submit to an alcotest was unauthorised, or if there been non-compliance with section 47E(8), at most those circumstances could only enliven a discretion to exclude evidence. It could not, without more, justify the dismissal of the complaint. The Magistrate proceeded under a misapprehension as to relevant legal principles and accordingly his decision should be set aside and the matter reconsidered. A Reconsideration On the hearing of this appeal, further evidence was received without objection. As all relevant evidence is now before this Court, it is appropriate that this Court resolve the outstanding questions. Counsel for the defendant contended that the Magistrate was in error in admitting and relying on the earlier referred to section 47E(10) certificate of the Commissioner as to the dates of the relevant prescribed period. It was argued that a certificate must post-date the relevant prescribed period and in the proper form. At the time, section 47E(10) of the Road Traffic Act provided:A certificate purporting to be signed by the Minister and to certify that a specified period was a prescribed period for the purposes of this section is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters so certified. The Magistrate was correct to reject the submission of the defendant that a section 47E(10) certificate must post-date the relevant prescribed period. In a prosecution for an offence contrary to section 47B of the Road Traffic Act, a question may arise as to whether a driver was lawfully directed to submit to an alcotest. Section 47E(10) allowed proof, by way of certificate, that a specified period was a prescribed period for the purposes of the section. A certificate to be tendered at trial will necessarily post-date the prescribed period. It is to be noted that subsection (10) is written partly in the past tense – “a specified period was a prescribed period”. The Magistrate correctly concluded that the section 47E(10) certificate tendered in the present case was in a proper form. Accordingly, this certificate provided prima facie evidence of the prescribed period. It was not in dispute that 8 October 2004, the day on which the defendant was required to submit to an alcotest, was a day within the certified period. The certificate provided prima facie evidence that the requirement that the defendant submit to an alcotest took place within a prescribed period. On the appeal, the question of whether 8 October 2004 was a prescribed period was addressed by other further evidence. At the time of the alleged offending, section 47E(9) of the Road Traffic Act provided:In this section –“long weekend” means a period of consecutive days comprised of a Saturday and Sunday and one or more public holidays;“Minister” means the Minister responsible for the administration of the Police Act 1998;“prescribed period” means–(a) a period commencing at 5p.m. on the day immediately preceding the start of a long weekend and finishing at the end of the long weekend; or(b) a period commencing at 5p.m. on the last day of a school term and finishing at the end of the day immediately preceding the first day of the following school term; or(c) a period commencing at a time determined by the Minister and finishing 48 hours later (provided that there can be no more than four such periods in any calendar year);“school term” means a school term determined for a government school under the Education Act 1972.Section 107 of the Education Act 1972 (SA) provided:(1)The Governor may make such regulations as are contemplated by this Act, or as he considers necessary or expedient for the purposes of this Act.(2)Without limiting the generality of subsection (1), those regulations may make provision with respect to the following matters:...(m) school vacations, the hours at which instruction is to be provided at schools, the method to be adopted in teaching and the discipline to be observed and enforced in Government schools;...(t) any other matter necessary or expedient for the proper administration of this Act.