Police v Grozev (No 2)
[2008] SASC 53
•29 February 2008
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, considered.
POLICE v GROZEV (No 2)
[2008] SASC 53Magistrates Appeal
GRAY J.
This is an appeal by the police against a Magistrate’s dismissal of a complaint.
The proceeding has a lengthy and complicated history. To understand the present appeal, the second in these proceedings, it is necessary to trace that history in some detail.
Jeko Zaprianoz Grozev, the defendant and respondent, was charged with two offences. It was alleged that on 8 October 2004, the defendant:
-drove a motor vehicle while there was present in his blood the prescribed concentration of alcohol, contrary to section 47B of the Road Traffic Act 1961 (SA), the alleged concentration of alcohol being 0.154 grams of alcohol in one hundred millilitres of blood (count one);
-drove in a bicycle lane, contrary to rule 153(1) of the Australian Road Rules (count two).
On 1 August 2007, following a further hearing consequent on orders made on the earlier appeal, the Magistrate dismissed count one. This appeal relates only to the dismissal of count one by the Magistrate.
It is relevant to record at the outset that the defendant, the driver of a motor vehicle on the occasion alleged, underwent a breath analysis which disclosed a blood alcohol reading of 0.154. It was accepted that the breath analysis was conducted in compliance with the statutory requirements. All appropriate advices and notices were given to the defendant. A blood kit was provided. There was no suggestion that the breath analysis machine was not functioning correctly or was not operated correctly. There was no challenge to the accuracy of the result of the breath analysis of the defendant.
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.
Background
The 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.
The second suggested source of power to direct the defendant to submit to the alcotest was section 47E(2a)(b) of the Road Traffic Act, which, at the time of the alleged offending, provided:
A member of the police force may require—
...
(b)the driver of a motor vehicle during a prescribed period,
to submit to an alcotest.
On the police case the police officers directed the defendant to submit to an alcotest during what was then known as a “prescribed period”. The police contended that this was a period in which the police were authorised to randomly stop and require motorists to submit to an alcotest, even where, as in the present case, the police officers were unaware a prescribed period was in effect. The Magistrate impliedly rejected this police contention. The Magistrate rejected the tender of the documents intended to prove that the events occurred during a prescribed period.
The defendant was found not guilty of both charges and the Magistrate dismissed the complaint.
The First Appeal
In Police v Grozev,[1] Doyle CJ allowed an earlier appeal against the dismissal of the count of driving in a bicycle lane. That count was remitted to the Magistrate for the purpose of finding the offence proved and for a penalty to be imposed.[2] Doyle CJ reasoned:[3]
The Magistrate found that Mr Grozev drove his car in a bicycle lane. There is nothing in r 153 to support a conclusion that it is necessary to prove any danger or embarrassment, or potential danger or embarrassment, before an offence can be committed. Nor is there anything to indicate that a minor deviation is not an offence. While it is conceivable that there might be a case in which the intrusion into the bicycle lane is so minor or trifling as to be disregarded, this is not such a case.
[1] Police v Grozev (2006) 246 LSJS 251.
[2] Police v Grozev (2006) 246 LSJS 251 at [73].
[3] Police v Grozev (2006) 246 LSJS 251 at [72].
However, Doyle CJ was not prepared to disturb the Magistrate’s finding that the police officer did not reasonably believe that the driving offence had occurred. As a result, as this finding was sustained, the power to require the defendant to submit to an alcotest under section 47E(1) was not enlivened. However, Doyle CJ concluded that the police were entitled to rely on section 47E(2a) as a source of power to require the defendant to submit to an alcotest. In this respect the Chief Justice concluded:[4]
The power under s 47E(2a)(b) is available in this case. There is nothing in the provision or in s 47E to indicate that the availability of the power is dependent on the member of the police force having a belief that a prescribed period is in operation. Nor is there an indication that the power is available only if the member of the police force intends to exercise that particular power (as distinct from some other power). There is no indication of a requirement that the member of the police force refer to the source of the power when exercising it. There is nothing to indicate that, even if asked about the source of the power, a mistaken identification of the source of the power matters. Neither the manner in which the power is exercised, or the procedures to be followed, can be affected by a failure to identify or refer to the source of power. There are no procedures attached to the exercise of the power under s 47E(2a)(b) that were not followed. In particular, the same two hour limit for the performance of a breath analysis applies under s 47E(2a)(b) as applies under s 47E(1): see s 47E(2c). There is nothing in the section to indicate that a mistaken belief by the member of the police force as to the source of power to make a requirement should invalidate or prevent a later reliance on s 47E(2a)(b).
Nor are there any statutory rights or entitlements that Mr Grozev could have claimed or exercised, had the requirement to submit to an alcotest been exercised by reference to s 47E(2a)(b). If there were, that would suggest that Parliament intended that the power be available only if it was actually relied upon.
For those reasons I conclude, although the result may seem surprising, that if the prosecutor were able to establish that the relevant events occurred during a prescribed period, the requirement to submit to an alcotest could be supported under s 47E(2a)(b). It follows that the Magistrate should not have rejected the tender of the documents intended to prove that the events occurred during a prescribed period. The certificate pursuant to s 47E(10) that was tendered was capable of being proof that a prescribed period was in operation.
The count the subject of the first charge should be remitted for further hearing by the Magistrate.
[4] Police v Grozev (2006) 246 LSJS 251 at [67]-[70].
Doyle CJ remitted the section 47B charge to the Magistrate for further hearing.
Further Hearing by the Magistrate
At the further hearing three documents were received into evidence as part of the police case:
-an extract from The Advertiser displaying a “Notice of Prescribed Periods Mobile Random Breath Testing”;
-a “Notice of Prescribed Periods Mobile Random Breath Testing”; and
-a certificate pursuant to section 47E(10) of the Road Traffic Act “that a specified period was a prescribed period”.
The Magistrate rejected a submission of the defendant that the section 47E(10) certificate was not in a proper form. The certificate relevantly provided:
CERTIFICATE PURSUANT TO SECTION 47E(C)(10) OF THE ROAD TRAFFIC ACT, 1961
I, Kevin Owen Foley Minister for Police for the State of South Australia; certify that the following specified periods are ‘prescribed periods’ for the purposes of Section 47E(2a)(b) of the Road Traffic Act, 1961:
School terms breaks:
…
5.00pm on 24 September 2004 to 11.59pm on 10 October 2004
…
[signature of Mr Foley] Minister for Police 23/9/03
The Magistrate reasoned:
Ss.10 refers to a certificate signed by the Minister and to ‘certify that a specified period was a prescribed period for the purposes of this section’.
The language in that subsection is expressed in past tense and thus suggests that the certificate of the Minister must post-date the relevant prescribed period. The certificate tendered is dated 23 September 2003, a date predating (by more than one year) the date of the alleged offence and the prescribed period relied upon. The certificate merely certifies that ‘the following periods are prescribed periods’.
[Counsel for the defendant] contends that in order to comply with ss.10, the certificate must post-date the relevant prescribed period. I disagree with that interpretation. The certificate is expressed to be given by the Minister for Police for certain specified periods and I consider that document is in proper form.
Although the Magistrate made no express finding, it would appear he accepted that 8 October 2004 was within a prescribed period.
The Magistrate concluded, however, that there had been a failure to comply with section 47E(8) of the Road Traffic Act. This section then provided:
The Commissioner of Police must not less than 2 days before the commencement of each prescribed period, cause a notice to be published in a newspaper circulating generally in the State and at a web site determined by the Commissioner stating the time at which the prescribed period commences and the time at which it finishes and containing advice about the powers members of the police have under this section in relation to a prescribed period.
The Magistrate considered that this failure invalidated the requirement for the defendant to submit to an alcotest. As a consequence, the Magistrate again dismissed the section 47B charge. On this occasion he reasoned:
It is incumbent upon the prosecution to prove that the requirement [to submit] to an alcotest was made during a prescribed period.
...
The prosecution tendered into evidence to establish compliance with ss.8 a copy of page 68 of ‘The Advertiser’ newspaper dated Monday, 22 September 2003 (Exhibit P11). This was published more than a year before the alleged offence. Tendered was also what appeared to be a computer printout, dated 22 September 2003, which I presume was meant to comply with the requirement of publication at a website determined by the Commissioner. I was not able to decipher any reference to the required publication of a prescribed period as outlined in ss.8. On that point alone, the prosecution have failed to comply with the requirement of publication at a website determined by the Commissioner and thus have failed to prove that the requirement for the defendant to submit to an alcotest was made during a prescribed period.
[Counsel] for the defendant also argued that the plain meaning of ss.8 is that the publication of the notice in a newspaper must occur not less than two days before ‘the commencement of each prescribed period’. Accordingly, in order to comply with ss.8 in respect of the asserted prescribed period in operation on 8 October 2004, the prosecution must prove that a notice of this type appeared in the newspaper not less than two days before the 24th September 2004.
The purpose of this stipulation is to ensure that the general public is given sufficient warning of the impending prescribed period and the fact that police would have special powers to stop any vehicle for no reason and request the driver to submit to an alcotest.
The requirement that a notice be published before the commencement of each prescribed period ensures that the general public is kept informed in a timely manner and on an ongoing basis as to the commencement and duration of each such period. [Counsel for the defendant] argues that it could not be the case that what was intended by ss.8 was the single publication of forecasted prior periods for calendar years 2003 to 2005.
[Counsel for the defendant] contends that the obligation upon the Commissioner of Police to ensure that the public is kept informed and up-to-date by print and electronic media as to proposed further intrusions into existing civil liberties and rights is an important and fundamental one.
I agree that non-compliance with ss.8 invalidates any requirement to submit to an alcotest made in reliance upon the powers exercisable during a prescribed period.
This Appeal
On the hearing of the present appeal, counsel for the police contended that the Magistrate had misunderstood the onus of proof resting with the police. It was submitted by counsel for the police that the offence of driving with the prescribed concentration of alcohol contained two elements – that an accused drove a motor vehicle and that the accused had in his or her blood the prescribed concentration of alcohol. It was pointed out that it was not an element of the offence that a driver had been lawfully required to submit to an alcotest. Further, it was not an element of the offence to establish compliance with section 47E(8). As a consequence, it was said that evidence of the breath analysis results was relevant, probative and admissible evidence.
Counsel for the police pointed out that the Magistrate appeared to have found that the defendant had been required to submit to an alcotest during a prescribed period. It was said that the Magistrate’s conclusion that the obligation on the Commissioner of Police to publicise the prescribed periods had not been complied with, was not correct. It was argued in the alternative that even if there had been non-compliance by the Commissioner with his obligations under section 47E(8), this was a mere irregularity. Any non-compliance did not affect the legal status of the prescribed periods, and did not give rise to any basis to exclude the breath analysis evidence.
In Police v Modra, Bleby J observed:[5]
In order to prove the offence it was not necessary to prove a great many other events which may have led to the obtaining of the necessary evidence. It was not necessary to prove:
· that a breath testing station had been established pursuant to s47DA for the relevant period;
· that the appellant had been required to submit to an alcotest (s47E(2a));
· that the apparatus used at the breath testing station was approved under the Act for the purpose of performing an alcotest (definition of “alcotest” in s47A); or
· that the appellant submitted to an alcotest and that the alcotest indicated that the prescribed concentration of alcohol might then have been present in the appellant’s blood (s47E(2b)).
It was contended that this reasoning supported the conclusion that it was not necessary for the prosecution to prove that the requirement that the defendant submit to an alcotest was made during a prescribed period or that section 47E(8) had been complied with by the Police Commissioner. It was accepted that if there had been evidence that established on the balance of probabilities that the direction was not made during a prescribed period, or that 47E(8) had not been complied with, then a discretion to exclude the breath analysis evidence could have been enlivened. However, it was said that there was no basis in the present case to justify the exercise of the discretion to exclude the undisputed breath analysis evidence.
[5] Police v Modra (2000) 32 MVR 326 at [72].
Evidence of the breath analysis in the present case was relevant, probative and admissible. There was an onus on the defendant, when seeking to exclude results of a breath analysis as a matter of discretion, to establish on the balance of probabilities that the breath analysis was not preceded by a lawfully administered alcotest.[6] It was for the defendant to establish that there had been non-compliance with the requirements of section 47E(8). It was for the defendant to establish the facts that enlivened the discretion and to then satisfy the court that the discretion should be exercised to exclude the evidence. [7]
[6] See Police v Owens (2007) 248 LSJS 62 at [38]; Police v Modra (2000) 32 MVR 326.
[7] Police v Owens (2007) 248 LSJS 62 at [41].
The defendant accepted the above propositions as a correct statement of the legal position and as having application in the ordinary case. However, it was contended that having regard to the history of this particular proceeding, the prosecution bore the onus of proving that the requirement to submit to an alcotest was lawful. This it was said included the obligation to prove that there had been compliance with section 47E(8). Attention was drawn to, and reliance placed on, the following observation of Doyle CJ:[8]
The prosecutor should be permitted to re-open the prosecution case to the extent required to establish, if it can be established, that the requirement to submit to an alcotest was made during a prescribed period. Counsel for Mr Grozev should be permitted to re-open the defence case on the same issue. The Magistrate should then decide whether or not the requirement was made during a prescribed period, and if it was, subject to any other issue that arises, the Magistrate should find count 1 proved.
[8] Police v Grozev (2006) 246 LSJS 251 at [70].
The question of onus was not raised before Doyle CJ and was not addressed in his reasons. I reject the submission that the above observation was intended to, or did, alter the legal position with respect to the onus of proof on this issue. The above observations did not have the effect of casting an onus on the prosecution. Permission was given to the prosecution to re-open to the “extent required”. The defendant was given leave to re-open his case on the same issue.
If a police officer directed a driver during a prescribed period to submit to an alcotest, the direction was lawful. No further authority was necessary. Further, it was not necessary for the police officer to believe a driver was being directed during a prescribed period. If, as an objective fact, it was shown that a driver had been directed to submit to an alcotest during a prescribed period, that direction was lawful. As mentioned above, Doyle CJ observed in the earlier appeal that the power under section 47E(2a)(b) was available in this case.
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.
Regulation 65 of the Education Regulations 1997 (SA), headed “School Terms”, provided:
The school year shall be divided into periods, the commencing and ending dates of which shall be as determined by the Minister.
The Regulation does not prescribe a procedure for determining the commencement and cessation dates of school terms or vacations. Those dates are to be determined by the Minister. Once that occurs, the school term and the school vacations are determined and the dates of the prescribed periods set.
On the hearing of this appeal the police relied on the uncontested affidavit evidence of Andrew Hayward, a Senior Policy Officer with the Department of Education and Children’s Services, who deposed:
I am familiar with the process of the Minister determining school terms.
I prepare a briefing for the Minister with the proposed dates. That is put to the Minister who then makes her determination. Once the Minister has determined the school term dates, they are posted onto the website of the Department of Education and Children’s Services.
An attachment evidenced the Minister’s determination of 9 October 2000 – the vacation in September/October 2004 commenced at 12.00 midnight on 24 September 2004 and ended at 12.00am on 11 October 2004.
The extract from The Advertiser established that a notice purporting to comply with section 47E(8) was published in a newspaper circulating generally in the State. It was admissible by operation of section 47B of the Evidence Act 1929 (SA). It is an apparently genuine document in which a statement of fact is implicit, or from which a statement of fact may be inferred; that fact being that the notice was published in The Advertiser on 22 September 2003. This was, as subsection (8) required:
not less than 2 days before the commencement of [the] prescribed period.
Sergeant Michael Delaney, by affidavit evidence deposed:
I am a Sergeant employed in the Traffic Training and Promotion section of South Australia Police.
On 22 September 2003, I contacted the help desk in the Traffic Training and Promotion section and asked them to publish a notice on the South Australia Police website. This website is accessible by members of the public.
The notice set out “prescribed periods” for random breath testing for public holiday long weekends and school term breaks for the period 2003 to 2005.
Later that same day, I checked the website and saw that the notice was being displayed. I regularly checked the site until June 2005 and the notice remained on the site.
Exhibited hereto and marked “MD1” is a copy of the notice.
The Notice of Prescribed Periods was tendered. The evidence of Sergeant Delaney proves publication at the website determined by the Commissioner.
Once it was established by the section 47E(10) certificate that the defendant was required to submit to an alcotest during a prescribed period, the affidavits and the extracts from The Advertiser and the Notice of Prescribed Periods were arguably unnecessary.
A further issue raised on appeal by the defendant was that section 47E(8) had not been complied with as the public notice placed in The Advertiser newspaper on 22 September 2003 pre-dated the particular prescribed period during which the defendant was directed to submit to an alcotest by more than a year. It was contended that the purpose of a public notice is to advise the public in a timely way of each upcoming prescribed period. The point of the giving of notice is to warn the public that normal civil liberties are being suspended. The have any utility, the notice should be given at a proximate time prior to the prescribed period. However, whether a notice is sufficiently proximate is a question of fact. This public notice was given more than the required two days before the relevant period. In all the circumstances, the notice with respect to the relevant period was adequate. The newspaper notice was supplemented by a continuing notice appearing on the relevant website.
The alcotest was lawfully conducted. The breath analysis test was lawfully conducted. No basis for the exclusion of the results of the breath analysis arose. The Magistrate erred in excluding the results of the breath analysis test.
In any event, whether any non-compliance with the legislative provision concerning prescribed periods invalidated a requirement to submit to an alcotest, called for an analysis of the principles identified by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority.[9] If the provisions had not been complied with, the question would be whether such non-compliance should affect the validity of the prescribed period. This in turn would depend on the level of non-compliance.
[9] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
On the assumption that the alcotest was unlawfully conducted, the onus was on the defendant to satisfy the Court that the evidence of the breath analysis should be excluded in the exercise of the discretion. This required an analysis of the factors set out in Bunning v Cross.[10] The relevant principles are well established and have been discussed and followed many times since. Notwithstanding a finding of unlawfulness, in Bunning v Cross the evidence of the breath analysis was admitted.
[10] Bunning v Cross (1978) 141 CLR 54.
In the present case there was no suggestion that the police officers had deliberately set out to flaunt the law. There was no suggestion that the breath analysis was other than accurate and reliable evidence. There was no evidence to cast any doubt on the fact that the defendant’s blood contained the recorded blood alcohol reading. There was no issue of public policy identified that would lead to the exercise of the discretion to exclude the breath analysis evidence. There was no suggestion that the defendant was unaware that he was driving during a prescribed period, or that he was disadvantaged in any way by the manner in which notice was given of the prescribed period.
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.
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