Police v Hall

Case [2006] SASC 281

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

POLICE v HALL

[2006] SASC 281

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Nyland, The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Vanstone)

11 September 2006

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

The appellant appeals against the exclusion by a Magistrate of evidence of a breathalyser test relied upon by the appellant as evidence of the concentration of alcohol present in the respondent’s blood – the respondent was required to submit to a breathalyser test following a motor vehicle accident in which he was involved - respondent charged with having in his blood the prescribed concentration of alcohol contrary to s 47B of the Road Traffic Act 1961 (SA) – the respondent elected to proceed directly to a hospital in order that the concentration of alcohol present in his blood might be tested, a course of action contemplated by the legislation – a sample of blood was not taken by the hospital until after the time at which any alcohol present in his blood had been eliminated – the respondent argues that he has lost the only opportunity to rebut evidence of the breathalyser test which evidence, in the absence of a blood test administered after the breathalyser test, must be presumed accurate pursuant to s 47G(1) of the Road Traffic Act 1961 (SA) - whether the respondent will receive a fair trial if the court refrains from exercising its discretion to exclude evidence of the result of the breathalyser test – consideration of whether any relevant unfairness discretion can be enlivened by the circumstances of the case – the unfairness discretion requires the respondent to demonstrate that the trial itself would be unfair if the evidence of the breathalyser test was admitted – the fact that the only possible source of evidence to rebut the statutory presumption that the breathalyser test is accurate is now not available to the respondent does not of itself render the trial unfair - parliament provides for proof of guilt in this manner - appeal allowed.

Road Traffic Act 1961 (SA) s 47B, 47G(1), 47G(1a), 47G(1a)(a), 47G(1a)(b), 47G(2a)(a), 47G(2a)(b), 47G(2), 47DA, 47E, 47EB, 47K, 47F; Road Traffic Act Amendment Act 1979 (SA); Road Traffic Act Amendment Act (No 3) 1984 (SA); Road Traffic (Breath Analysis) Amendment Act 1993 (SA); Road Traffic (Breath Analysis and Voluntary Blood Test) Regulations 1994 (SA) s 4, s 5, s 6; Motor Vehicles Act 1959 (SA); Road Traffic (Miscellaneous) Regulations 1999 (SA); Australian Road Rules (1999) r 62(c); Motor Vehicles Act 1959 (SA) s 124A; Civil Liability Act 1936 (SA) s 46, referred to.
R v Lobban (2000) 77 SASR 24; Bunning v Cross (1978) 141 CLR 54; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; French v Scarman (1979) 20 SASR 333; Director of Public Prosecutions…

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AGLC
Police v Hall [2006] SASC 281
Case
[2006] SASC 281
Decision Date

CaseChat Overview and Summary

The appeal in Police v Hall was brought by the Police against a decision of a Magistrate who excluded the evidence of a breathalyser test result from the trial of Mr Hall, who had been charged with driving with a prescribed concentration of alcohol in his blood. The issue for the court was whether the Magistrate was correct to exclude the breathalyser evidence, and whether Mr Hall would receive a fair trial if the evidence was admitted. The court held that the Magistrate was correct to exclude the evidence because the breathalyser test result could not be rebutted due to the delay in taking a blood sample, and the exclusion of the evidence did not render the trial unfair. The court found that the statutory presumption of the accuracy of the breathalyser test result under s 47G(1) of the Road Traffic Act 1961 (SA) could not be rebutted because the only opportunity to do so had passed. The court noted that the delay in taking the blood sample was not attributable to Mr Hall, and that the hospital staff were dealing with more urgent cases. The court held that the exclusion of the breathalyser evidence did not render the trial unfair because the legislature had provided for proof of guilt in this manner.

The court's decision was based on the statutory framework provided by the Road Traffic Act 1961 (SA), which provided for the admissibility of breathalyser evidence and the presumption of its accuracy in the absence of proof to the contrary. The court held that the only way in which Mr Hall could rebut the presumption was by proving the result of the analysis of the sample of blood that was taken from him, and by proving that when the result of that analysis was explained by expert evidence about alcohol elimination rates, the result of the blood analysis demonstrated not just that the concentration of alcohol in Mr Hall’s blood at the time of the breath analysis was less than that indicated by the breath analysing instrument, but that the difference was such as to lead to a conclusion that the breath analysing instrument had given “an exaggerated reading of the concentration of alcohol” present in Mr Hall’s blood. The court found that this was not possible in the circumstances of the case because the blood sample was taken too late, and the only opportunity to rebut the presumption had passed. The court held that the exclusion of the breathalyser evidence did not render the trial unfair because the legislature had provided for proof of guilt in this manner.
The court allowed the appeal and remitted the matter to the Magistrates Court for further proceedings.

Orders

Orders of the court

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Background

Background to the litigation

The case is one in which Mr Hall was charged with driving a motor car while there was present in his blood the prescribed concentration of alcohol, contrary to s 47B of the Road Traffic Act 1961 (SA) (“the RTA”). The Prosecution relied on the result of a breath analysis and on the presumption created by s 47G(1) of the RTA to prove the charge. The issues that I have identified arise because of the circumstances in which Mr Hall had a sample of his blood taken for the purposes of analysis as contemplated by s 47G(1a) of the RTA.Facts and legislation There is no dispute about the facts. I will confine the following summary to the matters essential to identify the issues. At about 10.20 pm on 11 December 2005 Mr Hall was driving a motor car that was involved in a collision with another motor car. At 11.21 pm that day he was required to submit to a breath analysis using a breath analysing instrument: s 47E of the RTA. The breath analysing instrument indicated that the concentration of alcohol present in his blood was 0.081 grams of alcohol in 100 millilitres of blood: s 47EB and s 47G(1). The requirements and procedures referred to in s 47G(1) of the RTA were complied with. They included reading to Mr Hall the prescribed oral advice pursuant to s 47G(2a)(a). That included advice that if Mr Hall asked for and was given a blood test kit he should “take the kit promptly to a Hospital or medical practitioner in order to have a sample of your blood taken”. Mr Hall was also given the prescribed written notice which includes a statement that if he was supplied with an approved blood test kit he should “then proceed promptly to a Hospital or a medical practitioner of your choice and request that a sample of your blood be taken …”. The Magistrate found that Mr Hall arrived at the Royal Adelaide Hospital, intending to have a sample of blood taken for analysis, at about 1.00 am on 12 December. On the way to the Hospital he stopped at the accident scene to collect his car (his parents were with him by then) which had in it some expensive equipment belonging to his employer. He wanted to make sure that the equipment was safe. The Magistrate found that this caused a delay of about 20 minutes in getting to the Hospital. The Magistrate found that Mr Hall was not open to criticism for what he did: [27]. He found that Mr Hall attended promptly at the Hospital: [31]. Once at the Hospital Mr Hall waited until 5.30 am before a sample of blood was taken. The Magistrate found the Hospital staff were dealing with patients whose needs were more urgent than those of Mr Hall. By implication the Magistrate found that Mr Hall was not at fault in relation to the time that elapsed. The sample of blood taken at 5.30 am was dealt with “in accordance with the procedures prescribed by regulation”: s 47G(1a)(a). Upon analysis there was no alcohol in the blood. The Magistrate found that at 1.20 am, when Mr Hall first spoke to a staff member at the Hospital, there was alcohol in his blood that would have been detected had a sample been taken then: [26] and [31].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is necessary to refer only to three of the subsections of s 47G of the RTA. They are as follows:47G(1) Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis.(1a) No evidence can be adduced in rebuttal of the presumption created by subsection (1) except -(a)evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I or in accordance with the procedures prescribed by regulation; and(b)evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.…(2a) Where a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith -(a)give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person's blood; and(b)at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.The Magistrate’s decision There is no need for me to revisit the cases dealing with the operation and effect of the presumption that arose in the circumstances by virtue of s 47G(1) of the RTA. I refer to my summary of these matters in Police v Henwood [2005] SASC 209; (2005) 92 SASR 15 at [32]-[37]. The only way in which Mr Hall could rebut the presumption under s 47G(1) was by proving the result of the analysis of the sample of blood that was taken from him and by proving that when the result of that analysis was explained by expert evidence about alcohol elimination rates (what is colloquially called a “back calculation”), the result of the blood analysis demonstrated not just that the concentration of alcohol in Mr Hall’s blood at the time of the breath analysis was less than that indicated by the breath analysing instrument, but that the difference was such as to lead to a conclusion that the breath analysing instrument had given “an exaggerated reading of the concentration of alcohol” present in Mr Hall’s blood: Evans v Benson (1986) 46 SASR 317; Police v Shelmerdine [2000] SASC 45; (2000) 76 SASR 199 and Tonkin v Police [2006] SASC 145. The back calculation would have to be based on assumed rates of alcohol elimination, having regard to the fact that the actual rate of elimination on the night in question could not be known.

Ratio Decidendi

Legal Principle Established

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