Police v Harris - [2011] SASC 97

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v HARRIS
[2011] SASC 97
Judgment of The Honourable Justice David
16 June 2011
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE - BREATH TEST AND ANALYSIS
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE - BREATH TEST AND ANALYSIS
Appeal against no case to answer finding by Magistrate – respondent gave two samples of breath under lawful instruction by police – machine gave message of “blow time different” – respondent was required to be retested on a second machine – second machine gave a reading above the prescribed concentration of alcohol in blood – whether police complied with Road Traffic (Miscellaneous) Regulations 1999 in requiring respondent to be retested – whether message of “blow time different” constituted an “error” for the purposes of reg 8A – whether expert evidence required.
Held: appeal allowed – Magistrate erred in holding expert evidence was required to be satisfied there was an “error” – there was cogent evidence that there was an error in the analysis in that no result could be provided – the actions of the police officers were within the powers conferred by reg 8A – retrial ordered.
Road Traffic Act 1961 (SA) s 47K; Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A, referred to.

POLICE v HARRIS
[2011] SASC 97
Magistrates Appeal: Criminal

DAVID J: The respondent was charged on complaint that on 26 June 2010 she drove a motor vehicle at Norwood whilst there was present in her blood the prescribed concentration of alcohol, contrary to s 47B of the Road Traffic Act 1961 (SA) (“the Act”). The concentration of alcohol alleged was 0.120 grams of alcohol in 100 millilitres of blood.
The respondent pleaded not guilty in the matter, which was tried before a Magistrate. At the end of the prosecution case, on an application by the respondent that there was no case to answer, the Magistrate dismissed the charge.
The appellant appeals against the dismissal of the complaint. There is one ground of appeal, namely that the learned Magistrate erred in law in dismissing the complaint.
The undisputed facts at trial were that, on the evening of 26 June 2010, Ms Priscilla Harris (“the respondent”) was stopped by the police and gave a positive alcotest. As a result she was taken to the Norwood police station for a breath test to be conducted. The police officers involved in the matter were Constable Jason Gilchrist and Sergeant Sean Bell. Sergeant Bell was a qualified breath analysis operator and ultimately conducted the breath analysis test which is the subject of this appeal. The respondent was given a proper direction by Sergeant Bell to blow into the machine and, when a proper print out was provided, it gave a reading of 0.149 grams of alcohol in 100 millilitres of blood. Sergeant Bell also gave evidence that 16 stars appeared on the panel of the machine, confirming that a sufficient volume of breath had been provided. Approximately four minutes later the respondent blew into the machine for a second time as required by reg 8A of the Road Traffic (Miscellaneous) Regulations 1999 (SA) (“the Regulations”). The respondent did this pursuant to a proper direction given by Sergeant Bell.
However on this occasion of the second blowing into the machine, on a display panel appeared the words “blow-time different”. After the second blowing into the machine the printout of the two results of the two blows normally comes out. However on this occasion the results of the first blow came out, but the second blow did not. Sergeant Bell gave evidence, which was accepted, that on the second occasion 16 stars came up on the panel indicating that there was a sufficient sample in relation to the second blow.
Although Sergeant Bell was an experienced and qualified breath analysis operator, he had not experienced this result (or lack of result) before. He had not seen on a panel on the machine words to the effect “blow-time different”. After consultation with his partner, Constable Gilchrist, and a third police officer he made the decision to require the respondent to resubmit on a retested second machine.
Sergeant Bell was not sure what caused the odd second reading, but he suspected it may have been some action or non-action on the part of the respondent, or the possibility that there was a problem with the machine. Therefore, to be fair to the respondent, he required her to be re-tested on a second properly tested machine. That was done pursuant to further proper directions which were complied with and, as a result of that, the printout from the second machine produced the reading of 0.120 grams of alcohol in 100 millilitres of blood. That reading was the basis of the prosecution case.
At trial, at the end of the prosecution case, counsel for the respondent argued, as she did before me, that the police had no power to require the respondent to provide two further samples on a second machine, having only obtained one sample on the first machine.
In order to understand counsel for the respondent’s argument it is necessary to set out parts of the relevant legislation. Section 47K(1) of the Act reads as follows:
(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 and throughout the preceding period of 2 hours.
Section 47E(2e) provides:
(2e)The regulations may prescribe the manner in which an alcotest or breath analysis is to be conducted and may, for example, require that more than one sample of breath is to be provided for testing or analysis and, in such a case, specify which reading of the apparatus or instrument will be taken to be the result of the alcotest or breath analysis for the purposes of this and any other Act.
In other words, if the breath analysis test is conducted correctly pursuant to the appropriate regulations then the presumptions in s 47K will apply.
Counsel for the respondent, however, argues that in directing the respondent to provide two fresh samples on a second machine was not in accordance with reg 8A. I set that regulation out in full:
8A—Conduct of breath analysis
(1)Pursuant to section 47E(2e) of the Act (Police may require alcotest or breath analysis), where a person submits to a breath analysis, the breath analysis must be conducted in the following manner:
(a)     the person must provide two separate samples of breath for analysis; and
(b)     each sample must be provided in accordance with the directions of the operator of the breath analysing instrument and must consist of not less than one litre of breath; and
(c)     there must be an interval of not less than two minutes and not more than 10 minutes between the provision of the samples.
(2)Despite subregulation (1)—
(a)     if, on analysing a sample of breath, the breath analysing instrument indicates an error in the analysis of the sample—
(i)that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis using a different instrument (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(b)     if, on analysing a sample of breath, the breath analysing instrument indicates the presence of alcohol in the mouth of the person—
(i)that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(c)     if, on analysing two samples of breath, the breath analysing instrument indicates that the reading obtained on analysis of the second sample was more than 15% higher or lower than the reading obtained on analysis of the first sample—
(i)those samples must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(d)     if, for any reason, a second sample of breath is not provided within 10 minutes of the provision of the first sample—
(i)the first sample is to be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)).
(3)Where a person submits to a breath analysis, the result of the breath analysis will, for the purposes of the Road Traffic Act 1961 and any other Act, be taken to be the reading produced by the breath analysing instrument, on analysis of the samples of breath provided by the person in accordance with this regulation, that indicates the lower concentration of alcohol in the person’s breath (not taking into account any samples that, in accordance with this regulation, are to be disregarded).
In particular, counsel for the respondent argues that the prosecution at trial did not satisfy reg 8A(2). In particular, she argued before the Magistrate, as she does before me, that the second blow on the first machine which did not provide a reading but instead words which the operator had not seen before did not indicate an error pursuant to reg 2(a). She argues that there was therefore no basis or power to require the respondent to provide two further samples using a different instrument. Therefore, that request was invalid and the results of the use of the second instrument were also invalid and could not be used for the purposes of the presumption under s 47K of the Act.
It is to be noted, as counsel pointed out both to the Magistrate and myself, that no expert evidence was called concerning the behaviour of the first machine. The Magistrate, at the end of the prosecution case on a submission of no case to answer, held the following:
[21]I do have a doubt as to whether or not there was an error with the machine. I refer to Bell’s own evidence in relation to that. Bell, himself, had a doubt at the time. Indeed, my assessment of his evidence was that it actually falls short of what was put by prosecution in their opening, because the case was put very much on the basis that the second test was conducted because he believed there was an error.
[22]I think his evidence falls short of that. I think, at best, Bell thought that there might have been an error, that there was a possibility of an error and I do not put it any higher than that. When I consider his evidence and observed him giving his evidence I formed the very clear impression from him that, in fact, he tended and leaned towards it being more likely to have been something being done, or not being done, on behalf of Harris. He suspected that was the case. He said he had no way of knowing for certain but I formed the view that he thought it was more likely to be that than an error with the machine.
[23]In any event, as I say, his evidence at its highest is that there might have been an error with the machine and, based on that possibility, he resolved to insist on a re-test of Harris on a second machine.
[24]I pause at this stage to note that prosecution have not produced any expert evidence in relation to the operation of the machine in question. No expert evidence has been placed before me as to, or in an effort to explain, what appeared on the panel. Bell, at one stage in his evidence, indicated that he somehow now realises it was, in fact, an error but the basis for his new-found belief was not explained to me. There is a complete lack of expert evidence in this matter. I can only resolve the matter on the evidence that was presented to me.
[25]For my part, based on that evidence, I am hardly satisfied that there was, in fact, an error with the machine in question.
[26]I am not satisfied that there was an error so as to invoke the provisions of sub‑regulation (2) in Regulation 8A.
Appeal
The appellant argues that although the indication of an error referred to in reg 8A(2a) seems to refer to an error within the machine as distinct from an error from a person blowing into the machine. Nevertheless the Magistrate erred on the facts of this case by finding that the breath analysing instrument did not indicate an error. He argues that the purpose of reg 8A(2) is to guard for situations where the machine has malfunctioned resulting in an error in the analysis of the sample. He argues that that regulation would also cover the situation where the error was such that it was unable to provide an analysis of the sample. That is the case here. He puts that it was never the intention of Parliament that where a machine malfunctioned so that a reading could not be obtained so then the whole process had to be aborted.
Ms Fuller, counsel for the respondent, argues that it was necessary at trial for the prosecution in order to invoke the presumption under s 47K to establish that the use of another breath analysis instrument was authorised under reg 8A. She put that reg 8A is a code governing the conduct of breath analysis and strict adherence is required. She points out that by reference to the use of a different instrument reg 8A(2) when concerning itself with indicating an error in the analysis is confining itself to a malfunction of the machine. If there was some other reason, she argues, for the instrument indicating an error in the analysis then there would be no need for the use of a different instrument. Her argument then proceeds, as it did before the Magistrate, that there was no evidence of the breath analysing instrument in this case indicating an error in the analysis of that nature. The situation, she argues, may have been different if expert evidence was called to interpret the message that was received, but that was not done.
Conclusion
Despite counsel for the respondent’s forceful argument, I find that the Magistrate erred in finding that because no expert was called it followed that he was not satisfied that there was in fact an error with the machine in question. That does not do justice to the evidence that was presented. According to the evidence of Sergeant Bell, he had never experienced the words “blow‑time different” coming up on the screen. Although he himself conceded that he was not totally sure that that was an error from the instrument or whether it was a result of the respondent taking too long to give the second sample. Nevertheless it is, without evidence to the contrary, cogent evidence that the breath analysing instrument indicated an error in the analysis in the sense that it could provide no results. I find that the actions of the police officers in requiring the respondent to provide further samples on a second instrument were within the powers conferred by reg 8A.
I allow the appeal. I set aside the finding of not guilty. I order that there be a retrial before another Magistrate.