Police v Harvey
[1999] SASC 233
•4 June 1999
POLICE v HARVEY
[1999] SASC 233
Full Court: Doyle CJ, Duggan and Debelle JJ
DOYLE CJ, DUGGAN AND DEBELLE JJ. The issue in this appeal is whether the prosecution was entitled to rely on the presumption in s47G(1) of the Road Traffic Act 1961 in relation to the results of a breath analysis test. That issue in turn depends on whether a police officer has complied with s47G(2a) of the Road Traffic Act 1961 which provides:
“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.”
In order to comply with that provision, the police officer operating the instrument must give the prescribed oral advice and deliver the prescribed written notice. If the driver then requests a blood test kit, the police officer must deliver it to the driver.
In this case, the police officer who administered the breath test before handing the driver the written notice, asked the driver if he wished to request a blood test kit. The driver said that he did not. The police officer did not ask the question again after delivering the written notice. The issue is whether, in the circumstances, there was a failure to comply with the requirements of s47G(2a).
The magistrate who heard the matter at first instance held that there had been substantial compliance with the procedures in s47G(2a). He, therefore, convicted the respondent. A judge of this Court allowed an appeal from that decision, holding that s47G(2a) required three steps to be followed in sequence, namely, the oral advice, the delivery of the written notice, and then an enquiry from the police officer whether the driver wished to ask for a blood test kit. As the police officer had not complied with the fundamental pre-requisites in s47G(2a), the prosecution could not rely on the presumption in s47G(1). He, therefore, set aside the conviction. From that decision the complainant appeals.
The relevant facts are not in dispute. On 4 December 1997 the respondent was stopped at a random breath testing station and asked to submit to a breath test by an alcotest unit. The result was positive. He was then required to undertake a further breath test. It produced a reading of 0.118 grams per 100 millilitres of blood. A police officer called Wentiro then gave the prescribed oral advice to the respondent by reading from the prescribed form. Before giving the oral advice, Wentiro told the respondent to stop him at any stage if he did not understand what was being said. The form is in these terms:
“The breathalyser reading just taken shows that you had a prohibited level of alcohol in your blood.
Therefore, it appears that you have committed an offence against section 47B of the Road Traffic Act. In any court proceedings for that offence, or for an offence against section 47 of the Road Traffic Act (driving under the influence of liquor), it will be presumed that the breathalyser accurately indicated your blood alcohol level at the time of the reading and for the preceding two hours. However, the Road Traffic Act allows for contrary evidence based on the results of a blood test.
If you want to have such a blood test you will have to make your own arrangements and follow certain procedures using a special blood test kit. This blood test kit will be supplied to you on your signing a written request.
If you obtain a blood test kit and want to have your blood tested, you should take the kit promptly to a hospital or medical practitioner in order to have a sample of your blood taken.
You must not consume any more alcohol before having a sample of your blood taken and must not open the blood test kit before delivering it to a medical practitioner.
Under the blood test procedure, the sample of blood is divided and sealed in two containers. You will have to sign a form that will be given to you by the medical practitioner.
One of the sealed containers will be given to you and you may make your own arrangements to have the blood in that container analysed.
In any event, the blood in the other container will be analysed by State Forensic Science and you will be given written notice of the results of the analysis.
Further information as to these matters is contained in the written notice which will be delivered to you shortly.”
After giving that advice, Wentiro then asked the respondent if he wished to request a blood test kit. The respondent’s reply was that he did not. Wentiro then completed and handed to the respondent the prescribed written notice. Wentiro then asked the respondent if he wished to read notes that Wentiro had made of his conversation with the respondent. The respondent replied that he did not. Wentiro then handed the respondent over to another police officer and had no further dealing with him.
Wentiro agreed in evidence that it was not his practice to give a person whose breath was analysed an opportunity to read the prescribed written notice. But there is no suggestion in the evidence that the respondent was denied the opportunity to read the prescribed written notice had he wished to do so, or that he thought he was not permitted to read it then and there if he wished to do so. Nor does the respondent suggest in his evidence that he was denied the opportunity to read the prescribed written notice immediately after he left Wentiro. The evidence was that the respondent spent some moments after that with the police officer who had administered the alcotest, giving to that officer certain personal particulars that were sought from him.
The respondent said that he did not read the prescribed written notice at the scene, but only when he got home a short time later. The respondent did not say that anything prevented him from reading the notice while at the scene. Nor did he say that he believed that, having declined to ask for a blood test kit when questioned by Wentiro, he thought that he could not change his mind and ask for one. He did say that as he was driving away he might have thought to himself that perhaps he should have asked for a blood test kit. When asked why he did not return to the breath test unit to get a kit he said:
“I probably figured it was all over, it was too late to do that.”
There is no reason to think that the timing of Constable Wentiro’s question caused him to think that.
The written notice is in these terms:
“OPERATION OF ROAD TRAFFIC ACT IN RELATION TO RESULTS OF BREATH ANALYSIS
1...... Offence
A person commits an offence against section 47B(1) of the Road Traffic Act 1961 if the person -
......... (a) drives a motor vehicle; or
(b)attempts to put a motor vehicle in motion,
......... while there is present in his or her blood the prescribed concentration of alcohol (as defined in section 47A of the Act).
2.Breath analysis
......... Your breath has just been analysed by means of a breath analysing instrument which indicated that the prescribed concentration of alcohol was present in your blood.
Accordingly, it appears that you have committed the offence described above.
3...... Legal effect of breath analysis result
In proceedings for the offence described above or an offence against section 47(1) of the Road Traffic Act 1961 (driving under the influence of liquor), the result of the breath analysis will be presumed to accurately record the concentration of alcohol in your blood at the time of the analysis and throughout the preceding 2 hours (section 47G(1), (1ab)).
......... In any proceedings against you for such an offence, you will be able to challenge the accuracy of the breath analysis reading -
·...... if you have a sample of your blood taken and analysed as described below
AND
·...... if the result of analysis of the blood sample shows that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in your blood (section 47G(1a)).”
The document then goes on to set out the procedures for an optional blood test stating that the person must sign a written request for the kit.
As we have already mentioned, the respondent’s evidence was that he did not read the notice when it was handed to him. However, he read it after he had returned home. In the course of examination-in-chief, the magistrate asked the respondent some questions concerning his understanding of the oral advice.
“Q.... As the officer was reading the rights to you, that is the statement that was timed earlier today, did you understand what he was saying to you.
A... Yes.
Q... You were listening to what he was saying.
A... Yes.
Q... What he was saying was making sense.
A... Yes, he was going fairly fast, I was picking up probably pertinent points.
Q... What did you understand the advice to be.
A... That I had a right to a blood test that I obviously submitted to a test in a booze bus which was over the legal limit if I wished I could have a blood test kit and go to a doctor or a hospital.
Q... Did you understand that advice that was given to you, by way of a blood test.
A... Yes.
Q... Did you understand that in the event an independent blood test was the only method by which that reading might be challenged, that is the reading of the breath analysis.
A... Yes, I understand that.
XN
Q... That understanding, did that arise from the oral advice that was given to you.
A... Probably more so after I read the information in detail. When I got home.
Q... What time was that.
A... Probably roundabout 10.30 p.m.”
After a short adjournment, the magistrate resumed his questions.
“Q.... Your understanding is at the time or shortly after the rights were read to you that was the issues I was canvassing, I asked you firstly whether you understood the tenor of the rights, whether you understood it was being put to you that blood testing was an option to check the accuracy of a blood reading, did you understand that at the time the rights were being read.
A... Yes.
Q... Did you understand that as I have just said by way of a blood test, a method of double checking existed.
A... Yes.
Q... Did you understand that if you were to challenge a BA reading in court, that the only effective method of challenging was by way of an independent blood assessment.
A... I believe I did at the time, it is very difficult.”
Three questions later in cross-examination-in-chief the respondent was asked if his understanding had changed after reading the notice. The respondent said that it had not. These extracts from the evidence show that the respondent understood that his ability to challenge the breath analysis depended on his obtaining a blood test kit and following the required procedures. In this context it is relevant to note that, upon returning home, the respondent could have decided to return to the breath testing station and request a blood test kit: Tann v Shield (1990) 54 SASR 523 at 530.
Mr Edwardson, who appeared for the respondent, placed reliance on the fact that the written notice contains more information than is provided in the oral advice. But that is of no consequence since the written notice was delivered almost immediately after the oral advice. There was no impairment of or interference with the respondent’s right to read the written notice.
Section 47G(1) enables the prosecution to rely on a statutory presumption. That presumption is available only if the conditions precedent to its operation have been proved: Taylor v Daire (1982) 30 SASR 453. The conditions precedent are that “the requirements and procedures in relation to breath analysing instruments and breath analysis” under the Act and including subs(2) and (2a) of s47G have been complied with. These prerequisites do not give rise to the exercise of the discretion of the kind noted in Bunning v Cross (1978) 141 CLR 454. The issue is not the admissibility of evidence but the ability to rely on a statutory presumption. As Wells J observed in Taylor v Daire (supra) at 473:
“In short, whether or not the prosecution will be able to rely on the presumption will depend exclusively upon whether it can be proved that the police officers concerned obey the injunction laid on them by s(1) of s47g to comply with the requirements and procedures in relation to breath analysing instruments and breath analysis under the Act - in particular, s(2) and (2a) (supra). In my opinion, no question of judicial discretion arises when a court is determining whether the presumption is to be applied; if the foregoing conditions precedent to its successful invocation have been proved, the presumption ipso facto applies; if that proof fails, the presumption is lost.”
Although Taylor v Daire concerns s47g, that provision is the statutory predecessor of s47G and is in substantially identical terms. See also Eubel v Martin (1992) 57 SASR 290 at 295.
The only explicit requirements in s47G(2a) are to give the oral advice, deliver the written statement, and, if the driver requests a blood test kit, to deliver it to the driver. With respect, the decision of the judge below is incorrect in implying into the procedures prescribed by s47G(2a) a requirement for the police officer to ask if the driver wishes to have a blood test kit. There is nothing in either s47G(2a) or in the Road Traffic (Breath Analysis and Voluntary Blood Test) Regulations 1994 (“the Breath Analysis Regulations”) which imposes such a duty. Had Parliament intended that the police officer must make such an inquiry, it could have included that requirement. Care should be taken not to read additional requirements into the legislation lest it defeat the Parliamentary intention.
That is not to say that the operator of the breath analysing instrument may not or should not enquire whether the person wishes to be given a blood test kit. The point to be emphasised is that there is no statutory obligation to ask that question. Nor is there a statutory obligation to invite the person to read the prescribed written information.
It is implicit in s47G(2a) that the person whose breath is analysed will be allowed to read the prescribed written notice if the person wishes to do so. It is also implicit in s47G(2) that the person will be given the opportunity to request delivery of a blood test kit, after the giving of the prescribed oral advice and after the delivery of the prescribed written notice. Of course, a valid request can be made an earlier time.
But there is no obligation on the police officer to invite the person to read the prescribed written notice. The failure to do so is not a breach of the requirements of s47G(2a). Nor is there any obligation, after delivering a prescribed written notice, to enquire whether the person wishes to be given a blood test kit. We respectfully differ from the judge below on both points.
If the manner in which Wentiro dealt with the respondent amounted to a refusal to permit the respondent to read the prescribed written notice, or amounted to a denial of the opportunity to make the request for a blood test kit, the requirements of s47G(2a) would not have been met. But there is no finding by the magistrate, and nothing in the evidence, to support the view that either of these things occurred. The magistrate has found that after being given the prescribed oral advice the respondent understood his rights. He had been told that he was about to be given further information about his rights in a written notice. There is no reason why the asking of the question at that stage should convey the impression that he was being called upon to make an irreversible election. The respondent did not suggest anything like this in his evidence. The respondent was then given the prescribed written notice. He did not seek to read it at the time, and there is no suggestion that he was prevented from doing so if he wished to do so. He does not say that he did not have the opportunity to read the notice.
Our conclusion is that Wentiro complied with s47G(2a). He gave the oral advice and handed the respondent the written notice. The fact that he asked the respondent if he wished to request the blood test kit before he had delivered the written notice does not have the consequence that there has been a failure to comply with the statutory procedure. Wentiro did nothing which qualified or altered the effect of the oral advice or the written notice. That is apparent from the respondent’s evidence that he understood what his rights were after he had heard the oral advice. He had an opportunity to reinforce that understanding by reading the written notice. For these reasons, Wentiro complied with the procedures prescribed by s47G(2a).
The respondent placed some reliance on the fact that Wentiro had given evidence that it was not his usual practice to give the driver an opportunity to read the written notice. There is no suggestion that Wentiro absented himself on this occasion in a way which prevented the respondent from requesting the blood test kit. In any event, if the officer who delivers the written notice is not available, the request can be made to another police officer: see reg 5(1) of the Breath Analysis Regulations.
The question of whether substantial compliance with the requirements of s47G(2a) is sufficient does not arise in this case: cf Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24 and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 860. Nor does the question of whether there is a discretion to exclude the evidence of the result of the breath analysis on the ground that it would be unfair to admit the evidence: cf Police v Jervis (1998) 70 SASR 429. It does not arise because the requirements of the provision were met.
For these reasons, we would allow the appeal. We would make an order setting aside the decision of the judge below and restoring the decision of the learned magistrate convicting the appellant.
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