Police v Harvey - [1999] SASC 233

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…

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 Harvey

Details

AGLC: Police v Harvey [1999] SASC 233
Case: [1999] SASC 233
Decision Date: 4 June 1999

CaseChat Overview and Summary

The matter before the Court was an appeal against a decision that overturned a conviction for drink driving. The appeal centred on the interpretation of s47G(2a) of the Road Traffic Act 1961, which sets out the requirements for the use of breath analysis in determining blood alcohol levels for driving offences. The central issue was whether the police officer administering the breath test had complied with the statutory requirements by asking the respondent if they wished to request a blood test kit before delivering the prescribed written notice. The lower court had ruled that there had been non-compliance with the statutory requirements, leading to the overturning of the conviction. The prosecution appealed this decision.

The key legal issue was the interpretation of s47G(2a) and whether the statutory requirements had been followed in sequence as prescribed. Specifically, the Court had to determine if the police officer was required to ask the respondent if they wished to request a blood test kit before delivering the prescribed written notice. The Court also needed to consider whether the failure to invite the respondent to read the prescribed written notice or to ask if they wished to request a blood test kit constituted a breach of the statutory requirements.

The Full Court held that the statutory requirements under s47G(2a) only explicitly mandated the delivery of oral advice, the delivery of the written notice, and the provision of a blood test kit upon request. There was no obligation for the police officer to ask if the respondent wished to request a blood test kit before delivering the written notice. The Full Court found that the police officer had complied with the statutory requirements by delivering the oral advice and the written notice, and that the manner in which these were delivered did not amount to a denial of the respondent's opportunity to request a blood test kit. The Court concluded that the lower court's decision to overturn the conviction was incorrect.

The Full Court allowed the appeal, setting aside the decision of the judge below and restoring the original conviction by the magistrate. The Court emphasised that the statutory requirements were met, and there was no basis for excluding the breath analysis evidence on the grounds of unfairness. The decision underscored the importance of strictly adhering to statutory procedures without reading additional obligations into the legislation.

Orders