Police v Henwood

Case [2005] SASC 209

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v HENWOOD

Judgment of The Honourable Chief Justice Doyle

9 June 2005

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE

An appeal by the Police from a decision of a Magistrate dismissing a complaint - the Magistrate excluded evidence of breath analysis on the basis that requirements and procedures under the Road Traffic Act 1961 had not been complied with - those requirements and procedures were contained in the Police General Order 8760 and required that a further 15 minute waiting period be observed if the subject to be tested belched - on appeal whether those requirements and procedures were required under the Act for the purposes of s47G(1) and the admissibility of evidence - also discussion on whether the machine might not have been properly operated for the purposes of s47G(3)(b)(ii) if the waiting period was not observed - appeal allowed.

Road Traffic Act 1961 (SA) s 47A, s 47B, s 47G, s 47DA, s 47E, s 47EA; Police Act 1988 (SA) s 6, s 11; Acts Interpretation Act 1915 (SA) s 4, s 14BA; Road Traffic (Miscellaneous) Regulations 1999 Reg 8A, referred to.
Manetta v Police (1999) 74 SASR 329, applied.
Ozbinay v Crowley (1993) 17 MVR 176; Fitzgerald v Howey (1996) 24 MVR 369; Evans v Benson (1986) 46 SASR 317, discussed.
Richardson v Fingleton (1980) 24 SASR 511; Williams v Jacobs (1999) 29 MVR 244; Charles v Koetsier (1994) 20 MVR 381, considered.

POLICE v HENWOOD
[2005] SASC 209

Magistrates Appeal:  Criminal

  1. DOYLE CJ:          This is an appeal against a decision by a Magistrate dismissing a complaint.

  2. The complaint alleged that Mr Henwood on 5 October 2002 drove a motor vehicle while there was present in his blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961 (SA) (“the RTA”), contrary to s 47B of that Act. Mr Henwood pleaded not guilty to the charge.

  3. The prosecutor proposed relying on evidence of the concentration of alcohol indicated as being present in the blood of Mr Henwood as a result of a breath analysis carried out using a breath analysing instrument. The admissibility of such evidence is provided for by s 47G(1) of the RTA. That provision also creates a presumption, based on the result of the breath analysis, in aid of proof of the offence in question. Section 47G(1a) of the RTA limits the evidence that can be adduced to rebut that presumption.

  4. At the outset Ms Fuller, counsel for Mr Henwood, informed the Magistrate that she proposed to submit that the statutory presumption did not arise in the circumstances because certain requirements or procedures relating to breath analysis, by s 47G(1) made a condition of the availability of the statutory presumption, had not been observed.

  5. The Magistrate agreed to deal with the point at the outset.  The prosecutor did not oppose this course.  The…

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Police v Henwood [2005] SASC 209
Case
[2005] SASC 209
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CaseChat Overview and Summary

In the case of Police v Henwood, the appellant, the Police, sought to appeal a decision by a Magistrate who dismissed a complaint against the respondent, Mr Henwood. The complaint arose from Mr Henwood being stopped at a breath testing station and subsequently failing a breath analysis test for alcohol. The Magistrate dismissed the complaint, excluding the evidence of the breath analysis on the basis that the requirements and procedures under the Road Traffic Act 1961 (SA) had not been complied with. Specifically, the Magistrate found that a 15-minute waiting period should have been observed after Mr Henwood belched before the breath analysis was conducted.

The legal issues before the court involved interpreting the requirements and procedures for breath analysis under the Road Traffic Act and the Police General Order 8760. The primary issue was whether the waiting period mandated by the Order was a statutory requirement under the Act and whether it affected the admissibility of the breath analysis evidence under section 47G(1) and 47G(3)(b)(ii) of the Act. The court had to determine if the waiting period was essential for the proper operation of the breath analysis machine and if its non-observance rendered the breath analysis results inadmissible.

The court found that the Police General Order 8760 did not establish requirements or procedures in relation to breath analysing instruments and breath analysis under the Road Traffic Act. The court concluded that the 15-minute waiting period after belching was not a statutory requirement but rather a procedure established by the Commissioner of Police for the management of SA Police. Despite this, the court held that the Magistrate's exclusion of the breath analysis evidence was incorrect. The court allowed the appeal, finding that the breath analysis evidence was admissible and could prove the offence charged.

The court's decision highlighted the importance of clear reasoning and articulated findings of fact by magistrates when dealing with preliminary points and the admissibility of evidence. The appeal underscored the distinction between statutory requirements and procedural guidelines issued by the Commissioner of Police. Ultimately, the appeal was allowed, and the breath analysis evidence was deemed admissible.

Orders

Orders of the court

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Background

Background to the litigation

It seems to me that the true position, on the Magistrate’s approach, was that the evidence of the result of the breath analysis was admissible, but could not prove the offence charged because the statutory presumption did not apply, and there was no other evidence to prove the significance of the result of the breath analysis. I doubt whether it was appropriate to deal with the issue as a preliminary point. It was, in substance, simply an aspect of the plea of “not guilty”. However, no point was taken on appeal about this aspect of the case.Facts On 5 October 2002 at about 3.30 am Mr Henwood was stopped at a breath testing station. He was required to submit to an alcotest. The alcotest indicated that the prescribed concentration of alcohol might be present in his blood. He was then required to submit to a breath analysis. All of this was authorised by s 47E of the RTA. At 3.49 am Mr Henwood was taken to the operator of a breath analysing instrument, for the purposes of a breath analysis. A breath analysis was carried out between 3.54 am and 3.58 am. The breath analysing instrument indicated that the concentration of alcohol in Mr Henwood’s blood was 0.093 grams of alcohol in 100 millilitres of blood. Mr Henwood gave evidence that he belched immediately before he stepped into the van containing the breath analysing instrument. He described the belch as quiet or silent. Neither the police officer who administered the alcotest, nor the police officer who administered the breath analysis, had told Mr Henwood not to belch, or that he should inform them if he did belch. They said that if they had been aware that Mr Henwood belched they would have waited a further 15 minutes before the breath analysis test was administered. They acknowledged that Mr Henwood might have belched without them being aware of it. The breath analysis must have been conducted between five minutes and nine minutes after the belch. The Magistrate’s decision The Magistrate upheld a submission that a requirement or procedure for conducting a breath analysis was that at least 15 minutes elapse from the time of the belch until the provision of the breath sample for analysis, and that this requirement had not been observed. The Magistrate gave no reasons for his decision. He indicated that he accepted submissions made by Ms Fuller. It would have been better if the Magistrate had given reasons, although those reasons could have been brief. A decision on the issues raised by Ms Fuller assumes that certain findings of fact (along the lines outlined above) have been made, and that the Magistrate has reached certain conclusions in relation to the application of s 47G(1). In the present case it is sufficiently clear what the Magistrate must have decided. But, in my experience, the approach taken by the Magistrate will mean on occasions that an appeal cannot be dealt with satisfactorily, as a result of some uncertainty arising as to the precise basis of the Magistrate’s decision. This is particularly so when, as here, the Court has to deduce the findings of fact that the Magistrate must have made.

Evidence

Evidence Before The Court

The most obvious examples of such a requirement or procedure are to be found in s 47G(2) and s 47G(2a), which provide as follows:47G Evidence…(2) As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying—(a) the reading produced by the breath analysing instrument; and(b) the date and time of the analysis.(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.…”Other relevant provisions are s 47E(2) and s 47E(2c), each of which requires a breath analysis to be commenced within two hours after a specified event. There may be others in the RTA. The Order is obviously not a requirement or provision of this kind, imposed by (or to be found in) the RTA itself. I have set out above the provisions of s 47DA. Subsections (2) and (4) authorise and require the Commissioner to issue instructions or directions or to establish procedures for the purposes specified. Parts of the Order are clearly intended to exercise the authority conferred by these subsections, and to discharge the Commissioner’s obligation under those subsections. It is not necessary to set out these parts of the Order. To this extent the Order can be said to be made under the RTA. But s 47DA does not authorise the Commissioner to establish “requirements and procedures in relation to breath analysing instruments and breath analysis under” the RTA. It authorises and requires him to establish procedures directed to the safe conduct of alcotests and directed to minimising delay and inconvenience for persons stopped at a breath testing station. Ms Fuller argues that because s 7.4 of the Order deals with the topic of when a breath analysis can be undertaken after an alcotest, it can be said to establish a procedure in connection with a breath testing station. That much can be conceded. The difficulty that she faces is that s 47DA does not authorise the establishment of procedures in relation to breath analysing instruments. To specify a minimum period of time that must be allowed to elapse between a specified event and the performance of an alcotest and the performance of a breath analysis is not to establish a procedure to be followed at a breath testing station that is designed to prevent undue delay or inconvenience to persons stopped at the station.

Decision

Reasons for decision

The breath analysis must have been conducted between five minutes and nine minutes after the belch. The Magistrate’s decision The Magistrate upheld a submission that a requirement or procedure for conducting a breath analysis was that at least 15 minutes elapse from the time of the belch until the provision of the breath sample for analysis, and that this requirement had not been observed. The Magistrate gave no reasons for his decision. He indicated that he accepted submissions made by Ms Fuller. It would have been better if the Magistrate had given reasons, although those reasons could have been brief. A decision on the issues raised by Ms Fuller assumes that certain findings of fact (along the lines outlined above) have been made, and that the Magistrate has reached certain conclusions in relation to the application of s 47G(1). In the present case it is sufficiently clear what the Magistrate must have decided. But, in my experience, the approach taken by the Magistrate will mean on occasions that an appeal cannot be dealt with satisfactorily, as a result of some uncertainty arising as to the precise basis of the Magistrate’s decision. This is particularly so when, as here, the Court has to deduce the findings of fact that the Magistrate must have made. That is why it is preferable to provide reasons if an appeal is instituted, rather than merely indicate that counsel’s submissions have been accepted.The issue on appeal By s 6 of the Police Act 1998 (SA) the Commissioner of Police is responsible for the control and management of SA Police, a statutory term used to describe what used to be called the Police Force. Section 11 of that Act provides that the Commissioner may make “general or special orders … for the control and management of SA Police”. The Commissioner has made General Order 8760 (“the Order”). It is headed “Random Breath Testing Operating Instructions”. The Order begins with a reference to subsections (1) and (2) of s 47DA of the RTA. These provisions empower the establishment of breath testing stations, and require the Commissioner to establish a breath testing station in such a way as “… to enable vehicles to be stopped in a safe and orderly manner and the alcotests to be made in quick succession”. Then the Order refers to subsection (4) of s 47DA, which requires the Commissioner to establish procedures “… designed to prevent as far as reasonably practicable any undue delay or inconvenience to persons stopped at the station”. The Order itself runs to 16 pages. It is broken up into nine sections. Much of the Order is concerned with the manner in which a random breath testing station is to be set up, and how it is to be conducted. As would be expected, directions are given in relation to safety, and in relation to matters calculated to implement the statutory requirements referred to above. Section 7 of the Order gives instructions as to the procedure to be followed if the alcotest is “positive”. Section 7.4 provides as follows:7.4 Waiting PeriodYou must allow at least 15 minutes from the last intake of alcohol to the time the breath sample for analysis is provided. This waiting time also applies if anything is taken by mouth (includes any medication, ventolin, etc) after the alcotest and before the subject submits to a breath analysis.The 15 minute waiting period is also necessary after vomiting or belching. Rinsing the mouth with water does not reduce the time needed before the person can be tested.I will refer to the 15 minute period as “the waiting period”.

Ratio Decidendi

Legal Principle Established

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