Police v Hepenstall No. Scciv-02-915

POLICE v HEPENSTALL
[2002] SASC 284
Magistrates Court: Criminal

PERRY J. (ex tempore) This is an appeal by the police against the conviction and sentence imposed upon the respondent in the Magistrates Court sitting at Adelaide on a charge against the respondent that on 25 February 2001 at Goodwood Road, Adelaide he drove with an excess blood alcohol concentration contrary to s 47B of the Road Traffic Act 1961 (“the Act”).
The complainant alleged that the concentration of alcohol was 0.088 grams per 100 millilitres of blood. (For convenience I will hereafter refer to blood alcohol concentrations by use of a percentage sign.)
The defendant pleaded not guilty.
After hearing the evidence, the learned trial magistrate found that at the time of driving, the blood alcohol level of the defendant was 0.07% or thereabouts. He imposed a conviction and a fine of $100.
For the purposes of penalty, the importance of the concentration of blood alcohol is that where there is a blood alcohol concentration in excess of 0.05% but less than 0.08%, the offence is described as a category 1 offence, for which the penalty (for a first offence) is a maximum fine of $700.
If on the other hand the concentration is not less than 0.08% but less than 0.15%, it becomes a category 2 offence, which (for a first offence) attracts a fine of not less than $500 and not more than $900, and disqualification from holding or obtaining a driver’s licence for a period of not less than six months.
Effectively the appellant complains that the learned trial magistrate erred in his finding as to the blood alcohol level, and should have held that it was of the order alleged, that is 0.088%. Such a finding would have resulted in the appellant being subject to the higher penalty involved for a category 2 offence.
At the hearing, the case for the prosecution was presented on paper in the sense that no oral evidence was called. The prosecutor relied upon various certificates which had been issued pursuant to s 47 of the Act, a statement of Sergeant Anthony Flavell, and copies of various government gazettes.
The evidence tendered by the prosecutor proved that at about 5.00 am on the day in question the respondent was driving a motor car on Goodwood Road when he was stopped by police officers manning a breath testing station. About twenty minutes later he was subjected to a breath test for alcohol with a hand held device, which indicated a reading of 0.063%.
At 5.42 am he was subjected to a breath analysis, which indicated the reading which was charged in the complaint, namely 0.088%.
On that evidence, the learned trial magistrate found that there was a prima facie case.
The respondent thereupon elected to give evidence, in the course of which he explained the history of his drinking from about 10.00 pm on the night before the morning in question. As well, he indicated that a blood sample taken at 6.58 am, which was just within the two hours following the time when he was stopped at the breath testing station, indicated on subsequent analysis a blood alcohol level of 0.072%.
The respondent also tendered in evidence a report which had been furnished by a forensic scientist, Dr Robert Lokan and called Dr Lokan to give oral evidence. In his report, after referring to the quantity of alcohol which the respondent asserted he had been drinking, and to the outcome of the hand held alcotest, the breath test and the analysis of the blood sample, Dr Lokan expressed the following conclusion:
“No formula exists to accurately calculate an individual’s blood alcohol concentration at some point in time prior to a breath or blood test. All that can be done is to use experimental data derived from drinking studies to calculate an estimate of the likely and minimum blood alcohol concentrations within the limits of the information available.
Following the cessation of drinking, your client’s blood alcohol concentration would have continued to rise for a period of time to a maximum concentration and soon thereafter begun to fall at a roughly steady rate. Both the time taken to reach his maximum concentration and the magnitude of the rise after the finish of drinking are unknown. However, both the relatively short interval of fifteen minutes between the finish of drinking and the time of driving and the proximity of the breath and blood test results suggest that your client’s blood alcohol concentration continued to rise after the time of driving. In this context, it is interesting to note that the screening test conducted at 5.20 am yielded a result of 0.063%. While this result cannot be taken as accurate, it does lend support to the proposition that your client’s blood alcohol concentration was rising after the time of driving.
Assuming average values for the parameters which determine the change in blood alcohol concentration with time, your client’s blood alcohol concentration was probably about 0.07% at the time of driving at 5.00 am, but this should not be regarded as a firm figure. Assuming the extreme values for these parameters which would lead to the minimum estimate, it is unlikely that his blood alcohol concentration was less than 0.05% at this time.”
In his oral evidence Dr Lokan held fast to the conclusion that at the time the respondent was stopped at the breath testing station, it was likely that his blood alcohol concentration was “very probably less than 0.08% ... and probably about 0.07%”.
What is important to note is that at no stage did Dr Lokan challenge the accuracy of the breath analyser test outcome. On the contrary, he assumed the accuracy of the breathalyser reading as part of the data upon which he arrived at his conclusion as to the likely blood alcohol concentration at the time of driving.
Indeed, during he course of his cross-examination, as Mr Grant counsel for the appellant has pointed out, Dr Lokan said specifically, “I can find no evidence that the [breath] test result is incorrect”. Furthermore, in his own evidence, the respondent said, “It’s not being disputed that I was 0.088 at 5.42”.
Against that background, the learned trial magistrate found the following:
“3.Given Dr Lokan’s report, I am not satisfied beyond reasonable doubt that as at the time of driving, the defendant’s reading was .088. In my view, Dr Lokan’s report and the certificate of analysis [of the respondent’s blood] .... displace the presumption. In any event I am not satisfied beyond reasonable doubt that at the time of driving, the defendant’s blood alcohol reading was .088. The prosecution have the onus of establishing their case beyond reasonable doubt.
4.It is clear, however, from Dr Lokan’s report that the probabilities are that as at the time of driving, the blood alcohol reading of the defendant was 0.07. The defendant himself is conceding that probability, which I interpret to indicate a plea of guilty but on the basis of a reading of 0.07.
5.In the circumstances, I am satisfied that at the relevant time the defendant was driving with a blood alcohol content in excess of the legal limit. I amend the complaint. In lieu of 0.088, I insert 0.07. I would find the charge proved on that basis.”
In my opinion, the reasoning adopted by the learned trial magistrate was flawed and not in accordance with the relevant provisions of the Act.
In the circumstances, it is sufficient to refer to the first three subsections of s 47G. They are 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.
(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 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.
(1ab)If it is proved in proceedings that a concentration of alcohol was present in the defendant’s blood at the time of a breath analysis, it must be conclusively presumed that that concentration of alcohol was present in the defendant’s blood throughout the period of two hours immediately preceding the analysis.
It is common ground that the requirements of s 47G(1) were met, and properly gave rise to the presumption which resulted in the ruling that there was a prima facie case. The provisions of s 47G(1a) are, however, all important in this case. The effect of that subsection is to prohibit the receipt of evidence “in rebuttal of the presumption” created by s 47G(1), unless the evidence answers to the description in s 47G(1a)(b).
Pursuant to s 47G(1a)(a), evidence was admissible to indicate the outcome of the analysis of the sample of blood taken from the respondent. But the difficulty which the respondent faces is that it was never suggested that the evidence of the blood analysis demonstrated that the breath analysing instrument “gave an exaggerated reading of the concentration of alcohol present” in the respondent’s blood.
The expression “exaggerated reading” must relate to the reading as at the time the breath analysis is performed.
In other words, what s 47G(1a)(b) is directed towards is to permit as the only exception to the prohibition of evidence rebutting the presumption created by the preceding subsection, the receipt of evidence demonstrating that the breath analysing instrument is faulty. More particularly, that it is, “inaccurate in the sense that the concentration indicated was greater than the actual concentration at the time”.[1]
[1] Evans v Benson (1986) 46 SASR 317 at 323 and Police v Shelmerdine (2000) 76 SASR 199 at 202.
Neither Dr Lokan’s report nor his oral evidence, nor any other evidence in the case, demonstrated, or even attempted to demonstrate, that the breath analysing instrument was inaccurate in that sense. On the contrary, as I have indicated, the evidence of both Dr Lokan and of the respondent, assumed or conceded the accuracy of the machine.
The learned trial magistrate fell into error in directing his mind to the question of the likely blood alcohol reading at the time the respondent was driving, more particularly at the time he was stopped at the breath testing station, by reference to the reconstruction performed by Dr Lokan. The question is not what the likely blood alcohol reading was at the time of driving by reference to the evidence at large. The relevant questions are, what reading was demonstrated by the breath analyser, and has it been shown that it was an exaggerated reading?
Absent evidence demonstrating that the breath analysing instrument gave an exaggerated reading, s 47G(1ab) creates a conclusive presumption that the concentration of alcohol indicated by the breath analysis was present in the defendant’s blood throughout the period of two hours immediately preceding the analysis.
Mr Hepenstall, who appeared in person on the hearing of the appeal, contended that he had made out a defence which was recognised by the terms of s 47B(2). That section has been repealed, the repeal effective from 27 May 2002. However, it was in force at the time this offence is alleged to have been committed.
At that time the subsection read:
“For the purposes of this section, if it is established that there was present in the blood of a person charged with an offence under sub-s (1), the prescribed concentration of alcohol as defined in s 47a at any time within two hours after that offence is alleged to have been committed, it shall be presumed, unless the court before which the person is charged, from the evidence before it, draws a reasonable inference to the contrary, that there was present in the blood of the person that prescribed concentration of alcohol at the time the offence is alleged to have been committed.”
That subsection is referred to and discussed in the judgment of King CJ in Evans v Benson (supra).[2] The inter-relationship between the presumption created by that subsection and the presumptions created by s 47G is there explained. It is clear from the analysis of the two provisions offered by King CJ, that in cases where there has been the administration of a breath analysis, it is the presumptions arising under s 47G which must be given full effect to.
[2] Ibid at 324-325.
The presumption under s 47B(2) countenances that an excessive concentration of alcohol may be found to have been present in the blood of a person charged with an offence under s 47(1), by evidence other than evidence of the result of breath analysis. In such circumstances, where a breath analysis has not been administered, until its repeal, s 47B(2) enabled evidence to be given in rebuttal by any means, such as forensic scientific reconstruction of the probabilities of the extent of the blood alcohol reading, having regard to drinking history and the like.
But that is not the case here. In this case, the learned trial magistrate was bound to apply s 47G and the relevant subsections to which I have referred. In particular, he was obliged to give full effect to the restriction upon evidence in rebuttal which finds expression in s 47G(1a).
For the reasons which I have given, the evidence in this case fell short of satisfying the requirements of s 47G(1a)(b), and accordingly the learned trial magistrate should have proceeded on the footing that at the time of driving, the blood alcohol concentration was 0.088%.
In the result, the penalty should have been in accordance with a category 2 offence.
I would allow the appeal for the purpose of quashing the order under appeal, including the penalty imposed by the learned trial magistrate, and substitute a finding that the blood alcohol concentration present in the blood of the respondent at the time he was stopped at the breath analysis station was of the order of 0.088%.
The question then arises as to what penalty should be imposed.
[AFTER HEARING SUBMISSIONS AS TO PENALTY]
I have heard the respondent as to the circumstances in which he works and uses his licence in the course of his employment. He has indicated that he uses his driver’s licence in the course of his work about twice a month, to drive from the bank branch at which he works at Lockleys to the city and other places. But he has indicated that he would expect the bank to agree to alternative arrangements for the period of his suspension.
I impose a fine of $500. The respondent will be disqualified from holding or obtaining a driver’s licence for six calendar months, commencing on Tuesday 13 August 2002.
I direct that the respondent produce his driver’s licence within seven days to the Registrar of the Magistrates Court sitting at Adelaide, for the purposes of such endorsement, if any, as may be appropriate.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. Evans v Benson (1986) 46 SASR 317 at 323 and Police v Shelmerdine (2000) 76 SASR 199 at 202.
2. Ibid at 324-325.

[2002] SASC 284

12 August 2002