Police v Irlam - [2021] SASCFC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
POLICE v IRLAM
[2021] SASCFC 13
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, the Honourable Justice Stanley and the Honourable Justice Doyle)
26 February 2021

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE - BREATH TEST AND ANALYSIS
TRAFFIC LAW - OFFENCES - EVIDENCE - OTHER MATTERS
The respondent (Mr Irlam) was charged with failing to comply with all reasonable directions of a police officer in relation to a requirement to submit to an alcotest, in contravention of s 47E(3) of the Road Traffic Act 1961 (SA).
Following a trial, a Magistrate found that there was no case to answer and dismissed the charge. Her Honour did so on the basis that the prosecution had not adduced any evidence that the apparatus into which the respondent was directed to exhale was an apparatus that had been approved for the conduct of alcotests pursuant to the Road Traffic Act.
The appellant (Police) appeals from the order of the Magistrate dismissing the charge against the respondent. The respondent contends, by way of alternative contention, that the Magistrate’s order can be sustained on additional bases.
The appellant’s three grounds of appeal, and the respondent’s first alternative contention, all concern the issue of whether proof of a contravention of s 47E(3) of the Road Traffic Act requires that the prosecution prove that the device the police officer used to carry out the alcotest was an apparatus of a kind approved by the Governor for the conduct of alcotests.
The second alternative contention relied upon by the respondent is based upon a contention that the police officer countermanded or modified her initial direction, such that the prosecution did not establish that the respondent failed to comply with that direction, or at least did not do so without reliance upon the output of the apparatus which it had not proven was of the type approved by the Governor for the conduct of alcotests.
Held, per Doyle J (Kelly and Stanley JJ agreeing):
1. For the reasons given in Police v Pocius (2018) 84 MVR 88; [2018] SASC 38, the reference in the legislation to an alcotest is intended to be descriptive of the direction with which compliance is required, and prospective in nature. It does not connote, nor is there any other textual basis for, a requirement that the instrument used, or intended to be used, be one approved by the Governor.
2. Understood in context, the words of the police officer in this case cannot sensibly be construed as modifying the earlier direction that she gave the respondent. The failure to comply with the direction was established by the failure to exhale until told to stop, and did not rely or depend upon any output from the apparatus used, let alone proof that the apparatus that produced that output was an approved apparatus.
3. The appeal is allowed, the order of the Magistrate dismissing the charge is set aside, a verdict of guilty is substituted, and the matter is remitted for sentencing before a Magistrate.
Road Traffic Act 1961 (SA) ss 47A(1), 47E, 47E(1), 47E(3), 47E(4), 47EA(1)(c), referred to.
Police v Pocius (2018) 84 MVR 88 ; Police v Bleeze (2012) 112 SASR 568 ; Cwerwinski v Hayes (1987) 47 SASR 44 , considered.

POLICE v IRLAM
[2021] SASCFC 13

Court of Criminal Appeal: Kelly, Stanley and Doyle JJ

KELLY J: I agree with the orders proposed by Doyle J and with the reasons he has given.
STANLEY J: I would allow the appeal. I agree with the reasons of Doyle J and with the orders he proposes.
DOYLE J: The respondent (Mr Irlam) was charged with failing to comply with all reasonable directions of a police officer in relation to a requirement to submit to an alcotest, in contravention of s 47E(3) of the Road Traffic Act 1961 (SA).
Following a trial, the Magistrate found that there was no case to answer and dismissed the charge. Her Honour did so on the basis that the prosecution had not adduced any evidence that the apparatus into which the respondent was directed to exhale was an apparatus that had been approved for conducting an alcotest pursuant to the Road Traffic Act.
The appellant (Police) appeals from the order of the Magistrate dismissing the charge against the respondent. The appeal has been referred to this Court for hearing and determination.
The appellant appeals against the order of the Magistrate on grounds that allege that the Magistrate erred:
1. in dismissing the charge;
2. in finding no case to answer; and
3.in finding that proof of the offence under s 47E(3) of the Road Traffic Act requires proof that the alcotest device used was one approved under the Act.
The respondent filed a notice of alternative contention in which he contends that the Magistrate’s order dismissing the charge can be sustained on the bases that it was open to the Magistrate to find:
1.that the evidence did not establish, beyond a reasonable doubt, that the device used by the police officer was an “alcotest” as defined by the Road Traffic Act; and
2.that the evidence of the alleged offence was based solely upon the output of a purported alcotest device, the accuracy of which had not been established.
The appellant’s three grounds of appeal, and the respondent’s first alternative contention, all concern a single issue; namely, whether proof of a contravention of s 47E(3) of the Road Traffic Act requires that the prosecution prove that the device that the police officer used to carry out the alcotest, and hence into which the respondent was required to exhale, was an apparatus of a kind approved by the Governor for the conduct of alcotests. For the reasons which follow, I adhere to the view I expressed in Police v Pocius[1] to the effect that s 47E(3) does not impose any such requirement.
[1] Police v Pocius (2018) 84 MVR 88; [2018] SASC 38.
The second alternative contention relied upon by the respondent raises a different issue. At least as developed in oral argument, it is based upon a contention that the police officer countermanded or modified her initial direction that he exhale until she told him to stop, such that it became a direction simply to make a “continuous breath.” The respondent further contends that if the initial direction was countermanded or modified in this way, then the prosecution did not establish that the respondent failed to comply with that direction; or at least it did not do so without reliance upon the output of the apparatus which it had not proven was of a kind approved by the Governor for the conduct of alcotests. For the reasons that follow, I would reject the respondent’s second alternative contention.
Background
Early in the morning of 21 July 2019, Constable Weatherald and her partner, Constable Johnson, were on patrol in Loxton. Weatherald gave evidence at trial that at about 1:40am they pulled over a motor vehicle after observing it drift across the road and take a roundabout in a wide-arching fashion.
The respondent driver had exited the vehicle by the time Weatherald approached him. Footage of their interactions was captured on Weatherald’s body-worn camera, and was tendered at trial (exhibit P1).
After approaching the respondent, Weatherald asked him if he had had anything to drink that night. The respondent said “yes I have”, and when asked if he had been drinking water or alcohol, he replied, “I have, alcohol, but I am also an alcoholic.”
Weatherald gave evidence at trial that she then subjected the respondent to mobile driver testing. It is apparent from the footage that is exhibit P1 that she presented the respondent with a device with a mouthpiece, and told him “this is just a driver screening test, I need you to submit one steady, continuous breath until I tell you to stop.” The respondent began blowing into the device, but stopped before he was told to do so. He was asked twice more to blow into the device without stopping, but failed to complete the test on both of these occasions.
The respondent protested throughout these interactions. He said that he was unable to give a breath sample on account of the concentration of ethanol in his asthma medication, and told Weatherald that, if he blew into the device, it would read “anything to .09 or more.”
Weatherald then gave the respondent the prescribed oral advice in relation to the consequences of refusing or failing to comply with a direction to provide a breath sample, and his right to request that a blood sample be taken instead.
The respondent was subsequently given two further directions to exhale into the device. On the first occasion, the respondent failed to blow into the device. On the second, he began to blow into the device, but stopped blowing before he had been told to do so.
The last of the directions given to the respondent by Weatherald was in terms that “I again direct you…to take a deep breath and to seal your lips around the mouth piece and exhale continuously through the mouth piece into the alcometer instrument with one continuous breath until I tell you to stop.”
After the respondent again mentioned that his medication would give a high reading, and was then told by Weatherald to take his hands off the device, Weatherald said: “One steady continuous breath.” After the respondent put his mouth to the device, and apparently exhaled briefly, Weatherald said: “That is not a breath. It did not register on this.”
On several occasions during their interactions, the respondent was asked if he had a medical condition that would affect his ability to complete the alcotest. The respondent replied that he did. However, when he was asked if he would like to complete a blood test instead, he declined to make any request to proceed in this way.
Weatherald proceeded to take down the respondent’s contact details, and advised him of her intention to report him for refusing or failing to comply with her directions to submit to an alcotest. The respondent was subsequently charged with an offence under s 47E(3) of the Road Traffic Act.
The legislation
Division 5 of Part 3 of the Road Traffic Act establishes a scheme that addresses drink and drug driving, the apparent object of which is to reduce the incidence of death and injury resulting from motor vehicle accidents caused by intoxicated drivers. As has been acknowledged in previous decisions, the effective operation of this scheme depends upon the ability of the police to require those driving vehicles to submit to testing.[2]
[2] Police v Bleeze (2012) 112 SASR 568 at [10]; Police v Pocius [2018] SASC 38 at [21].
Section 47E of the Road Traffic Act, insofar as it is relevant to the construction of the offence in s 47E(3), provides:
47E—Police may require alcotest or breath analysis
(1) Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person—
(a)     is driving, or has driven, a motor vehicle; or
(b)     is attempting, or has attempted, to put a motor vehicle in motion; or
(c)     is acting, or has acted, as a qualified supervising driver for the holder of a permit or licence,
the police officer may require the person to submit to an alcotest or a breath analysis, or both.
(2) A police officer may direct a person driving a motor vehicle to stop the vehicle and may give other reasonable directions for the purpose of making a requirement under this section that a person submit to an alcotest or a breath analysis.
(2a)    A person must forthwith comply with a direction under subsection (2).
Maximum penalty: $2 900.
(2ab) A person must not, in the exercise of random testing powers, be required to submit to a breath analysis unless an alcotest conducted under subsection (1) indicates that the prescribed concentration of alcohol may be present in the blood of the person.
(2b) Without derogating from section 47DA or 47EA, an alcotest or breath analysis to which a person has been required to submit under subsection (1) may not be commenced more than 8 hours after the conduct of the person giving rise to the requirement.
(2d) The performance of an alcotest or breath analysis commences when a direction is first given by a police officer that the person concerned exhale into the alcotest apparatus or breath analysing instrument to be used for the alcotest or breath analysis.
(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.
(3) A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a police officer.
Penalty:
(a)     for a first offence—a fine of not less than $1 100 and not more than $1 600;
(b)     for a subsequent offence—a fine of not less than $1 900 and not more than $2 900.
…
(4)     It is a defence to a prosecution under subsection (3) … that—
(a)     the requirement or direction to which the prosecution relates was not lawfully made; or
(ab) the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to—
(i) the consequences of refusing or failing to comply with the requirement or direction; and
(ii) the person's right to request the taking of a blood sample under subsection (4a); or
(b)     there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction.
(4a) If a person refuses or fails to comply with the requirement or direction under this section by reason of some physical or medical condition of the person and forthwith makes a request of a police officer that a sample of the person’s blood be taken by a medical practitioner, a police officer must do all things reasonably necessary to facilitate the taking of a sample of the person's blood—
(a)     by a medical practitioner nominated by the person; or
(b)     if—
(i) it becomes apparent to the police officer that there is no reasonable likelihood that a medical practitioner nominated by the person will be available to take the sample within 1 hour of the time of the request at some place not more than 10 kilometres distant from the place of the request; or
(ii)     the person does not nominate a particular medical practitioner,
by any medical practitioner who is available to take the sample.
(5)No person is entitled to refuse or fail to comply with a requirement or direction under this section on the ground that—
(a)     the person would, or might, by complying with that requirement or direction, furnish evidence that could be used against themself; or
(b)     the person consumed alcohol after the person last drove a motor vehicle or attempted to put a motor vehicle in motion and before the requirement was made or the direction given.
…
In s 47A(1), an “alcotest” is defined as “a test by means of an apparatus of a kind approved by the Governor for the conduct of alcotests.”
There is authority to the effect that the “defence” relating to the unlawfulness of a direction in s 47E(4)(a) of the Road Traffic Act is better seen as a negative element of the offence, with the result that lawfulness must be proved beyond reasonable doubt by the prosecution.[3]
[3] Police v Pocius [2018] SASC 38 at [24]. See also Police v Bleeze (2012) 112 SASR 568 at [14]; Czerwinski v Hayes (1987) 47 SASR 44 at 45.
As such, and subject to my later consideration of the respondent’s contention that proof of the offence requires proof of an approved apparatus, the elements of an offence under s 47E(3) where a police officer in empowered under s 47E(1) to require a person to submit to an alcotest or breath test, may be formulated in terms that the prosecution must establish beyond reasonable doubt that:[4]
1.A police officer made a reasonable and lawful direction in relation to the requirement to submit to an alcotest.
2.The respondent refused or failed to comply with that direction after being given the prescribed oral advice, and the opportunity to comply.
3.There was no good cause for that refusal or failure.
[4] Police v Pocius [2018] SASC 38 at [25].
The Magistrate’s reasons
The Magistrate commenced her reasons for verdict by setting out the factual background to the matter. While that summary was similar in substance to the background given above, her Honour noted, relevantly to this appeal, that at “no time does Constable Weatherald identify [in her evidence] exactly what the alcotest device is that she asked the defendant to blow in to.”
The Magistrate then turned to the relevant statutory scheme. After setting out the terms of ss 47E(1) and (2) of the Road Traffic Act, and the definition of “alcotest” within s 47A(1), her Honour commented that “s 47E authorises a police officer to require a person to submit to an ‘alcotest’ and ‘alcotest’ is defined under the legislation.”
Her Honour then emphasised that, in this case, there was a lack of evidence as to the nature or identity of the particular instrument that was presented to the respondent for the purpose of conducting the alcotest. Her Honour said:
The evidence such as it is in this matter relating to the ‘alcotest’ is at best vague … At no time in the evidence is there any identification of the alcotest device itself. At no point is there any evidence whatever device Constable Weatherald was using was ‘an apparatus of a kind approved by the Governor for the conduct of alcotests’.
Having made these observations, the Magistrate referred to the terms of s 47E(3) of the Road Traffic Act, and concluded that the failure to prove the identity of the device was fatal to the charge. Her Honour reasoned:
The prosecution must establish beyond reasonable doubt the defendant has been required to submit to an ‘alcotest’. No attempt has been made in this case to establish the device Constable Weatherald requested the defendant to exhale into was in fact an ‘alcotest’ being ‘an apparatus of a kind approved by the Governor for the conduct of alcotests.’ There is absolutely no evidence at all as to what Constable Weatherald was requesting the defendant to blow into.
The defendant can only be guilty if he was requested to submit to an ‘alcotest’ as defined under the Act.
On this basis, the Magistrate found that there was no case to answer and accordingly found the respondent not guilty of the offence charged.
Failure to prove use of an approved apparatus
In Police v Pocius,[5] I held that proof of an offence against s 47E(3) does not require proof that the instrument used, or intended to be used, was one approved by the Governor.[6] The appellant relies on this decision in support of its appeal, while the respondent challenges its correctness.
[5] Police v Pocius [2018] SASC 38.
[6] Police v Pocius [2018] SASC 38 at [105].

It is convenient to commence by recapitulating the relevant aspects of my reasoning in Police v Pocius.[7]
[7] Police v Pocius [2018] SASC 38.
In that case, the respondent had contended, by way of alternative contention, that because the prosecution had not adduced any evidence that the apparatus used by the police officer to carry out the alcotest was of a kind approved under the Road Traffic Act, the prosecution had not established a contravention of s 47E(3). The appellant argued that proof of this matter was not a precondition to the lawfulness of the direction to submit to the alcotest, or otherwise a precondition to proof of the offence charged.
Both parties in that case sought to rely on the earlier decision of this Court in Police v Bleeze[8] in support of their respective positions. However, I did not consider that earlier decision to be determinative of the issue between the parties as it had focused on the distinct issue of whether the lawfulness of an alcotest required that the apparatus by which it was conducted be in proper working order.[9]
[8] Police v Bleeze (2012) 112 SASR 568.
[9] Police v Pocius [2018] SASC 38 at [100].
Turning then to the issue at hand in Police v Pocius, I commenced by acknowledging that a literal reading of s 47E(3) of the Road Traffic Act provided some support for the contention that proof of an approved apparatus was required to establish a contravention of s 47E(3):[10]
[I]t might be said that when s 47E(3) is read in conjunction with the express terms of the definition of an alcotest or breath analysis, it can be seen that the offence requires proof that the relevant apparatus was of a kind approved by the Governor – either through the terms of s 47E(3) or by reason of the requirement of lawfulness in s 47E(4)(a).
There is some force in this contention, at least when the legislation is construed in a literal or mechanical fashion. As the offence involves a failure to comply with a direction in relation to the requirement to submit to an alcotest or breath analysis, it might be said that proof of the offence includes proof of an alcotest or breath analysis in the defined sense and hence that the relevant apparatus was of a kind approved by the Governor.
[10] Police v Pocius [2018] SASC 38 at [100]-[101].
However, I then explained why, in my view, the preferable construction of the legislation was that proof of an offence under s 47E(3) did not require proof that the apparatus used, or intended to be used, to carry out the alcotest was “approved” in the sense described by s 47A(1) of the Road Traffic Act. In so doing, I emphasised the “descriptive and prospective” nature of the reference to “alcotest” within the offence provision. I said: [11]
However, in my view, this involves a misconstruction of ss 47E(3) and (4). The initial words in s 47E(3) are intended merely to identify those to whom the sections applies – namely, persons who are required to submit to an alcotest. And, as Gray J pointed out in Police v Bleeze, the balance of the words (in particular, “fail to comply with all reasonable directions of a police officer in relation to the requirement”) are intended to focus upon the nature of the direction given and the behaviour of the defendant, rather than the output of any particular instrument.
The reference to alcotest in s 47E(3) is thus in the context of, and descriptive of, the requirement to which the defendant is to be subjected, rather than the outcome of any particular test. It is in the context of identifying the defendant and his non-compliant behaviour in relation to a requirement that he submit to an alcotest, rather than the alcotest or its outcome. The reference to alcotest is thus used in a descriptive and prospective way, rather than as a reference to a particular alcotest that has been carried out, or the apparatus used to carry it out.
Indeed, as the Court pointed out in Police v Bleeze, s 47E(3) is intended to operate in situations where there has been no attempt to use a particular alcotester. Its operation is intended to extend to cases where the defendant has refused from the outset to participate, and in the case of the most blatant and pre-emptive refusal to comply. In such cases it may not be possible to identify the particular apparatus or instrument that was to be used, and it is difficult to see how or why Parliament would have intended this to be an aspect of the offence.
[11] Police v Pocius [2018] SASC 38 at [102]-[104].
For these reasons, I concluded that proof of an offence under s 47E(3) of the Road Traffic Act, including the lawfulness of the relevant direction under s 47E(4), did not require proof that the alcotester used, or intended to be used, was one approved by the Governor.[12]
[12] Police v Pocius [2018] SASC 38 at [105].
Finally, I added an observation to the effect that it did not follow from my reasoning and conclusion that the nature of the apparatus used, or intended to be used, would never be relevant; that it might nevertheless be relevant to the lawfulness or reasonableness of the direction given by the police officer:[13]
That said, I do not go so far as to say that the nature of the apparatus used, or intended to be used will never be relevant. It would be relevant in the context of offences turning upon the output or results of a breath analysis unit or alcotester, such as an offence under s 47B of the Road Traffic Act. Further, even in the context of a failure to comply offence under s 47E(3), if the apparatus used, or intended to be used, was plainly not of the approved kind, and this was or ought to have been known to the police officer who gave the relevant direction, then it may be that the direction would not be a “reasonable” one, and perhaps not even a “lawful” one. But there was nothing in the evidence in this case to suggest that it involved such a situation.
[13] Police v Pocius [2018] SASC 38 at [106].
I have given further consideration to the proper construction of s 47E(3) for the purposes of this appeal. However, the arguments advanced on behalf of the respondent in this matter did not differ in substance from those advanced in Police v Pocius, and I adhere to the reasoning and conclusion I expressed in that case. I would simply add the following observations by way of emphasis and elaboration.
First, I would observe that the legislation draws a distinction between the testing process and the apparatus used to carry out that process. In particular, it is noteworthy that s 47A(1) does not define an “alcotest” as an apparatus. Rather, “alcotest” is defined as a testing process, albeit a process that involves the use of an approved apparatus. As such, a requirement that someone submit to an alcotest under s 47E(1) is, in effect, a requirement that a person submit to a testing process, and, indeed, a testing process that is yet to occur. Similarly, a direction given pursuant to s 47E(3) in respect of this requirement is also a direction in respect of a testing process that is yet to occur. Once this is understood, it becomes apparent that to require proof of the identity of an apparatus to successfully prosecute an offence against s 47E(3) would, in many cases, require consideration of whether a testing process that may not have been carried out or completed would ultimately have been carried out in a particular way, or with a particular device. In my view, this tends to highlight the impracticality of the construction contended for by the respondent, and further illustrates that the reference to “alcotest” is better understood as being merely descriptive of the type or terms of direction to which the obligation to comply under s 47E(3) is intended to apply, rather than as requiring the identification of any particular device by which the alcotest was to be carried out.
As pointed out by the respondent, it is true that s 47E(3) of the Road Traffic Act expressly refers to the “apparatus” by which the alcotest or breath analysis is conducted. It provides that a person required under that section to submit to an alcotest “must not refuse or fail to comply with all reasonable directions of a police officer … and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a police officer.” However, in my view, this reference to the apparatus by which the alcotest is conducted is intended as merely illustrative of the conduct that might constitute a failure to comply with a direction for the purposes of s 47E(3). It does not provide a basis for inferring that the identification and proof of an approved apparatus is essential to the proof of an offence under s 47E(3).
Secondly, and relatedly, I accept the appellant’s submission that there are features of the legislative scheme, beyond those that I referred to in Police v Pocius, which demonstrate that the use of the term “alcotest” in ss 47E(1) and (3) refers not to the use of a particular apparatus, but to a testing process in a more general sense (and in respect of which no particular apparatus may have been identified by the time of the offence).
One such feature is the absence of any express requirement that an alcotest or breath analysis apparatus be physically proximate to the police officer requiring a person to submit to an alcotest under s 47E(1), or making a direction in relation to the same. This may be contrasted with the provisions of the legislation that govern the exercise of random testing powers, which do expressly require that an approved apparatus be in the immediate vicinity of the place at which the requirement to submit to random testing is made.[14]
[14] Road Traffic Act 1961 (SA) s 47EA(1)(c).
The respondent ultimately conceded that there may be a difficulty with the construction he advances in the circumstances of a failure to comply with a direction that occurs prior to the identification of any particular apparatus. In an attempt to address this difficulty, his counsel submitted that the adoption of a “dual approach” to the offence provision would be appropriate. Under this dual approach, it was submitted that evidence that the apparatus was of an approved kind would be required in cases where a device was actually used. However, in cases where no particular device was yet in contemplation, all that would be required is evidence that the police officer intended to use a device of a kind that was approved by the Governor. However, there is simply no textual basis within s 47E or s 47A(1) to support this dual or differential approach to the elements of an offence under s 47E(3). In my view, the need to resort to such an approach serves to demonstrate a difficulty with the respondent’s contended construction, and to support the construction which I have adopted.
For the reasons that I have given above, in combination with the reasons that I gave in Police v Pocius,[15] I am of the view that proof of an offence under s 47E(3) of the Road Traffic Act does not require proof that the instrument used or intended to be used was one approved by the Governor.
[15] Police v Pocius [2018] SASC 38.
The respondent’s second alternative contention
As mentioned earlier, in support of his second alternative contention, the respondent contends that Constable Weatherald countermanded or modified her original direction(s) that required him to exhale into the apparatus she was holding until she told him to stop.
I have earlier in these reasons summarised the relevant exchange between Weatherald and the respondent. The respondent relies in the present context upon Weatherald’s statement to the respondent, in the concluding part of that exchange, in the following terms: “One steady continuous breath.” After the respondent put his mouth to the apparatus, and apparently exhaled briefly, Weatherald said: “That is not a breath. It did not register on this.”
It will be recalled that Weatherald’s earlier directions to the respondent were in terms that required him to exhale into the apparatus until she told him to stop. The offence with which the respondent was charged was said to be established by his failure to ever exhale into the apparatus to the point where he was told to stop.
While it was plainly established that the respondent did not ever exhale to the point where he was told to stop, he contends that by saying “One steady continuous breath”, Weatherald countermanded or modified her earlier directions. The respondent further contends that as a result of the earlier requests having been countermanded or modified, the only direction ultimately given to the respondent was to exhale “one steady continuous breath” into the apparatus. He says that he complied with this request; or at least that there is no evidence (other than the output of the alcotester) that suggests otherwise.
In my view, this contention should be rejected. Understood in the context of the overall, and lengthy, exchange between Weatherald and the respondent, the words fastened upon by the respondent were no more than a prompt to the respondent to comply with, or a short-hand reference to or reminder of, the direction that he had, by then, been given a number of times. I do not think they can sensibly be construed as countermanding or modifying the direction that had earlier been given.
Once this is accepted, the balance of the respondent’s submissions in support of his second alternative contention fall away. The failure to comply with the direction was established by the failure to exhale until told to stop. Proof of the charge did not rely or depend upon any output from the apparatus used by Weatherald, let alone proof that the apparatus that produced that output was an approved apparatus.
Conclusion
For the reasons set out, I am satisfied that the Magistrate erred in holding that the prosecution was required to prove that the apparatus into which the respondent was directed to exhale was of a kind that had been approved under the Road Traffic Act. I am also satisfied beyond reasonable doubt that Constable Weatherald did not ever modify or countermand her direction to the respondent that he exhale until he was told to stop, and that the respondent failed to comply with that direction.
As the respondent does not suggest there is any other basis upon which it might be said that the charge has not been made out, I would allow the appeal, set aside the Magistrate’s order dismissing the charge, substitute a verdict of guilty, and remit the matter for sentencing before a Magistrate.