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,…

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 Irlam

Details

AGLC: Police v Irlam [2021] SASCFC 13
Case: [2021] SASCFC 13
Decision Date: 26 February 2021

CaseChat Overview and Summary

The appeal concerned a traffic offence involving a driver, the respondent, who was pulled over by police officers in South Australia. The police officer directed the respondent to provide a breath sample using a screening device, instructing him to exhale continuously until told to stop. The respondent failed to comply with this direction on multiple occasions, asserting he was unable to do so due to asthma medication. The Magistrate had dismissed the charge, finding the prosecution had not proven the breath analysis apparatus was of an approved kind. The appeal was heard by Kelly, Stanley, and Doyle JJ.

The legal issues before the court were whether the police officer had modified or countermanded her initial direction to the respondent regarding the breath sample, and consequently, whether the prosecution had established that the respondent failed to comply with the direction given. A further issue was whether proof of the charge depended on demonstrating that the apparatus used was of a kind approved by the Governor for alcotests.

The Full Court held that the police officer's direction to the respondent to exhale continuously until told to stop was not modified or countermanded. The court found that the respondent's failure to comply with this clear direction was sufficient to establish the offence. Crucially, the court determined that proof of the charge did not rely on the output of the breath analysis apparatus, nor did it require proof that the apparatus itself was of an approved kind. The Magistrate's finding that such proof was necessary was therefore erroneous.

The appeal was allowed, the Magistrate's order dismissing the charge was set aside, and a verdict of guilty was substituted. The matter was remitted to a Magistrate for sentencing.

Orders

Orders of the court

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Background

Background to the litigation

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.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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