Police v Irlam

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.