Police v Jervis; Police v Holland No. Scgrg-97-1415, Scgrg-97-1483 Judgment No. S6596

The appeals before the South Australian Supreme Court considered the availability of a statutory presumption under s47G of the Road Traffic Act 1974 and the discretion of a court to exclude evidence of the reading given by a breath analysis instrument. In Police v Jervis the appellant was found to have a concentration of alcohol in her blood of 0.188 grams in 100 millilitres of blood. The magistrate held that the presumption under s47G(1) did not arise because the defendant did not receive a blood sample that could be analysed, and that there was a discretion to exclude the evidence of the result of the breath analysis. In Police v Holland the appellant was found to have a concentration of alcohol in his blood of 0.080 grams in 100 millilitres of blood. The magistrate held that the presumption under s47G(1) did not arise because the defendant did not have a blood sample taken and that there was a discretion to exclude the evidence of the result of the breath analysis. In both appeals, the discretion was exercised to exclude the evidence of the result of the breath analysis on the basis of unfairness and policy considerations. The Court held that the statutory presumption was available and that there was no basis for the exercise of the discretion to exclude the evidence.