Police v Lester - [2013] SASC 28

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v LESTER
[2013] SASC 28
Judgment of The Honourable Justice Anderson
8 March 2013
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE - OTHER MATTERS
Appeal by police against dismissal of charge of failing to comply with all reasonable directions of a police officer to submit to an alcotest pursuant to s 47E(3) of the Road Traffic Act (1961) (SA) - whether the respondent failed to comply with the reasonable directions of the police officer for the purpose of conducting the test -the police officer said to the respondent 'We need to wait for five more minutes to conduct an alcotest. If you would like to join me on the side of the road while we wait' - 'I now require you to provide a breath sample' - whether this conversation amounted to a reasonable direction. The respondent responded, 'I am not doing this', walked away from the police officer, got into his vehicle and attempted to lock the doors - whether this conduct constituted a refusal or failure to comply with reasonable directions - whether the offence was properly particularised - whether the argument on appeal involves a different case than the one presented at trial.
S 47E(4)(ab) provides a defence to an offence against s 47E(3) if the person was not allowed the opportunity to comply with the direction after having been given the prescribed oral advice contained in the Regulations - the prescribed oral advice was only given to the respondent while he was feigning unconsciousness at the hospital approximately 1 hour after the earlier direction to take the alcotest - whether the prescribed oral advice directions need to be given having regard to the respondent's conduct in responding to the directions previously given to him at the roadside - whether the offence was made out.
Held: The direction to submit to an alcotest was lawful - there was an implied obligation on the respondent to remain at the scene - the direction was reasonable and the respondent refused to comply with the reasonable direction by his conduct and actions - the elements of the offence are made out - no defence is made out - offence complete at time of refusal at roadside - the appellant is not arguing new points on appeal.
Appeal allowed - the decision of the magistrate is set aside - the respondent is convicted of the charge pursuant to s 47E(3) of the Road Traffic Act (1961) (SA).
Road Traffic Act 1961 (SA) s 47E; Road Traffic (Miscellaneous) Regulations (1999) Reg 8B; Supreme Court Civil Rules 2006 s 292; Magistrates Court Act 1991 (SA) s 42, referred to.
Gaskin v Police [2009] SASC 351; R v Spitzer (2003) 85 SASR 431; Bormann v Caldwell (1986) 43 SASR 297; Rejman v Dunsmore (1983) 32 SASR 151, considered.

POLICE…

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 Lester

Details

AGLC: Police v Lester [2013] SASC 28
Case: [2013] SASC 28
Decision Date: 8 March 2013

CaseChat Overview and Summary

The case of Police v Lester involves an appeal by the police against the dismissal of a charge against the respondent, Damian Lester, for failing to comply with a police officer's reasonable directions to submit to an alcotest. The matter was heard in the South Australian Court of Appeal. The central issue before the court was whether the respondent's conduct and actions constituted a refusal to comply with a reasonable direction to submit to an alcotest under s 47E(3) of the Road Traffic Act (1961) (SA).

The court considered whether the conversation between the police officer and the respondent amounted to a reasonable direction, and whether the respondent's refusal to comply with this direction and subsequent actions constituted a failure to comply. Furthermore, the court assessed whether the prescribed oral advice was necessary at the roadside given the respondent's conduct, and whether the defence under s 47E(4)(ab) was applicable. The respondent had argued that the offence was not properly particularised and that the appeal involved new arguments not presented at trial.

The court held that the direction to submit to an alcotest was lawful and reasonable, and that the respondent refused to comply by his conduct and actions. The court found that the elements of the offence were satisfied, and that no defence was available. The offence was complete at the time of the refusal at the roadside. The court concluded that the appellant was not arguing new points on appeal and allowed the appeal, setting aside the magistrate's decision. The respondent was convicted of the charge under s 47E(3) of the Road Traffic Act (1961) (SA).

The court's decision hinged on the respondent's refusal by conduct and actions to comply with the reasonable direction to submit to an alcotest, which constituted a failure to comply with the law. The court emphasised the importance of complying with police directions at the roadside and the respondent's conduct in refusing to participate in the testing process. The court found that the respondent's actions prevented the matter from proceeding to the next stage of giving specific directions for the performance of the test. The appeal was allowed, and the decision of the magistrate was set aside, resulting in the respondent being convicted of the charge.

Orders

Orders of the court

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Background

Background to the litigation

The appellant asks that the judgment of the magistrate be set aside, the respondent convicted of the offence charged and a penalty imposed.Background On 1 November 2011, Melbourne Cup day, the respondent, Mr Damian Lester, was stopped by police for the purpose of undertaking a random breath test. The police officers had followed Mr Lester when he left the lion Hotel in his Bentley motor vehicle. The officers observed the vehicle swerve. He was stopped at about 10.00 pm. Constable Gitsham, who was a witness in the trial, approached the respondent in his vehicle. Constable Gitsham said that he was carrying an alcotest machine in his hand at the time of approaching the respondent. Once stopped, the respondent informed the police officers that he had consumed one glass of champagne five minutes prior to being stopped. Constable Gitsham began taking notes. The following conversation took place between Constable Gitsham and the respondent after the respondent got out of his vehicle:Q.I have stopped you for a random breath test. Have you been drinking today.A.Yes.Q.How long ago was your last drink.A.I just had one glass of champagne five minutes ago.Q.We need to wait five more minutes before we can conduct an alcotest. If you’d like to stay with me on the side of the road until we’re ready.A.I have had a champagne so I am going to be hot.After the five minutes had elapsed the conversation continued:Q.I now require you to provide a sample of your breath.A.How about I just get a taxi and forget about this.Q.Sir I am now directing you to provide a breath sample.A.I am going to be hot because I have just had a champagne.Q.For the third time, I am directing you to provide a sample. I am warning you it is an offence to fail to provide a breath sample and the penalty is severe.A.I am not doing this. During this request, Constable Gitsham had pointed the alcotest device at the respondent’s lips. The respondent then walked off towards his vehicle, opened the passenger side door, got into the passenger seat and closed the door. It appeared to police that the respondent then attempted to lock the door because “he started to manipulate the lock but he wasn’t able to lock it in time”. Constable Gitsham’s partner, Constable Hawyes, told the respondent to take nil by mouth. The respondent then grabbed a bottle from the centre console of his vehicle. The police gained entry into the vehicle and threw the bottle onto the road. At about 10.12 pm, the respondent was then told he was under arrest. Constable Gitsham could not recall during the trial whether he had given a reason for the arrest. Mr Lester placed his arms behind his head and he refused to answer any questions. He then appeared to be unconscious, not moving and with his eyes closed. Constable Gitsham applied a pain stimulus to the respondent’s earlobe to ascertain whether it was genuine unconsciousness. The respondent winced. He was rolled into the recovery position where he was again told he was under arrest. He was conveyed to the city watch-house where he was read his rights. The respondent was carried from the pavement to the cage car, however was noticed to be lifting his feet to avoid his shoes being damaged. The respondent provided no answer while his rights were being read. His counsel accepted that his client was “bunging it on”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J

In any event, I query whether the magistrate’s conclusion that the police officer did not have the alcotester with him at the hospital is borne out by the evidence. I have considerable doubt about the magistrate’s finding that the police officer did not have the alcotester at the hospital. In my view the evidence probably points in the other direction although it is not necessary to decide that.Conclusion In my view the prosecution succeeded in establishing each of the elements of the offence. The direction to submit to an alcotest was lawful. It was a reasonable direction and the respondent refused by his conduct and actions to comply with the direction. That direction carried with it an implied obligation on the respondent to remain at the scene. No defence available is made out. The respondent should have been convicted. I allow the appeal. The decision of the magistrate will be set aside. The respondent is convicted. I will hear submissions on penalty.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

This matter is only concerned with the requirement to submit to an alcotest because by his conduct and response the respondent did not allow the matter to proceed to the next stage where directions could have been given as to how the test was to be taken.Consideration As I have said this matter had not reached the stage as referred to by Duggan J above. However the respondent had refused by his conduct to participate thus preventing the reaching of the next stage. As compared to the driver in Spitzer, the respondent had already refused by his conduct and actions to comply with the direction of the police officer. If Spitzer is said to be authority for the proposition that in the circumstances of this case, because the relevant stage had not been reached, there was no offence, I respectfully disagree. I do not understand Spitzer in those terms. I do not believe Parliament would have intended such a result. It would enable people like Mr Lester to avoid the requirement to take an alcotest by walking or running away with no consequences. It would enable people like Mr Lester to “bung it on” and feign unconsciousness and avoid the consequences of failing to take the test. I have found it of benefit to divide the necessary directions into three stages:Stage 1:The requirement to remain in the presence of a police officer, not to consume fluids and submit to the alcotest;Stage 2:The directions relating to the physical act of undertaking the breath analysis or the performance of the test involving the way in which a person exhales into the machine; andStage 3:The directions relating to the prescribed oral advice and the second chance to comply. In the circumstances of someone who has refused but nevertheless is still present with the police officer, Spitzer is authority for the proposition that the police officer is then required to give specific directions as to how the test is to be performed, that is, stage 2, or directions as to the performance of the test. Here the conduct of Mr Lester by his words and actions already outlined, demonstrates on the evidence before the magistrate that at the first stage, before specific directions as to the performance of the test, the respondent has in the terms of s 47E(3) refused to submit to an alcotest. It would be the same if he ran away or consumed fluid. In Spitzer the driver remained in the company of the police officer even after he stated his refusal to take the test. The police officer then had the ability to give the further directions. The respondent in this case, stated his refusal to take the test, walked off, attempted to lock himself in his vehicle and then feigned unconsciousness preventing the police officer from proceeding with the next stage of giving directions as to the performance of the test. The refusal under s 47E(3) is made manifest by the walking off. The magistrate at paragraph [15] of his reasons held that the direction given at the roadside by Constable Gitsham was understood by the respondent and was “reasonable” in the circumstances.[15]… The giving of a breath sample to a police officer at the roadside is now a common and well publicised practise It has been so far at least two decades. Constable Gitsham gave a clear direction and was holding an alcometer. Plainly it was his direction that the defendant remain and submit to an alcotest. Clearly the direction was understood by the defendant given his responses. I am satisfied the direction was ‘reasonable’ in the circumstances.