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 v LESTER
[2013] SASC 28
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

The appellant has appealed from the decision of a magistrate given on 10 August 2012 where the respondent was found not guilty of one charge of refusing to comply with all reasonable directions of a member of the police force to submit to an alcotest contrary to s 47E of the Road Traffic Act 1961 (SA) (the Act).
The questions raised in the appeal are whether the magistrate erred in dismissing the complaint in deciding that all of the elements necessary to constitute the offence charged had not been proved and erred as to whether the respondent had made out a defence to the offence charged.
The respondent also argues that the appellant is bound by its conduct of the prosecution before the magistrate and cannot on appeal rely on other matters not particularised.
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”.
At the City Watch House the respondent was taken into an observation cell. He still remained limp and appeared to be unconscious. After having been presented to the charging sergeant, an ambulance was called so that the respondent could be taken to the Royal Adelaide Hospital to be examined by a doctor. The respondent was at the City Watch House for approximately 30 minutes before being taken to the hospital. No further directions were given to the respondent during this time.
After Mr Lester was examined at the hospital, the attending doctor in the emergency department, Dr Hill, informed the police officers that the respondent was coherent and was feigning unconsciousness, Constable Gitsham then read the respondent the content of a document entitled “Road Traffic Act Alco Test For Alcohol Oral Advice On Refusal Or Failure To Comply” which is found in reg 8B of the Road Traffic (Miscellaneous) Regulations (1999). Regulation 8B refers the reader to Schedule 1AA of the Regulations which sets out s 47E(4)(ab) of the Act, namely the prescribed oral advice. During this process the respondent kept his eyes closed and gave no response. Constable Gitsham therefore circled “refused” on the form. This document became an exhibit in the trial.
Dr Hill gave evidence during the trial. He said that he checked the respondent for trauma which gave a nil result and he then placed him on a electrocardiogram which was also found to be normal. The respondent resisted the doctor’s effort to open his eyes. Dr Hill said that this indicated to him that the respondent was conscious. An unconscious patient cannot resist an effort to open closed eyes.
During the trial, in evidence Constable Gitsham said that he had a Lion Alcometer device with him when he approached the respondent after having stopped him at the roadside. He said it is usually kept in the console of the police vehicle. Constable Gitsham agreed that at least three directions had been given to the respondent at that earlier point in time. These are set out at paragraph [6] of the learned magistrate’s reasons. The directions were that he alight from the car, and this was complied with. The respondent was then given a direction to consume nil by mouth, and this was complied with initially. He was then requested to provide a sample of his breath. It was this direction that was refused.
In relation to the hospital events, Constable Gitsham was asked during cross-examination by Mr Burtt, counsel for the respondent in the trial, when it was that he presented the alcometer device to Mr Lester at the hospital. Constable Gitsham responded “I didn’t”. When further examined by the magistrate as to why he had not presented the device to the respondent, Constable Gitsham said:
The accused was laying unconscious – well, apparently unconscious with his eyes closed. It- had he sat up I would have got the device out and proceeded with the test.
He was then asked by the magistrate whether he had the device with him at the time, to which he responded:
I think so. I would have – normally – I don’t recall specifically but I don’t see the point in going through this [meaning the oral advice] if I didn’t.
The magistrate found that both police officers were honest historians of events.
The relevant legislation
I will set out the relevant legislation before dealing with the arguments on appeal.
The offence detailed in the complaint alleges a breach of 47E(3) of the Road Traffic Act 1961 (SA).
Section 47E requires certain preconditions before a police officer can require a person to submit to an alcotest. Section 47E(1) states:
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.
If s 47E(1) is satisfied then a police officer has certain powers. Section 47E(2) states:
(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.
Next, pursuant to s 47E(2d) the section states:
(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.
It is an offence to refuse or fail to comply with all reasonable directions of a police officer. Section 47E(3) states:
(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.
Finally a defence to a prosecution under s 47E(3) is provided by s 47E(4). Section 47E(4) states:
(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.
Finally it is a requirement of s 47EA of the Act that the request for an alcotest can only be made if the police officer has in his or her possession the alcotester or there is one in the possession of another officer in the immediate vicinity. The section states:
47EA—Exercise of random testing powers
(1)…
…
(c) a police officer must not make such a requirement relating to an alcotest unless he or she has in his or her possession, or a police officer in the immediate vicinity of the place at which the requirement is made has in his or her possession, an apparatus of a kind approved by the Governor for the conduct of alcotests;
The magistrate’s reasons
The magistrate dismissed the complaint because he was not satisfied beyond reasonable doubt that the police officer had the alcometer device with him when he gave directions to the respondent at the Royal Adelaide Hospital. As a result the magistrate found that he could not be satisfied beyond reasonable doubt that a request had been lawfully made because of s 47EA of the Act. That meant that he had a reasonable doubt that the respondent had been given a genuine opportunity to comply with the request as required by s 47E(4)(ab).
By focusing on the events at the hospital the magistrate did not adequately deal with the earlier events that occurred at the road side in separately considering whether Mr Lester had at that point in time failed to comply with a reasonable direction of the police officer. This was an error in my view.
The magistrate did, however, find that the direction given by the police officer at the roadside contained no ambiguity. He held it was a clear direction to provide a breath sample at the time he was holding an alcometer by proffering it to Mr Lester. The magistrate held that it was plainly the police officer’s direction that the defendant remain and submit to an alcotest. As he said, the direction was understood by Mr Lester, given his rather bizarre response to the direction. The magistrate in particular found that the direction was reasonable in the circumstances. I agree with all these findings.
The magistrate made these specific findings:
1.That on 1 November 2011 at approximately 10 pm the defendant drove his motor vehicle on various roads before being stopped by Constables Gitsham and Hawyes.
2.That Constables Gitsham and Hawyes were in an unmarked police vehicle. That they were both n uniform and that prior to the vehicle stop red and blue flashing lights attached to their vehicle had been activated to signal the defendant to stop.
3.That Constable Gitsham had a conversation with the defendant as stated by him in his evidence and that during that conversation he proffered a Lion Alcometer to the defendant and requested the defendant provide a sample of his breath. This conversation concluded with the defendant announcing that he was ‘not doing this’ and returning to his motor vehicle, getting inside and attempting to lock the door.
4.That at the time of making the request to provide a sample of his breath at the initial stop, Constable Gitsham had been in possession of a Lion Alcometer and that was an approved device for the purpose of s 47EA(1)(c). I pause to note that a Lion Alcometer is a device approved by the Governor for such purposes in the SA Government Gazette published on 21 July 2005 at p.2430.
5.The defendant was arrested and conveyed to the city watch-house and, thereafter, conveyed to the Royal Adelaide Hospital where he was examined by Dr Adrian Hill. And further that it was Dr Hill’s conclusion, with which I agree and accept, that the defendant was feigning unconsciousness.
6.That at about 23.44 hours Constable Gitsham read the questions contained on P1 the document Road Traffic Act Alcotest For Alcohol Oral Advice On Refusal Or Failure To Comply to the defendant and received no reaction from him.
It was at this point in his reasoning that I consider that the magistrate erred. He erred by not considering the legal consequences of those findings and by going on to consider what happened at the hospital.
He said:
7.I am not satisfied beyond a reasonable doubt that Constable Gitsham had an approved alcometer in his possession or that such a device was in the possession another police officer in the immediate vicinity of the Royal Adelaide Hospital resuscitation room at the time the contents of P1 were read to the defendant and, specifically, when the direction contained in the second question was given. When asked whether he had the device with him at the time the witness, Gitsham, conceded he had no specific memory but said that he could not see the point of asking the questions unless he did. He said his usual practise when walking was to loop the device to his belt but that he had no specific memory or doing so on this occasion. There is some force to the suggestion that questions such as those contained in P1 would have no point unless such a device was available. However, it seemed to me that Constable Gitsham was not expecting answers from the defendant, and was simply asking questions from the proforma as a matter of routine. So much to me is apparent from the very specific questions at questions two and three which suggest that the actual presentation of a device to the subject. Of course no such device was presented to the defendant. Constable Gitsham’s uncertainty, coupled with this artificiality, leaves me in doubt whether a device was, in fact, in his possession or in the possession of another police officer in the immediate vicinity. It may have been but I can not say so beyond reasonable doubt.
Request for particulars
During this appeal Mr Grant for the police argued that the failure of Mr Lester to remain where he was and submit to an alcotest when he was first stopped was itself a refusal when he walked off and tried to lock himself in his vehicle.
Mr Edwardson QC objected to this aspect being argued on the appeal as he said it was presenting a new case which was not put before the magistrate. Mr Edwardson argued that because particulars were not given in relation to what is now being argued I should not allow the argument. Mr Grant contended that no particulars are required.

The solicitors for the respondent filed a request before the commencement of the trial seeking further and better particulars from the prosecution. The respondent wanted identified the reasonable direction that was relied upon by the prosecution. The affidavit filed in this appeal contains an annexure which is the letter to the DPP dated 27 February 2012. Mr Edwardson submitted that the appellant was inviting the appeal court to find the respondent guilty of an offence which was not the subject of a charge and was not the issue before the magistrate.
A notice of alternative contention dated 25 February 2013 was filed by the respondent upon the following grounds:
(1)The learned magistrate erred in finding that Constable Gitsham gave a direction that the respondent “remain” with him.
(2)There is no evidence that Constable Gitsham gave that direction to the respondent.
After argument was completed I requested copies of the transcript of both the opening and closing submissions before the magistrate. These were provided to counsel and I then heard further argument.
I have now had the benefit of reading the transcript of the opening and closing addresses of counsel during the trial.
It seems to me that there was really no confusion regarding what conduct (of the respondent’s) was the subject of the charge.
Mr Burtt, counsel for the respondent at trial, complained to the magistrate at the outset about the uncertainty of what the offence alleged was. His Honour attempted to clarify this with the prosecutor. The prosecutor said that it was the refusal at the scene that is the subject of the charge. Mr Burtt clarified by saying:
As I understand it the offence that will be alleged will be the refusal to follow a direction at the scene, is that what the prosecutor’s putting to the Court.
His Honour responds:
That’s what I understand.
Later in the transcript His Honour comments:
… it is that request (please blow into the alcotest device) which wasn’t complied with which is the subject of the charge is it?
The prosecutor responds:
It is. I’m confused, your Honour. That’s it, plain and simple.
The discussion between His Honour, counsel and the police prosecutor continued. Mr Burtt understood that it was the refusal at the scene which was being prosecuted. His Honour responded, “Blow into this and he didn’t, that’s what they’re alleging”. The magistrate again said, “and it’s a refusal to comply with that. I think you told me that he refused then got back into the motor car and – it’s that refusal”.
On my reading of the interchange recorded in the transcript the magistrate indicated that he was dealing with the refusal by the respondent on the basis of the refusal at the scene where he was stopped and declined to submit to the alcotest. The refusal encompassed the overall behaviour of the respondent at the scene.
During closing submissions His Honour again queries the subject of the alleged charge. Part of the conversation exchange between His Honour and Mr Burtt is set out:
HIS HONOUR: … I understood after the opening we were dealing with the requirement to provide a sample of breath and the trial proceeded on that basis, so I’m just a little confused why there’s reference to the other directions that were given so the consume nil by mouth and the wait at the roadside for five minutes.
MR BURTT: Your Honour may not find it necessary to deal with those in light of the evidence. I included them simply because I regarded them to be part of the directions given in the course of requiring the defendant to submit to an alcotest.
HIS HONOUR: They are other directions though aren’t they?
MR BURTT: They are other directions and I dealt with them only in that broader context. If your honour – my concern was that your Honour may find that one of those directions was sufficient to, as it were, satisfy the requirement, the general requirement that the defendant submit to an alcotest but then leading to consideration of the later giving of the prescribed oral advice and the last direction.
The magistrate had earlier made it clear that he was including the respondent’s retreat to his motor vehicle after the alcotest device was proffered to him as part of the refusal. He made the point to Mr Burtt who suggested there was no direction as to the taking of the sample when he said, “He didn’t really get a chance to get to that point because you’ve got argument from your client didn’t he?” His Honour then said, in relation to the respondent, “and ultimately, I’m not doing this, and absenting himself from the location and going into his car”. He added “Implicit in the direction it seems to me is remain where you are, blow in here”.
Finally the magistrate said, “I can draw certain inferences, it seems to me, from your client’s conduct at the time and the responses he gave … It seems to be clear to me he understood what was being asked of him”.
HIS HONOUR: No, well I confess that I had proceeded on the basis, and I thought we were in agreement here, that the conduct the subject of the charge was the refusal to provide a sample of breath, full stop.
MR BURTT: I think that’s the way the case was presented. The prosecutor may be prepared to concede that that is the basis upon which the prosecution proceeded.
HIS HONOUR: I thought he did at the outset and so, I mean, that’s the way I’ve approached the matter.
MR BURTT: Then I don’t press the matter anymore.
HIS HONOUR: No I don’t – it seems to me those other things were complied with and could not be the subject of the charge and I’d understood we were on the same issue there.
Mr Edwardson argued that there are no particulars in the charge itself that identified the direction that is said to have been breached. He submitted that this is necessary insofar as the charge or the conduct that is alleged to the respondent is capable of fulfilling the charge. In other words, there is more than one offence but it would still fit within the description of that offence. In these circumstances, Mr Edwardson submitted that either it has to be the subject of a separate charge or the prosecution must elect.
Mr Edwardson argued that the respondent’s conduct in failing to remain in the presence of the police officer until he provided a sample of his breath is not the reasonable direction that was identified by the prosecutor at first instance nor the way in which the trial proceeded. The case was the respondent’s refusal to submit to the test.
Whilst Mr Grant conceded that it would have been preferable for the police prosecutor to specifically raise the matter with the magistrate, he argued that it was not a new matter and was something that the magistrate should have dealt with in any event, because he clearly understood the wider issue.
Mr Grant submitted that s 47E(3) creates a single offence in respect of a refusal or failure to comply, notwithstanding that there may have been a number of successive directions given. Mr Grant submitted that Police v Bleeze (2012) 112 SASR 568 is an authority for that proposition.
Mr Grant argued that the appellant is not intending to agitate an entirely new area on appeal. He submitted that the respondent’s conduct of walking away is part and parcel of the requirement to submit to an alcotest. Mr Grant submitted that the police did not have to nominate what conduct they relied on, it was only necessary to nominate what directions were relied on.
I allowed Mr Grant to proceed with the argument and heard Mr Edwardson in reply. In my opinion it was open on this appeal for Mr Grant to argue this aspect. Pursuant to s 292(1) of the Supreme Court Civil Rules 2006 the hearing of a magistrate’s appeal is a re-hearing and the relevant evidence was all led before the magistrate. This Court has wide powers on such an appeal including rehearing witnesses or taking fresh evidence pursuant to s 42(4) of the Magistrates Court Act 1991 (SA). I do not consider it to be raising a new matter for the first time and I will deal with the argument on this appeal. This is a refinement of legal argument and involves no new evidence.
In any event as I have already set out the magistrate was looking at the bigger picture of what happened at the scene. The conduct of the respondent in walking away to his vehicle and attempting to lock himself inside was part of the refusal and that evidence was all before the magistrate.
The concept of a refusal in the English language is fairly basic. Refusal is a common English word which simply means the act of refusing. Refuse is defined in the Macquarie Dictionary 3^rd edition as … “to decline to accept something offered” … “to decline to give; deny a request, demand etc” … “to express a determination not to do something … to decline to submit”.
In Rejman v Dunsmore (1983) 32 SASR 151, which was a decision dealing with earlier but very similar legislation, Wells J dealt generally with the question of a refusal in the context of breath tests.
His Honour was dealing with an appeal from a magistrate who during the hearing before him had amended the complaint to delete the word “refused” and substitute the word “failed”. The offence alleged was pursuant to s 47(e)(3) of the Road Traffic Act 1961-1981. The section provided:
When a person is required under this section to submit to an alcotest or breath analysis he shall not refuse or fail to comply with all reasonable directions of a member of the police force in relation to the requirement and, in particular, shall 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 member of the police force.
The only difference in the sections is the inclusion of “must” in the present legislation in lieu of “shall” in the earlier Act.
Counsel had argued in that matter that the provision of the Road Traffic Act created two separate offences and that when the charge was amended by the magistrate the new charge was outside the time limit and therefore contrary to law.
Wells J said at 159:
In my opinion, the material provisions are concerned with excusable and inexcusable non-compliance; the expression “refuse or fail” is intended, and is apt, to refer to the two forms in which non-compliance may be manifested. There may, however, be circumstances in which a deliberate non-compliance is clearly proved, but there is room for argument whether what happened amounted to a refusal or a failure. A person required might, for example, say, “What an imposition this is on a free society: see how you like this”, and then make obviously inadequate efforts with mouth and breath, so that, in effect, no breath was forced into the device at all.
In my opinion, a special magistrate may, according to the circumstances, be justified in recording a conviction for “refusal” if it was clearly that; or for “failure” if it was clearly that; or for “refusal or failure” if the Special Magistrate was satisfied that there was a deliberate, inexcusable, non-compliance, but was not certain that it took one form rather than another.
It follows, in my judgment, that Mr Beazley’s argument under this head must fail. The learned Special Magistrate was entitled to make the amendment in the circumstances, and to record the conviction as he did.
The reasoning of His Honour set out above is supportive in my view of what I understand the legislation is directed to. In my view the appellant in this matter “deliberately and inexcusably” refused to comply with the reasonable direction of the police officer to submit to a breath test. His whole conduct was part and parcel of that deliberate and inexcusable non-compliance, including his walking away and attempting to lock himself in his car.
The appellant’s argument as to reasonable directions
The argument very simply is that Mr Lester failed to comply with a reasonable direction that he remain in the presence of the police officer for the purpose of conducting the test. That is in the terms of s 47E(3) Mr Lester was required to submit to an alcotest and he refused to do so. This was a refusal or failure to comply with a reasonable direction, the direction being to submit to an alcotest. That conclusion is to be found from direct evidence and the clear implications which can be drawn from the evidence. The implications are that by walking away and attempting to lock himself in his car and feigning unconsciousness Mr Lester was refusing to comply with the direction to submit to an alcotest. There is no other reasonable inference which can be drawn.
Mr Grant submitted that in order to succeed in a prosecution under s 47E(3) the prosecution must prove:
(1)the direction was lawful;
(2)the direction was reasonable;
(3)the defendant refused or failed to comply with it.
Mr Grant submitted that the evidence established that Mr Lester made a statement, “I am not doing this”, when asked to submit to an alcotest, and then walked to his car, attempted to lock himself in it and then feigned unconsciousness and that all of this conduct demonstrated that he was refusing to submit to an alcotest.
In relation to his conduct in walking away from the police officer Mr Grant submitted that there was no requirement to provide any oral advice or any further opportunity to comply with the original direction as per s 47E(ab). He relied on the authority of Gaskin v Police [2009] SASC 351 per Doyle CJ at [40]-[43]. This decision was not brought to the attention of the magistrate and is an important decision on the issue before the Court. Mr Grant submitted that the defence offered by s 47E(4)(a) and (b) is available only when the refusal or failure relates to a particular refusal. Doyle CJ said at [41]:
[41]… s 47E(4)(ab) leaves it to the drafter of the prescribed oral advice to determine, through the content of the prescribed oral advice, which requirements and directions under s 47E(2) attract the obligation to give the prescribed oral advice, if there is a failure or refusal to comply.
The respondent’s argument
Mr Edwardson argued that no reasonable directions were given to Mr Lester. He argued that the conversations which the police officer had with Mr Lester did not amount to a direction. He relied on R v Spitzer (2003) 85 SASR 431 per Duggan J at [8]. Duggan J was there agreeing with the comments made by von Doussa J in Bormann v Caldwell (1986) 43 SASR 297 at 304.
It is Mr Edwardson’s argument that the conduct of Mr Lester is quite irrelevant and that the prosecution must fail because it did not establish that any directions were given. Mr Edwardson disputes that any of the conversations referred to earlier amounted to a direction.
Mr Edwardson analysed the conversations and categorised the following statement by the police officer, “We need to wait for five more minutes to conduct an alcotest. If you’d like to join me on the side of the road while we wait”, as no more than an invitation and not a direction. He submitted that the police officer is required to make it clear that the person is obliged to follow the instruction. He submitted that even if the police officer said, “Please stand here and wait with me” it would not be a direction.
The next statement, “I now require you to provide a breath sample” is not a direction according to Mr Edwardson because there is no requirement to do a physical act. He submitted that the brandishing of the alcotester and making the statement, “I now require you to provide a sample of your breath” is not a direction. I disagree.
I note that Constable Gitsham said in evidence that while he was requesting the respondent to provide a sample for the third time, he was pointing the alcotest device towards the respondent’s lips.
Both counsel relied on R v Spitzer as assisting their arguments. Spitzer was decided on the analysis of the conversation set out in the judgment. It was held that what was said by the police officer did not amount to a direction. Duggan J said at [14] that:
[14]… the directions must be “in relation to the requirement” to submit to the test. They are concerned with doing or refraining from doing some physical act associated with the test … it does not appear that the stage had been reached at which directions were being given in relation to the alcotest.
Duggan J at [8], by reference to von Doussa J in Bormann, makes the distinction in the legislation between the concept of requiring a driver to submit to an alcotest and the giving of directions which are required to direct the carrying out of that requirement.
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; and
Stage 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.

I agree with the magistrate with all but the first two sentences, which imports some form of judicial knowledge into his reasoning.
Given the respondent’s conduct after these directions in walking away and stating that he was not going to comply with the direction, the later conduct of the respondent at the hospital is in my opinion irrelevant and therefore the directions relating to the prescribed oral advice required by s 47E(4)(ab) were also unnecessary. It is clear from the actions of the respondent at the roadside that he was refusing to provide a sample of his breath. He should have been convicted on the evidence before the magistrate of the offence charged.
The prescribed oral advice under s 47E(4)(ab) in my view is only contemplated if a reasonable direction is given, then refused by the motorist, but who remains present and conscious. It seems unnecessary in the present case to give the prescribed oral advice when the respondent was clearly refusing to co-operate or listen to Constable Gitsham by feigning unconsciousness. In my opinion motorists who behave in this manner should not be acquitted on the basis of their inappropriate behaviour to avoid submitting to an alcotest. It means that the police officer is placed in an impossible position.
Mr Grant submitted that the direction to exhale into the apparatus pursuant to s 47E(2d) had commenced but the process was unilaterally stopped because of the respondent’s behaviour. I would prefer to say that the preamble to the process required by s 47E(2d) was in place. Constable Gitsham did not get as far as getting to the exhale direction, which I have referred to as stage 2, because the respondent’s behaviour interrupted the sequence of directions. It did not get to the point where the obligation to exhale had begun.
Doyle CJ in Gaskin v Police at paragraph [40] stated:
[40]The terms of the prescribed oral advice … indicate that it relates to the performance of the breath analysis or alcotest, and in particular it relates to the obligation to exhale. The performance of the alcotest or breath analysis “…commences when a direction if first given by a police officer that the person concerned exhale …”: s 47E(2d).
As I have stated, Constable Gitsham did not get to this direction because he was thwarted in his attempts.
Furthermore Doyle CJ went on to state at paragraph [41]:
[41]… one would readily conclude that there was no prescribed oral advice in relation to, for example, a refusal or failure to comply with a direction to stop the driver’s motor vehicle, a direction not to consume fluids, or with a direction to remain in the presence of the relevant police officer.
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.