Police v Lloyd No. Scciv-03-1722

POLICE v LLOYD
[2004] SASC 54
Magistrates Appeal: Criminal

PERRY J. This is an appeal by the police against the dismissal of a complaint following a hearing in the Magistrates Court sitting at Peterborough.
The complainant alleged that the respondent, John Colin Lloyd, drove a motor vehicle on Barrier Highway at Burra on 13 September 2002 when there was present in his blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961 (“the Act”), contrary to s 47B of the Act. The concentration of alcohol alleged was 0.174 grams per 100 millilitres of blood.
At the hearing, it was an agreed fact that the respondent was driving a Holden utility at about 7.30 pm on the day in question when it was involved in a car accident.
A police officer, Senior Constable Mark Jarman, came to the scene of the accident at about 8.15 pm. At 8.26 pm he directed the respondent to blow into an alcometer. The result of the alco test was positive. He then invited the respondent to accompany him to the Burra police station for a breath analysis test.
That test was administered at 8.53 pm at the police station. In fact, the test was duplicated, and the lower reading resulted in the blood alcohol concentration to which I have referred.
Once that result became apparent, s 47G(2a) took effect. That section is in the following terms:
“47G(1) .........
(2).........
(2a)Where a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith-
(a)give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person’s blood; and
(b)at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.”
For the purposes of that subsection, the “prescribed oral advice” is set out in Regulation 9(1) of the Road Traffic (Miscellaneous) Regulations 1999. This provides that the oral advice required to be given for the purposes of s 47G(2a)(a) of the Act must be as set out in Part A of Schedule 1.
Part A is as follows:
“PART A
ORAL ADVICE FOR THE PURPOSE OF SECTION 47G(2a)(a) OF ROAD TRAFFIC ACT 1961
The breathalyser reading just taken shows that you had a prohibited level of alcohol in your blood.
Therefore, it appears that you have committed an offence against section 47B of the Road Traffic Act.
In any court proceedings for that offence, or for an offence against section 47 of the Road Traffic Act (driving under the influence of liquor), it will be presumed that the breathalyser accurately indicated your blood alcohol level at the time of the reading and for the preceding two hours. However, the Road Traffic Act allows for contrary evidence based on the results of a blood test.
If you want to have such a blood test you will have to make your own arrangements and follow certain procedures, using a special blood test kit. This blood test kit will be supplied to you on your signing a written request.
If you obtain a blood test kit and want to have your blood tested, you should take the kit promptly to a hospital or medical practitioner in order to have a sample of your blood taken.
[*Alternatively, you may have the sample taken by a registered nurse.]
You must not consume any more alcohol before having a sample of your blood taken and must not open the blood test kit before delivering it to a medical practitioner [*or registered nurse].
Under the blood test procedure, the sample of blood is divided and sealed in two containers. You will have to sign a form that will be given to you by the medical practitioner [*or registered nurse].
One of the sealed containers will be given to you and you may make your own arrangements to have the blood in that container analysed.
In any event, the blood in the other container will be analysed by State Forensic Science and you will be given written notice of the results of the analysis.
Further information as to these matters is contained in the written notice which will be delivered to you shortly.
*Advice as to the alternative of a registered nurse is to be given only if the breath analysis was conducted outside Metropolitan Adelaide.”
In purported compliance with his obligation to do so, Senior Constable Jarman read, word for word, the text of Part A of the Schedule, except for the very last sentence.
The very last sentence of Part A reads:
“Further information as to these matters is contained in the written notice which will be delivered to you shortly.”
Instead of using those words, Senior Constable Jarman conceded in his evidence at the trial that he had said:
“Now, John, this is a notice which is similar to what I just read out to you.”
At the trial, the prosecutor relied on the evidentiary aids to proof to be found in s 47G.
Section 47G(1) provides:
“(1)Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicates as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis.” (emphasis added)
Relying on s 47G(7) of the Act, the prosecutor tendered a certificate containing the particulars set out in the subsection.
That subsection provides:
“47G.........
(7)A certificate purporting to be signed by a person authorised under subsection (1) and to certify-
(a)that, on a date and at a time specified in the certificate, a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument; and
(b)that the prescribed oral advice and the prescribed written notice were given and delivered to the person in accordance with subsection (2a)(a); and
(c)that-
(i)the person did not make a request for an approved blood test kit in accordance with the regulations; or
(ii)at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subsection (2a)(b),
is, in the absence of proof to the contrary, proof that the requirements of subsection (2a) were complied with in relation to the person.”
The prosecutor did not rely solely on the certificate furnished pursuant to s 47G(7). He also called Senior Constable Jarman to give evidence. In his evidence, he confirmed, inter alia, the accuracy of a transcript of a recording of his conversation with the respondent, in the course of which he purported to give to the respondent the prescribed oral advice. The transcript was tendered.
At the close of the prosecution case, counsel for the respondent submitted that there was no case to answer, in that, given the contents of the transcript of the conversation between Senior Constable Jarman and the respondent and Senior Constable Jarman’s evidence, he had clearly departed from the strict wording of the oral advice, albeit in what might be thought to be a minor way. It followed, so the respondent submitted, that there was “proof to the contrary” within the meaning of s 47G(7) of the Act.
In those circumstances, the certificate tendered under s 47G(7) did not operate as proof that the requirements of subsection (2a) had been complied with.
The magistrate agreed with the respondent’s contention and ruled the certificate inadmissible.
He went on to hold that there was no admissible evidence before the court as to the respondent’s blood alcohol content at the relevant time.
In the result, he upheld the submission that there was no case to answer, and dismissed the complaint.
In its notice of appeal, the appellant complains that the magistrate erred in refusing to admit the certificate into evidence.
The trial magistrate gave written reasons for his decision. In his reasons, he relied heavily on the judgment of Mullighan J in Semmens v Police.[1]
[1] (1999) 202 LSJS 272.
In that case, the prosecution relied on a certificate furnished pursuant to s 47G(5) as proof of various matters, including the fact that the statement in writing required by s 47G(2) was delivered in accordance with that subsection.
As is the case with a certificate under s 47G(7), a certificate furnished pursuant to s 47G(5) is evidence of the truth of the matters certified “in the absence of proof to the contrary”.
In Semmens, evidence at the trial in the Magistrate’s Court indicated that the police officer responsible for administering the breath analysis had mistakenly written in the wrong date in the statement in writing required by s 47G(2) and in the certificate given pursuant to s 47G(5). He had written 16 August 1998 instead of 17 August 1998.
Otherwise the details were correct.
Subsequently, a little later, and while the driver, who was the appellant, was still present at the random breath testing station, the police officer realised that he had inserted the wrong dates. He thereupon purported to issue a new statement and certificate with the correct date, and gave them to the appellant.
The magistrate admitted both documents into evidence and convicted the driver.
On appeal to this Court, it was conceded that the second statement and certificate could not properly be admitted into evidence as they were not delivered to the appellant “as soon as practicable” after the driver had submitted to the breath analysis. [See s 47G(2)]
This left the incorrectly dated certificate and statement as the only evidence capable of proving the matters referred to in the certificate.
Mullighan J quashed the conviction. In the course of his reasons for judgment he observed:
“The purpose of s 47G(2), in context, is to ensure that a driver who has failed a breath analysis test is given accurate and timely information in a permanent form. Given the limited circumstances in which a driver may contest the allegation as to the concentration of alcohol in the blood, this information assumes great importance. Parliament has acknowledged that the date and time of the breath analysis as well as the result of the breath analysis must be recorded in this way accurately and provided to the driver promptly. Also, Parliament has acknowledged that each of these matters is of equal importance. The driver must have accurate information about all of these matters in order to test the result of the breath analysis in the only permissible manner by means of analysis of a sample of blood. It cannot be expected that the driver will necessarily know or remember any of these pieces of information if the required statement is not given to him. Consequently, the presumption is only to apply if there is compliance with s 47G(2). The onus is cast upon the relevant police officer to provide accurate information. If not, the presumption does not apply, whatever the reason for the inaccuracy.
.... The statement was not in accordance with s 47G(2) and consequently the certificate given under s 47G(5) was incorrect. Neither the statement nor the certificate should have been admitted into evidence and the learned Magistrate erred in doing so. Consequently there was insufficient evidence upon which to find the charge proved upon the basis of the agreed facts.”[2]
[2] See also Taylor v Daire (1982) 30 SASR 453, Eubel v Martin (1992) 57 SASR 290, Nottle v Chaplin; McDonald v Shepherd (1988) MVR 268, Police v Rowland (unreported) 11 December 1995, judgment No S5414 and Richards v Schutt (1978) 18 SASR 421.
After referring to that passage from the judgment of Mullighan J in Semmens, in his reasons for judgment in this case the trial magistrate went on to observe:
“17....... In my view the reasoning applied by His Honour [Mullighan J] in Semmens is applicable in this case. There has been a failure to comply which is analogous to the failure to comply with Section 47G(2) in Semmens. It may be the case that Jarman very substantially complied with the prescribed form of oral advice as to blood test rights but he did not comply fully with that prescribed form. Neither subsection 47G(2a)(a), nor regulation 9 makes any mention of substantial compliance or the relative importance of any particular sentence contained in the prescribed form of advice. The question is not whether the defendant may have been adequately informed of his rights but whether the mandatory provisions were complied with.
18I would remind myself of the pronouncement of Lord Coleridge CJ in the case of Woodward and Sarsons[3] when considering statutes of this kind. It is the general rule that ‘an absolute enactment must be obeyed or fulfilled exactly but it is sufficient if a directory enactment be obeyed or fulfilled substantially’.
19I reiterate that the wording of sub-section 47G(2a)(a) and regulation 9 is mandatory. The provisions deal with rights which are of the utmost importance to a driver who has submitted to a breath analysis test. It is essential that they be complied with strictly.
20For these reasons I conclude that the provisions of Section 47G(2a) and of regulation 9 have not been complied with and I rule that the certificate under Section 47G(7) is not admissible.
21It follows from the ruling that I have made that the presumption pursuant to Section 47G(1) of the Road Traffic Act does not apply. There is therefore no admissible evidence before the court of the blood alcohol content of the defendant’s at the relevant time.”
[3] (1875) LR 10 CP 733 at 746.
A question arises as to the soundness of the trial magistrate’s reference to the distinction between “mandatory” and “directory” provisions, as appears in that passage.
While the characterisation of statutory provisions as imposing either mandatory or directory obligations is supported by a long line of authorities, more recent authority doubts the utility of the distinction.
In Tasker v Fullwood[4] the New South Wales Court of Appeal, in the joint judgment of Hope, Glass and Samuels JA, stated:[5]
“From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute. Little, if any assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklin Stores Pty Ltd case.[6] (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v Beaumont.[7] (4) The intention being sought is the effect upon validity of the act in question , having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v The Commonwealth.[8] (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: the Franklins Store Pty Ltd case. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v The Commonwealth.”
[4] (1978) 1 NSWLR 20.
[5] Ibid at 23-24.
[6] [1977] 2 NSWLR 955 at 963 et seq.
[7] [1977] 2 NSWLR 211 at 220.
[8] (1975) 134 CLR 81 at 179, 180.
Those observations have been approved by the High Court.
In Project Blue Sky Inc and Ors v Australian Broadcasting Authority[9] in their joint judgment McHugh, Gummow, Kirby and Hayne JJ said: [10]
“In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood[11] in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning.[12] That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales.[13] In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.[14]” (emphasis added)
[9] (1998) 194 CLR 355.
[10] Ibid at 516-517.
[11] [1978] 1 NSWLR 20 at 23-24.
[12]    McRae v Coulton (1986) 7 NSWLR 644 at 661; Australian Capital Television (1989) 86 ALR 119 at 147.
[13]     Hatton v Beaumont [1977] 2 NSWLR 211 at 213, 266; Attorney-General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 at 965; Tasker v Fullwood [1978] 1 NSWLR 20 at 24; National Mutual Fire Insurance Co Ltd v The Commonwealth [1981] 1 NSWLR 400 at 408; TVW Enterprises Ltd v Duffy [No 3] (1985) 8 FCR 93 at 102; McRae v Coulton (1986) 7 NSWLR 644 at 661 and see Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454 at 457-460; Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 at 24-26. See also two recent decisions of the Court of Appeal of the Supreme Court of the Northern Territory: Johnston v Paspaley Pearls Pty Ltd (1996) 110 NTR 1 at 5; Collins Radio Constructions Inc v Day (1997) 116 NTR 14 at 17; and Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286 at 1294, 1296; [1995] 1 All ER 367 at 375, 377.
[14]    Tasker v Fullwood [1978] 1 NSWLR 20 at 24.
Applying that approach, the question in this case is whether or not the admitted failure to read verbatim the prescribed oral advice as contained in Part A of Schedule 1 to the Road Traffic (Miscellaneous) Regulations 1999 (defined earlier as the regulations) should lead properly to the conclusion that s 47G(2a)(a) of the Road Traffic Act 1961 has not been complied with. Adopting the purposive test identified in Project Blue Sky Inc, the application of the test involves the further question “whether it was a purpose of” the legislation now in question “that an act done in breach of the relevant provisions should be invalid”.

It is, therefore, necessary to have regard to the nature of the act which is said to be invalid and to identify the purpose of the relevant statutory provision or provisions.
Clearly enough, the evident purpose of s 47G(2a) is to ensure that in cases where the result of the breath analysis is to indicate that the concentration of alcohol is the prescribed concentration, the driver is fully informed as to the following matters:
(i)that the prescribed concentration of alcohol was present in his or her blood;
(ii)the legal effect of that circumstance;
(iii)the driver’s right to have a blood test taken; and
(iv)the procedures to be followed if the driver wishes to exercise that right.
The evident purpose of s 47G(7)(b) is to facilitate proof that the requirements of s 47G(2a) have been complied with, so as to avoid the delay and expense associated with strict proof of those matters.
The prescribed oral advice and the prescribed written notice both contain much the same information.
Depending on the circumstances of the case, that information will be conveyed, no doubt with varying degree of success, to drivers whose natural capacity to absorb and understand the information, delivered in either form, may vary considerably. Furthermore, their capacity to do so may further be adversely affected by their state of sobriety, which may vary between something close to a normal state of consciousness and alertness to a state close to insensibility.
Bearing that in mind, even the combination of the two forms of communication of the relevant information may or may not be adequate properly to inform the driver of his or her rights.
The statutory scheme, however, is predicated upon the basis that “one size fits all”. It represents an attempt to go as far as is possible, by prescribing procedures of uniform application in all cases, to ensure that the driver is adequately informed of his or her legal position.
Turning more specifically to the delivery of the prescribed oral advice, the fact that it is oral advice, no doubt read from a text by the police officer concerned, means that there will inevitably be some degree of variation between the form prescribed and the words which are uttered.
For example, if twelve different people are given the same piece of prose to read, there will be minor and different variations in what is read out by each reader. Such inevitable minor variations are part and parcel of the nature of the exercise which is being performed. In the present context, provided that any departures from the script do not alter the sense of what is being conveyed in any significant way, they could not sensibly be held to invalidate the exercise for the purpose of bringing into play the statutory presumptions.
Furthermore, it must be borne in mind that the delivery of the prescribed oral advice occurs in a real, not an abstract setting. The driver may be known to the police officer. Use of the driver’s name at various stages of the delivery of the oral advice could not possibly invalidate the exercise, even although it might represent a small addition to the text.
Furthermore, every effort should be made to convey the oral advice in a manner which will maximise the prospect of it being understood. If it was to be gabbled in a ritualistic fashion at such a high rate of speed that no ordinary person, even if sober, could be expected to comprehend what was being said, it might well be that the statutory requirements would not be met, even if what was said accurately repeated the prescribed text.
Mr Edwardson for the respondent at first contended that there had to be strictly literal compliance with the text, and that any departure at all would invalidate the process.
In the course of argument, I invited him to indicate whether he carried his argument so far as to suggest that if instead of stating “further information as to these matters is contained in the written notice which will be delivered to you shortly”, the officer had said “further information as to these matters is contained in the written notice which I give to you now”, the delivery of the prescribed oral advice would be invalid. He contended that in those circumstances, it would be invalid.
Later in his argument, however, he conceded that minor variations such as might be expected when any two people read from a given text, would not matter if the sense was not affected.
In my opinion, each case where it is suggested that there has been some deviation from the prescribed text, needs to be considered in its own circumstances and context. There can be no absolute rule. Furthermore, I reject the suggestion that even the slightest departure will render the exercise nugatory.
At the same time, the courts should not encourage police officers to deliberately vary the words. On the contrary, every effort should be made to adhere to the prescribed text. If some departure from it occurs, it is for the court to determine whether it affects the fulfilment of the legislative purpose.
In my opinion, applying that approach to this case, it seems to me that the departure, represented by a slight re-paraphrasing of the final few words of the prescribed text, is a trivial departure which in no way impaired the efficacy of the oral advice, and in no way impaired the fulfilment of the statutory purpose.
In those circumstances, applying the purposive test identified in Project Blue Sky Inc and Ors (supra), I am of the view that the minor departure from the text did not preclude reliance upon s 47G(7). There was no “proof to the contrary” within the meaning of that subsection, that the requirements of s 47G(2a) had not been complied with in relation to the respondent.
In expressing that view, I in no way intend to doubt the correctness of the decision in Semmens v Police (supra) and the long line of authority which emphasises that the relevant provisions must be “strictly” complied with.
But in this context, I do not find the word “strictly” to be helpful. Where there is any departure from the prescribed procedures, the relevant question is whether it is “a purpose of the legislation that an act done in breach of the [relevant] provisions should be invalid”.[15]
[15] Project Blue Sky Inc and Ors (supra) at 516-517.
I am unable to construe the relevant provisions of the Act to mean that every departure, however minor, renders the relevant act invalid. In the context of the provisions relating to the giving of the prescribed oral advice, such an approach would give the provisions an unreal and impractical operation which would be at odds with the evident scope and purpose of that part of the legislation.
I would allow the appeal and substitute for the order upholding the submission of no case to answer, an order-
(a)dismissing the submission; and
(b)quashing the dismissal of the information.
I will hear counsel on the question whether I should remit the matter to the magistrate whose decision is under appeal, to resume and complete the hearing of the matter in accordance with these reasons, or whether I should remit the matter for the hearing of the complaint to proceed de novo.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. (1999) 202 LSJS 272.
2.    See also Taylor v Daire (1982) 30 SASR 453, Eubel v Martin (1992) 57 SASR 290, Nottle v Chaplin; McDonald v Shepherd (1988) MVR 268, Police v Rowland (unreported) 11 December 1995, judgment No S5414 and Richards v Schutt (1978) 18 SASR 421.
3. (1875) LR 10 CP 733 at 746.
4. (1978) 1 NSWLR 20.
5. Ibid at 23-24.
6. [1977] 2 NSWLR 955 at 963 et seq.
7. [1977] 2 NSWLR 211 at 220.
8. (1975) 134 CLR 81 at 179, 180.
9. (1998) 194 CLR 355.
10. Ibid at 516-517.
11. [1978] 1 NSWLR 20 at 23-24.
12.    McRae v Coulton (1986) 7 NSWLR 644 at 661; Australian Capital Television (1989) 86 ALR 119 at 147.
13.     Hatton v Beaumont [1977] 2 NSWLR 211 at 213, 266; Attorney-General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 at 965; Tasker v Fullwood [1978] 1 NSWLR 20 at 24; National Mutual Fire Insurance Co Ltd v The Commonwealth [1981] 1 NSWLR 400 at 408; TVW Enterprises Ltd v Duffy [No 3] (1985) 8 FCR 93 at 102; McRae v Coulton (1986) 7 NSWLR 644 at 661 and see Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454 at 457-460; Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 at 24-26. See also two recent decisions of the Court of Appeal of the Supreme Court of the Northern Territory: Johnston v Paspaley Pearls Pty Ltd (1996) 110 NTR 1 at 5; Collins Radio Constructions Inc v Day (1997) 116 NTR 14 at 17; and Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286 at 1294, 1296; [1995] 1 All ER 367 at 375, 377.
14.    Tasker v Fullwood [1978] 1 NSWLR 20 at 24.
15.    Project Blue Sky Inc and Ors (supra) at 516-517.

[2004] SASC 54

2 March 2004