Police v Lochner

Case [2018] SASC 99

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v LOCHNER

[2018] SASC 99

Judgment of The Honourable Justice Peek

19 July 2018

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS

The appellant was charged with driving a motor vehicle while there was a prescribed drug, namely Delta-9-Tetrahydrocannabinol (‘THC’), present in his oral fluid, contrary to s 47BA(1)(a) of the Road Traffic Act 1961 (‘RTA’).

The appellant was wrongfully arrested by senior constable Manchip (Manchip) due to an erroneous belief that he was driving while disqualified. He was taken in custody to police cells and compelled to submit to a drug screening test by Manchip who later claimed to senior constable Fox (Fox) that the drug screening test had returned a positive result. Fox then required the appellant to provide a sample of oral fluid which he subjected to a presumptive test and subsequently sent to Forensic Science SA for analysis. That analysis was positive for THC.

At trial (and on appeal), the appellant was unrepresented. He asserted that the drug screening test conducted by Manchip did not produce a positive result. The police did not call Manchip, but instead tendered as exhibit P2, two evidentiary certificates signed by Fox (who was not present at any drug screening test) which purported to assert that Manchip had performed a drug screening test and that it produced a positive result. The prosecution also tendered a number of other evidentiary certificates pursuant to RTA s 47K.

Subsequent to the commission of the alleged offence, but prior to the trial, s 47K was significantly amended. The averments in exhibit P6 had been drafted by reference to repealed provisions and were incorrectly received and treated as having evidentiary effect.

The appellant gave evidence and advanced a defence under RTA s 47BA(2), that he did not knowingly consume THC. This was rejected with very little analysis of the facts and circumstances of the case by the Magistrate.

Held per Peek J (allowing the appeal and dismissing the complaint):

(1)  Before finally receiving exhibit P2 and evidence of the Forensic Science SA analysis, the Magistrate should have advised the appellant of his right to apply for a voir dire hearing directed to the possibility of discretionary rejection of the Forensic Science SA analysis on the basis of unlawful or improper conduct by Manchip in falsely claiming that the drug screening test was positive.

(2) The Magistrate misapprehended his obligations concerning the asserted defence under RTA s 47BA(2) and failed to consider adequately the whole of the relevant facts and circumstances when coming to his decision to reject the appellant’s defence.

(3)  In the circumstances, it is appropriate to dismiss the complaint without order for a re-trial.

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Police v Lochner [2018] SASC 99
Case
[2018] SASC 99
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CaseChat Overview and Summary

In Police v Lochner, the appellant was charged with driving while there was a prescribed drug, THC, present in his oral fluid under the Road Traffic Act 1961. The case involved issues regarding the admissibility of evidence, particularly concerning the drug screening test and its analysis procedure. The primary legal issues revolved around whether the Magistrate adequately considered the foundational requirements for the admissibility of the drug screening test results and whether the procedural steps outlined in the Act were followed correctly.

The Supreme Court of South Australia found that the Magistrate failed to sufficiently address a real issue about the admissibility of the drug screening test results. The court noted that there was a significant concern about the absence of the police officer’s notes and the reliance on second-hand evidence. The Magistrate should have informed the unrepresented defendant about his right to apply for a voir dire hearing to challenge the admissibility of the evidence. The court concluded that the Magistrate's failure to do so constituted an error that prevented the defendant from effectively opposing the admission of the contested evidence.

The Supreme Court also highlighted the importance of the procedural prerequisites set out in the Act, noting that while these are not strictly conditions precedent to admissibility, they create a presumption of compliance. The court found that the sample collection process was adequately followed and that the defendant did not successfully challenge the reliability of the sample. However, the court emphasised that the Magistrate should have provided the defendant with an opportunity to argue for the exclusion of the evidence.

In conclusion, the Supreme Court quashed the conviction and ordered a retrial, emphasising the importance of procedural fairness and ensuring that an unrepresented defendant is adequately informed of their rights regarding the admissibility of crucial evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At the outset of the trial, the Magistrate gave the appellant some basic advice concerning some matters of law and procedure. The prosecutor opened on the facts very briefly and then called sergeant Hellams as the first witness. The evidence of sergeant Hellams At the time of trial, Hellams was a police sergeant and presumably an experienced police officer. At the commencement of his evidence, when taken by the prosecutor to the incident in question, the following exchange occurred:Q Did you make notes at the time?A Yes I did.Q Do you have those notes with you?A No I don’t not today sorry. Although an unrepresented defendant would not notice, this is a very surprising statement for a sergeant of police to make in a South Australian Magistrates Court; no reason for the absence of his notes was given then, or at any later time. The prosecutor immediately took Hellams to the stopping of the appellant’s vehicle and its sequellae on Saturday 12 March 2016, but it soon become apparent that his evidence was largely second hand, in that it was clearly Manchip (to whom Hellams referred to by name), who had dealt with the appellant both at the scene (alco-testing him and searching him) and later at the police station (administering a drug screening test in Hellams’ absence). Hellman’s evidence-in-chief was therefore quite short. In cross-examination it was immediately confirmed that it was Manchip who should have been called and that the appellant was surprised that he was not being called. Thus the beginning of the cross-examination was as follows:CROSS- EXAMINATION BY DEFENDANTQJust with regard to the time of my arrest, there is a couple of things I query memories about what was just said. One is that when I was pulled up it actually seemed to me to be Constable Manchip who was doing all the - the man I had quite a disagreement with about this treatment of me because I believed he thought I was aboriginal until I told him otherwise and he seemed to have a bit of a dig at me - but what I am saying is that when we were at the side of the road it seemed to be Constable Manchip who was the one who was doing all the investigation and spent some half an hour on the phone trying to find something with which to charge me over my licence even though I had explained to him that the disqualification was from 1988, it was a three month disqualification, it obviously hadn’t been removed from the files and I was carrying a full Victorian licence in my name with me. HIS HONOUR: You have to break things down step by step. So you have covered a number of different things. You want to put to this witness that you had a current Victorian licence on you?XXNQ Do you remember seeing that?A Yes.QAnd yet it seemed to me that it was actually Constable Manchip, who is not present today which is disappointing as I would have liked to cross- examine him, but he was the officer who practically did most of the enquiry and you actually more or less stayed with myself and my girlfriend.AHe did conduct some enquiries I do recall that and I also spent a considerable amount of time myself on the phone to New South Wales police.HIS HONOUR: One other thing I think you said was that you told the police that your disqualification in New South Wales was back in 1988 for three months?HIS HONOURQNow do you recall that being said, that Mr Lochner told police at the time that his disqualification in New South Wales was back in 1988 and was only for three months?A Yes he did say that.XXNQAnd as matter of fact, as the prosecutor has mentioned, it was later found that I was telling the truth, that I had been arrested falsely and those charges were dropped and also if you remember in the police station there was a point in time way after my girlfriend had taken the car and gone and I had been conveyed to the police station, Constable Manchip decided he wanted to impound my vehicle?A I can’t speak for Senior Constable Manchip. (Emphasis added)

Decision

Reasons for decision

PEEK J
I also mention a further matter that I will not resolve. As noted above, the second certificate in exhibit P2 avers that: “the drug screening test indicated that a prescribed drug may then have been in the oral fluid of that person” and I assume this averment attempts to satisfy the s 47EAA requirement that “the drug screening test indicates the presence of a prescribed drug in the person’s oral fluid”. However, I note that in comparing the two underlined passages, the certificate appears to only aver an establishing of a significantly lower degree of probability than appears to be required by s 47EAA. I heard no submissions on this matter and I put it aside for another day. Conclusion: A voir dire hearing should have been held On the evidence before me, I find that there was a real issue that should have been addressed by the Magistrate before exhibit P2 was received into evidence in the way that it was. I accept that the defendant would have had the burden of proof of foundational facts on a voir dire hearing;[16] and that there are certain similarities between that burden and the burden of proof being referred to in RTA s 47K(10). Be that as it may, any such similarity cannot affect the clear obligation upon the Magistrate in these particular circumstances to advise the appellant of his right to apply for a voir dire hearing in which both the appellant and Manchip could have given full evidence. [16] The burden of proof concerning the facts (on the balance of probabilities) will usually be on an applicant who seeks discretionary exclusion of evidence. (Of course the position where voluntariness of a confession is in question is different but nothing of that sort is involved here). It is important to understand that the present case is not the situation of an appellate court being asked to review a Magistrate’s evidentiary decision not to exclude an important item of prosecution evidence on a particular set of facts; in cases such as that, the facts are usually to be taken as found by the Magistrate and an appeal will proceed only by reference to clear and well known appellate principles. By contrast, here an unrepresented defendant made statements to a Magistrate who should have appreciated that there could well be a viable challenge to the admissibility of important prosecution evidence and his Honour erred in that he failed to give the defendant sufficient information or assistance for him to effectively oppose the admission of such evidence. Although counsel for the respondent certainly did not concede the appeal, he did agree that the framework for analysis as outlined above is correct. Thus he said:MR AMBROSE: Then finally, that the drug screening test, this is again here only in the world of procedural processes and not dealing with the piece of evidence which is relied on by the prosecution to establish the charge. I agree with your Honour though that it is a necessary precondition to commence to take a sample of oral fluid or an oral fluid analysis as a positive drug screening, because I accept that’s a necessary precondition, but I don’t accept that a failure of that precondition means that the evidence obtained from the sample of oral fluid and the subsequent test should necessarily be excluded or is somehow invalid.HIS HONOUR: What does a necessary precondition actually mean?MR AMBROSE: Well, that the Act sets out a procedure, it’s expected, and that procedure should be followed.HIS HONOUR: And what if it’s not?MR AMBROSE: Well, the outcome then is that your Honour is then faced with a question of exclusion and whether or not your Honour would in this case exclude the evidence on the basis of one of the discretionary exclusions.HIS HONOUR: But might it not be a situation where given that the defendant was unrepresented, that’s the track that the magistrate should have followed, pretty much as you’ve just outlined it, but failed to do so.MR AMBROSE: I agree.HIS HONOUR: Just didn’t give the opportunity to defendant to, as it were, attempt to persuade him to exclude it, etc, etc.MR AMBROSE: I agree, the way I’ve tried to set out the process is what I would now press upon your Honour was the process to consider, and I accept that the magistrate didn’t turn their mind to these questions.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

The Magistrate gave an ex tempore judgment of just over two pages on the afternoon of the trial. After summarising the prosecution evidence in one page, his Honour referred to the onus of proof on the second page with the evidence of the appellant and his Honour’s reference to the defence case occupying the balance of the judgment as follows:7. The defendant’s evidence can be summarised as follows. The defendant was quite frank in his evidence that he is a regular and unapologetic user of cannabis and has been for all of this adult life. He also gave evidence that he was found with a small amount of cannabis in his possession which he had been given earlier and he was paying an expiation fee with respect to that quantity of cannabis. He also gave evidence that he did not knowingly consume cannabis for five days before the incident. He explained that he is from NSW, he had come to South Australia in his professional capacity to attend the Womadelaide festival and had not consumed, or knowingly consumed, cannabis during the time he left NSW and had attended that festival and up until the time he was picked up by police with respect to this incident. It is his evidence that he may have consumed cannabis unknowingly on the day of the incident. He had been given some mulled wine during the day which may have had cannabis in it. He did not know if it did and did not know at the time if it did. He further gave evidence that at the time that the oral fluid sample was taken by Senior Constable Fox the swab was in his mouth for 16 minutes and during that time he must have chewed or sucked on the swab and this was contrary to the manufacturer’s instructions with respect to the use of that kit which he had obtained after contacting the manufacture Allere.8. In my view the sample was taken correctly. The presumption of s 47K(3a) is this; that the provision of the Act have been complied with which includes the procedural processes outline in schedule 1. In my view that presumption has not been displaced with by the defendant’s evidence that he must have chewed or sucked on the swab while it was in his mouth.9. In any case Senior Constable Fox’s evidence is that he did not notice any such conduct by the defendant when the sample was being taken but more importantly, he said, that he had no difficulty in obtaining sufficient oral sample of oral fluid. The swab was not damaged in any way that would prevent him collecting the oral fluid sample. Even if the defendant did chew or suck at the straw to some extent this has not affected the collection of the oral fluid as required by the Act or the reliability of the sample in my view.10. I further note in that regard the analysis certificate that the analyst also indicated there were no factors that adversely affected the accuracy or validity of the analysis.11. Further in my view the defendant has not discharged his onus with respect to any defence under s 47BA(2) of the Act. Any claim that the mulled wine contained cannabis that the defendant referred to is no higher than conjecture by the defendant. There is no evidence that it did contain cannabis and further the defendant’s claim not to have knowingly consumed cannabis in the past five days is not persuasive on the balance of probability given his own evidence that he was a habitual cannabis user and found in possession of cannabis.12. I find the charge proven beyond reasonable doubt. (Emphasis added)The Magistrate’s consideration of the s 47BA(2) defence