Police v Lochner
[2018] SASC 99
•19 July 2018
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 The averments in exhibit P6 had been drafted by reference to repealed provisions and were incorrectly received and treated as having evidentiary effect.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.
Road Traffic Act 1961 (SA) s 47A, s 47EAA, s 47K, s 47BA; Statutes Amendment (Drink and Drug Driving) Act 2017 (SA), referred to.
R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; Police v Hanton [2018] SASC 96; Merchant v The Queen (1976) 126 CLR 414; Police v Dunstall (2015) 256 CLR 403; Police v Bulgin [2010] SASC 143; Ellul v Fauser (1981) 28 SASR 300; Martin v Police [2015] SASCFC 85, discussed.
POLICE v LOCHNER
[2018] SASC 99Magistrates Appeal: Criminal
PEEK J.
Introduction
The appellant was charged on complaint with one count of driving a motor vehicle on Saturday 12 March 2016 whilst 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’). Two years after the subject incident, a trial was held at the Mount Barker Magistrates Court on the morning of 15 March 2018. Proof of the charge depended upon the admission of evidence of an analysis carried out at Forensic Science SA (the “FSSA oral fluid analysis”) and the rejection of the defence case. In the afternoon of that day, the Magistrate delivered an ex tempore judgment finding the charge proven. No prior offences were alleged and his Honour imposed a fine of $900 (plus other fees and costs of $520) and disqualification from driving for three months, to commence at 12:01am on 15 March 2018.
The appellant was unrepresented both at trial and on the appeal where he summarised his position thus:
The trial just wasn’t conducted properly and that’s the long and short of it. The main witness in my opinion, Constable Manship, the arresting officer, wasn’t there. I never got to cross-examine him. He did in fact do the first test on me. It’s not videoed and all the shaking of the heads when they didn’t like the result isn’t there. So we can’t see that. There is a lot of problems with that first test that led to the second test with which there are also problems. There is problems with the arrest and the whole thing adds up to something that wasn’t really – it wasn’t fair, it just wasn’t fair. There were so many mistakes and glitches and things ignored and evidence that I wasn’t able to give and presumptions made by the magistrate based on erroneous evidence that I really think a miscarriage of justice was done on the day.
I find that the trial was not conducted according to law and the conviction cannot stand. My reasons follow.
Overview of the arrest and trial
At 11:15pm on Saturday 12 March 2016, the appellant was driving on Greenhill Road at Summertown with his partner. The car was stopped by sergeant Hellams (Hellams) and senior constable Manchip (Manchip) because of a defective headlight. Manchip compelled the appellant to submit to an alcotest; it returned a negative result. Manchip conducted a licence check which, he said, showed that the appellant was disqualified from driving in New South Wales. The appellant informed the officers that the New South Wales disqualification was for a period of three months, some 30 years before in 1988, and vehemently insisted that he was not presently disqualified from driving. The officers disregarded this and arrested him on a charge of driving while disqualified.
Manchip searched the appellant, presumably relying on the arrest for driving while disqualified, and found a very small bag of cannabis in his pocket for which an expiation notice was issued. The officers, again presumably relying on the arrest, then took him in custody to the Mount Barker police station, arriving at about 12:30am on Sunday 13 March 2016, and charged him with driving while disqualified at the charge counter. Manchip then took him to the cells where Manchip compelled him to submit to a screening test of his oral fluid at 12:43am, using a “Securetec Drugwipe II Twin” apparatus (the ‘drug screening test’).
Manchip then caused senior constable Fox (Fox), who had an accreditation to perform oral fluid analyses, to attend at the cells and told him that the screening test had produced a positive result. On that basis, Fox required the appellant to submit to an oral fluid analysis which he commenced to perform using the “Alere DDS Reader” at 12:59am. The first step of the procedure involved a cotton bud (with stem attached) being placed in the appellant’s mouth until enough oral fluid was collected for analytical purposes; in fact, Fox required him to hold the swab in his mouth for some 16 minutes before Fox was satisfied that there was a sufficient sample absorbed by the swab. Fox performed a presumptive oral fluid test, divided the sample into two portions and placed them into two vials which were later sent to Forensic Science SA (“FSSA”) for analysis.
The vials of oral fluid were then submitted to FSSA for analysis and Ms Lauren Geier gave evidence that she received them on 21 March 2016 and that the analysis was positive for THC. A certificate signed by her to that effect was tendered as exhibit P9 and specified that “there were no factors that adversely affect the accuracy or validity of the analysis”.
The importance of the drug screening test performed by Manchip
The drug screening test performed by Manchip was important because, pursuant to RTA s 47EAA, a power to compel the appellant to submit to an oral fluid analysis only arose[1] if “the drug screening test indicates the presence of a prescribed drug in the person's oral fluid”. (I will refer to such a result as a “positive result”). The appellant asserted to the Magistrate that he had seen Manchip behaving in a way that showed that the drug screening test did not produce a positive result. The appellant’s allegation was in effect that Manchip had lied about there being a positive result of the screening test so as to enable an oral fluid test, and thence an FSSA oral fluid analysis, to occur. This was an allegation of gross impropriety and should have been taken very seriously.
[1] In the circumstances of the present case.
The prosecution did not call Manchip as a witness, or apply for an adjournment for him to be called. At trial, the appellant continually protested at the fact that the prosecution were not calling Manchip (and at the fact that he was unable to cross‑examine him concerning the correct result of the drug screening test).
Despite the appellant’s allegations and Manchip’s absence, the Magistrate accepted the prosecution tender of exhibit P2, being two certificates signed by Fox (who had not been 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.
It may be accepted that Fox formed a belief based upon Manchip’s assertion that a positive drug screening test result had occurred and that he consequentially required the appellant to submit to an oral fluid test. However, any evidence as to what Manchip had said to Fox would have been inadmissible hearsay as to the truth of such assertion by Manchip in the context of a voir dire hearing directed to the question as to whether the FSSA analysis evidence should have been excluded by the Magistrate in the exercise of the Ireland[2]/Bunning v Cross[3] discretion.[4] Critically for this appeal, the Magistrate did not inform the appellant of his right to seek to have a voir dire hearing for the purpose of determining whether his claim that Manchip had lied about the drug screening test producing a positive result was correct; and if correct, whether the FSSA analysis evidence should be excluded.
[2] (1970) 126 CLR 321.
[3] (1978) 141 CLR 54.
[4] I proceed on the basis that proof of the occurrence of a positive screening test is not a condition precedent to admissibility of the occurrence and/or results of the oral fluid test or the Forensic Science analysis.
As a final matter in this overview, the prosecution belatedly accepted at trial that the appellant was not in fact driving while disqualified. No apology was proffered by the prosecution at any stage for the appellant’s arrest, in front of his partner, or for the deprivation of his liberty, all ostensibly due to “a computer glitch”. No explanation was given except the following laconic statement by the prosecutor in opening:
The driver identified himself by producing his photographic driver’s licence, identified himself as Clive Lochner who appears before the court today. He gave a screening sample of breath at the roadside which was negative for alcohol and then enquiries on the South Australian police computer system showed that Mr Lochner was disqualified so he was arrested and conveyed to the Mount Barker Police Station. We can say further enquiries reveal that it was actually a computer glitch, effectively, in New South Wales that had caused this so that was not proceeded with.
Grounds of appeal
The prosecution case was that the effect of the evidence of Ms Geier, the FSSA analysist, was that the appellant must have ingested cannabis within a relatively short time prior to the taking of the sample by Fox at about 1:00am on the morning of 13 March 2016. The prosecution case at trial, and as put to the defendant in cross-examination, was that he had ingested the cannabis during Saturday 12 March 2016.
The appellant’s case has always been that he did not knowingly ingest cannabis at any time on Saturday 12 March 2016 and that the last time he had used cannabis had been at least four days prior to the time of the sampling process and before he had driven from interstate to Adelaide to attend the Womad Festival on the Saturday. Thus his case has always been that if the FSSA analysis is correct, that reading could not have been due to him knowingly ingesting cannabis. In this regard, he ventured the possibility that a glass of “mulled wine” he had drunk at the Womad Festival may have contained cannabis (unbeknown to him at the time).
Against that background, the appellant’s original grounds of appeal mainly sought to attack the procedure carried out by Fox in taking and processing samples of his oral fluid, the argument being that the subsequent accuracy of the FSSA analysis evidence could not rise above the degree of integrity of the samples being tested. At the hearing of the appeal, with the consent of the respondent, the appellant was permitted to add grounds asserting that the charge was not proven beyond reasonable doubt and that the Magistrate erred in his approach to the application of the statutory provisions and regulations applicable to the charge. This latter contention was taken to raise the question of whether the unrepresented defendant at trial received adequate assistance from the Magistrate, particularly in circumstances where it is contended that the Magistrate seriously misapprehended the meaning and effect of relevant statutory provisions.
The relevant statutory provisions
The offence and a defence to it are created by RTA s 47BA thus:
47BA—Driving with prescribed drug in oral fluid or blood
(1) A person must not—
(a) drive a motor vehicle; or
(b) attempt to put a motor vehicle in motion,
while a prescribed drug is present in the person's oral fluid or blood.
…
(2)Subject to subsection (3), it is a defence to a charge of an offence against this section if the defendant proves that the defendant did not knowingly consume the prescribed drug present in the defendant's oral fluid or blood.
Relevant police powers
Presently relevant police powers to require drug screening test and oral fluid tests appear in RTA s 47EAA thus:
47EAA—Police may require drug screening test, oral fluid analysis and blood test
(1)Subject to this Act, if a person has submitted to an alcotest or breath analysis as a result of a requirement under section 47E, a police officer may require the person to submit to a drug screening test.
(2) If—
(a) a person has submitted to a drug screening test as a result of a requirement under subsection (1) and the drug screening test indicates the presence of a prescribed drug in the person's oral fluid; or
(b) a person has submitted to an alcotest or breath analysis as a result of a requirement under section 47E that was made in prescribed circumstances,
a police officer may require the person to submit to an oral fluid analysis or a blood test.
(2a)If a person submits to an oral fluid analysis in compliance with a requirement made under subsection (2) but the person is unable to produce sufficient oral fluid for a sample to be taken, a police officer may require that the person submit to a blood test.
(3)A police officer may give reasonable directions for the purpose of making a requirement under this section that a person submit to a drug screening test, oral fluid analysis or blood test.
(4) A person must forthwith comply with a direction under subsection (3).
Maximum penalty: $2 900.
(5)Without derogating from section 47DA or 47EA, a drug screening test, oral fluid analysis or blood test to which a person has been required to submit under this section may not be commenced more than 8 hours after the conduct of the person giving rise to the requirement that the person submit to the alcotest or breath analysis.
(6)The performance of a drug screening test, oral fluid analysis or blood test that has been required under this section commences when a direction is first given by a police officer that the person concerned provide a sample of oral fluid or blood (as the case may be) to be used for the drug screening test, oral fluid analysis or blood test.
(7) A drug screening test may only be conducted by a police officer.
(8)The regulations may prescribe the manner in which a drug screening test, oral fluid analysis or blood test is to be conducted.
Relevant evidentiary aids to proof
In respect of the relevant evidentiary aids to proof that were available to the prosecution as at the date of the trial of the appellant in March 2018, it is necessary to have regard to some wide ranging changes to the Road Traffic Act 1961 made by the Statutes Amendment (Drink and Drug Driving) Act 2017 which commenced on 22 February 2018 (to be referred to as “the 2018 amendments”).
After the 2018 amendments, the relevant evidentiary aids to proof in RTA s 47K appear thus:
(3a) A certificate purporting to be signed by a police officer and to certify that—
(a) a sample of oral fluid for the purposes of an oral fluid analysis was taken on a specified day and at a specified time from a person named in the certificate; and
(b) the provisions of this Act with respect to the taking of samples of oral fluid for such purposes were complied with,
is, in the absence of proof to the contrary, proof of the matters so certified.
…
(9) A certificate purporting to be signed by an analyst and to certify that an oral fluid analysis was properly conducted is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matter so certified.
(9a) A certificate purporting to be signed by a police officer and to certify that the apparatus used to conduct a drug screening test was in proper order and the drug screening test was properly conducted is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters so certified.
(10) A certificate purporting to be signed by a police officer and to certify that a person named in the certificate submitted to a drug screening test on a specified day and at a specified time and that the drug screening test indicated that a prescribed drug may then have been present in the oral fluid of the person is, in the absence of proof to the contrary, proof of the matters so certified.
…
(14) If a certificate of an analyst relating to a sample of oral fluid or blood taken under section 47EAA, or a sample of blood taken under section 47E or 47I, is received as evidence in proceedings before a court and states that a prescribed drug has been found to be present in the sample of oral fluid or blood to which the certificate relates, it will be presumed, in the absence of proof to the contrary, that the prescribed drug stated in the certificate was present in the sample when the sample was taken.
(15) If it is proved by the prosecution in proceedings for an offence that a prescribed drug was present in the defendant's blood or oral fluid at the time at which a sample of oral fluid or blood was taken under section 47EAA, or a sample of blood was taken under section 47E or 47I, it will be conclusively presumed that that prescribed drug was present in the defendant's oral fluid or blood (as the case may require) throughout the period of 3 hours immediately preceding the taking of the sample.
(16) If certificates of a police officer and analyst, or a medical practitioner and analyst, under Schedule 1 are received as evidence in proceedings before a court and contain the same identification number for the samples of oral fluid or blood to which they relate, the certificates will be presumed, in the absence of proof to the contrary, to relate to the same sample of oral fluid or blood.
The correct approach to certificate and averment provisions in criminal cases
The common law courts hold that averment and certificate provisions are to be strictly construed and strictly complied with. SAPOL has no obligation to use a RTA s 47K certificate, but if it does wish to obtain the significant advantages of that procedure (and thereby subject the defendant to the significant disadvantage of a reversal of the onus of proof), there must be strict adherence to the requirements and limits of RTA s 47K.
As is stated in Cross on Evidence:[5] an “averment must be drawn with precision and clarity because otherwise it will have no evidentiary effect.” This matter of the correct approach to such provisions is dealt with in some detail in a very recent judgment of this Court in Police v Hanton[6] (Hanton) in the context of RTA s 175(3)(ba). To avoid undue repetition, I adopt as part of this judgment the following portion of the judgment in Hanton: Part 1: The strict boundaries of RTA s 175(3)(ba) being paragraphs [29] to [44].
[5] JD Heydon, LexisNexis Butterworths, Cross on Evidence, vol 1 (at service 166) [7105].
[6] [2018] SASC 96.
The course of the trial
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 DEFENDANT
QJust 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?
XXN
Q 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 HONOUR
QNow 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.
XXN
QAnd 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)
The inherent irony of that last answer appears to have escaped attention; but it certainly begged the question of why arrangements had not been made by the prosecution to call Manchip. Shortly thereafter, the Magistrate took up the questioning but soon met the same impasse:
HIS HONOUR
Q Is the screening test that is done is that for the oral fluid sample is taken?
A Yes.
Q And did that occur on this occasion?
A Yes it did.
Q And who conducted the screening test?
A Senior Constable Manchip.
Q And what was the result of that test?
AI can’t really speak for Senior Constable Manchip but as I understand it from events that followed -
…
Q So Manchip conducted the screening test - the lick test?
A Yes.
Q And you don’t know what the result of that was?
AOnly by what he told me. I am not trained in that, I don’t know what they do but he said it was positive and events flowed on from that.
NO FURTHER QUESTIONS (Emphasis added)
The drug screening test
I turn to consider the matter of the drug screening test. Section 47EAA relevantly provides as follows:
47EAA—Police may require drug screening test, oral fluid analysis and blood test
(1)Subject to this Act, if a person has submitted to an alcotest or breath analysis as a result of a requirement under section 47E, a police officer may require the person to submit to a drug screening test.
(2) If—
(a) a person has submitted to a drug screening test as a result of a requirement under subsection (1) and the drug screening test indicates the presence of a prescribed drug in the person's oral fluid; or
(b) a person has submitted to an alcotest or breath analysis as a result of a requirement under section 47E that was made in prescribed circumstances,
a police officer may require the person to submit to an oral fluid analysis or a blood test. (Emphasis added)
The prosecution sought to prove several sequential propositions concerning the drug screening test. The first proposition was that Manchip had required the appellant to submit to an alcotest; it may be accepted that Hellams’ evidence that the appellant was required to undergo an alcotest was sufficient to establish that first proposition.
The second proposition was that Manchip had a legal power to require the appellant to submit to a drug screening test by dint of the fact that Manchip had shortly prior required the appellant to submit to an alcotest (even though such test proved to be negative); this may also be accepted having regard to the content of s 47EAA(1).
It is the third proposition that is important here: that Manchip administered a screening test which produced a positive result. It is quite clear on Hellams’ evidence (reproduced above) that he could not say that Manchip administered a screening test that delivered a positive result – in fact Hellams appears in his above evidence to emphatically distance himself from the matter of whether the drug screening test in fact delivered a positive result.
The fourth proposition is that as a result of Manchip asserting that a screening test administered by him had produced a positive result: a police officer with an accreditation to perform an oral fluid analysis was therefore needed to perform such a test; and that in response, Fox (who had such an accreditation) went to the cells. These matters were established.
Before considering the drug screening test further it is best to set out the evidence of senior constable Fox bearing upon it.
The evidence of senior constable Fox bearing upon the drug screening test
The prosecution called Fox as its second witness. At the outset of his evidence-in-chief, Fox stated that on the morning of 13 March he was carrying out general duties when he was notified that a general patrol had requested an “oral fluid analysis test” to be carried out. He therefore attended at the cells and performed such a test. Clearly this was to be the main subject matter of his evidence.
However, before proceeding to Fox’s evidence concerning the oral fluid test, the prosecutor first produced to him a document containing two certificates signed by Fox which both related to a drug screening test said to have been administered by Manchip when Fox was clearly absent. As recounted below, these two certificates were tendered as exhibit P2 (and I will refer to them in that way). The first appears thus:
CERTIFICATE – SUBMISSION TO SCREENING TEST
(ROAD TRAFFIC ACT, 1961)
CERTIFICATE PURSUANT TO SECTION 47K(3a) OF THE ROAD TRAFFIC ACT, 1961
I, (full name) Marc FOX.....................................................................................
a police officer certify that the apparatus Securetec Drugwipe II Twin is or was of a kind approved under the Road Traffic Act 1961, for the purpose of performing drug screening tests.
...............................................................SC..........................44875..................16 / 9 2016
(Signature – police officer) (Rank) (ID) (Date)
The second certificate in exhibit P2 appears thus:
CERTIFICATE OF SUBMISSION OF A PERSON TO A DRUG SCREENING TEST PURSUANT TO SECTION 47K(10) OF THE ROAD TRAFFIC ACT, 1961
I, (full name) Marc FOX.....................................................................................
a police officer certify that:
Clive Rodney LOCHNER ......................................................................................
(Subject’s full name)
submitted to a drug test this 13th day of March 2016 at about 0043 hours
at: Mount Barker Police Station..........................................................................
(location)
and that the drug screening test indicated that a prescribed drug may then have been present in the oral fluid of that person.
..............................................................SC...........................44875..................16 / 9 2016
(Signature – police officer) (Rank) (ID) (Date)
His Honour appears to have been somewhat surprised by the production of the above documents through this witness and the following dialogue occurred:
HIS HONOUR: What is that tendered pursuant to?
APP KEAL: That is section 47K(3)(a)[7] of the Road Traffic Act.
[7] This appears to be an error in transcription, and should read 47K(3a).
HIS HONOUR: This certificate deposes to a drug screening test having indicated that a drug may be present in the oral fluid. It is in the name of Mr Fox. Mr Fox didn’t conduct that screening test.
APP KEAL: There is a video that we are about to run which will show –
HIS HONOUR: As I understand it there is a difference between the taking of oral fluid and a screening test?
APP KEAL: Yes.
HIS HONOUR: My understanding from what I was just told by Mr Fox is that he was told that a screening test had taken place?
APP KEAL: Yes.
HIS HONOUR: Not that he conducted the screening test.
…
HIS HONOUR: Let’s just go over the facts of this matter.
QAre you familiar with what is referred to as the “lick test”?
AYes.
QIs that also referred to as the screening test?
AThat is the initial screening test, yes the OFS.
QAnd that, what, comprises the driver being provided with a strip that he is to lick and the test it is applied to get a presumptive test to the presence of either methamphetamine or.
AThat is correct.
QDid you require the test in this matter to submit to that lick or screening test?
AMy notes in my book refer to Senior Constable Manhire, I believe, undertook that test initially.
QSo you didn’t conduct the screening test?
ANo.
…
LEAVE GRANTED TO REFER TO NOTES
ASo on my notes here that I have here, the way these notes are filled out in this book here it is pretty much a follow the bouncing ball process.
QSo it is a proforma document?
AThat’s right it is a proforma document, you move from one step to the next step. So the officers had given me their prescribed observations of the events taking place beforehand and then I would hear, which also comes into our Certify 0043 hours on 13th of the 3rd 2016 the subject Clive Lochner submitted to a drug screening test using a secure tech drug wipe 2, an apparatus approved under the Road Traffic Act –
QI am not understanding what you are reading there. You tell me what you did.
AThis here is signed by Senior Constable Manhire to say that he conducted that test.
Q Manchip?
A Manchip sorry.
At this point the Magistrate attempted to explain to the appellant the situation as his Honour then understood it:
HIS HONOUR: Now it gets back to this certificate that is being tendered. So looking at 47K(3)(a) right now. Mr Lochner you have seen the certificate regarding the submission for the screening test?
DEFENDANT: That is the first test Your Honour yes.
HIS HONOUR: That is being tendered by the prosecution pursuant to s 47K(3)(a) of the Act. Do you have anything to say in relation to the admission of that document?
DEFENDANT: I query it only in so far as the videos that were received of the entire procedure didn’t have any recording of the first test and I believed that when that test [the drug screening test] was done the head of the policeman that took the test [Manchip] was shaking, saying nothing, and then he walked out the room and came back sometime later and that is when the recording started and they undertook the second test. So I know that that first test that they did wasn’t recorded on the cameras like the second test, and there is no recording of that test and I believe that at the point in time when that first tongue swab was done they shook their heads and so no and left and I thought oh I am clear and then they came back later so there is some –
(Emphasis added)
The Magistrate here cut the appellant off mid-sentence as he was outlining his allegations against Manchip. His Honour then proceeded to admit exhibit P6 thus:
HIS HONOUR: The certificate complies with the provisions laid out in section 47K(3)(a) but that does not prevent you from later giving evidence to contradict what -
DEFENDANT: I understand Your Honour yes.
EXHIBIT P2 CERTIFICATE OF SUBMISSION TO A SCREENING TEST TENDERED BY APP KEAL.
ADMITTED
The reception into evidence of exhibit P2 (certificates concerning a screening test)
At trial, the appellant continually protested to the Magistrate that:
-Manchip was absent and could not be questioned; and
-Manchip had taken a set against him from the beginning and displayed antipathy towards him, apparently on a racial basis; and
-Manchip (and Hellams) had falsely arrested him for driving under suspension; and
-most importantly, Manchip had performed a drug screening test which he had falsely proclaimed to be positive so as to justify an oral fluid analysis.
As appears from the discussion above, when the Magistrate asked the appellant “do you have anything to say in relation to the admission of that document (P2)?”, the appellant firmly protested that he had real concerns about the alleged screening test (and, as should have been appreciated by the Magistrate, there was therefore an issue about the reception of such documents in the absence of Manchip). In answer to the Magistrate’s question, the appellant made it clear that he considered that Manchip’s reaction to the apparent result of the screening test was such that it appeared that Manchip was frustrated by a negative result and had falsely proclaimed it to be positive. The appellant was not permitted to finish his answer and his criticisms of the prosecution case in this area; he was cut off mid-sentence. The Magistrate assured the appellant that he could give evidence, but only after the document had been admitted and in circumstances where the absence of Manchip was simply not addressed by his Honour, then or later.
The appellant continued to complain, respectfully but volubly, throughout the trial about the circumstances surrounding the drug screening test; but clearly he did not know what to do about it. Thus he later stated in the context that the oral fluid test was recorded on video (which depicted him sitting for some 16 minutes during the collection phase of the oral fluid test) but the drug screening test was not recorded:
I don’t think we need to sit and watch the video of me sitting there just to ascertain that if the policeman’s acknowledged that the test took 16 minutes that’s the main thing I wanted to prove. I was interested in stuff that’s not on the video unfortunately so.
In the same vein, he asked Fox as to whether there might be a video of the earlier drug screening test:
QThe reason I ask is that on that particular video you sent me the second test is covered, the 16 minutes … but the first test isn’t mentioned, isn’t videoed on that. Do you know if there was, in fact, a copy, would be a copy of that video … first test?
AIt’s normally not something that we worry about videotaping to be honest.
Later in his examination-in-chief the appellant stated:
QAnything further that you want to say?
ANot really about the results of the test more about the way in which I was arrested and my disappointment that the arresting officer, Constable Manchip, isn’t here because he seems to have vanished and he was the protagonist, he was also the gentleman who thought I was an aboriginal until I explained to him that I wasn’t, he seemed quite disappointed. But he was an English fellow, he didn’t like me from the beginning and I have a suspicion that they went out of their way to get a positive result although I can’t prove it[8] but I can definitely prove that they did the test incorrectly because I sucked on the swab and there is video evidence, it is acknowledged fact, that I had the swab in my mouth for 16 minutes, how was I expected not to do that I don’t know. (Emphasis added)
[8] There is no significance in the words “I can’t prove it”. It is very common for people to say this in a “word against word” situation and it does not mean that they are less than definite about their own version; but rather that they think (rightly or wrongly) that they have no corroboration to support their allegation.
Later in his cross-examination the appellant emphasised the antipathy that Manchip was displaying toward him from the very beginning of their encounter:
A… what happened was Constable Manchip got on the phone. He was upset that I had a Victorian drivers licence and New South Wales registered car but I am a musician and I travel up and down all the time and it is just convenient. I have often had cars registered in Victoria and I have left them there because when I fly down I have got a $200 car that I have had for two years sitting there and I can just go and grab it and drive to gigs. I am a percussionist and a singer so I have got stuff to lug around. He didn’t like me from the start. He didn’t even like the shoo roos on the car – he didn’t know what they were.
QDidn’t like the what?
AThe shoo roos – sonic animal alerts that are on the front of the car. He wanted to book me for having them until the other Constable explained that his father actually has them and they are okay.
QClearly you didn’t get on with Constable Manchip?
ANot at all.
QYou are pleased to know he is in Bali so he is not here today so that is good.
Of course, as the prosecutor was well aware, the appellant did not think that Manchip’s absence was “good” at all. Shortly thereafter, the appellant continued thus:
Well he says (? as I say) Constable Manchip took the first test and he was quite rough with that by the way and I don’t know if the instructions are the same for the first test because I don’t have them as to whether I am meant to take the sample or he was but he was kind of like “And if you struggle you know I can use force” and I am going “Oh sure”. I was quite cheeky to him because I didn’t like him. He is half my age and he was treating me like I was a bozo and I am not, I am an intellectual type of person.
Should a voir dire hearing have been held?
While the precise range of circumstances in which an objection to the tender of a certificate of this sort may be upheld has not yet been exhaustively delineated, some categories of exclusion are clearly established. A false statement that a positive drug screening test had returned a positive result being made by a police officer so as to compel a person to undergo an oral fluid test would certainly be subject to the exclusionary Ireland[9]/Bunning v Cross[10] discretion.[11] As was stated in Merchant v The Queen in the context of drink driving legislation:[12]
Thus though a person may not be compelled under s 4E(4) to submit to a breath analysis test without an antecedent arrest under s 4E(3), the validity of a breath analysis test and the admissibility of evidence as to its result do not, in my opinion, depend upon such an arrest. Whenever it is made, its results, in my opinion, may be given in evidence orally by virtue of s 4E(11) or by means of the certificate for which s 4E(12) provides. In my opinion, this is so even if the circumstances in which the defendant was required to submit to the breath analysis test were not such as obliged him to subject himself to that test. But of course if the test had been unlawfully administered the tribunal before whom it was sought to prove its results whether orally or by means of a certificate would be bound to consider whether or not in point of discretion in all the circumstances the evidence should be received. See in this connexion Reg v Ireland.
(Emphasis added)
[9] (1970) 126 CLR 321. I proceed on the basis that proof of the occurrence of a positive screening test is not a condition precedent to admissibility of the occurrence and/or results of an oral fluid test or the Forensic Science analysis of material supplied as a result of an oral fluid test.
[10] (1978) 141 CLR 54.
[11] The present case does involved an allegation of “prescribed circumstances” and hence does not give rise to an examination of the right of a police officer to require an oral fluid test pursuant to s 47EAA(2)(b).
[12] (1976) 126 CLR 414.
This is confirmed by the recent decision of the High Court in Police v Dunstall.[13]
[13] (2015) 256 CLR 403.
Some further important matters relating to the holding of a voir dire hearing
Obviously the principal matter tending to demonstrate the need for a voir dire hearing here was the defendant’s set of allegations concerning Manchip referred to above. However, there are several other cumulative matters that, together with that principal matter, supported the need for a voir dire hearing and potentially militated in favour of an eventual exercise of discretion in excluding the FSSA analysis evidence at such a hearing. I again emphasise that these matters are only being considered in the context of discretionary exclusion and are not suggested to be matters that had to be proven by the prosecution in order to establish the charge.[14]
The exhibit P2 certificates did not establish a valid drug screening test
[14] See generally Police v Modra (2000) 32 MVR 326.
As a general proposition, if there arises in a criminal trial a question of whether an instrument has indicated a particular result (in the present case “a positive result”), the prosecution must prove that the instrument was at the relevant time in proper operating order and condition, and that it was operated properly – because if an instrument is not in proper order, or is not properly operated, it cannot be said to indicate anything. Thus in Police v Bulgin, White J collected some of the authorities to this effect and stated:[15]
In prosecutions in which evidence derived from the operation of an instrument or device is relied upon, it must usually (absent any statutory provision to the contrary) be established that the instrument or device was at the relevant time in good operating order and condition, and that it was operated correctly. King CJ referred to this requirement in Evans v Benson in relation to breath analysis instruments:
A breath analysis instrument can only indicate a blood alcohol concentration if it is in proper order and is properly operated. If an instrument is not in proper order or is not properly operated, it cannot be said to indicate any concentration of alcohol. For that reason it is necessary for the prosecution to prove that the instrument was in proper order and properly operated.
Similarly, in Police v Henwood Doyle CJ said:
That these matters [proper order and proper operation] can be proved by certificate cannot be allowed to obscure the fact that, in one way or another, it is necessary for the prosecution to prove that the breath analysing instrument was in proper order and was properly operated, before it can prove that a concentration of alcohol was indicated as being present by the breath analysing instrument. (Emphasis added)
[15] [2010] SASC 143, [30].
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”. However, in the absence of other evidence to establish that the drug screening test instrument was in proper order and was properly operated (as referred to in Bulgin above), such a statement is quite insufficient. Of course, the correctness of this proposition is recognised by the legislation itself in providing that the requirement of such evidence may be satisfied by a further certificate under s 47K(9a) which provides:
A certificate purporting to be signed by a police officer and to certify that the apparatus used to conduct a drug screening test was in proper order and the drug screening test was properly conducted is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters so certified.
However, for reasons known only to the prosecutor, no such certificate was tendered. This left open the possibility of Manchip giving evidence addressing such matters, but he was not called by the prosecution (although in my view he should have been). There is therefore a complete dearth of proof that the drug screening test apparatus was at the relevant time in good operating order and condition or that it was operated correctly.
The appellant was at a severe forensic disadvantage
It should also be remembered that the appellant was at a severe forensic disadvantage, brought about by the actions of the police in arresting him on a baseless charge. A drug screening test would normally be performed on the roadside where the appellant would have had the advantage of his partner being present to witness it, but his arrest on the unjustified drive while disqualified charge led to his partner having to take the car from the scene and the appellant being taken into custody to police cells with no witness to see the carrying out of the drug screening test.
Would the appellant have been prepared to give evidence on the voir dire?
It is only proper to assume in the appellant’s favour that he would have given evidence in a voir dire hearing if he had been given that option having regard to the complaints and submissions he made to the Magistrate and the fact that he did ultimately give evidence denying his guilt. The fact that he did not develop an attack on the admissibility of evidence during his evidence is no doubt due to the fact that he was inadequately advised by the Magistrate about that topic as discussed above.
A further matter
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.
My decision that a voir dire should have been held on its own requires that the conviction be set aside. However, since a number of other points were discussed on the appeal, at least by learned counsel for the respondent and myself, I will say something about some of them.
The substantive defence case
The appellant was unrepresented and his substantive case, both at trial and on appeal, was disorganised. In addition to the matter of the drug screening test by Manchip discussed above, there were essentially two main aspects of the defence case. First, that the collection procedure for the oral fluid test was asserted to be defective and contrary to manufacturer’s instructions. Secondly, a glass of “mulled wine” that the appellant consumed at the Womad Festival may have contained cannabis unknown to him such that he had the statutory defence under RTA s 47BA(2).
The first aspect of the defence case: The collection procedure for the oral fluid test was defective and contrary to manufacturer’s instructions
During his evidence-in-chief at trial, the appellant said:
… I believe that the swabbing for cannabis was beyond the procedures as directed and could have either been intended to or simply have given a distorted test result. … Alere kindly sent me the instructions. So basically I took the test but looking at the instructions of giving the test as Constable Fox would have presumably been trained, it says and it is the first thing on the precautions, “Do not (in bold letters) allow the donor to suck or chew the detector fluid correction swab during the collection procedure”. I say having the swab in my mouth for 16 minutes left with no alternative but to suck or chew on the swab because I for one didn’t know I wasn’t meant to and with a swab in your mouth for 16 minutes sitting there you know you sit there chewing on the swab, it is in your mouth, it is incredibly annoying after about three minutes let alone for the next 12 or so minutes after that. It says here in the limitations for the oral test fluid kid, so this is possible that technical or procedural errors as well as other interfering substances in the oral fluid sample may cause erroneous results. It also says in Alere instruction manual here, this assay for the analysis of oral fluid samples testing of inappropriate samples will not give valid results. So it says here you shouldn’t suck on the swab, you shouldn’t chew on it. It was in my mouth for 16 minutes and I know both of those things happened.
In order to consider such complaints it is necessary to refer to Fox’s evidence and to exhibit P6 which was tendered by the prosecution during the course of that evidence. Exhibit P6 appears thus:
CERTIFICATE PURSUANT TO
SUBSECTION 47K(9)(b) OF THE ROAD TRAFFIC ACT, 1961
I (full name) Marc FOX...................................................................................
Being a person authorised by the Commissioner of Police to conduct oral fluid analyses or drug screening tests do hereby certify as to the following matters:
1. That on the ...........13th......day of.........March..............2016.....at...... ….0043....hours
Day Month Year Time
Clive Rodney LOCHNER.............................................................
Subject’s full name
of 11/113 Williams Rd, PRAHRAN, VIC.........................................
Subject’s address
Submitted to an oral fluid analysis.
2. The apparatus used to conduct the oral fluid analysis was in proper order.
3. The oral fluid analysis was properly conducted. [Emphasis added]
................................................................SC.......................44875..................16 / 9 2016
(Signature – police officer) (Rank) (ID) (Date)
When asked as to his qualifications concerning that procedure, Fox’s reply was not such as to inspire any particular confidence:
QSenior Constable Fox how are you qualified to conduct such analysis?
AI undertook a course in relation to an oral fluid course but that was a fair few years ago now.
Undaunted, the prosecutor then proceeded to tender the following exhibits:
-Exhibit P3: South Australian Gazette 6 November 2012: Fox’s name appears amongst a large number of names of persons authorised to conduct oral fluid analyses as then defined.
-Exhibit P4: South Australian Gazette 8 June 2006: Approval of the apparatus Securetec Drugwipe II Twin for the purpose of conducting drug screening tests.
-Exhibit P5: South Australian Gazette 6 November 2013: Approval of the apparatus the “Alere DDS Reader” for the purpose of conducting oral fluid analyses.
Fox then testified as to his dealings with the appellant, including that the appellant was required to hold the swab in his mouth for some 16 minutes (the time it took for the colour to change to blue which indicates a collection of sufficient oral fluid). He gave evidence that he then tested the sample and that there was a presumptive positive result to Tetrahydrocannabinol, and a negative result to methamphetamine. He also described his own further handling, labelling and packaging of the sample taken from the appellant and its transmission to the Forensic Science Centre.
Exhibit P6 (reproduced above) was admitted after Fox gave this evidence:
QWhat are you signing to say on that document?
ASo what I am signing there to say is that the actual oral fluid analysis was in proper order and that the quality assurance checks were all okay for that instrument at the time both before the testing and after the actual testing of the sample.
HIS HONOUR: There is no current s47K(9) (b)
APP KEAL: Perhaps if we could hand it up as a business record.
HIS HONOUR: We might just put that to one side. This is the latest copy of the Act.
DEFENDANT: Could you explain to me what just happened then.
HIS HONOUR: The s 47K of the Road Traffic Act provides for a number of aids to proof for prosecution and there was a s 47K(9)(b) of the Road Traffic Act which allowed for a certificate to be signed by a police officer to certify that the conduct of the oral fluid analysis was properly conducted and the apparatus was in proper order. There has been an amendment to the Act which has changed those sections and now the relevant provision is s 47K(9) (a) to the same effect. “It is a certificate purporting to be signed by a police officer and is certified that the apparatus used to conduct a drug screening test was in proper order and the drug screening test was properly conducted is admissible and proceeds before the court and is in the absence of proof to the contrary proof of the matters being certified”. So looking at 9(a) it appears that the certificate that you have just handed up Mr Prosecutor complies with 9 (a).
APP KEAL: If I might amend to s 47K(9)(a) of the Road Traffic Act.
HIS HONOUR: The certificate appears to comply with that new section.
DEFENDANT: I understand.
EXHIBIT #P6 CERTIFICATE PURSUANT TO S47K(9) (A) OF THE ROAD TRAFFIC ACT TENDERED BY APP KEAL. ADMITTED. (Emphasis added)
Before addressing these remarks by his Honour, together with his Honour’s later remarks in his reasons for judgment, I will first consider the important matter of what is referred to as the 2018 amendments to the RTA.
The 2018 amendments to the Road Traffic Act 1961
The defendant asked the Magistrate: “could you explain to me what just happened then?” (emboldened above). To answer that question, it is necessary to note that prior to the 2018 amendments, s 47EAA(7) required that oral fluid analyses be “conducted by a police officer authorised by the Commissioner of Police”; if such analysis yielded a positive presumptive result, the samples were then sent to FSSA for formal analysis.
However, the 2018 amendments radically altered that procedure in that all oral fluid analyses were thenceforth to be conducted by “analysts” at the FSSA – that is to say, forensic scientists such as Ms Geier who gave evidence in the present case. The role of police officers was henceforth to be limited to conducting the drug screening test and (following a positive result), the collection of the oral fluid sample; but not any analysis of the sample collected. The second reading speech makes quite clear that the definition of “analyst” is not intended to encompass officers such as Fox. Thus on 11 May 2017, the then Minister for Police, Mr Malinauskas explained:
… oral fluid analyses are to be conducted by, or under the supervision, of an analyst in a laboratory, rather than by an authorised person by means of apparatus approved by the Governor.
Mr Malinauskas detailed the general policy behind the amending act as follows:
The bill removes the second stage drug testing procedure conducted at the scene. South Australia Police will no longer conduct the second stage of the drug testing procedure at the scene, known as the oral fluid analysis. This will free up officers’ time at the roadside. The first drug screening test will be administered to determine, at a preliminary level, the presence of a prescribed drug in a driver, vessel or crew member, or rail safety worker.
If a prescribed drug is detected, SAPOL officers will collect an oral fluid sample for forwarding to Forensic Science SA for laboratory analysis and confirmation of the presence of drugs in a driver’s oral fluid before an offence is confirmed, as per existing practice. Under the current procedure, approximately 710 people per year are exonerated at the second stage analysis conducted by SAPOL at the scene; however, analysis has shown that over half of these drivers (around 420 per year) will test positive under laboratory conditions. This is due to the lower level of illicit drug able to be detected in a laboratory compared to the current second-stage screening test at the roadside.
The bill dispenses with the requirement to authorise SAPOL officers to conduct drug screening tests. There are currently 687 SAPOL officers authorised to conduct drug screening tests and 362 authorised to conduct oral fluid analysis. Dispensing with the requirement to authorise them will reduce red tape and allow for all sworn officers, up to 5,000 members, to be trained and available to conduct drug tests across the state.
(Emphasis added)
The true evidentiary status of exhibit P6 at the trial
I will consider the true evidentiary status of exhibit P6 by reference to the two separate averments which appear therein. They are:
1. The apparatus used to conduct the oral fluid analysis was in proper order.
2. The oral fluid analysis was properly conducted.
These two averments on their face are directed to proving the fundamental requirement (discussed above at paragraphs [49] to [51]) that the prosecution must prove that an instrument was at the relevant time in good operating order and condition, and that it was operated properly. As noted above, an instrument can only indicate a result if it is in proper order and is properly operated. If an instrument is not in proper order or is not properly operated, it cannot be said to indicate any result.
It is quite plain that the certificate P6 was drafted by reference to the repealed s 47K(9) which, prior to the 2018 amendments, provided as follows:
(9) A certificate—
(a) purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to conduct oral fluid analyses or drug screening tests; or
(b) purporting to be signed by a person authorised to conduct oral fluid analyses or drug screening tests under section 47EAA and to certify that the apparatus used to conduct an oral fluid analysis or a drug screening test was in proper order and the oral fluid analysis or drug screening test was properly conducted,
is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters so certified.
However, for a trial such as the present, which started after the commencement of the 2018 amendments, it was the 2018 amendments that applied to matters of procedure which includes the matter of aids to proof such as evidentiary certificates.[17] There is no saving or transitional provision in the amending legislation addressing the matter of trials of offences (alleged to have occurred before the commencement date of the 2018 amendments) being held after that commencement date. Thus, as from the commencement date, the former aids to proof no longer exist; for trials held henceforth, aids to proof are limited to those existing in the legislation post commencement date.
[17] Maxwell v Murphy (1957) 96 CLR 261, 267; Rodway v The Queen (1990) 169 CLR 515, 521; Cadd v SA Police (1997) 26 MVR 373, 376-379.
At trial, the prosecutor sought to tender the averments (drafted by reference to the repealed legislation) in the certificate exhibit P6 in the hope of engaging some evidentiary presumption directed to the oral fluid analysis that had been carried out on 13 March 2016 (prior to the 2018 amendments) by the police officer, Mr Fox. The critical question is: could such a certificate be received by a court, or have any legal effect, at a trial held after the commencement of the 2018 amendments?
The answer is in the negative. Since the commencement of the 2018 amendments, there is no longer any evidentiary aid remaining in the RTA that is directed to the performance of an oral fluid analysis by a police officer for the simple reason that, as from the commencement of those amendments, police officers no longer carry out oral fluid analyses. It is clear that none of the provisions in the current s 47K can be engaged by a certificate containing either of the two averments. There are only two provisions that need to be mentioned, s 47K(3a) and s 47K(9).
Section 47K(3a) applies only to the taking of a sample and not to an analysis of such a sample. This provision obviously cannot be engaged by a certificate containing either of the two averments since both refer to analysis and not to sample taking.
Section 47K(9) applies only to the analysis carried out at FSSA and not by a police officer. Therefore, this provision cannot be engaged in relation to the analysis carried out by the police officer, Mr Fox. This is so for several reasons.
The first reason is that the certificate exhibit P6 simply does not “purport to be signed by an analyst” as defined by the Act; rather, it purports to be signed by “a person authorised by the Commissioner of Police to conduct oral fluid analyses or drug screening tests”.
The second reason is that the effect of the 2018 amendments is that the only analysis that will be performed is by FSSA and not by police officers; it therefore follows that the word analysis must be read as referring to analysis at FSSA.
The third reason is that the present s 47K(9) commences with the words “purporting to be signed by an analyst” and an “analyst” is defined in s 47A (the “interpretation” section of Division 5 of the RTA) as:
(a) a person appointed by the Minister as an analyst for the purposes of this Act; or
(b)a person holding an office of a class approved by the Minister for the purposes of this Act;
Mr Fox was not “an analyst” within the meaning of the RTA. This is so notwithstanding the existence of exhibit P3, in which the Commissioner of Police previously authorised Mr Fox to “conduct oral fluid analyses as defined in and for the purposes of” the RTA because:
-first, the Commissioner of Police is not a Minister; and
-secondly, there is no evidence that the Minister delegated this duty to the Commissioner of Police; and
-thirdly, in any event, an “authorisation” to conduct oral fluid analyses as defined in and for the purposes of the RTA simply does not equate to either of the paragraphs (a) or (b) in the definition section reproduced above.
I conclude that no presumption in the new s 47K (or any other statutory provision) was enlivened by either of the averments in exhibit P6.[18]
[18] It is obvious that the 2018 amendments made a great difference to the South Australian system concerning analysis of a sample of oral fluid. What was clearly needed at this trial was close consideration by the prosecution as to what certificates were available under the new legislation and the careful drafting of new certificates by reference to the new legislation. What in fact occurred was a process of outmoded certificates, drafted by reference to the repealed legislation, being tendered by the police prosecutor (apparently without any appreciation of the effect of the 2018 amendments) against an unrepresented defendant (definitely without any appreciation of the effect of the 2018 amendments). Given the well known strictures concerning the care with which certificates enlivening reverse onus provisions should be used, this process was highly unsatisfactory.
The Magistrate’s decisions concerning exhibit P6
As noted above at paragraph [65], in answer to the defendant’s question “could you explain to me what just happened then?” the Magistrate had stated that the new s 47K(9a) permitted its tender. With respect, this was incorrect; the current s 47K(9a) (reproduced above at paragraph [19]) only refers to a screening test and cannot possibly apply to an “oral fluid analysis test”; s 47K of the Act makes plain that the two things are quite different.
Later during the course of his reasons for judgment, the Magistrate instead relied on s 47K(3a) and directed:
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.
Again with respect, this was a serious misdirection. A certificate provision such as s 47K(3a) can never by itself raise a presumption. Rather, a presumption may arise if, and only if, a certificate is tendered which purports to be signed by a police officer and certifies (in the words of s 47K(3a)) that:
(a)a sample of oral fluid for the purposes of an oral fluid analysis was taken on a specified day and at a specified time from a person named in the certificate; and/or
(b)the provisions of this Act with respect to the taking of samples of oral fluid for such purposes were complied with.
However there never was any such certificate; the averments in exhibit P6 (reproduced above) were nothing at all like the words of s 47K(3a) and could not possibly engage or enliven a presumption deriving from s 47K(3a).
It seems to me that the Magistrate’s various misinterpretations of the provisions of the legislation led him to approach the case as one primarily founded upon paper certificates and the various reverse onuses that they were thought to enliven. Thus, as to the matter of the oral fluid test and exhibit P6, his Honour stated:
2. … A certificate was tendered pursuant to s47K(3a), exhibit P6, stating that the defendant submitted to the oral fluid analysis. The apparatus used was in proper working order and the oral fluid analysis was properly conducted. In the absence to proof to the contrary that ce1iificate is proof of the matters ce1iified.
…
7. … He (the appellant) 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 s47K(3a) is this; that the provision of the Act have been complied with which includes the procedural processes outline in schedule I .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.
The Magistrate’s mistaken reliance on s 47K(3a) leads to the conclusion that he did not approach the onus upon the prosecution correctly; a helpful analogy here may be found in Ellul v Fauser.[19] I appreciate that as a matter of logic, the real question is whether the Forensic Science Centre analysis is valid and that this stands apart from the oral fluid test performed by Fox. However, as Cox J observed in Ellul, it matters not that the Magistrate might have found that the prosecution had discharged that higher onus; the point is that “(t)here would always be the fear that findings of fact, seemingly disengaged from any question of onus, have nevertheless been influenced by the court’s general approach to that basic question and so themselves been tainted with error.”
[19] Ellul v Fauser (1981) 28 SASR 300 involved a certificate under RTA s 175(3)(ba). The defence was not concerned with the question of the inherent accuracy of the traffic speed analyser but rather with the skill with which the police officer used the unit on the relevant occasion; it was contended that he may have inadvertently recorded the speed of a different vehicle, a panel van. Cox J stated (at 305-306):
“It is plain, I think, from these extracts from the Special Magistrate's reasons, that he has misunderstood the effect of admitting a certificate under paragraph (ba) of s 175. Such a certificate merely proves, in the absence of evidence to the contrary, the accuracy of the traffic speed analyser to which it refers. It enables the prosecution to avoid calling an expert to establish that the machine was working properly or, it may be said, to avoid any argument as to whether it can rely upon a common law presumption of accuracy in the case of one of these devices. It does no more than that. In particular, it has no bearing upon the question whether the vehicle which caused the machine to give a particular reading was the vehicle which was subsequently made the subject of a prosecution.
The appellant did not really attack the accuracy of the machine. The chief issue in his case was whether the reading of 36 km/h. was caused by some vehicle other than his. The defence concentrated its attention, although not, I think, exclusively, upon the alleged panel van. The certificate could not assist the prosecution on that issue, and unless it satisfied the Special Magistrate that the presence of a relevant alien vehicle was not a reasonable possibility then it could not succeed. The Special Magistrate, however, apparently considered that the effect of the certificate was to reverse the onus of proof on this factual issue, so that it was for the appellant to “rebut the presumption” created by s 175 or be convicted. Such a wide construction of paragraph (ba) is plainly untenable.
Mrs. Branson, who appeared for the Crown, did not attempt to support the Special Magistrate's reasoning, but submitted that the appellant's conviction could nevertheless be upheld because it followed inexorably from the Special Magistrate's findings of fact. It would be a very unusual case, however, in which a conviction could stand despite such a fundamental and pervasive error in a court's decision as a reversal of the burden of proof. There would always be the fear that findings of fact, seemingly disengaged from any question of onus, have nevertheless been influenced by the court's general approach to that basic question and so themselves been tainted with error. In fact, I consider that this is what happened here, but it would be enough if the point were merely doubtful. In my opinion, the respondent's attempt to save the Special Magistrate's order must fail.”
The problem here is not exactly that in Ellul, but is rather analogous. Here, it is that his Honour’s mistakes concerning an apparent impregnability of paper certificates relating to the matters of the drug screening test and Fox’s oral fluid test may have influenced his Honour’s consideration of the s 47BA(2) defence, to which I now turn.
The Magistrate’s judgment
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
The Magistrate’s entire consideration of the s 47BA(2) defence consists of paragraph [11] emboldened immediately above. With respect, this is inadequate. There are several matters to be considered in this connexion.
The first matter is that in the reasons of the Full Court in refusing permission to appeal in Martin v Police,[20] the court held that relatively short reasons by a Magistrate for rejecting a s 47BA(2) defence were there sufficient. However, it is important to appreciate that Martin was simply an application of principle to a particular set of facts, as distinct from a statement of applicable principle of which those facts formed a core part. In other words, one must commence consideration of the present case by reference to central principle and not by reference to a consideration of the precise factual similarities and dissimilarities between that case and this. As a party to the decision in Martin, I consider that the brevity of the reasons there approached, but did not cross, a line beyond which they would have been inadequate. As the court there said:
[10] The Magistrate could have elaborated further on her reasons; in particular, the Magistrate might have set out her assessment of the applicant’s demeanour in the witness box. Nonetheless, it is clear from the Magistrate’s reasons that her Honour did not accept the applicant’s account because it was inherently improbable that an unknown third person had surreptitiously slipped the drug into either his alcohol or water. The applicant was with friends who would have no motive to do so. No evidence was adduced which raised the possibility of the presence of anyone else who might have had a motive to spike the applicant’s drink.
[20] [2015] SASCFC 85.
A second matter is that the defendant here (and in Martin) elected to give sworn evidence knowing of the sanctions that apply to the giving of false evidence. This is not something to be casually brushed aside.
A third matter is that the onus on the defendant does not extend to a requirement to demonstrate exactly how it came to be that an analysis indicated that a drug such as THC is present in his oral fluid.[21] I will use the same example I explored with counsel for the respondent on the appeal:
HIS HONOUR: say a person comes along who has a demonstrated very high reputation for honesty, no propensity to use cannabis, is - these are random tests basically these days - so randomly is required to undertake a drug test and it comes up with a similar reading to what we've got here in the ultimate analysis. Now that person comes to court and says ‘I don’t know what happened in relation to this testing process, haven't got a clue. It's some sort of a glitch, I guess, but the fact of the matter is I absolutely swear that I did not imbibe any cannabis on this occasion nor have I ever’. Now if the magistrate believes the person, right, it’s a simple matter of belief, ‘I believe you, you’re telling the truth, I don’t think you’re lying’, the magistrate has to acquit, doesn’t he? Even if you've got this ultimate certificate analysis which says well there was some - without even specifying how much - but there was some THC present.
MR AMBROSE: If the magistrate was to believe the defendant in that scenario I’d accept that the defence would be satisfied.
HIS HONOUR: That’s right … It’s not a situation where the defence has to, as it were, particularise how it happened. You know, it must have been this when it happened or that when it happened, it’s actually quite different. It’s to prove that the defendant did not knowingly consume cannabis and the defendant says, in my hypothetical, ‘I did not, on my oath’, Magistrate says ‘Well I believe you’. Now you see, yes, that’s slightly factually different but it sets up the situation that the Magistrate should be addressing: … what the Magistrate really needed to address was ‘Do I believe the defendant when he says that the latest he had consumed cannabis was for four to five days - whatever it is precisely - prior to this occasion. If I believe him on that, he’s got to be acquitted’.
MR AMBROSE: Yes, that’s how the defence operates.
[21] Martin proceeded on the basis that the Magistrate had accepted that “the defendant did not have to provide an alternative explanation for the positive drug test”. See the judgment of Sulan J (the single Judge) [2015] SASC 41, [13].
Now obviously it would have been open to the Magistrate, on a careful consideration, to not be satisfied that the defendant had discharged his onus. However, with respect, that necessary careful consideration did not occur here. Indeed, what reasons there are here tend to indicate that the Magistrate took an incorrect approach. His Honour first referred to, and dismissed, the matter of the mulled wine in just over a line on the apparent basis that a lack of positive evidence that the mulled wine contained cannabis ipso facto ruled it out as a possibility. But, as the passage of discussion with counsel for the respondent above illustrates, if a Magistrate positively believes the sworn denial by a defendant that he did not knowingly consume cannabis, then that defendant may be acquitted despite the fact that he cannot even come up with “conjecture” as to how the THC reading on analysis came about.
In the present case, the Magistrate appears to have used his preliminary dismissal of the matter of the mulled wine in derogation of the appellant’s sworn denial of knowingly consuming cannabis at the relevant time. Thus his Honour states: “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.”
I consider this to mean that: “the first reason that the defendant’s claim not to have knowingly consumed cannabis in the past five days is not persuasive on the balance of probability is that there is no evidence that the mulled wine did contain cannabis and further reasons are his own evidence that he was a habitual cannabis user and found in possession of cannabis.” I consider this approach to be inappropriate and circular.
In any event, the further reasons “his own evidence that he was a habitual cannabis user and found in possession of cannabis” are quite unsatisfying. As for the latter reason that the appellant had actual access to the small bag of cannabis at the relevant time, this was obviously a matter that could be properly taken into account by the Magistrate. But at the same time, it needed to be balanced by reference to the fact that the appellant did give an explanation for his possession of that cannabis on oath. He stated that he was in a good deal of pain that day and that the small bag of cannabis was given to him to assist him to sleep that night:
A… I suffer from a disease called Relapsing Polychondritis. It is a very rare relapsing autoimmune disease … it attacks your cartilage so I have it attack the corneas of my eyes, I have had it attack my wrists, all over the place … anyway I have had it for a number of years, I take medicine for it once a week. On the day I was at the festival, that day I was pulled up.
QWhat festival was this?
AIt was Womad. I was there for the ABC. I work for the ABC and for Australian Guitar Magazine and I was there in 2016 representing the ABC Triple J Magazine. Anyway I had incredible pain, I was in pain. It was really hot weather and I think I just reacted badly and I was in a bit of pain like my wrists and my legs were quite sore. I ran into a friend and I said I am going to have a hell of a time sleeping tonight and that friend gave me a small amount of cannabis which I was very grateful for. I said I am going to smoke that before I go to bed and I will get a good night’s sleep. I put it in my pocket – I got caught with it. I accept that and I am paying off the fine to the South Australian Government so that is a given.
The Magistrate makes no reference to this evidence of the appellant but it is very well known that cannabis is used by many persons for pain relief. The reason that the appellant advanced for his pain was that he suffered from the condition Relapsing Polychondritis, a very rare relapsing autoimmune disease. I think it highly unlikely that he would have chosen such an exotic condition if he did not have it – a claim of a migraine condition or something similar would have been much safer.
As for the reason that the appellant was a habitual cannabis user, again this was obviously a matter that could be properly taken into account by the Magistrate. But again, it needed to be balanced by a consideration of all of the facts and circumstances in the case.
As a general observation, it can be seen from the appellant’s evidence (and from his conduct of the trial) that he was greatly pre-occupied with the proposition that the oral fluid test conducted by Fox must have in some way brought forward a residual trace of his last consumption of cannabis some four to five days previously, and that this accounted for the positive FSSA analysis. Of course, such an explanation was actually disadvantageous to the appellant because it is clear that the charge simply depends on proof that THC was in his oral fluid at the time of his driving immediately before he was pulled over on the Saturday night. Nevertheless, he took that approach through thick and thin. And in a strange way, the very taking of that approach has some significance in his favour; it tends to belie any consciousness of guilt being held by him in the sense of having been aware that he ingested cannabis on the Saturday. Indeed, his following cross-examination of Ms Geier bespeaks a curiosity to find out what really did happen as distinct from seeking to promote a s 47BA(2) defence. Thus he asked:
QIn my situation the last time I had consumed cannabis before I was tested, to my knowledge, was five days before whilst I was in New South Wales, well before I even drove over to Adelaide and yes I use pot a lot, I have smoked it for – I am 62 I have been smoking since I was 16 – and I love pot, I hardly drink alcohol, don’t take prescription drugs so there is a lot of people on the road impaired in their driving because they are on things that they are not even tested for at all.
AYes.
QI was a person who hadn’t had any pot for five days yet I gave a positive result. So I was concerned about that because in your opinion if the test comes up as positive then that would indicate to you that I have consumed THC within a much shorter period –
ACorrect.
Q– than I was aware I had consumed it myself.
AYes.
QAnd do you have any reason to believe that a test that comes back with a positive result could in fact, there is a possibility that it could be from consumption of THC that was much earlier than say the 24 hour period in some people given that everybody is different and has a different metabolism.
AIn this instance I would have to disagree. We do do a quantitation on the oral fluid sample and in your case the level came up as greater than our calibration curve which means it was quite a high level and this is in a diluted oral fluid sample so given the half-litre of THC it will be incredibly unlikely that you had consumed it five days later and got the level that was obtained.
One might have thought that a consciousness of guilt of having ingested cannabis on the Saturday would have led to a ready acceptance of accuracy of the FSSA analysis evidence and a s 47BA(2) defence being placed at the very forefront of the appellant’s presentation, both at trial and on the appeal. However, to the contrary, the appellant was diffident about the matter and simply stated that, on thinking the matter over since, the mulled wine may have contained cannabis:
A…But on that day I also consumed some mulled wine. I only had one glass of it – mulled wine it is like an herbal concoction – it is a bit like a Drambuie.
QOften drunk when the weather is very cold mulled wine?
AWell it was hot, it was warmed up but it was really nice. Someone had it and they said it will just make you feel a bit better – I had it. It was really good and I think in hindsight that that might have had cannabis in it, I am not sure. That is the only reason I can think that my blood tested positive if this test works. I am lead to believe that it doesn’t work. I am lead to believe that it can pick up results up to five or six, seven days depending on the individual and I really think that it has picked up something that I have smoked in Sydney a few days earlier. When I am smoking pot I am quite a heavy smoker – I enjoy it and I do it regularly. I don’t drink and I tend not to like alcohol that much. I might have one before I sing and that is it, I drink water all night I am not much of a drinker at all. There is a chance that there was cannabis in the mulled wine I had at the festival, I am not really sure. I have never been able to find the person who gave it to me again to ask but a few of my friends said what was in that mulled wine you had and I went well it is called mulled wine isn’t it but doesn’t mean it has got mull, which is an abbreviation for marijuana, in it. To say you have a mull you mull it up and smoke it, but I don’t know, I don’t know if I consumed any marijuana on that day in the wine but I certainly didn’t do it intentionally because I was driving and I knew it was alcoholic, the mulled wine, but I only had one and I passed the alcoholic swab so obviously I didn’t have enough of it to put me in a position where I was impaired to drive from any alcohol consumption. (Emphasis added)
In fairness to the appellant, I should say that, both at the bar and in at least one trial before me that I can specifically identify, there has been reference to this slang term “mull” in the context of cannabis – “to mull it up and smoke it”; and I have spoken to several Judges who have also been similarly aware of that term. Further, while I am not a devotee of the Womad Festival, it does not strike me as inherently incredible that someone who is a devotee might be equipped with wine laced with cannabis, being sardonically referred to, by those in on the joke, as “mulled wine”.
At trial, the prosecutor cross-examined the appellant so as to suggest that the appellant had not mentioned the mulled wine at the first PTC. The Magistrate rightly directed that they are without prejudice discussions. But the question having been put to the unrepresented defendant, I think it only fair to refer to his comment concerning that aspect of the matter on the hearing of the appeal:
MR LOCHNER: … it wasn’t until the magistrate who was hearing the pre-trial conferences said to me ‘You do realise that if you had consumed marijuana without knowing it that these charges wouldn’t apply’, and I said ‘No I didn’t know that your Honour’. And it was after he pointed that out to me that I spoke to my partner who was at the festival with me and I said ‘Is there any chance I will be sitting (? was sitting next to) anyone who was smoking joints or whatever’ she said ‘No, but we had that mulled wine’, and I went – the penny dropped and I thought well that could be it but –
Conclusion as to the s 47BA(2) defence
I conclude that the Magistrate misapprehended his obligations under RTA s 47BA(2) and failed to adequately consider the whole of the relevant facts and circumstances when coming to his decision to reject the s 47BA(2) defence.
Disposition of the appeal
For the reasons above, I allow the appeal. During the course of the appeal, counsel for the respondent agreed that if (contrary to his submission) the appeal were to be allowed, then the appropriate disposition would be that the complaint be dismissed with no order for a re-trial. That is the disposition I would have made in any event but I am grateful for the concession.
I make the following orders:
1. The appeal is allowed.
2. The conviction is set aside.
3.All of the Magistrate’s orders including the imposition of a fine, costs, prosecution fee and victims of crime levy and a driver’s licence disqualification for three months are set aside.
4. The complaint is dismissed.
I will hear the parties as to costs and/or expenses of the trial and the appeal.
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