Police v Maher - [2007] SASC 291

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MAHER
[2007] SASC 291
Judgment of The Honourable Justice Debelle
3 August 2007
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE
Respondent charged with offence of driving a motor vehicle on a road while there was present in his blood a proscribed concentration of alcohol contrary to s 47B of Road Traffic Act – respondent asked police officer whether breath analysing instrument was faulty or likely to be faulty – police officer replied that breath analysing instrument “is accurate” –whether response likely to dissuade respondent from having blood test - whether there was any ground upon which magistrate should have exercised unfairness discretion - whether magistrate should have exercised discretion to exclude evidence.
Road Traffic Act 1961 s 47B, s 47G, s 47I, referred to.
Bunning v Cross (1978) 141 CLR 54; Evans v Benson (1986) 46 SASR 317; French v Scarman (1979) 20 SASR 333; Lloyd v Police (2004) 89 SASR 383; Nolan v Rhodes (1982) 32 SASR 207; Shearer v Hills (1989) 51 SASR 243; Taylor v Daire (1982) 30 SASR 453; Ujvary v Medwell (1985) 39 SASR 418, applied.
Director of Public Prosecutions v Moore (2003) 6 VR 430; Police v Hall (2006) 95 SASR 482, considered.

POLICE v MAHER
[2007] SASC 291
Magistrates Appeals

DEBELLE J. The issue in this appeal is whether a police officer has acted in such a way that the prosecution should not be entitled to rely on the statutory aids to proof in s 47G of the Road Traffic Act 1961.
The respondent was charged on complaint with four driving offences which were alleged to have occurred on 6 August 1999. He pleaded guilty to three but pleaded not guilty to a charge of driving whilst there was present in his blood the prescribed concentration of alcohol contrary to s 47B of the Road Traffic Act. The alleged concentration of alcohol in his blood was 0.171 grams in 100 millilitres of blood. This appeal concerns only the alleged breach of s 47B.
At the hearing before the magistrate on 19 April 2007, counsel for the respondent objected to the admissibility of the certificate of the breath analysis. The magistrate upheld the objection. The prosecution had no other evidence capable of establishing the concentration of alcohol in the respondent’s blood. The magistrate, therefore, dismissed the complaint. The complainant has appealed against the dismissal of the complaint.
Section 47G of the Road Traffic Act prescribes a statutory presumption as to the concentration of alcohol present in the blood at the time of the offending. It is the concentration of alcohol as measured by a breath analysing instrument: see s 47G(1). Section 47G(1a) provides that no evidence can be adduced in rebuttal of the presumption unless the defendant has had an analysis of a sample of blood in accordance with s 47I of the Act. The prosecution is able to rely on the presumption in s 47G(1) only if it has established that there has been compliance with the requirements of the Road Traffic Act including s 47G(2a) which requires the police officers operating the breath analysing instrument to deliver to the person whose breath has been analysed oral advice as prescribed and a written notice of that advice in the prescribed form. The prescribed oral advice and the prescribed written advice set out the procedures for the taking and analysis of a sample of blood in order to challenge the breath analysis.
At the trial and on this appeal, it was common ground
·that the respondent had participated in a breath test by blowing into a breath analysing instrument;
·that the instrument had recorded a concentration of alcohol in the respondent’s blood of 0.171 milligrams of alcohol per 100 millilitres of blood;
·that the police officer operating the instrument, Senior Constable Lehmann, had given the prescribed oral advice and the prescribed written notice in accordance with requirements of s 47G(2a); and
·that Senior Constable Lehmann had handed to the respondent a blood sample kit.
The evidence as to what then occurred is disputed. While Senior Constable Lehmann was conducting the breath analysis, Sergeant Cuk was also present. Neither had any recollection of the relevant facts beyond that which was contained in their notes. That was hardly surprising given that the events had occurred more than seven years before. The respondent’s evidence was that after he had been handed the blood sample kit, a further conversation had occurred. The police officers had no recollection of it. Their notes did not record the alleged conversation. The magistrate made findings as to what then occurred. Those findings are not in issue. I proceed on the basis of those findings.
After the respondent had been handed the blood sample kit, he asked, “Is the equipment faulty or likely to be faulty?” Sergeant Cuk respondent, “It is accurate”. At that point Senior Constable Lehmann said he was obliged to hand the respondent the blood test kit and that it was the respondent’s right to have a blood test. The respondent left the police station with the blood test kit. The respondent admitted that, after he had left the police station, he had read the prescribed written advice. That advice included the following sentence:
In any proceedings against you for such an offence you will be able to challenge the accuracy of the breath analysis reading if you have a sample of your blood taken and analysed as described below.
The respondent’s evidence was that he decided not to have a blood test after Sergeant Cuk had expressed confidence in the accuracy in the breath analysing instrument. He acknowledged that neither Sergeant Cuk nor Senior Constable Lehmann had suggested that he not have a blood test. He admitted that his decision not to have a sample of his blood taken and analysed was entirely his own decision.
The magistrate found that the statement by Sergeant Cuk had the capacity to dilute the effect of the prescribed oral advice and the prescribed written advice and had led to ambiguity and uncertainty. He decided to exercise his discretion to exclude the evidence of the results of the breath analysis test. The magistrate did not state on what ground he exercised his discretion. It is apparent that he was referring to the discretion to exclude evidence unfairly obtained as discussed in Bunning v Cross (1978) 141 CLR 54 (“the unfairness discretion”).
There are two issues on the appeal. The first is whether there was any ground upon which the magistrate should have exercised the unfairness discretion. If Sergeant Cuk’s words were sufficient to give rise to an exercise of the discretion, the second question is whether the magistrate should have exercised that discretion to exclude the evidence. The respondent does not contend that Sergeant Cuk had acted unlawfully. Instead, it is submitted that the magistrate had properly excluded the evidence of the results of the breath analysing instrument because the police had unfairly though, inadvertently, deprived the respondent of the opportunity of challenging the accuracy of the breath analysing instrument.
The circumstances in which a court will apply the unfairness discretion is not limited to occasions when the impugned conduct was the means by which the evidence was obtained or where the obtaining of the evidence involves such conduct. It will apply also when the impugned conduct so closely follows the conduct by which the evidence was obtained and so closely relates to the value and effect of that evidence that there can be no meaningful separation between the two aspects of the seemingly continuous conduct for the purpose of determining if the public policy discretion is enlivened: Director of Public Prosecutions v Moore (2003) 6 VR 430 at [55] per Chernov JA and at [92] per Eames JA; Police v Hall (2006) 95 SASR 482 at [30] per Doyle CJ. It is common ground that the answer given by Sergeant Cuk so closely followed the obtaining of the results of the breath analysis that it is relevant to consider it for the purposes of determining whether it called for the exercise of the unfairness discretion.
When considering the issues in this appeal, three propositions are of fundamental importance. The first has already been mentioned. It is that the evidence of the breath analysis can only be admitted if there has been compliance with s 47G(1) of the Road Traffic Act, that is to say, the evidence will only be admitted where there has been compliance with the requirements and procedures of the Road Traffic Act in relation to breath analysing instruments and breath analyses including subsections (2) and (2a) of s 47G.
The second proposition follows from the first. Given that s 47G(2a) prescribes how a driver is to be informed that the only means by which he may adduce evidence in rebuttal of the presumption of the accuracy of the breath analysis is by having a sample of his blood taken and analysed, nothing should be said or done to dissuade the driver from availing himself of this important safeguard: French v Scarman (1979) 20 SASR 333 at 337 to 338; Taylor v Daire (1982) 30 SASR 453 at 464 to 465 per King CJ and at 471 per Wells J; Nolan v Rhodes (1982) 32 SASR 207; Ujvary v Medwell (1985) 39 SASR 418. This court has repeatedly emphasised that, as the only means of challenging the result of a breath analysis is by means of a blood test, the court will carefully scrutinise the conduct of those officers in discharging the obligations under s 47G of the Road Traffic Act and the regulations made thereunder. The plain object of s 47G(2a) is to ensure that the driver is fully informed of his rights: Lloyd v Police (2004) 89 SASR 383 at [18] and nothing should be done which might impair that right.
The third proposition is that, in the absence of expert evidence to establish its accuracy, the accuracy of the result of the breath analysis by the breath analysing instrument is a result of the statutory presumption in s 47G(1). That statutory presumption will be displaced only if the sample of the driver’s blood has been taken and analysed in accordance with s 47I and the results of the analysis demonstrate that the breath analysing instrument gave an exaggerated reading: s 47G(1a). As King CJ pointed out in Evans v Benson (1986) 46 SASR 317 at 322 to 323, two statutory fictions operate. The statutory fiction of the blood alcohol level as determined by the analysis of a blood sample prevails over the statutory fiction of the blood alcohol level determined by the breath analysing instrument if a blood sample is taken and analysed and s 47G(1a) is satisfied. For present purposes, the material fact is that the provisions of s 47G suggest that Parliament regards a blood analysis as providing a more accurate result than a breath analysis by means of a breath analysing instrument: Evans v Benson at 320; Shearer v Hills (1989) 51 SASR 243 at 247. The provisions of the Road Traffic Act contain no indication that Parliament has vouched for the accuracy of the breath analysis instrument. The accuracy of the breath analysing instrument is presumed by statute only in the absence of an analysis of blood satisfying s 47G(1a): Shearer v Hills at 247 to 248. Without the benefit of the statutory presumption, it would be necessary for expert evidence to establish the accuracy of the breath analysing instrument on the occasion when the respondent submitted to the breath test: Shearer v Hills at 247. The statutory presumption avoids that requirement.
Ms Fuller submitted that Sergeant Cuk’s answer had the consequences of misleading the respondent and thereby dissuading him from having a blood sample taken and analysed. She expressed her contention in these terms:
Now, the obvious effect of that statement must be there is no point or utility in having a blood test kit because there is no means by which you can challenge this instrument. It is accurate. That is the clear implication in the words.
In submitting that Sergeant Cuk’s answer was wrong, she emphasised that the breath analysing instrument is not necessarily accurate but is presumed by statute to be accurate in the absence of a blood test. For the reasons which follow, I do not accept that Sergeant Cuk’s short answer, either expressly or by implication, suggested to the respondent that he should not have his blood tested and analysed.
The question whether police officers have said anything which might dissuade a driver from participating in a blood test is to be determined objectively, that is to say, by considering the words spoken and the circumstances in which they were spoken and then determining what a reasonable person would have understood those words to mean in the circumstances in which they were uttered. There can be no other test given that the police officers are dealing with people at different levels of intoxication, ranging from a minimal level to a substantial level of intoxication. It is first necessary for the court to determine what words were said and the circumstances surrounding what was said. Having made that finding, the question is what a reasonable person would understand those words in the context in which they were uttered to mean either expressly or by implication.
Ms Fuller’s contention relies on the statutory presumption as to accuracy. In the absence of proof of the accuracy of the breath analysing instrument, it is the only means by which the breath analysis can be proved. In this case, no evidence was led to establish whether or not the breath analysing instrument was operating accurately on this occasion. However, Sergeant Cuk might have held the belief that the breath analysing instrument was accurate because the instrument might have been tested shortly before its use and have been found to be accurate. Ms Fuller did not cross-examine him on that question. There is nothing, therefore, to indicate whether Sergeant Cuk’s belief was correct or not. If the machine had been tested for accuracy and had been found to be operating correctly, Sergeant Cuk’s answer was entirely correct. I do not rely on this argument but it serves to highlight one of the difficulties in Ms Fuller’s submission.
I will take Ms Fuller’s submission at its highest and proceed on the footing that Ms Fuller is correct in asserting that Sergeant Cuk’s answer was inaccurate because the effect of the statutory scheme is that the breath analysing instrument is presumed to be correct only in the absence of the results of the testing of a blood sample and if there has been compliance with s 47G.
The breath analysing instrument has not attained the status of an instrument whose accuracy is assumed so that judicial notice can be taken of it. It is presumed by legislation to be accurate. It would have been better, therefore, if Sergeant Cuk had not answered the question or, alternatively, if he had answered it by referring the respondent to the prescribed written advice. But the fact that the answer was not correct does not necessarily lead to the conclusion that Sergeant Cuk’s answer could have dissuaded the respondent from having a sample of his blood tested and analysed.
Sergeant Cuk did no more than give a short answer to the respondent’s question. His short answer must be considered in the context of the prescribed advice given orally to the respondent and the prescribed written advice handed to him. It must also be considered in the context of what happened after Sergeant Cuk had said that the breath analysing instrument was accurate. Both the prescribed oral advice and the prescribed written advice clearly state the legal effect of the breath analysis. Both state that the result of the breath analysis will be presumed to be accurate at the time of the reading and for the previous two hours. Both state that contrary evidence may be given by having a sample of blood tested and analysed. The answer given by Sergeant Cuk did not in any respect qualify or diminish the effect of that advice.
If anything, given that the effect of both the prescribed oral advice and the prescribed written advice is that the breath analysis is presumed to be accurate in the absence of the results of a blood test, Sergeant Cuk’s answer would have encouraged a person to take a breath test.
What is of particular note is that Sergeant Cuk did not give any advice. Sergeant Cuk did no more than answer a question. He said nothing as to the desirability of having a sample of blood tested. Importantly, Sergeant Cuk’s answer said nothing either expressly or by implication about the likely result of a blood test or as to the desirability or utility of undergoing a blood test either generally or in the particular circumstances of the respondent. In short, Sergeant Cuk said nothing which either expressly or by implication indicated there was no point in having a blood test. Nothing he said would have caused a reasonable person to believe that there was no point in having a sample of blood tested and analysed. This was a case where the police officers had complied with all of the relevant requirements of the Road Traffic Act and the respondent had understood the effect of the oral and written advice. He knew that the only means of challenging the breath analysis was to have a sample of his blood taken and analysed.
This conclusion is reinforced by the fact that the respondent had the blood sample kit in his possession and that the respondent had read the prescribed written advice after he had left the police station. It is further reinforced by the respondent’s admission that he had understood the terms of the prescribed oral advice. In addition, after Sergeant Cuk had said that the breath analysing instrument was accurate, Senior Constable Lehmann had informed the respondent that it was the respondent’s right to have a blood test. In short, everything was done to inform the respondent of his rights and nothing was said or done which qualified that advice in any way.
In reaching this conclusion, I do not overlook the fact that ability to have a blood test is an important, if not, critical safeguard to protect the rights of drivers. As noted earlier, its importance has been emphasised repeatedly by this court: see King CJ in French v Scarman at 240. It is not to be diminished. However, Sergeant Cuk’s answer did not undermine the safeguard in any respect.
The magistrate failed to have regard to other critical points of the respondent’s evidence, namely, that after Sergeant Cuk’s answer, Senior Constable Lehmann had said to the respondent that he was obliged to hand to the respondent the blood sample kit and it was the respondent’s right to have the blood test as well as the fact that the respondent had read the prescribed written advice after he left the police station. Most importantly, the magistrate overlooked that the respondent had understood the effect of the oral advice. When looked at as a whole, the respondent was correctly advised and nothing was said to dissuade him from taking the blood test or which could have caused him to be dissuaded from taking it.
The magistrate said that the effect of Sergeant Cuk’s answer was not unlike a magistrate saying to an unrepresented defendant, “You have an unfettered right to plead not guilty to the charge against you, but no prospect at all of success”. The analogy is fundamentally flawed and is entirely false. The magistrate would in such circumstances be disclosing a pre-conception. An analysis of a blood sample is an objective measurement which no amount of pre-conception can alter.

There was nothing which required the magistrate to consider whether he should exercise the discretion. The evidence did not require him to exercise the unfairness discretion. For all of these reasons, it is proper to set aside the magistrate’s decision. I will, therefore, allow the appeal.
Even if the magistrate was correct in believing that there was some unfairness in what Sergeant Cuk had said, his words did not require the evidence of the blood test to be excluded. I repeat that Sergeant Cuk had done no more than answer a question which concerned the breath analysing instrument, not the desirability of having a sample of blood tested. Sergeant Cuk said nothing as to the wisdom or otherwise of having a sample of blood tested. The reasons for concluding that there was no cause to consider the unfairness discretion apply with equal force to the question whether the evidence should have been excluded in the exercise of the unfairness discretion. The magistrate attributed to the answer a weight or importance it did not deserve. In addition, he failed to have regard to all of the relevant circumstances. The respondent had heard the oral advice. He had read the written advice after leaving the police station. Sergeant Cuk did no more than provide one piece of information that the respondent considered when deciding whether he should undergo the inconvenience of having a blood test. It is proper, therefore, to set aside his decision.
For these reasons, I allowed the appeal and made the following orders.
1Appeal allowed.
2That the decision of the magistrate be set aside and in lieu thereof there be an order admitting exhibit C3, the evidence of the reading recorded by the breath analyser instrument.
3That the hearing of the trial of the respondent proceed.
4That the respondent pay the appellant’s costs fixed in the sum of $150.