Police v Mercorella - [2003] SASC 399

P v MERCORELLA
[2003] SASC 399
Magistrates Appeal

GRAY J: This is an appeal against a magistrate’s dismissal of a complaint.
The Magistrates Court Proceedings
The Complaint
The complaint alleged that on 15 November 2002 Michele Mercorella drove a motor vehicle on the Grove Way at Golden Grove while there was present in his blood the prescribed concentration of alcohol as defined in section 47a of the Road Traffic Act 1961 (SA) contrary to section 47b of the Road Traffic Act 1961. It was further alleged that the concentration of alcohol was .102 grams in a hundred millilitres of blood. Mr Mercorella pleaded not guilty and the matter proceeded to trial.
The Facts
There was no oral evidence. The prosecutor tendered an agreed statement of facts in the following terms:
-       At about 1.08 am on Friday the 15^th day of November 2002, Michele Mercorella was driving his motor vehicle in a northerly direction along The Grove Way, Golden Grove.
-      [Mr Mercorella] was stopped at a random breath testing station about 300 metres north of the Village Shopping Centre.
-      [Mr Mercorella] was approached by Constable David Bruce Jones and subjected to an alcotest.
-      The alcotest indicated that the prescribed concentration of alcohol may have been present in [Mr Mercorella’s] blood.
-      [Mr Mercorella] was advised that he was required to submit to a breath analysis test.
-      At about 1.31 am on the 15^th day of November 2002 [Mr Mercorella] furnished a sample of breath into a Drager Alcotest 7110, serial number MRLE-A010. At about 1.34 am on the 15^th day of November [Mr Mercorella] furnished a further sample of breath as required by Regulation 8A of the Road Traffic (Miscellaneous) Regulations 1999. The test was facilitated by Constable Jones and was requested pursuant to Section 47E (2b) of the Road Traffic Act.
-      As a result of 0.102 grams of alcohol per 100 millilitres of blood was obtained from that instrument.
-      At about 1.36 am on the 15^th day of November 2002, [Mr Mercorella] was handed the Statement in Writing (one copy of the printout from the Breath Analysis Instrument.)
-      Constable Jones recorded in his Breath Analysis Brief that he said to the defendant:
“The analysis shows you have a blood/breath alcohol concentration of 0.102 grams of alcohol in 210 litres of your breath. This is over the legal limit. Do you understand that? and that [Mr Mercorella] replied “Yes.”
Counsel also tendered a number of certificates and other documents by consent. They were as follows:
-      Section 47G(3a) certificate – certification of Lion alcometer SD 400
-      Section 47G(3b) certificate – certification of positive alcotest
-      Section 47G(3c) certificate – certification of establishment of breath testing station
-      Government Gazette – 12 April 1990 pg 1091 – approval of Lion Alcometer S-D2
-Section 47G(3)(a) certificate – authorisation of Constable Jones to operate breath analysing instruments
-Section 47G(3)(b) certificate – certification of correct operation of a breath analysing instrument

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Mercorella

Details

AGLC: Police v Mercorella [2003] SASC 399
Case: [2003] SASC 399
Decision Date: 10 December 2003

CaseChat Overview and Summary

In the case of Police v Mercorella, the appeal was against the dismissal of a complaint regarding the accuracy and completeness of the written statement provided to Mr. Mercorella following a breath analysis test. The matter was heard in the Supreme Court of South Australia. The primary issue before the court was whether the written statement given to Mr. Mercorella complied with the statutory requirements under section 47G(2) of the Road Traffic Act. This section mandates that a driver must be provided with a written statement specifying the concentration of alcohol in their blood and the date and time of the analysis as soon as practicable after a breath test.

The court needed to determine whether the statement given to Mr. Mercorella met these requirements. Mr. Mercorella had provided two breath samples, and the lower reading was 0.102 grams of alcohol in 210 litres of breath. The statement delivered to him included the lower reading, the date and time of the analyses, and additional details such as the location of the test and the names of the officers involved. The court examined whether the additional information included in the statement, beyond the statutory requirements, was sufficient to comply with the statutory mandate.

The court concluded that the statement provided to Mr. Mercorella did not fully comply with section 47G(2). While it contained the required information regarding the concentration of alcohol and the date and time of the analysis, it also included extraneous details that were not mandated by the statute. The court found that the presence of these additional details did not detract from the statutory compliance but rather emphasized the importance of adhering strictly to the legislative requirements. The court held that the statement, despite including the necessary information, failed to comply with the statutory mandate due to the inclusion of non-required details. Consequently, the dismissal of the complaint was set aside, and the appeal was allowed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This appeal is allowed. The dismissal of the complaint is set aside.JUDGMENT CITATIONS LISTED IN ORDER OF APEARANCE IN JUDGMENT1 (1979) 20 SASR 333 at 3392 Section 47G(2) previously read:As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person who breath has been analysed a statement in writing specifying –(a)the concentration of alcohol indicated by the analysis to be present in the blood expressed in grams of 100 millilitres of blood; and(b) the date and time of the analysis.3 (1979) 20 SASR 333 at 337-3404 (1985-86) 39 SASR 418 at 420. See also Pacillo v Hentschter (1988) 47 SASR 261 at 255, Tann v Schild (1990) 54 SASR 523 at 5295 (1982) 30 SASR 453 at 463, 4736 Judgement No. S6577

Ratio Decidendi

Legal Principle Established

As earlier observed the purpose of s47G(2) is to ensure that a driver who has failed a breath analysis test is given accurate and timely information in a permanent form. Given the limited circumstances in which a driver may contest the allegation of the concentration of alcohol in the blood, this information assumes importance. The legislature has acknowledged that the date and time of the breath analysis as well as the reading produced must be recorded and provided to the driver as soon as practicable. Each of these matters is of importance. The driver must have accurate information in order to be able to test the result of the breath analysis by means of analysis of a sample of blood. This is the only permissible manner of challenge. It cannot be expected that the driver will necessarily know or remember any of these pieces of information if the required statement is not given to him. Consequently, the section 47G(1) presumptions are only to apply if there has been compliance with s47G(2). The onus is cast upon the relevant police officer to provide accurate information. If not, the presumption does not apply, whatever the reason for the inaccuracy. The reasoning in Taylor v Daire remains apposite.Consideration of the Issues In the present case the question is whether the statement in writing delivered to Mr Mercorella complied with the terms of section 47G(2). Mr Mercorella provided two separate samples of breath for analysis. Each sample was provided in accordance with the directions of the operator. There was an interval of not less than two minutes and not more than 10 minutes between the provision of the samples. The lower of the two readings was 0.102 grams of alcohol in 210 litres of breath. Regulation 8A(3) provides that the reading produced by the breath analysis instrument that indicates the lower concentration is to be the “result” of the breath analysis for the purpose of the Road Traffic Act. The statement in writing delivered to Mr Mercorella provided information including the reading produced by the breath analysis instrument. As the breath analysis instrument was operated in accordance with regulation 8A two samples of breath were provided. The analysis of each sample of breath was disclosed. Both analyses were the subject of written information. The “result”, by reason of the provisions of regulation 8A(3), was the lower of the two analyses. The statement in writing also included the date and time of the analysis of each sample of breath. The statement in writing included further information. The breath analysis instrument produced both an electronic visual display as well as a print out in writing. The print out provided more extensive information than the visual display. The print out was produced in triplicate. At the time one copy was delivered to Mr Mercorella. This was said to be the section 47G(2) statement in writing. It provided further information including the location of the test, the name of the operating officer, the name of the reporting officer, the results of the analyses and the times and date of the analyses. The print out also recorded the fact that internal tests had been performed by the test unit with the results of those tests. The statement in writing clearly showed the reading produced by the lower of the two analyses.