Police v Mercorella

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
-Section 47G(7) certificate – certification that [Mr Mercorella] did not request a blood test kit
-South Australian Government Gazette – 24 March 1994 pg 787 – approval of drager alcotest 7110
The following documents were tendered subject to objection:
-Section 47G(2) certificate – statement in writing pursuant to subsection (2) of Section 47G of the Road Traffic Act
-      Section 47G(5) certificate – certification of delivery of section 47G(2) certificate
-objected to in so far as it attests to the statement in writing pursuant to S47G(2) being delivered to [Mr Mercorella].
No oral evidence was led.
Section 47G(2) required Constable Jones, the operator of the breath analysis instrument, to deliver to Mr Mercorella a statement in writing specifying the reading produced by the breath analysing instrument and the date and time of the analysis as soon as practicable after Mr Mercorella’s submission to an analysis of his breath.
The admissibility of the section 47G(2) statement in writing was critical to the Crown case. The reception of that statement in writing provided part of the foundation for the operation of statutory presumptions on which the Crown proposed to rely. It was accepted by counsel for the Crown that if the tender of the section 47G(2) statement in writing was rejected, relevant statutory presumptions would not operate. In that event the Crown would fail to make out a case to answer. Counsel for Mr Mercorella accepted that if the section 47G(2) statement in writing was received into evidence the statutory presumptions would operate and that the Crown would have established a case to answer. The admissibility of the section 47G(2) statement in writing was therefore the central matter in dispute at the trial.
The Decision
The learned magistrate excluded the purported statement in writing pursuant to section 47G(2) and found Mr Mercorella not guilty. He concluded:
The defendant’s defence rests with the objection of the tendering of a print-out from the breath analyzing machine. The contention is that the print-out is not a statement in writing pursuant to [section] 47 G(2) and is therefore inadmissible. If I uphold that objection the prosecution cannot avail itself of the presumption of [section] 47 G(1) and sub-paragraph 1(a) and the charge must fail.
…
In a nutshell the defence objection to the tendering of the document is based on the contention that the computer read out is not “specified” the requirements of [section] 47 G(2). It is agreed that the document does not “specify” the concentration of alcohol indicated by the analysis to be present in the blood nor does it specify the date and time of the analysis.
Clearly there is no doubt that the document does “contain” those 2 matters. The argument rests on whether the document specifies those 2 requirements is in accordance with the legislation.
…
I give as my reasons for reaching this finding those matters contained in the defence outline of argument and I adopt the same as my reasons. I agree with the submission that the defendant upon receiving the print-out would not necessarily understand the reading attributed to him as constituting the offence for which he is going to be charged nor the time of the same. There is also confusion as to the expression of the reading in grams per litres of breath and not in grams per litre of blood.
There is room for confusion on the part of the defendant and the authorities state there is a need for strict compliance with the requirements of the Act.
I therefore exclude the tendering of the exhibit from the evidence and accordingly the prosecution must fail in its effort to prove the case beyond reasonable doubt. The defendant is formally found not guilty I and I will hear the parties as to costs.
On appeal counsel for the Crown submitted that the magistrate had erred in rejecting the tender of the statement in writing said to comply with section 47G(2).
The Road Traffic Act
The Road TrafficAct is consolidating legislation relating to road traffic matters. Division 5 deals with persons driving motor vehicles whilst under the influence of liquor or drugs. Section 47B makes it an offence to drive whilst having a prescribed concentration of alcohol in blood and sets out the penalties for an offence against that section. Section 47DA provides the police with power to establish breath testing stations to randomly test drivers.
Section 47E obliges a person, in certain circumstances, to submit to an alcotest or breath analysis or both. Section 47E(2e) provides:
The regulations may prescribe the manner in which an alcotest or breath analysis is to be conducted and may, for example, require that more than one sample of breath is to be provided for testing or analysis and, in such a case, specify which reading of the apparatus or instrument will be taken to be the result of the alcotest or breath analysis for the purposes of this and any other Act.
Regulation 8A of the Road Traffic (Miscellaneous) Regulations was introduced on 27 May 2002 and provided for two samples of breath to be provided for analysis. The regulation provides:
(1)Pursuant to section 47E(2e), where a person submits to a breath analysis, the breath analysis must be conducted in the following manner:
(a)     the person must provide two separate samples of breath for analysis; and
(b)     each sample must be provided in accordance with the directions of the operator of the breath analysing instrument and must consist of not less than one litre of breath; and
(c)     there must be an interval of not less than two minutes and not more than 10 minutes between the provision of the samples.
(2)Despite subregulation (1) –
(a)     if, on analysing a sample of breath, the breath analysing instrument indicates an error in the analysis of the sample –
(i)that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis using a different instrument (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(b)     if, on analysing a sample of breath, the breath analysing instrument indicates the presence of alcohol in the mouth of the person –
(i)that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(c)     if, on analysing two samples of breath, the breath analysing instrument indicates that the reading obtained on analysis of the second sample was more than 15% higher or lower than the reading obtained on analysis of the first sample –
(i)those samples must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); and
(3)Where a person submits to a breath analysis, the result of the breath analysis will, for the purposes of the Road Traffic Act 1961 and any other Act, be taken to be the reading produced by the breath analysing instrument, on analysis of the samples of breath provided by the person in accordance with this regulation, that indicates the lower concentration of alcohol in the person’s breath (not taking into account any samples that, in accordance with this regulation, are to be disregarded).
In French v Scarman[1] King CJ observed that the legislature recognised that by requiring the citizen to submit to breath analysis tests, it had placed the citizen in a position in which their fate would be determined by the accuracy of the instrument and the honesty and reliability of the police evidence as to its results. This recognition led the legislature to provide a number of safeguards to protect the citizen. Those safeguards recognise the need to protect the citizen against the operation of statutory presumptions designed to facilitate proof of the offence.
[1] (1979) 20 SASR 333 at 339
Section 47G addresses the admissibility of evidence and provides for the operation of statutory presumptions:
(1) Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis.
(1a) No evidence can be adduced in rebuttal of the presumption created by subsection (1) except-
(a)evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I or in accordance with the procedures prescribed by regulation; and
(b)evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.
(1ab) If it is proved in proceedings that a concentration of alcohol was present in the defendant's blood at the time of a breath analysis, it must be conclusively presumed that that concentration of alcohol was present in the defendant's blood throughout the period of two hours immediately preceding the analysis ... .
On 27 May 2002, amendments to the Road Traffic Act including to amendments to section 47G(2) were enacted and associated regulations proclaimed. Section 47G(2) provides:
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 whose breath has been analysed a statement in writing specifying –
(a)the reading produced by the breath analysing instrument; and
(b)the date and time of the analysis[2].
[2] 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.
Section 47G(2) is designed to ensure that the citizen is provided promptly with a copy of the breath analysis reading produced by the breath analysing instrument and the date and time of the analysis. The provision of the reading provides the citizen with a record of relevant information. That information may assist the citizen in the making of a decision to request a blood kit and blood test.
In order to redress the imbalance created by the statutory presumptions, the legislative scheme provides rigorous safeguards to protect the rights of drivers who may be dissatisfied with the breath-testing regime or the procedures followed. The scheme provides drivers with the opportunity to have a portion of the blood sample independently tested. Those results can then be compared with the results from the blood test conducted by the State. These legislative safeguards are critical. They are built into and form an integral part of the legislative scheme. Legislative safeguards also include the provision of oral and written advice of the citizen’s rights including the right to request a blood kit and to then seek a blood analysis.
These safeguards were addressed in French[3] where King CJ observed:
This recognition finds expression in the provisions of s. 47f which provides a safeguard. This safeguard takes the form of an obligation on police officers to facilitate the taking of a blood test if the citizen requests it. The safeguard is illusory if the obligation on the part of the police to facilitate a blood test arises only if the citizen makes the request in the words of the section. The legislature cannot have supposed that a person requested to submit to a breath test would have the details of the section in his mind. It seems to me that where a person, who is requested to undergo an alcotest or a breath analysis, indicates a desire for a blood test, it is incumbent upon the police officer, not only to inform him that he may have a blood test taken by a doctor named by him and at his own expense, but also to indicate that if he desires the blood test to be taken upon that basis, arrangements will be made for that to be done.
These principles were restated by King CJ in Ujvary v Medwell:[4]
The blood test is the only means by which a citizen can question the correctness of the result of the breath analysis. It must be the paramount concern of the Courts to ensure that the citizen has ready access to that check. If obstacles are placed in the way of the citizen, the evidence of the breath analysis should be excluded unless there is some cogent reason to admit it. When applying Bunning v Cross principles, the public interest in securing a conviction for an individual drink-driving offence will rarely outweigh the public interest in protecting the citizen’s right to have the results of the breath analysis checked by means of a blood test.
[3] (1979) 20 SASR 333 at 337-340
[4] (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 529
In Taylor v Daire[5] the court was concerned with the failure by police officers to comply with all the requirements of section 47G(2a). As earlier observed that section was the predecessor to section 47G(2). The issue in that case related to the adequacy of the provision of information about the right to a blood test. King CJ observed:
... Parliament has amended s47g to provide certain consequences which are to follow non-compliance with s47f. Those consequences do not affect the admissibility of evidence of the breath analysis instrument’s reading nor do they affect the judicial discretion to exclude such evidence. They are confined to the operation of the statutory presumption that the concentration of alcohol indicated by the instrument was in fact present at the relevant time. It is to be remembered, however, that what is rendered admissible by s47g is merely the reading on the breath analysis instrument. The probative effect of that reading in relation to the concentration of alcohol in the blood depends upon other factors. If the statutory presumption operates, the reading is evidence of the concentration of alcohol actually present in the blood by virtue of the statutory presumption. If the presumption does not operate, the probative effect of the reading on the instrument depends upon the legal rules relating to the proof of facts by means of scientific and technical instruments. Whether the prosecution can make any practical use of the breath analysis reading without the aid of the statutory presumption does not fall to be considered in the present case. What is clear is that the operation of the statutory presumption as to the correspondence of the breath analysis reading with the concentration of alcohol actually present in the blood at the relevant time, depends upon compliance with the prescribed procedures including the procedures as to blood tests prescribed in ss 47f and 47g(2a).
Wells J commented:
In short, whether or not the prosecution will be able to rely on the presumption will depend exclusively upon whether it can be proved that the police officers concerned obeyed the injunction laid on them by sub-s(1) of s47g to comply with the requirements and procedures in relation to breath analysing instruments and breath analysis under the Act - in particular, sub-ss (2) and (2a) (supra). In my opinion, no question of judicial discretion arises when a court is determining whether the presumption is to be applied; if the foregoing conditions precedent to its successful invocation have been proved, the presumption ipso facto applies; if that proof fails, the presumption is lost.
[5] (1982) 30 SASR 453 at 463, 473
At the time that Parliament drafted the amended section 47G(2) there was ample opportunity to direct an appropriate layout for the statement in writing referred to in the section. The legislation has directed an appropriate “layout” with respect to the provision of advice about blood tests referred to in Regulations 8B, 9 and 10. The legislature chose not to direct the layout or content of a section 47G(2) statement in writing. This supports the conclusion that the legislature considered that section 47G(2) adequately spelt out all that was required. The statement in writing must contain the reading produced by the breath analysis instrument and the date and time of the analysis.

Section 47EA was enacted at the same time as s47G(2) and provides:
Where a person submits to an alcotest or a breath analysis and the alcotest apparatus or the breath analysing instrument produces a reading in the terms of a number of grams of alcohol in 210 litres of the person’s breath, the reading will, for the purposes of this Act and any other Act, be taken to be that number of grams of alcohol in 100 millilitres of the person’s blood.
This amendment suggests that Parliament foresaw that the breath analysing instrument would produce a reading of the number of grams of alcohol in 210 litres of a person’s breath. There was a need for this amendment to allow the legislative scheme to be effective having regard to the provisions of section 47A and 47B.
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.
The information provided was a record of the detailed process followed. It provided a documentary record of the process and of each stage of the process. It provided an “audit” trail. It is to be observed that this information was to be accompanied or followed by oral and written advice as required by the regulations.
Counsel for Mr Mercorella submitted that the statement in writing did not comply with section 47G(2) as it contained more than the stipulated information.
In Ferguson v Police Lander J observed with respect to the precursor version of section 47G(2)[6]:
[Counsel] argued that the statement in writing, which has to be handed to a person who has been required to submit to an analysis of his or her breath, has to specify the concentration of alcohol indicated by the analysis to be present in the blood and the date and time of the analysis. This document, [counsel] argued, contained further information which made it inadmissible. In that respect he referred to paragraph two of the document which provided the further information purporting to be a certificate from the Police Officer that on the 17^th day of March 1997 at 9.51pm he handed to Anthony John Ferguson the statement. Section 47G(2) does not provide for that information to be supplied to the person who has submitted to breath analysis.
However the inclusion of that information does not, in my opinion, render the rest of the document inadmissible for the purpose of establishing the provision of the information in s47G(2). To comply with s47G(2) there needs only to be delivered to the person whose breath has been analysed a statement in writing specifying the concentration of alcohol indicated by the analysis to be present in the blood expressed in grams and 100 millilitres of blood and the date and time of the analysis. There are a number of matters contained in this document which are not required to be contained in any document which is handed to a person under s47G(2). For example, this document purports to be a certification that the Act does not require the document to be certified. It also shows that it is a certificate of Senior Constable McCarthur who says that he is a person authorised under s47G(1) to operate breath analysing instruments. That is not required to be provided in the statement in writing. It indicates the person, his address and the place at which he submitted to breath analysis, again all of which is not required to be provided.
However the provision of that further information, like the certificate of delivery of the document, does not in my opinion render the document inadmissible.
[6] Judgement No. S6577
Although Lander J’s comments addressed the precursor section, his observations are apposite. In the present case the inclusion of the further information does not render the rest of the statement in writing inadmissible.
The additional information contained within the statement in writing delivered to Mr Mercorella provided confirmation that two analyses were conducted. It also provided the result of those analyses. It left Mr Mercorella in no doubt that the breath analysis instrument analysed two samples of his breath. It also left Mr Mercorella in no doubt about the readings produced by the analysis of breath. It provided the defendant with a record of the process undertaken to ensure that there has been compliance with regulation 8A(2)(c) of the Road Traffic (Miscellaneous) Regulations.
Conclusion
The statement in writing delivered to Mr Mercorella provided the information referred to in section 47G(2). Each of the matters essential to the validity of the statement in writing were contained it. The fact that further information was disclosed does not mean that there was non compliance with the terms of the section. Section 47G(2) does not state that no further information is to be provided. In any event the further information would have assisted Mr Mercorella, if he wished, to review the process followed and to check to see there had been compliance with regulation 8A.
This appeal is allowed. The dismissal of the complaint is set aside.
JUDGMENT CITATIONS LISTED IN ORDER OF APEARANCE IN JUDGMENT
1 (1979) 20 SASR 333 at 339
2      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 337-340
4 (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 529
5 (1982) 30 SASR 453 at 463, 473
6      Judgement No. S6577

[2003] SASC 399

10 December 2003