Police v Modra

POLICE v MODRA

[2000] SASC 328

Full Court: Prior, Lander and Bleby JJ

1................ PRIOR J:........................ The present appellant Modra was charged on complaint with a breach of s 47B of the Road Traffic Act 1961. That charge was dismissed by a magistrate. A judge of this Court allowed the prosecution’s appeal. By leave of the single judge an appeal is brought to this Court against the single judge’s order recording a conviction.

The appellant was stopped at about 12.35 in the morning of 29 August 1998 at a random breath testing station and required to undergo an alcotest. Section 47E(2a)of the Road Traffic Act authorises a member of the Police Force to require the driver of a motor vehicle approaching a breath testing station to submit to an alcotest. Where an alcotest conducted under s 47E(2a) indicates that the prescribed concentration of alcohol may be present in the blood of any person required to submit to an alcotest, a member of the Police Force may require that person to submit to a breath analysis[1]. A probationary constable purported to invoke these powers. The appellant submitted to an alcotest. He was advised of the result of the alcotest and required to accompany police officers to the Glenelg Police Station to undergo a breath analysis test. The appellant did so and provided a sample of his breath for analysis at 1.44 am. That test indicated that the appellant had a blood alcohol level of .087 grams of alcohol in 100 millilitres of blood. The complaint particularised that level with respect to the allegation that on 29 August 1998 the appellant drove a motor vehicle on Diagonal Road, where the breath test station had been set up, while there was present in his blood the prescribed concentration of alcohol as defined in s 47A.
[1] Road Traffic Act 1961, s 47E(2b)
In the Magistrates Court, the magistrate found that “the evidence as to the apparatus used” at Diagonal Road was “unsatisfactory”. Her Honour found that after the appellant was required by the probationary constable to undergo an alcotest that officer spoke to the appellant “in terms of processing a driving under the influence matter”. Her Honour found that two other officers were instrumental in re-directing the probationary constable about that. She also found that the probationary constable had used the word “apprehended” in addressing the appellant and that the appellant, “on reasonable grounds formed a subjective belief that he was being arrested and transported to the Glenelg Police Station”. Appropriate rights pursuant to the Summary Offences Act 1953 were not given. Subsequent to the appellant’s arrival at the Glenelg Police Station “there was a delay in the obtaining of a breath analysis test”.
Her Honour’s view was that the delay was of the order of 45 minutes whereas, on the first appeal, the view of the single judge was that the material before the magistrate established that delay as being of the order of 20 minutes or so. The reason for the delay was to await the arrival of the State Duty Officer, consistent with Police Standing Orders where a member of the Police Force is called upon to undergo a breath analysis test. Her Honour’s view was that because the appellant was a police officer there was a greater delay in the performance of the breath analysis than would have been the case with an ordinary citizen.
Her Honour said that there was no evidence before her to enable her to say that the appellant,
“was or was not prejudiced as a result of that delay but, given the requirement for strict compliance with the legislation, … the prosecution case (was) so flawed that it would be unfair and unjust to admit the results of the breath analysis test in the evidence against him”.
Her Honour said that in so deciding, she was relying on the discretion arising under Bunning v Cross[2]. After referring to authorities in this Court, the magistrate maintained that the prosecution case was fundamentally flawed. Exercising a discretion to exclude the breath analysis reading, she acquitted the appellant.
[2] (1978)141 CLR 54
On the appeal to this Court the single judge held that there had been no deliberate flouting of the law by the probationary constable who had made an attempt to comply with s 79A of the Summary Offences Act. His Honour said that the breath analysis conducted at the Glenelg Police Station appeared to have been carried out in an exemplary manner. In His Honour’s view, the appellant had failed to discharge the onus on him of establishing, on the balance of probabilities, facts necessary to enable a discretion to be exercised excluding evidence[3] His Honour said that if the appellant was to argue that the police were using non-approved equipment for the alcotest, it was necessary for him to establish the relevant facts positively on the balance of probabilities. His Honour’s view was that the appellant had failed to do that, saying that he had managed “only to exclude positive proof on the police case that the alcotest equipment was approved”. His Honour said that in view of the decision in Barber v Police[4], this did not assist the appellant.
[3] Police v Fountaine (1999) 74 SASR 26 at 44 - 45
[4] (1994) 204 LSJS 399 at 405
In Barber v Police Martin J observed that s 47G of the Road Traffic Act did not impose any obligation to comply with requirements and procedures in relation to alcotests as a condition precedent to the operation of the presumption afforded by s 47G. Accepting that view, the judge in this case said that it was unnecessary to prove that an alcotest was lawfully administered in terms of the instrument used before the prosecution could take advantage of the provisions of s 47G and thus confine evidence in rebuttal of the presumption in s 47G(1) to the matters identified in s 47G(1a).
In this appeal, the appellant says that the judge has erred in his application of the proposition accepted in Barber’s case in so far as in this case His Honour found there was no requirement that the prosecution should prove that the alcotest conducted was one “pursuant to the Act”.
It was submitted that the magistrate had correctly found that the instrument used in the alcotest was not proved to be an approved machine. The judge on appeal erred in finding that that was not a relevant consideration. The submission was that it was necessary to prove that an alcotest was lawfully administered in terms of the instrument used, it being for the prosecution to establish that the requirement to submit to a breath analysis was lawful. It was only lawful if the alcotest conducted was one “by means of an apparatus of a kind approved by the Governor by which the presence of alcohol in the blood of a person who exhales into the apparatus is indicated”[5]. Thus, whilst the presumption might be available for the purpose of s 47G, the discretion to exclude evidence arises with respect to a failure to establish that an alcotest itself was lawfully conducted.
[5] Road Traffic Act 1961, s47A
The evidence from the probationary constable was that whilst he used an alcotest machine at the breath testing station, he mislaid it without recording its number. The magistrate found that the same officer had told the appellant that he was apprehended, the constable not being able to remember saying anything like that. In evidence before the court were certificates pursuant to s 47G(3a), s 47G(3b) and s 47G(3c). Those subsections provide:
“(3a)A certificate purporting to be signed by a member of the police force and to certify that an apparatus referred to in the certificate is or was of a kind approved under this Act for the purpose of performing alcotests is, in the absence of proof to the contrary, proof of the matter so certified.
(3b)A certificate purporting to be signed by a member of the police force and to certify that person named in the certificate submitted to an alcotest on a specified day and at a specified time and that the alcotest indicated that the prescribed concentration of alcohol may then have been present in the blood of that person is, in the absence of proof to the contrary, proof of the matter so certified.
(3c)A certificate purporting to be signed by a member of the police force and to certify that breath testing station had been established pursuant to section 47DA at a place and during a period referred to in the certificate is, in the absence of proof to the contrary, proof of the matters so certified.”
Before this Court the respondent submitted that the certificate issued pursuant to s 47G(3b) invoked the definition of alcotest from s 47A. That apart, the certificate issued pursuant to s 47G(3a) certified that an apparatus there described as a Lion Alcometer SD-400 was of the kind approved under the Road Traffic Act for the purposes of performing alcotests. There was also a Government Gazette of 24 October 1996 tendered identifying that apparatus as one approved by the Governor. Thus, the submission put for the first time before this Court was that the certificates before the Court establish that which, in the present appeal, it was said had to be made out. It was put that evidence that the alcotest apparatus was left at the scene and was only identifiable by reference to an equipment issue register was neither evidence confirming the facts asserted by the certificates nor refuting them. There was therefore no evidence to the contrary of that which was asserted in the certificates. I think there is much in that submission. However, the matter was argued upon the basis that proof of the certificates was entirely unnecessary in this case.
In my view, that submission is correct. The presumption that the concentration of alcohol indicated by the breath analysing instrument was present in the present appellant’s blood at the time of analysis is not dependent upon proving that the alcotest used on that occasion was of an approved type. Section 47G requires only that “the requirements and procedures in relation to breath analysing instruments and breath analysis under (the) Act … have been complied with” to activate the presumption contained in s 47G(1). The definition of alcotest in s 47A is defined separately from breath analysing instruments and breath analysis.
The judge on appeal properly applied the remarks of Martin J in Barber v Police[6]. The prosecution does not need to prove what happened at the alcotest when proceeding with a complaint which charges a breach of s 47B and successfully invokes the provisions of s 47G. I agree with the submission put that it was for the present appellant to prove the alcotest had not been validly administered in order to found the exercise of a discretion to exclude the evidence of the breath analysis.
[6] (1999) 204 LSJS 399 at 405 and 406
In Police v Astley[7] Perry J said that any failure by the prosecution in an attempt to use an evidentiary aid to proof in order to establish an alcotest was administered in accordance with statutory requirements does not amount to positive proof that there was any impropriety attaching to the administration of the alcotest, or in the administration of the subsequent breath analysis. “It simply leaves that question up in the air”. An onus is on the person seeking to exclude results of the breath analysis in the exercise of the court’s discretion to prove that it was not preceded by a validly performed alcotest or to point to evidence tending to that conclusion. I agree with Perry J. The approach of both Martin J in Barber and Perry J in Astley is to be preferred to any inconsistent view apparent in the decision of Bollen J in Eubel v Martin[8].
[7] (1997) 69 SASR 319 at 329
[8] (1992) 57 SASR 290 at 299
In this case the fact that the constable required the present appellant to submit to an alcotest, using a machine he had previously used but which he had, on this occasion, left behind with inadequate records, does not create as a necessary inference that the machine actually used was not approved by the Governor. The onus rests upon the person charged to establish relevant non-compliance and to persuade the court to exercise a discretion to exclude the evidence in question[9]. Thus, in this case, the situation was that the appellant had failed to prove that the alcotest had not been validly administered. There was therefore no basis made out to found the exercise of a discretion to exclude the evidence of the validly conducted breath analysis. The appeal must therefore fail on this ground.
[9] Police v Fountaine (1999) 74 SASR 26 at 44 - 45
There were other matters raised by the Notice of Appeal but not pursued in the course of submissions on the hearing of the appeal. The magistrate’s finding that the appellant believed he had been apprehended was not a relevant factor going to the exercise of any discretion to exclude evidence of the breath analysis as that test was not the result of any unlawful conduct at all. As it was put in Question of Law Reserved (No 1 of 1998)[10], the discretion only arises if the conduct complained of has procured the commission of an offence or has enabled the prosecution to obtain the relevant evidence. That was not this case. The failure to inform this appellant of rights admitted by him to be well-known did not give rise to any prejudice.
[10] (1998) 70 SASR 281 at 287 - 288
The other matter mentioned by the magistrate was the delay in administering the breath analysis test. Again, no unlawful or improper conduct was made out on the evidence. There was no illegality or failure in police officers to adhere to the relevant statutory requirements with respect to directing the appellant to provide a sample of his breath when he did so. The breath analysis was conducted within two hours of the driving complained of. The presumption identified by Parliament in s 47B(2) resulted from a lawful direction. Nothing in s 47DA or s 47E requires that the breath analysis test be performed without delay or undue delay after a positive alcotest. The only delay in this case was due to the special provisions applicable in the case of a police officer being required to submit to a breath analysis[11].
[11] Manetta v Police (1999) 74 SASR 329 at 334 - 335
The appeal should be dismissed.

LANDER J. The appellant was charged, that contrary to the provisions of s 47B of the Road Traffic Act 1961, on 29 August 1998 at Glenelg East, he drove a motor vehicle on a road, namely, Diagonal Road whilst there was present in his blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act.
It was alleged that the concentration of alcohol was 0.087 grams in 100 millilitres of blood.
The appellant is a police officer. On 29 August 1998 he was stopped whilst driving a motor vehicle on Diagonal Road at Glenelg East at a random breath testing station.
A probationary constable required him to submit to an alcotest at about 12.35 am. The alcotest indicated that a prescribed concentration of alcohol might have been present in the defendant’s blood.
A conversation took place between the probationary constable and the appellant. The appellant was escorted to the Glenelg Police Station where he was required to submit to a breath analysis. The breath analysis operator arrived at the Glenelg Police Station at about 1.05 am. The test was taken at 1.44 am and recorded a result of 0.087 grams in 100 millilitres of blood.
The defendant was provided with the prescribed oral and written advice and requested a blood test kit which was provided to him.
He was told that he would be reported for exceeding the prescribed concentration of alcohol.
He left the police station. He subsequently attended the Flinders Medical Centre where blood was taken at 6.07 am which, on subsequent analysis, was found to contain 0.015 grams of alcohol per 100 millilitres of blood.
The prosecution sought to prove its case with the assistance of s 47G of the Road Traffic Act. Section 47G does three things. It allows for the tender of certificates which, if admitted, establish facts. It also provides that, if certain facts are established (with the aid of the section itself), two presumptions arise. It then casts the onus upon the defendant to rebut the first presumption at the same time excluding all evidence which might be adduced to rebut that presumption, except the evidence referred to in s 47G(1a). In relation to the second presumption, the section provides that the presumption is conclusive: s 47G(1 ab).
Section 47G provides for the admissibility of evidence of the concentration of alcohol in the blood of a defendant by a breath analysing instrument operated by a person authorised to operate the instrument where there has been compliance with s 47G itself.
Provided there has been compliance with the requirements and procedures in relation to breath analysing instruments and breath analysis including subsections (2) and (2a) of s 47G, 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.
In this case, there is no doubt that there was compliance with subsections (2) and (2a). In those circumstances, the presumption referred to in s 47G(1) must have arisen if there has been compliance with the requirements and procedures in relation to the breath analysing instruments and breath analysis. Once the presumption has arisen, then the onus falls upon the accused person to rebut that presumption: s 47G(1a).
Once it is proved that the concentration of alcohol so indicated was present in the blood of the accused at the time of the analysis, then a further presumption arises that the concentration of alcohol was present in the defendant’s blood throughout the period of two hours immediately preceding the analysis: s 47G(1ab). That presumption is conclusive.
In this case, that presumption, if it arose, would have led inevitably to the conclusion that the accused had the prescribed concentration of alcohol in his blood at the time that he was driving the motor vehicle on Diagonal Road.
Section 47G provides for proof of various matters by tender of certificates. A certificate, signed by the Commissioner of Police, may be tendered to establish that a person is authorised to operate a breath analysing instrument (the operator): s 47G(3)(a). A certificate signed by the operator can be tendered to establish that the apparatus used was a breath analysing instrument under the Act; that the instrument was in proper order and was properly operated; and the provisions of the Act in relation to breath analysing instruments has been complied with: s 47G(3)(b). Section 47G(5) provides for proof by a certificate, signed by the operator, of the concentration of alcohol indicated by the breath analysing instrument as being present in the blood of the person on the day and time mentioned in the certificate. Compliance with subsections (2) and (2a) can also be proved by certificate: s 47G(5)(c) and s 47G(7).
Section 47G also provides for the proof of other matters by certificate. Section 47G(3a) allows for proof, by certificate, that the alcotest apparatus is one approved under the Act. Section 47G(3b) allows for proof, by certificate, that the alcotest indicated that the prescribed concentration of alcohol might then have been present in the blood of a person, in the absence of proof to the contrary. An alcotest is an apparatus of a kind approved by the Governor by which the presence of alcohol in the blood of a person who exhales into the apparatus is indicated: s 47A. It is different from a breath analysing instrument: s 47A. An alcotest can be conducted at a breath testing station: s 47DA. It may also be used if a police officer has the belief in s 47E(1).
Section 47G(3c) allows the prosecution to prove that a breath testing station had been established pursuant to s 47DA at a place and during the period referred to in the certificate, again, in the absence of proof to the contrary.

A certificate may be tendered to prove, in the absence of proof to the contrary, the concentration of alcohol found in a person’s blood: s 47G(4).
Of course, none of the matters in subsections (3a), (3b), and (3c) need to be proved for the purpose of a prosecution under s 47B. They are matters which would need to be proved for a prosecution under s 47E(3). In this case, the concentration of alcohol in the specimen of the appellant’s blood was not relevant, so s 47G(4) was not relevant.
In his trial before the Magistrate, the appellant objected to the admissibility of the certificate which was sought to be tendered under s 47G(5) and which showed the concentration of alcohol in the appellant’s blood to be 0.087 grams per 100 millilitres of blood.
He did so on three grounds. First, because the prosecution was unable to prove that the alcotest used at the breath testing station was of a kind approved by the Governor under s 47A of the Road Traffic Act. Secondly, because the appellant asserted that the probationary constable arrested him after he had submitted to the alcotest and failed to give him his rights under s 79A of the Summary Offences Act 1953. Thirdly, because there was a delay at the Glenelg Police Station in performing the breath analysis.
The Magistrate who heard the trial of this complaint was not satisfied that the instrument used in the alcotest was of a kind approved by the Governor. She determined that the appellant had been arrested by the probationary constable and was not given his rights pursuant to s 79A of the Summary Offences Act. She concluded that there had been a delay of some 45 minutes in the administration of the breath analysis test at the Glenelg Police Station. In that respect, she was probably wrong. There was a delay, but it was probably in the order of 20 minutes or so. In any event, the Magistrate found that the procedures were deliberately delayed so as to enable the duty officer from Adelaide to arrive. The delay was occasioned by the breath analysis operator waiting upon the arrival of the State Duty Officer, Mr Scammell. Because the appellant was a police officer his presence was required in accordance with police standing orders. In any event, the Magistrate found that there was a delay in requiring the appellant to submit to the breath analysis, because he was a police officer. The Magistrate was not able to say that the delay prejudiced the appellant in any respect.
Her Honour then exercised her discretion to refuse to accept the tender of the certificate of the breath analysis. Having refused to accept that evidence, the prosecution case was dismissed.
In my opinion, the Magistrate was wrong to refuse to accept the tender of the certificate certifying the concentration of alcohol found in the appellant’s blood, so as to raise the presumption in s 47G.
I accept that the prosecution could not establish that the alcotest apparatus was of a kind approved by the Governor. The prosecution’s inability to establish that matter arose out of the probationary constable failing to identify the particular apparatus used on the appellant. However, in my opinion, there was no onus upon the prosecution to prove that the alcotest apparatus was of a kind which had been approved by the Governor.
The police are empowered under s 47E(2a) of the Road Traffic Act to require the driver of a motor vehicle, who approaches a breath testing station, to submit to an alcotest. Where such an alcotest is conducted, and indicates that the prescribed concentration of alcohol may be present in the blood of any person, a member of the police force may require that person to submit to a breath analysis: s 47E(2b).
Section 47E provides that a person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a member of the police force: s 47E(3).
Section 47E provides a procedure for gathering evidence; the evidence being the concentration of alcohol in a person’s blood.
There is no doubt that the police constable was empowered to require the appellant to submit to an alcotest. There is no doubt that because the alcotest indicated that the prescribed concentration of alcohol might have been present in the appellant’s blood, the probationary constable was empowered to require the appellant to submit to a breath analysis.
The prosecution was under no obligation to establish that the alcotest apparatus was of a kind which had been approved by the Governor. It was not part of the prosecution case to establish that matter because it was not an element of the offence. Whether or not the alcotest had proved positive was also not an element of the offence.
The offence with which the appellant was charged, under s 47B of the Road Traffic Act, was in driving a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol. The proof of whether or not the prescribed concentration of alcohol was present in the appellant’s blood was by tender of the appropriate certificate under s 47G(5). Once tendered the section raised the presumption.
It was not part of the prosecution case to establish that the alcotest had been approved: Barber v Police (1999) 204 LSJS 399, at 404:
Section 47E (2a), as I have said, empowers a police officer to require a person to submit to an alcotest and, if the alcotest indicates that the prescribed concentration of alcohol might be present in the person’s blood, further empowers a police officer to require that person to submit to breath analysis: s 47E (2b) Section 47E is the means by which a police officer can require a person who is stopped at a random breath testing station to submit to a breath analysis test. A police officer would not be empowered to require a person to submit to a breath analysis test if the alcotest did not indicate that the prescribed concentration of alcohol might be present in the person’s blood. But once it does, the section thereby empowers a police officer in the manner I have mentioned. However, s 47E does not impose any evidentiary obligation upon the prosecution to establish that the alcotest was of a kind approved by the Governor.
Moreover, the proof of the prescribed concentration of alcohol in a person’s blood is governed by s 47G. Section 47G does not require the prosecution to establish that an alcotest has been performed, or that the alcotest is reliable, or that the alcotest indicated that the prescribed concentration of alcohol might be present in the blood of the accused: Barber v Police (supra) at 405.
Section 47G permits proof of the concentration of alcohol present in the blood of the accused by a breath analysing instrument by tender of the certificate mentioned in s 47G(5). A breath analysing instrument is different to an alcotest and is separately defined in the Act. If the prosecution elects to proceed to prove the prosecution case by using the evidentiary aids in s 47G, there is no obligation upon the prosecution to establish that the alcotest apparatus was of a kind approved by the Governor.
In my opinion, the Magistrate was wrong to have regard to the prosecution’s inability to establish that the alcotest apparatus was of a kind approved by the Governor in a consideration of the admissibility of the certificate under s 47G(5).
I will assume that the Magistrate was correct in concluding that the appellant was apprehended by the probationary constable. I will also assume that the Magistrate was right in concluding that the probationary constable failed to give the appellant his rights under s 79A of the Summary Offences Act.
Whether or not, however, the probationary constable apprehended the appellant, in my opinion, was irrelevant. No evidence was gathered by reason of the apprehension or the wrongful apprehension of the appellant.
The appellant’s obligation to submit to breath analysis arose by virtue of s 47E(3) of the Road Traffic Act and not otherwise. By reason of that subsection, the appellant was obliged to submit himself to a breath analysis test because the alcotest conducted under subsection (2a) indicated that the prescribed concentration of alcohol might be present in his blood.
In my opinion, whether or not the probationary constable erred in apprehending the appellant and further erred, having apprehended him, in not giving him his rights, was irrelevant to a consideration of the admissibility of the certificate under s 47G(5) of the Road Traffic Act.
There is no doubt that there was delay at the Glenelg Police Station in requiring the appellant to submit to breath analysis.
However, that delay was explained by reason of the police complying with police standing orders in circumstances where a police officer had been required to submit to a breath analysis test. Of course, police standing orders could not override any statutory obligations which were imposed upon the police and could not prejudice the appellant in relation to any rights which devolved upon him by statute or otherwise.
However, the Road Traffic Act does not require the police to carry out a breath analysis in any particular time after an alcotest has been performed under s 47E which has indicated that the prescribed concentration of alcohol might be present in the blood.
The Act simply provides a further presumption that, if it is proved in proceedings that a concentration of alcohol was present in the person’s blood at the time of the breath analysis, the concentration of alcohol was present in the defendant’s blood throughout the period of two hours immediately preceding the analysis: s 47G(1ab).
There is no requirement in the Act that the breath analysis be performed within a particular time or even without undue delay in circumstances where the breath analysis is performed following an alcotest which has tested positive. Of course, if the breath analysis test is not performed within two hours of the time when the person was driving then no relevant presumption will arise under s 47G(1ab) and the prosecution will not thereby be assisted in proving its case.
The section itself rather assumes that the breath analysis will be conducted within two hours of the defendant’s driving. It would be pointless to perform a breath analysis later because that presumption would not arise. Any breath analysis performed at any time within that time has the same effect ie. to deem the concentration of alcohol to be in the defendant’s blood for the whole of that period of time.
The test in this case was performed within two hours of the time when the appellant was driving. The delay was occasioned because the police officers believed that they had an obligation to comply with police standing orders. In any event, the delay was not so very long that the appellant could point to any prejudice.
In my opinion, none of the matters upon which the Magistrate relied gave rise to the exercise of a discretion to exclude the s 47G(5) certificate because of the manner in which the evidence contained in the certificate was obtained: Bunning v Cross (1978) 141 CLR 54.
That was also the view of the Judge who heard the appeal from the Magistrate, and who allowed the appeal and set aside the order dismissing the complaint against the appellant and, in lieu thereof, recorded a conviction.
It follows, because I agree with the orders of the Judge below and disagree with the reasons and orders made by the Magistrate, that I think that this appeal should be dismissed.

BLEBY J. As to the failure of police to be able to prove that the apparatus used at the breath testing station was approved under the Road Traffic Act for the purpose of performing alcotests, I am in substantial agreement with the reasons of Prior J.
The offence alleged against the appellant was a breach of s 47B of the Road Traffic Act, namely that he drove a motor vehicle while there was present in his blood the prescribed concentration of alcohol as defined in s 47A of the Act. I agree that the offence was proved by production of the certificate under s 47G(5) and by proof of compliance with the requirements and procedures in relation to breath analysing instruments and breath analysis under the Act, including compliance with subsections (2) and (2a) of s 47G (see s 47G(1)).
In order to prove the offence it was not necessary to prove a great many other events which may have led to the obtaining of the necessary evidence. It was not necessary to prove:

that a breath testing station had been established pursuant to s 47DA for the relevant period;
that the appellant had been required to submit to an alcotest (s 47E(2a));
that the apparatus used at the breath testing station was approved under the Act for the purpose of performing an alcotest (definition of “alcotest” in s 47A); or
that the appellant submitted to an alcotest and that the alcotest indicated that the prescribed concentration of alcohol might then have been present in the appellant’s blood (s 47E(2b)).

None of those facts were necessary to be established in order to prove a breach of s 47B. I, too, agree with Martin J in Barber v Police (1999) 204 LSJS 399 at 404 and 405 that those matters are not of any evidentiary use in proving a breach of s 47B. It is significant that s 47G(1) only refers to the need to prove compliance with the requirements and procedures in relation to breath analysing instruments and breath analysis. An alcotest apparatus is not included in the definition of “breath analysing instrument” in s 47A, nor can it be used for “breath analysis” as defined in that section.
What was challenged was the admissibility in evidence of the certificate under s 47G(5). Leaving aside for a moment the questions of the purported arrest and delay in the administration of a breath analysis test, the only basis of the challenge to the admissibility of the certificate was that the prosecution could not prove that it was an alcotest that was administered to the appellant when he was stopped at the breath testing station. There was therefore no acceptable evidence which indicated that the prescribed concentration of alcohol might have been present in the appellant’s blood such as to enable a police officer to require the appellant to submit to a breath analysis under s 47E(2b).
This could not possibly give rise to any unfairness discretion of the type discussed in R v Swaffield (1998) 192 CLR 159 and more recently by this Court in R v Lobban (2000) 208 LSJS 470 at 482ff.
The only possible basis of exclusion could have been a discretion to exclude on public policy grounds, a principle discussed in R v Ireland (1970) 126 CLR 321 and developed in many cases since, but particularly in Bunning v Cross (1978) 141 CLR 54. For present purposes one need proceed no further than the analysis of that discretion by Martin J in R v Lobban (supra) at 476 ‑ 482. As is clear from that discussion, the discretion permits the exclusion of evidence “only if that evidence was obtained by unlawful or improper conduct” (Question of Law Reserved (No. 1 of 1998) (1998) 70 SASR 281 per Doyle CJ at 287).
Merely because the police were unable to prove that the test administered at the breath testing station was an alcotest as defined does not mean that evidence that the prescribed concentration of alcohol might be present in the appellant’s blood was unlawfully or improperly obtained and that the subsequent administration of the breath analysis was, for that reason, improperly or unlawfully performed. I, too, agree with what Perry J said in Police v Astley (1997) 69 SASR 319 at 329, that such failure or inability does not prove illegality or impropriety in the administration of the alcotest or in the administration of the subsequent breath analysis. The appellant failed to discharge the onus of proof which rested on him in that regard, and the exercise of a Bunning v Cross discretion did not arise.
As to the alleged apprehension of the appellant by the probationary constable and the failure to give the appellant his rights under s 79A of the Summary Offences Act, I, too, am prepared to accept for present purposes that there was such an apprehension and a failure to administer rights to the appellant. If that is so, evidence of the breath analysis was obtained whilst he was so apprehended. However, I agree that that evidence was not gathered by reason of the wrongful apprehension. The fact of the matter is that the appellant was obliged, as a matter of law, to submit to the breath analysis test, whether formally apprehended or not (s 47E(2b)), and any failure to comply with all reasonable directions of a member of the police force in that regard would itself have been an offence (s 47E(3)). There was no suggestion that the directions given to accompany a police officer to the Glenelg Police Station and there to undertake a breath analysis were other than reasonable. The bungling shortcomings of a probationary police constable were irrelevant to whether or not the breath analysis was lawfully administered. Furthermore, there was no question of the appellant, himself a senior police officer, being in any way misled by the actions of the probationary constable.
As to the delay in administering the breath analysis test, I agree with both Prior and Lander JJ that this did not constitute any ground for exclusion of the evidence.
It follows that the certificate under s 47G(5) should have been admitted into evidence by the Magistrate. The appeal was properly allowed by the single Judge, and the appeal to this Court should be dismissed.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

Road Traffic Act 1961, s 47E(2b)

(1978)141 CLR 54
Police v Fountaine (1999) 74 SASR 26 at 44 - 45
(1994) 204 LSJS 399 at 405
Road Traffic Act 1961, s47A
(1999) 204 LSJS 399 at 405 and 406
(1997) 69 SASR 319 at 329
(1992) 57 SASR 290 at 299
Police v Fountaine (1999) 74 SASR 26 at 44 - 45
10 (1998) 70 SASR 281 at 287 - 288
11 Manetta v Police (1999) 74 SASR 329 at 334 - 335

[2000] SASC 328

3 November 2000