Police v Modra No. Scgrg-00-108 - [2000] SASC 89

POLICE v MODRA
[2000] SASC 89

Magistrates Appeal: Criminal

WILLIAMS J. This is a prosecutor’s appeal against a Magistrate’s dismissal of a complaint which alleged an offence against s 47B of the Road Traffic Act 1961 (“The Act”). The complaint alleges that on 29 August 1998 at Glenelg East the respondent had a blood alcohol concentration of 0.087 grams per one hundred millilitres of blood. The respondent pleaded not guilty.
The grounds of appeal centre around whether the Magistrate erred in exercising a discretion to exclude evidence of the reading given by a breath analysis instrument. The evidence was of a formal nature in accordance with s 47G(1) of the Act but was rejected by the Magistrate based on the exercise of a “Bunning v Cross discretion” as she described it (see (1978) 141 CLR 54). However the appeal was conducted on the basis that the Magistrate may have intended to apply either of the discretions mentioned in Police v Jervisand Holland (1998) 70 SASR 429 at 445-6 or a combination of those discretions.
The respondent was tested at 12.35am at a random breath test station established on Diagonal Road, Glenelg East. An alcotest then showed that the prescribed concentration of alcohol may have been present in the respondent’s blood.
The respondent was taken to Glenelg Police Station and arrived there at 1.05am. Thirty-nine minutes later at 1.44am he provided a breath sample into a breath analysis machine which gave a reading of 0.087. He entered the breath analysis room at 1.39am. At 6.07am a sample of the respondent’s blood sample was taken at Flinders Medical Centre and, on analysis, showed the presence of 0.0015 grams of alcohol per 100 millilitres of blood.
The evidence of a forensic medical practitioner to relate this reading back to the respondent’s condition at 1.05am was treated by the Magistrate as being “speculative”.
Features of this case relevant to this appeal are as follows:
1...... The respondent was stopped at a random breath test station where he was dealt with by a probationary constable of three months standing. This was the first time that the probationary constable had seen a positive reading in an alcotest which he had administered. He recognised the respondent as a member of the police force and became overawed by the responsibility of dealing with the respondent. He assured his sergeant that he was “confident” of his ability to handle the situation but this assessment was misplaced. In fact, according to the probationary constable he was “devastated” when he found out that he was dealing with a police officer.
2...... Police regulations require that the serial number and type of the apparatus used in an alcotest be recorded. This was not done on this occasion and the piece of apparatus was not retained. Therefore on the Magistrate’s finding there becomes a gap in the chain of evidence if it be required to establish that the apparatus used was in fact of an approved type.
3...... At…

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.

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Details

Case: [2000] SASC 89
Decision Date: 19 April 2000

CaseChat Overview and Summary

This case, Police v Modra, involved the respondent being charged with an offence under the Road Traffic Act 1961. The primary dispute centred on the admissibility of evidence obtained from a breath analysis test, specifically whether it complied with statutory requirements and procedures, and whether any delay in administering the test rendered the results inadmissible. The case was heard in the Supreme Court of South Australia.

The court was required to decide whether the prosecution had satisfied the statutory requirements for the admissibility of breath test results under the Road Traffic Act. The respondent argued that the prosecution failed to prove that the alcotest machine used was of an approved kind, thereby negating the evidentiary presumption under s 47G(1). Additionally, the respondent argued that any delay in administering the breath test should lead to the exclusion of the test results. The court also needed to determine if the delay in administering the test was significant enough to affect the admissibility of the results.

The court examined the statutory definitions and found that the breath analysis instrument referred to in s 47G was defined as an approved apparatus, separate from the alcotest machine. The court held that compliance with the requirements for alcotests was not a precondition for the presumption under s 47G to apply. Regarding the delay, the court found that while there was a delay of approximately twenty minutes, it was not significant enough to warrant the exclusion of the test results. The court noted that there was no evidence suggesting that the delay was engineered to affect the outcome of the test, nor was there any indication that the respondent’s blood alcohol level increased significantly during this period.

The court concluded that the respondent had not provided a valid basis for the Magistrate to exercise a discretion to exclude the breath test results. The court found no illegal or improper conduct on the part of the law enforcement officers that would lead to the exclusion of the evidence. Therefore, the appeal was dismissed, and the conviction stood.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Unsatisfactory state of evidence regarding the Alcotest The respondent argues that the prosecution’s failure to prove that an approved alcotest machine was used had the result that the evidentiary presumption regarding the reading on the breath analysis instrument did not apply. Alternatively the respondent submits that the result of that test should be excluded as a matter of discretion. The respondent based an argument upon s 47G(1) of the Act which reads as follows:“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.”(emphasis added). The respondent points out that the presumption only arises “where the requirements and procedures in relation to breath analysing instruments and breath analysis...have been complied with”. The respondent then argues that an alcotest administered under s 47E(2a) of the Act is an essential first step in the procedure leading to a requirement for breath analysis under s 47E(2b) after a driver has approached a breath testing station established under s 47DA. There was no relevant conduct or incident in the case which would entitle police to require a breath test without an alcotest in accordance with s 47E(1). So it is argued, the only lawful basis for moving forward to the administration of a test using a breath analysis instrument was when an alcotest showed that the prescribed concentration of alcohol may be present. The respondent contends that the failure by the prosecution to prove strictly that the instrument used in the alcotest was of a kind approved by the Governor has the consequence that the relevant “requirements and procedures” were not shown to have been complied with. In my opinion this argument fails on reference to the statutory definitions in s 47A. “Alcotest”, “breath analysing instrument” and “breath analysis” are all separately defined. I adopt the statement by Martin J in Barber v Police (1999) 204 LSJS 399 at 405:“The requirement in s 47G(1) is to comply with “the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act.” The expressions “alcotest”, “breath analysing instrument” and “breath analysis” are separately defined in s 47A of the Act. In my opinion, s 47G does not impose any obligation to comply with the requirements and procedures in relation to alcotests as a condition precedent to the operation of the presumption afforded by s 47G. The breath analysing instrument referred to in s 47G is defined as meaning “an apparatus of a kind approved as a breath analysing instrument by the Governor.” The alcotest or the instrument used to conduct the alcotest is not such an apparatus. The expression “breath analysis” is defined as meaning “an analysis of breath by a breath analysing instrument” which excludes the analysis by the alcotest. By way of contrast, “alcotest” is defined as meaning “a test 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”.(emphasis added).

Decision

Reasons for decision

WILLIAMS J

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Ratio Decidendi

Legal Principle Established

Established by: WILLIAMS J

Delay in administration of the breath analysis test The Magistrate found that there was a delay of some forty-five minutes in the administration of the test at Glenelg. This is to be compared with the position had the respondent been “an ordinary citizen” and if the sergeant at the breath testing station had administered the breath test at Glenelg in the ordinary course. Upon the material before the Magistrate this is a miscalculation. There was a delay but it was in the order of twenty minutes or so. On appeal there was no issue as to the approximate amount of time occupied by the delay. The Magistrate found that the statutory procedures at Glenelg Police Station were deliberately held up to enable the duty officer from Adelaide to arrive. She was entitled to reach that conclusion. The alcotest was administered at 12.35am. The respondent reached the Glenelg Police Station at about 1.05am. At 1.44am he provided a sample of his breath into a breath analysis machine which returned a reading on the instrument of 0.087 grams concentration of alcohol and was then allowed to leave. At 6.07am the respondent gave a blood sample at Flinders Medical Centre upon which the analysis returned 0.015 grams of alcohol per 100 millilitres of blood. The Magistrate said:“There is no evidence before me such that I can say the defendant was or was not prejudiced as a result of that delay but, given the requirement for strict compliance [with] the legislation, in my view the prosecution case is so flawed that it would be unfair and unjust to admit the results of the breath analysis test in evidence against him. I rely on the discretion arising under Bunning and Cross 141 CLR 54.” Although the respondent was kept waiting unnecessarily for 20 minutes I cannot see that the time involved really mattered in this case. If there was any suggestion that the police had engineered the delay to affect the possible outcome of the test then that would be a matter for concern but it did not happen in this case. It is not suggested that the respondent’s blood alcohol level so increased during the 20 minutes of delay as to significantly affect the outcome. Indeed, to the extent that any estimate is possible, there is some evidence that the concentration of alcohol in his blood was falling. There was no requirement that the procedure associated with breath analysis at Glenelg Police Station be conducted without undue delay (c.f. Manetta v Police (1999) 74 SASR 329 at 335). In some circumstances there could be an element of unfairness to the respondent in allowing time to pass unnecessarily. There might also be circumstances where public interest considerations would become relevant. Again, I cannot identify anything of substance in terms of illegal or improper conduct on the part of the law enforcement officers which might lead to the exclusion of the evidence. An overview of the case as a whole In terms of the individual arguments which have been advanced I have not been able to identify a basis on which the Magistrate might properly have exercised a discretion to exclude evidence of the breath test.