Police v Mott; Police v Rhodes
[2005] SASC 474
•14 December 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v MOTT; POLICE v RHODES
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Layton)
14 December 2005
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE
Appeals by the South Australia Police against decisions removing the statutory presumption as to the reliability of breath analysis evidence (Road Traffic Act 1961 s 47G(1)) - in each case the issues on appeal relate to whether mistakes made by the Police in completing the "request form" required under s 47G(2a) constitute departures from the "requirements and procedures" of the legislation for the purposes of s 47G(1) - appeals allowed.
Road Traffic Act 1961 s 47A(1), s 47B, s 47G, s 47E, s 47EB, s 47F; Road Traffic (Miscellaneous) Regulations 1999 reg 8A, reg 10, reg 11, Sch 2, Sch 3, referred to.
Taylor v Daire (1982) 30 SASR 453; Lloyd v Police (2004) 89 SASR 383; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Semmens v Police [1999] SASC 176; Police v Jervis (1998) 70 SASR 429; Police v Henwood (2005) 92 SASR 15; Police v Fountaine (1999) 74 SASR 26; Parker v Police (2002) 83 SASR 67, discussed.
POLICE v MOTT; POLICE v RHODES
[2005] SASC 474Full Court: Doyle CJ, White and Layton JJ
DOYLE CJ: The Court heard two appeals, each of which involves a challenge to a Magistrate’s decision to dismiss a charge of driving a motor vehicle while there was present in the defendant’s blood the prescribed concentration of alcohol, contrary to s 47B of the Road Traffic Act 1961 (SA) (“the RTA”).
Each appeal raises yet again the issue of whether failure by a member of the police force to comply with a particular aspect of the legislation and regulations, relating to the analysis of the breath of the driver of a motor vehicle, has the consequence that the statutory presumption raised by s 47G(1) of the RTA, relating to the result of the breath analysis, is not available as an aid to proof. The point in issue is the same in each case.
In each case the Magistrate held that a member of the police force had made a mistake in completing the details in a “request form”. The form is used to record a request made by a defendant for an approved blood test kit. Such a request can be made pursuant to s 47G(2a) of the RTA.
In each case the Magistrate held that the mistake in the “request form” had the consequence that the prosecution had not established for the purposes of s 47G(1) of the RTA that “the requirements and procedures in relation to breath analysing instruments and breath analysis under [the RTA], including sub-sections (2) and (2a)” had been complied with.
It followed, the Magistrates held, that the presumption under s 47G(1) of the RTA, that the concentration of alcohol indicated by the breath analysing instrument as being present in the defendant’s blood was present at the time of analysis, was not available in the circumstances.
The prosecution in each case relied on the statutory presumption in proof of each charge. Accordingly, in each case the charge was dismissed. The charge could not be proved on the evidence before the Magistrate, without the aid of the statutory presumption.
Facts and legislation
In each case the defendant was required to submit to a breath analysis. The requirement to do so was made in exercise of the power conferred by s 47E of the RTA.
In the case of Mr Mott the breath analysing instrument produced a reading, that by s 47EB of the RTA is to be taken to be a reading of 0.100 grams of alcohol in 100 millilitres of blood. In Mr Rhodes’ case the reading was 0.08 grams of alcohol in 100 millilitres of blood.
The prescribed concentration of alcohol is defined by s 47A(1) of the RTA as a concentration of 0.05 grams or more of alcohol in 100 millilitres of blood. Therefore, in each case the breath analysing instrument indicated that the prescribed concentration of alcohol was present in the blood of the defendant.
It is not disputed that in each case the person operating the breath analysing instrument then gave the defendant the prescribed oral notice and the prescribed written notice, as required by s 47G(2a) which provides as follows:
47G(2a)Where a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith –
(a)give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures for the taking and analysis of a sample of the person’s blood; and
(b)at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.
In each case the defendant then requested a blood test kit, and was given “an approved blood test kit”: s 47G(2a)(b).
Regulation 10 of the Road Traffic (Miscellaneous) Regulations 1999 (“the Regulations”) is made in exercise of the power conferred by s 47G(2a)(b). It provides:
10 Request for approved blood test kit
(1)For the purpose of section 47G(2a) of the Act, a request for an approved blood test kit must be made in accordance with the following provisions:
(a)the request may, in the first instance, be made orally to the person operating the breath analysing instrument (the operator);
(b)on such a request having been made by the person, the operator or any other member of the police force present at the scene must complete a written request form in the form set out in Schedule 2 by inserting the particulars required by form;
(c)the person making the request must then sign the request form in the presence of the operator or other member of the police force and the person’s signature must be attested to by the signature of the operator or other member;
(d)the original of the signed request form may be retained by the person making the request;
(e)a copy of the signed request form must be delivered to the operator or other member of the police force.
(2)The copy of the request form delivered to the operator or other member of the police force must be delivered to the Minister or retained on the Minister’s behalf for 12 months from the day on which the request form was signed by the person making the request.
The form referred to, in Schedule 2 of the Regulations, is as follows:
Schedule 2 – Form of request
(Section 47G(2a)(b))
Road Traffic Act 1961
Request form for the purpose of section 47G(2a)(b)
………………………………….…… of ………………………...…………….
(Name)
…………………………………………...………………………………………
(Address)
submitted to a breath analysis at …………………...……………………………
(Address or description)
at ………… am/pm on the ……….. day of …..………………………. 20 ……
I (the person named above) now request that I be supplied with an approved blood test kit.
Signature:………………………... In the presence of:………..……………………….
(Person making request) (Name of Police Officer)
Signature of witnessing Police Officer:………………....
In Mr Mott’s case the evidence was that two samples of breath were provided by Mr Mott as required by reg 8A of the Regulations. It suffices to set out sub-regulations (1) and (3) of reg 8A:
8A(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.
…
(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 analysis 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).
The first sample was provided at 9.04 pm. The second sample was provided at 9.07 pm. As the analysis of that sample of breath indicated the lower concentration of alcohol in Mr Mott’s breath, the reading produced by the analysis of that sample became the relevant reading: reg 8A(3).
The police officer dealing with Mr Mott wrote in on the form 9.29 pm as the time at which Mr Mott submitted to a breath analysis. It is common ground that that was a mistake.
As it happens, the form used in the case of Mr Mott was headed with a reference to repealed regulations, but nothing turns on that, as the form under the repealed regulations is identical to the form under the Regulations.
In Mr Rhodes’ case the Magistrate found that two mistakes were made. The police officer wrote in the year as being 2004, when it was 2003. As well, the police officer wrote in 9.08 pm as the time at which Mr Rhodes submitted to a breath analysis. Mr Rhodes provided a sample of breath at 9.08 pm. But on the Magistrate’s findings the second sample of breath provided (the sample that gave the lower reading) was provided at 9.11 pm.
The presumption that the prosecutor invoked arises under s 47G(1) of the RTA. It provides as follows:
47G(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.
Parliament has significantly limited a defendant’s ability to rebut that presumption. The presumption can be rebutted only from a base provided by evidence of blood analysis, and only if the blood analysis is obtained as provided by the RTA. This is the effect of s 47G(1a) which provides as follows:
47GA(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.
Section 47I deals with the analysis of blood taken by compulsion from a person injured in an accident. A “voluntary blood test” using a blood test kit provided under s 47G(2a)(b) is provided for by reg 11 of the Regulations. That regulation describes in detail the procedure to be followed. It suffices to set out the first two sub-paragraphs:
11The following are the prescribed procedures in accordance with which a sample of a person's blood must be taken and dealt with for the purposes of section 47G(1a) of the Act:
(a) the person must cause the sample to be taken by a medical practitioner of the person's choice and must deliver the blood test kit supplied to the person under section 47G(2a)(b) to the medical practitioner for use for that purpose;
(b) the medical practitioner by whom the sample of the person's blood is taken must place the sample, in approximately equal proportions, in 2 containers (being the containers provided as part of the blood test kit);
The link between the result of the breath analysis and the driving at the time in question (which will necessarily precede the time of the breath analysis) is made by s 47G(1ab) which provides as follows:
47G(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.
In each case the Magistrate held that the mistake in completing the “request form” had the consequence that the presumption was not available.
The Magistrate’s reasons
In each case the Magistrate’s decision rested on three propositions. First, that the time at which a person submits to a breath analysis is significant. Second, that compliance with the “requirements and procedures” referred to in s 47G(1) is mandatory and that strict compliance is necessary: see Police v Jervis (1998) 70 SASR 429. Third, that the error by the member of the police force in completing the “request form” was a failure to comply with reg 10 and so was a failure to comply with the “requirements and procedures” in s 47G(2a)(b).
In Mr Rhodes’ case there was an appeal to a judge of this Court. The Judge held, correctly in my opinion, that the RTA distinguishes between submitting to a breath analysis and providing one or more samples of breath. The distinction is evident in, for example, s 47E, s 47G(2), s 47G(5) and reg 8A(1), which is set out above. The Judge said that Mr Rhodes submitted to a breath analysis when he provided the first sample of breath. Accordingly, the time recorded was the correct time, but the year recorded was incorrect.
The Judge said that the “request form” was:
“… important because, unless such a request is made and complied with, the person cannot proceed to challenge the breath analysis result …”.
The Judge also said that tender of a properly completed “request form” would enable a defendant to prove compliance with s 47G(1a)(a) and with reg 11. The Judge accordingly dismissed the appeal, because the mistake meant that the “request form” was not duly completed.
Submissions on appeal
Mr Kourakis QC SG, appearing for the appellant, submits that in deciding whether the requirements and procedures of the RTA have been complied with, the Court should not, and does not, concern itself with minor and inconsequential departures from the statutory requirements.
He submits that the critical information for a person who has submitted to a breath analysis is found in the statement in writing required by s 47G(2) and in the oral and written advice required by s 47G(2a): see Lloyd v Police [2004] SASC 278; (2004) 89 SASR 383 at [17]-[18] Debelle J. If the requirements of those provisions are met, the person will know how the breath analysis result can be challenged. The certificate provided under s 47G(2) will specify the reading in question, and the date and time of the analysis.
He acknowledges that the time at which the sample of blood is taken is relevant, because an expert who gives evidence of the kind contemplated by s 47G(1a)(b) will need to know that. But neither the RTA nor the Regulations fix a time within which the sample must be taken, although both the prescribed written notice and the prescribed oral advice are to the effect that the sample should be taken promptly to a hospital or medical practitioner. In any event, the time at which the sample is taken will be recorded by the person who takes the sample, and is not affected in any way by the provisions of s 47G(2a): see reg 11(f) and schedule 3 of the Regulations.
He argues that a breach of the requirements or procedures of the RTA or of the Regulations that prejudices the objective of informing the person whose breath is analysed about how to challenge the result of the analysis, and thereby prejudices the object of providing the essential data for that purpose, may have the result that the presumption under s 47G(1) is not available. But, he submits, in each case now before the Court, the mistake in question had no consequence for the defendant. Each defendant was given the required information. The time to be inserted in the “request form” was not significant, being simply the time at which the defendant “submitted to a breath analysis”, and not the time of the giving of the sample of breath relied on.
He also makes the point that there is no requirement in reg 11 that the “request form” be produced to the person who takes the blood sample. Indeed, reg 10(1)(d) does not even require that the person retain the person’s copy of the “request form”. At best the “request form” is an aid to proof of the making of the request. While reg 10 requires that the request be recorded in writing, he argues that there is no reason to conclude that the error as to the time of submission to the breath analysis has any effect in relation to the evident objects of the statutory scheme.
Accordingly, the failure to comply with the requirements of the form can be disregarded as trifling: see Lloyd at [59] White J. Alternatively, for the same reasons, there has been substantial compliance with the requirements of the form: Lloyd at [25] Debelle J.
Mr Edwardson, for the defendant in each case, emphasises that the relevant provision in s 47G(1) is unqualified. It is not limited to requirements and procedures that inform a person about how a person can challenge the result of a breath analysis. Section 47G(2a) requires that the request be made “in accordance with the Regulations”. Reg 10 is in mandatory terms, and requires completion of the “request form”. Accurate completion of the “request form” avoids any uncertainty about the fact or occasion (the date and time) of the request.
He emphasises the fact that the statutory presumption is a presumption of a fact that might not accord with the true facts, and that Parliament has closely limited the ability of a defendant to challenge the presumption. That being so, there is every reason to construe the relevant provisions strictly.
He also argues that the time to be inserted into the “request form” should be the time at which the person submitted to the breath analysis which produced the lower of the two readings, this being the relevant reading by application of reg 8A(3).
In support of his overall submissions, Mr Edwardson relies on the well known cases dealing with the presumption created by s 47G(1), and the effect of it requiring compliance with the requirements and procedures referred to, as a condition of the availability of the presumption. The main cases are referred to by White J in Lloyd at [72]-[75]. In Police v Henwood [2005] SASC 209; (2005) 92 SASR 15 at [31]-[37] I briefly summarised the operation of the statutory presumption.
Consideration of submissions
I accept Mr Kourakis’s submission that the “request form” does not call for the member of the police force to insert the time of taking the breath sample which is, by operation of reg 8A(3), taken to be the reading produced by the breath analysis instrument (because it is the lower of the two readings obtained). The form refers to the time at which the person “submitted to a breath analysis”. That is not a precise expression. It might refer to the time when the person first exhales after the first direction given to exhale into a breath analysing instrument: s 47E(2d). It might be taken as referring to the period of time during which the person provides two samples of breath for analysis as required by reg 8A(1). Commonsense would suggest that the reference is to the former, being the first process which would fit within the description, but the latter would also comply with the requirements of the form.
The time recorded on the “request form” need not be the time of the analysis of the sample relied on by operation of reg 8A(3), as submitted by Mr Edwardson. It follows that in Mr Rhodes’ case the time inserted by the police officer was a sufficient compliance within the requirement of the form (subject to the mistake as to the year).
I consider that the completion of the “request form” is the means by which a person makes a request “in accordance with the Regulations”: s 47G(2a)(b). Regulation 10 permits (and indirectly requires) an oral request (the making of which is not recorded on the form) followed by the signing of the “request form”.
A person who does not make a request at all, or who refuses to sign the form and deliver a copy of the signed form to a member of the police force, is probably not entitled to the delivery of a breath test kit.
But the “request form” need play no further part in the statutory procedures relating to breath analysis or analysis of a blood sample or in proceedings alleging an offence contrary to s 47B of the RTA.
The person who requests the blood test kit is not required to retain the form or to produce the form as a condition of presenting evidence in reliance on s 47G(1a). If the person’s entitlement to give such evidence is challenged, the person can give oral evidence of the oral request, and of the fact of completion of the form and of delivery of an approved blood test kit. The person could call for production of the original form of request if it is still held by the Minister: see reg 10(2). The form need be kept by the Minister only for 12 months. Production by the person of that person’s copy of the “request form” would, of course, be permissible and helpful. My point is that it is not essential before evidence can be led under s 47G(1a).
Nor need the “request form” be produced to a person to whom the blood test kit is taken for a sample of blood to be taken pursuant to reg 11. Its production is not contemplated or referred to by reg 11.
With that background, I return to s 47G(1).
What are the requirements and procedures in s 47G(2a)? They are, in my opinion:
(1) giving the prescribed oral advice;
(2) delivering the prescribed written notice;
(3) delivering an approved blood test kit;
(4) a request “made in accordance with the regulations”.
In each case before the Court requirements or procedures (1), (2) and (3) were satisfied or carried out.
The requirement to make, or procedure of making, a request in accordance with the regulations, is something to be performed by the person whose breath has been analysed. Prima facie, it is not a requirement or procedure on which the availability of the presumption in s 47G(1) is conditioned. It is required to raise the entitlement to an approved blood test kit.
However, reg 10 gives the member of the police force a part to play in that. That part is completion of the form to be signed by the person making the request. Does that mean that the completion of the form by the member of the police force is a requirement or procedure referred to in s 47G(1)?
A mistake by the member of the police force in completing the form would not, in my opinion, have the consequence that the person making a request and signing the request form, is not entitled to the delivery of a blood test kit, or is not entitled to lead evidence contemplated by s 47G(1a). Parliament would not have intended those entitlements to depend on accurate completion of a “request form” by the member of the police force. To hold otherwise would be to turn the scheme of s 47G(1) on its head. The request is made “in accordance with the regulations” by making an oral request and then by signing the completed “request form” and delivering a copy to the member of the police force: reg 10(1). This requirement is met whether or not the form has been accurately completed by the member of the police force.
This illustrates the point that when considering what Parliament intended to be the consequence of a failure to comply with an aspect of the RTA or of the Regulations, one must bear in mind on whom the obligation to comply with the relevant requirement or procedure is imposed, the suggested consequence of non-compliance, and the person whose interest is affected and how that interest is affected.
The mistake by the member of the police force does not affect the ability of Mr Mott or Mr Rhodes to adduce evidence in reliance on s 47G(1a). Each of them made a request and signed the request form in accordance with the Regulations, was given an approved blood test kit, and is entitled to lead evidence of a blood test carried out pursuant to reg 11. They did all that was required of them by s 47G(2a)(b) of the RTA.
I accept that the failure by the member of the police force to do what is required for a person to make “a request in accordance with the regulations” might mean that the member of the police force had not complied with a requirement or procedure of s 47G(2a). For example, if the member of the police force refused or failed to tender a “request form” at all, for signature by the person in question, that might mean that there had been no request complying with the regulations, no obligation to deliver an approved blood test kit, and no entitlement to lead evidence under s 47G(1a). In those circumstances, the failure by the member of the police force might well have the consequence that, in those circumstances, the statutory presumption would be unavailable. Alternatively, such a failure might be a basis for the court exercising its discretion to exclude evidence of the result of the breath analysis: see Police v Jervis; Police v Fountaine (1999) 74 SASR 26; Parker v Police [2002] SASC 256; (2002) 83 SASR 67.
But the accurate completion of a “request form” is not a condition of a person whose breath has been analysed being entitled to a blood test kit under s 47G(2a), and that being so, the accurate completion of a “request form” is not a separate or free-standing requirement or procedure of s 47G(2a) which is a condition of the availability of the presumption. It would serve no purpose to treat it as such.
I turn to s 47G(1a)(a). Is accurate completion of the “request form” required to establish that the relevant evidence is given as a result of the:
… analysis of a sample of blood taken and dealt with … in accordance with the procedures prescribed by regulation …?
That requirement directs attention to reg 11, setting out “procedures for voluntary blood test”. The provisions of reg 11 are not requirements or procedures referred to by s 47G(1): Police v Jervis (1998) 70 SASR 429. It may be that s 47G(1a) refers also to the requirements of reg 10, on the basis that the sample of blood is not taken in accordance with the procedures prescribed by regulation unless the request for a blood test kit is also made in compliance with reg 10. But if this is so, and I doubt whether it is so, s 47G(1a) does not contain requirements or procedures referred to by s 47G(1), applying the reasoning in Jervis at 444-445.
For those reasons I consider that the issue that arises on these appeals is not resolved by considering whether there has been substantial compliance with the requirements of reg 10, or by considering whether there has been compliance with reg 10, on the basis that a trifling departure from the requirements can be ignored, as was done by this Court in Lloyd. To my mind the issue is resolved, as I have attempted to do, by considering whether or not the relevant aspect of reg 10 is made a condition of the availability of the statutory presumption. Were I to approach the matter in the terms in which it was approached in Lloyd, , I would have come to the same conclusion. But my reasons, which would then reflect more closely the submissions by the Solicitor-General, would reflect the fact that the mistakes made in completing the “request form” in this case, are of no significance in the statutory scheme, and accordingly can be disregarded.
Conclusion
For those reasons I would allow each appeal. In the case of Mr Mott I would set aside the order dismissing the complaint, and order that the matter be remitted to the Magistrate who heard the matter for further hearing in accordance with these reasons.
In the case of Mr Rhodes I would allow the appeal. I would set aside the order of the Judge dismissing the appeal to this Court. I would order that there be substituted an order allowing the appeal to this Court, and for the order dismissing the complaint I would substitute an order that the proceedings be remitted to the Magistrate who heard them for further hearing in accordance with these reasons.
I would hear the parties on the question of costs.
WHITE J: The circumstances of these two appeals, and the statutory and regulatory provisions relating to them, are set out in the judgment of the Chief Justice. Each raises the question of whether an error by a police officer in entering the particulars on the prescribed form of written request for an approved blood test kit has the effect of precluding the prosecution from relying on the presumption contained in s 47G(1) of the Road Traffic Act 1961 (SA) (“RTA”).
The starting point for the consideration of that question is the language in s 47G(1) establishing the presumption:
… where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including sub-ss (2) and (2a), have been complied with it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol [indicated by the instrument] was present in the blood of the defendant at the time of the analysis.
It is compliance with “the requirements and procedures” of the specified type which conditions the availability of the presumption. That being so, the resolution of these appeals requires consideration of two issues: is completion by the operator of the form set out in Sch 2 to the Road Traffic (Miscellaneous) Regulations 1999 (“the Regulations”) with the particulars required by that form a requirement or procedure under the RTA to which s 47G(1) refers and, if so, has there been compliance in each case with that requirement?
The Requirements and Procedures Under This Act
Apart from stipulating that the requirements and procedures must be “in relation to” breath analysing instruments and breath analysis under the RTA, s 47G(1) does not provide for any other limitation on the nature or subject matter of the requirements and procedures in respect of which there must be compliance. On a natural reading, s 47G requires compliance with each requirement and procedure of the requisite type as a condition of the operation of the presumption. The RTA itself specifies some of the requirements and procedures[1] in respect of which compliance is required, and, in other cases, it leaves it to the Executive to prescribe particular requirements and procedures. For example, s 47E(2e) provides that the regulations may require that more than one sample of breath be provided for testing or analysis and in such a case that the regulations may specify which reading of the instrument is to be taken to be the result of the analysis. The content of the prescribed oral advice and the prescribed written notice is left for determination by regulation, as is the manner in which a request pursuant to s 47G(2a)(b) is to be made. No distinction is made in s 47G(1) between the requirements imposed by the RTA itself and those prescribed by regulations made under the RTA.
[1] For example s 47E(2ab), s 47E(2b), s 47G(2a)(a).
These two considerations suggest that any requirement or procedure (validly) prescribed by way of regulation is a requirement or procedure to which s 47G(1) refers, provided that it is a requirement or procedure “in relation to” breath analysing instruments and breath analysis. It was not suggested in these appeals that the requirement in Regulation 10(1)(f) of the Regulations was not a requirement “in relation to” breath analysing instruments and breath analysis. The fact that the completion of the request form is a necessary precondition to the obligation of the operator to provide an approved blood test kit, which is itself a requirement in relation to the breath analysis, does not make it any the less a requirement in relation to breath analysis.
I do not consider it helpful in the present circumstances to approach the issue by inquiring whether it was the legislative intention that accurate completion of the Sch 2 form should be a condition of the availability of the presumption. Where the Parliament simply stipulates that compliance with procedures to be established by regulation is required, leaving the content of the procedures to the discretion of the Executive, it is difficult to say anything more about the legislative intention than that the Parliament intended that there should be compliance with whatever it is that the Executive (validly) prescribes. An implication as to the legislative intention based on a particular prescription in such circumstances is usually unsound, simply because it cannot be presumed that the Parliament ever had in mind at all that particular prescription, or one like it. This does not mean that considerations of reasonableness may have no role to play in the determination of the legislative intention or that there may not be cases in which the regulatory requirement is relatively insignificant or incidental and the consequences of non-compliance extreme, but in the ordinary case (which I consider the present to be) I do not consider that much assistance as to the legislative intention is gained by an assessment of the particular content of the regulatory requirement.
The Regulations do require action by both the operator and the driver in relation to the making of the request. In my opinion the action required of the operator should not be regarded as incidental only. The driver initiates the process by the making of an oral request. Then action is required by the operator or other police officer who is present. They must complete the form of written request. It is not any form of written request but the prescribed form which is to be completed. The Regulations require the operator or other police officer to enter the particulars required by the form. Once this is done, the form is to be provided to the driver for signature. Once signed by him/her and attested, a copy of the form must be delivered to the operator or other member of the Police Force, but the original may be obtained by the driver. It seems that the making of the request for the purposes of s 47G(2a)(b) does not occur until a copy of the completed, signed and attested form has been handed to the operator. Thus, the making of a request “in accordance with the Regulations” requires inter-related action by both the operator (or police officer) on the one hand, and the driver on the other.
It is not really to the point that in a given case, such as the present cases, the police officers may be willing to provide the approved blood test kit, despite the absence of a request made in accordance with the Regulations. The delivery of the kit in those circumstances does not overcome any non-compliance with the operator’s obligations with respect to the request for the kit.
In my opinion, considerations of the statutory history support the conclusion that the Parliament did intend that there should be compliance with the specified requirements for the making of a request. For relevant purposes, s 47G(1) has remained unchanged since 1979, although the requirements and procedures contained elsewhere within the RTA have changed from time to time. Until 1 February 1994, s 47G(2a) required the breath analysis operator to inform forthwith those persons who returned a positive result on testing for the prescribed concentration of alcohol of two matters: first their right, pursuant to s 47F, to have a sample of blood taken by a medical practitioner, and, secondly that if no sample is taken, it may be conclusively presumed in a prosecution that the concentration indicated by the breath analysis instrument was present for the whole of the two hour period immediately preceding the analysis.[2] If the driver requested that a sample of blood be taken, the police were required to do all things reasonably necessary to facilitate the taking of the sample.[3] This included the police having themselves to take the driver to a hospital or a surgery to have the sample taken. By Act No 83 of 1993 which came into operation on 1 February 1994, this requirement was removed and s 47G(2a) in (relevantly) its present form was enacted. Thus, instead of having to do all things reasonably necessary to facilitate the taking of a blood sample, the police are obliged, on the driver testing positive for the prescribed concentration of alcohol, to give the driver the prescribed oral advice and the prescribed written statement, and, if requested in accordance with the regulations, to deliver an approved blood test kit. The Regulations impose an obligation on police officers to complete the prescribed form. The obligations on the police have been made considerably less onerous. But there is no reason to suppose that Parliament intended the obligation on police officers to be not only less onerous but also not to be mandatory. On the contrary, it is reasonable to suppose that Parliament intended compliance with the requirements in and under s 47G(2a) to be mandatory, as these requirements relate to the only way by which the s 47G(1) presumption can be avoided. The specific reference to sub-ss (2) and (2a) in s 47G(1) reinforces that conclusion.
[2] s 47G(2a) as inserted into the Road Traffic Act 1961 (SA) by the Road Traffic Act (Amendment Act) 1979 (SA), s 11(c).
[3] Road Traffic Act 1961 (SA), s 47F.
In my opinion, there are also some implications from the statutory and regulatory scheme which point to the same conclusion. The effect of the statutory and regulatory scheme is that it is a request made in accordance with the regulations which activates the obligation in the operator to deliver an approved blood test kit. A kit is not to be given simply because the test result shows the presence of the prescribed concentration of alcohol. Furthermore, it is not any request at all which gives rise to the entitlement to the kit. The reference in s 47G(2a)(b) to a request “made in accordance with the regulations” suggests that Parliament contemplated that there should be some formality about the request. Perhaps this was to provide an evidentiary trail in the event of disputes, or to bring home to both the driver and the operator the significance of the request. Perhaps it reflects the comments of Wells J in Taylor v Daire:
The police authorities were well advised to record formally the appellant’s request for a blood test; the statute does not direct the making of such a record, but the importance of the request strongly calls for it.[4]
In relation to that comment King CJ said:
… I endorse emphatically what Wells J says in his reasons as to the need for proper procedures for the recording of a person’s response to the s 47g(2a) notification and warning, of any request for a blood test pursuant to s 47f, and of any withdrawal thereof. In my view an opportunity should be given to the person who has been breath tested to sign the record of these matters and the record should be in a form which can be conveniently produced in evidence. Courts of summary jurisdiction should scrutinize evidence as to the above matters in the light of the precautions and procedures which may reasonably be expected of police officers charged with the responsibility of the observance of rights conferred on citizens by Act of Parliament.[5]
[4] (1982) 30 SASR 453 at 470.
[5] (1982) 30 SASR 453 at 464.
Whatever the rationale, Parliament left it to the Executive to prescribe the means by which the request should be made. The Executive has required that the request be made in writing. I have already noted that the interaction of both the operator and the driver is required in order for a request to be made in accordance with the Regulations. There is good sense in this. Persons who are not sober may be prone to slips or mistakes in completing a form with which they are not familiar. Such a slip or inaccuracy could make the writing ineffective as a request, or provide the operator with a possible justification for not-complying with the request. If this occurred the sole means by which the driver could avoid the operation of the s 47G(1) presumption would be lost. This possibility was avoided by the Executive making the operator or other police officer responsible for the accurate completion of the form, and limiting the involvement of the driver to the making of the oral request, signing the completed form and giving a copy to the operator. Understood in this way, there is, in my opinion, no incongruity in regarding the accurate completion of the Sch 2 form as a condition of the availability of the s 47G(1) presumption.
I would conclude therefore that the requirement in Regulation 10(1)(f) that the operator complete the Sch 2 form by inserting the particulars required by that form is a requirement in respect of which s 47G(1) requires compliance in order that the presumption be available.
This conclusion seems to me to be in accord with the long line of previous decisions of this Court to which I referred in Lloyd v Police.[6]
[6] [2004] SASC 278; (2004) 89 SASR 383 at 402-3 [73]-[75].
The Errors in the Forms and Compliance
In Lloyd v Police,[7] the question was whether a departure by a police officer from the terms of the prescribed oral advice had the effect that the prosecution could not rely on the s 47G(1) presumption. In my dissenting judgment, I expressed the view that:
1.The approach applied by the majority of the High Court in Project Blue Sky[8] in relation to the validity of administrative actions of enquiring whether it was a purpose of the legislation in question that an act done in breach of a statutory or regulatory requirement should be invalid is not applicable in the context of s 47G.
2.Section 47G(1) requires simply that the relevant requirements and procedures “have been complied with”. What is required is compliance, unqualified by any adjective such as “strict” or “substantial” or, for that matter, “sufficient”.
3.In determining whether there has been compliance in a given case, trifling departures from the requirements and procedures should be ignored.
[7] [2004] SASC 278; (2004) 89 SASR 383.
[8] (1998) 194 CLR 355.
Although in Lloyd Debelle J, with whom Doyle CJ agreed, adopted a different approach, their judgments do not, in my opinion, preclude the adoption in this case of the approach which I took in Lloyd. Debelle J said:
It is an interesting question whether the issues in this appeal should be determined by considering whether there has been a trifling departure from the requirements of s 47G or by an application of the principles expressed in Project Blue Sky Inc v Australian Broadcasting Authority. In my view, it is unnecessary to resolve that question because the same decision is reached by either approach. In my view, the failure of the police officer to comply with s 47G(2a) was trifling.[9]
[9] [2004] SASC 278; (2004) 89 SASR 383 at 394 [33].
Each of Doyle CJ and Debelle J said that they would have reached the same conclusion as to the outcome in Lloyd even had they adopted the approach which I took. The Solicitor-General, who appeared for the appellant in both appeals, accepted that the possible application of Project Blue Sky in the context of s 47G had not been determined finally in Lloyd. Accordingly, I feel free to give effect to my opinion that these appeals should be determined by application of the same approach as I took in Lloyd. Were a test of substantial compliance to be applied, I would expect that the range of matters which may constitute a permissible departure from the “requirements and procedures” would be greater than a test which allows departures which are trifling only.
I agree with the conclusion of the Chief Justice that the Sch 2 form does not require the operator to insert the time of taking of the particular breath sample which is, by operation of reg 8A(3), taken as the reading produced by the breath analysis instrument. I agree with the reasons of the Chief Justice for that conclusion. Accordingly the single judge was correct, in my opinion, in concluding, in the case of Mr Rhodes that the entry on the request form of the time 9.08 pm was in compliance with the requirements of the Regulations.
I also consider the operator’s mistaken entry of the year “2004”, rather than “2003”, on the request form relating to Mr Rhodes to be of no consequence. It was a mistake which would have been immediately obvious to anyone who saw it. The obviousness lay in the postdating. It is the written equivalent of the verbal slip of the tongue which, if noted at all by anyone, would have been recognised as such. Leaving aside for the moment that the operator was responsible for the mistake, it would not have been open, in my opinion, for the operator to have refused, on account of the error, to have provided Mr Rhodes with an approved blood test kit. Contrary to the conclusion of the single judge, I would not regard this particular mistake as interfering in any way with the ability of Mr Rhodes to adduce evidence rebutting the s 47G(1) presumption. These matters, in combination, indicate that the operator’s error can properly be regarded as trifling. Accordingly, I do not regard the error as to the entry of the year as warranting the conclusion that there has been non-compliance with the requirements of the Regulations as to the completion of the Sch 2 form.
In the case of Mr Mott, the operator’s error was in entering the time at which he had submitted to breath analysis as “9.29 pm” rather than 9.04 or 9.07 pm (at which time the tests had been performed), or even an earlier time when Mr Mott had first submitted, in the sense of acquiescing, to the process of testing. Unlike the error as to the year in the case of Mr Rhodes, the existence of this error is not so obvious. It may not have been apparent to anyone reading the form shortly after it was completed that the time shown was mistaken. In addition, a mistake of this kind is capable of having a misleading effect. For example, a doctor in a busy hospital casualty department who was shown a form containing such a mistake at the time of being requested to take a blood sample may be misled as to the time which has elapsed since the driver was tested. That might cause the doctor to alter the priority which he or she would give to the request for the taking of a blood sample. The difference between the mistake in this case and the mistake in Mr Rhodes’ case may not be much, but in my opinion, the two considerations to which I have just referred mean that it cannot be concluded in the case of Mr Mott that the mistake was trifling and should be ignored. In my opinion, it was a non-compliance of the kind discussed by Mullighan J in Semmens v Police.[10]
[10] [1999] SASC 176.
Conclusion
For the reasons given above, in the case of Mr Mott, I would dismiss the appeal.
In the case of Mr Rhodes, I would allow the appeal. I would make the same orders as are proposed by the Chief Justice.
I would hear the parties on the question of costs.
LAYTON J: I have had the opportunity of reading the reasons for decision of the Chief Justice and White J. With due respect to the approach taken by White J to the interpretation of s 47G(2a)(b) of the RTA and the associated Regulation 10 and Schedule 2, I prefer and agree with the interpretation and reasoning of the Chief Justice. In particular I would add that in my view the sub-section, the Regulation and the Schedule, all focus on the request of the person for the approved blood test kit and the requirement that such request be made in accordance with the Regulations. The content and the headings of the Regulation and the Schedule all overwhelmingly concern the oral request made by the person, the signing of the request form by the person after it has been filled in by the operator, the delivery by the person of the signed form to the operator, in order to entitle the person to receive the kit. The actions of the operator are to facilitate and formalise that process.
I do not consider that an inaccurate completion of the form by the operator would render the obligations placed by s 47G(2a)(b) on the person to make a request “in accordance with the regulations”, to have been rendered nugatory and unfulfilled, if all other matters required of the person have been fulfilled according to the Regulations. I therefore also agree with the orders suggested by the Chief Justice.
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