Police v Nelson - [2017] SASC 146

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v NELSON
[2017] SASC 146
Judgment of The Honourable Justice Kelly
12 October 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN BLOOD - GENERALLY
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE - BREATH TEST AND ANALYSIS
Appeal against acquittal. Respondent found not guilty by a Magistrate of driving a motor vehicle while having the prescribed concentration of alcohol in his blood contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA). Whether Magistrate erred in law in dismissing the complaint against the respondent. Whether Magistrate should have been satisfied a certificate tendered pursuant to s 47K(3) of the Act proved that the breath analysing instrument was in proper order and properly operated. Whether burden of proof upon the respondent to rebut the presumption had been discharged.
Held: Appeal allowed. Certificate tendered pursuant to s 47K operated as proof that the breath analysing instrument was in proper order and properly operated. Order of the Magistrate acquitting the respondent set aside. The evidence of the pharmacology expert was not relevant to the issue of whether the breath analysing instrument was in proper working order and properly operated on the relevant date. Respondent convicted of driving while having the prescribed concentration of alcohol in his blood. Remitted to Magistrates Court for sentencing.
Road Traffic Act 1961 (SA) s 47A, s 47B, s 47K, s 47H; Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A, referred to.
Evans v Benson (1986) 46 SASR 317; Saade v Police [2005] SASC 437; Sparrow v Police [2005] SASC 390, applied.
Police v Tully [2011] SASC 242, considered.

POLICE v NELSON
[2017] SASC 146
Magistrates Appeal: Criminal
KELLY J.

The appellant, the Police, appeals against the judgment of a Magistrate dated 18 May 2017 who found the respondent, Mark Robert Nelson, not guilty of driving a motor vehicle while having the prescribed concentration of alcohol in his blood, contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (the Act).
The appellant appeals on the ground that the Magistrate erred in law in dismissing the complaint against the respondent in that the Magistrate should have been satisfied that the certificate tendered pursuant to s 47K(3) of the Act proved that the breath analysing instrument was in proper order and was properly operated and that the burden of proof upon the respondent had not been discharged.
Background
On 16 October 2009, the Commissioner of Police authorised Simon Dean Hermel to operate breath analysing instruments under the Act.[1]
[1] Exhibit P4.
On 23 May 2012, under s 47H(1)(a), the Governor approved the Drager Alcotest 7110 Mk V as a breath analysing instrument.[2]
[2] Exhibit P5.
At about 9.15 pm on 4 July…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Police v Nelson

Details

AGLC: Police v Nelson [2017] SASC 146
Case: [2017] SASC 146
Decision Date: 12 October 2017

CaseChat Overview and Summary

In the case of Police v Nelson, the respondent appealed against a decision made by a Magistrate in the Magistrates Court of South Australia. The appeal was grounded on the contention that the Magistrate had erred in law when dismissing the complaint against the respondent. The appellant argued that the Magistrate should have been satisfied that the certificate provided under s 47K(3) of the Road Traffic Act 1985 (SA) was evidence that the breath analysing instrument was in proper order and was properly operated, and that the burden of proof had not been discharged by the respondent.

The legal issues before the court involved the interpretation and application of s 47K(3) of the Road Traffic Act 1985 (SA). The key issue was whether the certificate tendered by the appellant was sufficient to satisfy the requirements of s 47K(3) and whether this constituted proof of the proper order and operation of the breath analysing instrument, thereby shifting the burden of proof to the respondent. The court was required to determine if the certificate was adequate evidence to support the presumption that the concentration of alcohol indicated by the instrument was present in the respondent's blood at the time of the analysis.

The court considered the statutory provisions and the arguments presented by both parties. It held that the certificate signed by the authorised person under s 47K(3) was sufficient to meet the requirements of the statute, as it certified that the breath analysing instrument was in proper order, was properly operated, and that the statutory provisions regarding breath analysing instruments were complied with. The court found that this certificate constituted proof of the matters certified, in the absence of proof to the contrary, as per the statutory provisions. Consequently, the court dismissed the appeal, affirming the decision of the Magistrate.

The final orders of the court were to uphold the decision of the Magistrate, dismissing the respondent's appeal. The court confirmed that the certificate tendered under s 47K(3) of the Road Traffic Act 1985 (SA) was sufficient to satisfy the requirements of the statute and to shift the burden of proof to the respondent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellant appeals on the ground that the Magistrate erred in law in dismissing the complaint against the respondent in that the Magistrate should have been satisfied that the certificate tendered pursuant to s 47K(3) of the Act proved that the breath analysing instrument was in proper order and was properly operated and that the burden of proof upon the respondent had not been discharged.Background On 16 October 2009, the Commissioner of Police authorised Simon Dean Hermel to operate breath analysing instruments under the Act.[1][1] Exhibit P4. On 23 May 2012, under s 47H(1)(a), the Governor approved the Drager Alcotest 7110 Mk V as a breath analysing instrument.[2][2] Exhibit P5. At about 9.15 pm on 4 July 2014 police officers Senior Constables Helen Case and Simon Hermel pulled over a Mazda utility vehicle being driven by the respondent on Piccadilly Road, Piccadilly, for the purpose of conducting a random breath test. Senior Constable Case alco-tested the respondent using an Alcolizer 5 series instrument, and a positive reading was returned. Police conveyed the respondent to the Mount Barker Police Station where Senior Constable Hermel administered a breath analysis test. Four samples of breath were provided. The first sample was provided by the respondent at 21.56 hours and resulted in a blood alcohol reading of 0.101 grams of alcohol per 100 millilitres of blood. The second sample was provided by the respondent at 22.00 hours resulting in a reading of 0.086 grams per 100 millilitres of blood. The printout from those breath analyses stated that there was a difference of more than 15 per cent between the first and second readings and consequently the police, relying on reg 8A(2)(c) of the Road Traffic (Miscellaneous) Regulations 1999 (SA) (the Regulations), disregarded the first and second readings and required the respondent to provide two further samples of breath. A third sample was provided at 22.07 hours and resulted in a blood alcohol reading of 0.086 grams per 100 millilitres of blood. A fourth sample was provided at 22.11 hours and resulted in a blood alcohol reading of 0.081 grams per 100 millilitres of blood. By virtue of the operation of reg 8A(3), the result of the breath analysis was taken to be the lower of those two readings for the purpose of the prosecution, namely 0.081. At the conclusion of the breath analysis tests, Senior Constable Case conducted and recorded an interview with the respondent and issued him an immediate licence disqualification notice. Written statements were provided under s 47K(2) of the Act and the relevant advice was provided under s 47K(2a). Further certificates were signed pursuant to s 47K(3)(b) and s 47K(5).Relevant legislative provisions Before considering the appeal it is necessary to first set out the relevant parts of the legislative scheme. Section 47B(1)(a) of the Act provides that a person must not drive a motor vehicle while there is present in his or her blood the prescribed concentration of alcohol. The prescribed concentration of alcohol is defined in s 47A(1) of the Act as 0.05 grams or more of alcohol in 100 millilitres of blood.

Evidence

Evidence Before The Court

Section 47K of the Act relevantly provides:47K—Evidence(1)Without affecting the admissibility of evidence that might be given otherwise than under 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 and throughout the preceding period of 2 hours.(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 and Schedule 1 or in accordance with the procedures prescribed by regulation; and(b) evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.(1ab)If, in any proceedings for an offence, it is proved—(a) that the defendant drove a vehicle, or attempted to put a vehicle in motion; and(b) that a concentration of alcohol was present in the defendant’s blood at the time of a breath analysis performed within the period of 2 hours immediately following the conduct referred to in paragraph (a),it must be conclusively presumed that that concentration of alcohol was present in the defendant’s blood at the time of the conduct referred to in paragraph (a).(1b)No evidence can be adduced as to a breath or blood alcohol reading obtained from a coin-operated breath testing or breath analysing machine installed in any hotel or other licensed premises.(2)As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying—(a) the reading produced by the breath analysing instrument; and(b) the date and time of the analysis.(2a)If 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 prescribed 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.(3)A certificate—…(b) purporting to be signed by a person authorised under subsection (1) and to certify that—(i)the apparatus used by the authorised person was a breath analysing instrument within the meaning of this Act; and(ii)the breath analysing instrument was in proper order and was properly operated; and(iii)the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with,is, in the absence of proof to the contrary, proof of the matters so certified.…(3b)A certificate purporting to be signed by a police officer and to certify that a 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 matters so certified.…(5)Subject to subsection (17) a certificate purporting to be signed by a person authorised under subsection (1) and to certify that—(a) a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument on a day and at a time specified in the certificate; and(b) the breath analysing instrument produced a reading specified in the certificate; and(c) a statement in writing required by subsection (2) was delivered in accordance with that subsection,is, in the absence of proof to the contrary, proof of the matters so certified.…

Decision

Reasons for decision

KELLY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

Full text does not contain this section.