Police v OWENS
[2007] SASC 118
•3 April 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v OWENS
[2007] SASC 118
Judgment of The Honourable Justice Layton
3 April 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - GENERALLY
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - PROOF OF PARTICULAR MATTERS AND RELATIONSHIPS - BREATH ANALYSIS TESTS
Magistrates Appeal – appeal by the police against the decision of a magistrate to dismiss one count of driving with a prescribed concentration of alcohol in the blood (“drink driving”), contrary to s 47B of the Road Traffic Act 1961 (SA) (“the Act”) – the Magistrate after trial convicted the respondent of driving without a licence, but dismissed the other charges of driving without headlights and drink driving – the charge of driving without headlights was dismissed because the Magistrate was unable to say where the truth lay – the Magistrate dismissed the drink driving charge on the basis that the request for the breath analysis test under s 47E of the Act was unlawfully made - the respondent on a notice of alternative contention challenged the validity of a certificate tendered pursuant to s 47G(3) of the Act – whether the Magistrate erred in finding that the certificate was valid and that there was a case to answer – consideration on appeal of the onus and standard of proof under s 47B and s 47E(1)(a) of the Act - whether the power of the police officer to request a breath analysis test was enlivened – whether the police believed on reasonable grounds that the offence of driving without lights had been committed – whether the discretion to exclude otherwise admissible evidence should be exercised.
Held: notwithstanding a typographical error and the use of the past tense, the certificate complied with s 47G(3) of the Act – the Magistrate was correct in admitting the certificate into evidence and finding a case to answer – as the prosecution successfully invoked s 47G(1) of the Act the onus lies on the defendant to prove the unlawfulness of the request on the balance of probabilities and to persuade the Magistrate to exercise a discretion to exclude the otherwise admissible evidence – the Magistrate failed to properly address the onus and standard of proof – the Magistrate failed to consider whether the police believed on reasonable grounds that the respondent was driving without headlights - the Magistrate erred in finding that the dismissal of the driving without headlights charge was determinative of the legality of the request for the breath analysis test – the request was not unlawful – the Bunning v Cross discretion was not required to be exercised - appeal allowed
Motor Vehicles Act 1959 (SA) s 74; Road Traffic Act 1961 (SA) s 47B; s 47E; s 47G; Australian Road Rules 1999 (Cth) r 215(1); Road Traffic Act (Miscellaneous) Regulations 1999 (SA) reg 8, referred to.
Brian v Froude (1992) 61 SASR 65; Police v Fountaine (1999) 74 SASR 26; Police v Modra (2000) 32 MVR 326, applied.
R v Calides (1983) 34 SASR 355; Questions of Law Reserved (No 2 of 1993) (1993) 61 SASR 1, discussed.
Lajos v Samuels (1980) 26 SASR 514; Bunning v Cross (1978) 141 CLR 54; Searles v Police (2001) 34 MVR 201; Williams v Bache (1982) 31 SASR 25; Tallidira v Police (1999) 30 MVR 278; Police v Grozev [2006] SASC 353; Hoobin v Samuels (1971) 2 SASR 238; Furnell v Betts (1978) 20 SASR 300; Police v Hall (1997) 25 MVR 320; Gannon v Police (2005) 93 SASR 289, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"reasonable grounds"
POLICE v OWENS
[2007] SASC 118LAYTON J.
Introduction
This is an appeal by the police against the decision of a magistrate to dismiss one count of driving while there was present in the respondent’s blood the prescribed concentration of alcohol (“drink driving”), contrary to s 47B of the Road Traffic Act 1961 (SA) (“the Act”). This appeal essentially raises the following issues:
·The interpretation of s 47E of the Act, particularly the requirement that a police officer believe on “reasonable grounds” that an offence has been committed.
·Whether a police officer’s request for an alcotest made pursuant to s 47E of the Act was lawful.
The respondent also filed a notice of alterative contention, which challenges the validity of the certificate tendered pursuant to s 47G(3)(a) of the Act.
The facts
On the evening of Friday, 5 September 2003, the respondent drove to the Seacliff Hotel to meet a group of friends for some drinks. There he consumed a ‘fair bit’ of alcohol and did not leave until closing time, which was approximately midnight. The respondent decided not to drive home, but rather to sleep in his car, which contained some items of value, including wetsuits and surfboards. The respondent got into his car, put the radio on and went to sleep. The police said lights were switched off.
At approximately 5:30am on Saturday, 6 September 2003, police responded to complaints about noise coming from the respondent’s car on Wheatland Street, Seacliff. Constables O’Connor and Roe attended the scene. They observed the respondent sitting asleep in the driver’s seat of his car. The police said the lights were on. Constable O’Connor had a brief conversation with the respondent, and told him he could not sleep in his car. In evidence, Constable O’Connor said that the respondent appeared to be affected by alcohol – he was disorientated, he was incoherent in relation to questions put to him, his speech was slurred, and his “…eyes were a bit glazed.” Constable O’Connor noted that the respondent “appeared 102”, which he said was a term used to describe someone affected by alcohol.
Constable O’Connor told the respondent to call a taxi to get home. The respondent then walked up to a public telephone box, and rang his home phone number, but no one answered. He was living with his parents at the time. He then walked back to his car, by which time the police had left. The respondent then got back into his car, because it was drizzly and cold at the time, started his car, and then travelled east up Wheatland Street. It was the prosecution case that at this stage the headlights were not on. This was strongly denied by the respondent.
The respondent drove for approximately 20 to 30 metres before the police followed, and pulled him over. Following, a conversation between Constable O’Connor and the respondent, the respondent was requested to undergo an alcotest. An alcotest was then conducted and it returned a positive result. The respondent was then taken to the Netley Police Station where a breath analysis test was undertaken. This test, conducted by Constable Borgas, returned a reading of 0.108.
The charges
On 25 February 2004, the respondent was charged with drink driving; driving a motor vehicle on a road without an appropriate licence;[1] and driving a motor vehicle on a road while the headlights were not operating effectively and clearly visible (‘driving without headlights’).[2]
[1] Contrary to s 74 of the Motor Vehicles Act 1959 (SA).
[2] Contrary to r 215(1) of the Australian Road Rules 1999 (Cth).
The trial
The respondent pleaded not guilty in the Adelaide Magistrates Court to all charges and the matter proceeded to trial. At trial the appellant tendered a series of certificates in reliance upon the presumptions pursuant to s 47G of the Act. Witnesses were also called. Constable O’Connor gave evidence about his observations and conversations with the respondent. Constable Roe was called to give corroborative evidence of Constable O’Connor’s observations and conversations with the respondent. Senior Constable Borgas gave evidence that he was ‘an authorised person’ to use a breath analysis instrument, and also gave evidence about the conduct and results of a breath analysis test on the respondent. The respondent also gave evidence.
At the conclusion of the prosecution case, the Magistrate was invited to rule that there was no case to answer on the basis that the certificate of authority of the breath analysis operator (exhibit P2) was invalid and therefore inadmissible. The Magistrate rejected this submission, and the case proceeded to its conclusion.
The Magistrate’s findings
On 3 November 2006, the Magistrate dismissed the charges of drink driving and driving without headlights, but convicted the respondent for driving without a licence. In relation to that offence, a conviction was recorded and the respondent was fined $250 plus court costs and a levy. The Magistrate then awarded the respondent the costs of the trial in the sum of $2100.
In relation to driving without headlights, the Magistrate said he was unable to say where the truth lay, and in accordance with the principles articulated in Calides[3] gave the respondent the benefit of doubt and dismissed the charge. His Honour then excluded the results of the breath analysis test on the basis that the police officer’s request for the respondent to undertake the alcotest and subsequent breath analysis was unlawful, and as a consequence dismissed the drink driving charge.
[3] (1983) 34 SASR 355.
Grounds of Appeal
The appellant pursued the following two grounds of appeal:
1. The learned Magistrate erred in law in finding that the breath analysis conduct by the police was unlawful and consequently erred in excluding the results of the breath analysis.
2. In the alternative and on the assumption that the learned Magistrate was not in error in finding that the breath analysis conducted by the police was unlawful, the learned Magistrate’s discretion to exclude evidence which had been unlawfully obtained miscarried.
It is convenient to consider the alternative contention first before discussing the grounds of appeal.
Notice of Alternative Contention
The respondent sought an extension of time to contend that contrary to the ruling of the learned Magistrate delivered on 17 March 2006, exhibit P2, the certificate of authority tendered pursuant to s 47G(3)(a) was invalid and should not have been admitted into evidence. It was argued that in the absence of the tender of exhibit P2, there was no case for the respondent to answer, and the learned Magistrate erred in not making this finding. The appellant did not object to the extension of time, and having regard to the contents of the affidavit of Joana Maria Fuller sworn 17 January 2007, I therefore granted it.
As counsel for the appellant Mr Grant submitted, it is important to bear in mind that the test for a case to answer is far lower than that of the standard of proof required at the conclusion of a trial when all of the evidence has been heard. As King CJ stated in Questions of Law (No 2 of 1993):[4]
If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be.
[4] (1993) 61 SASR 1, 5.
Section 47G(3)(a) of the Act provides:
A certificate –
(a) purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments
…
is, in the absence of proof to the contrary, proof of the matter(s) certified. (emphasis added)
This section 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 presumption is contingent upon proof that the breath analysing instrument was operated by a person who is authorised by the Commissioner of Police to operate the instrument. As Williams J said in Searles v Police,[5] ‘S 47G(1) requires proof that the Commissioner conferred authority on the [officer] before [they] operated the instrument.’
[5] (2001) 34 MVR 201, 203.
The certificate of authority dated 5 April 2001 tendered by the prosecution is signed by the Commissioner of Police and states that on 22 March 2002 he authorised Martin Murray Borgas to operate breath analysing instruments from that date. The respondent, represented by Ms Fuller on appeal, contends that the certificate was defective on its face as it appears to predate the asserted date of authorisation. She argued that the certificate was ineffective and therefore could not have been received into evidence, and as consequence the presumption could not be used and the charge would therefore fail.
Mr Grant admitted that, on its face, the certificate contains a typographical error as to the date it was signed, and the date of 5 April 2001 is clearly wrong. However, he submitted that the date on which the certificate is signed is not a statutory requirement and does not require proof. The requirements in s 47G(3)(a) are that there be a certification that a person is authorised, and that this certification must be signed by the Commissioner. It was argued that notwithstanding the manifest error, these two statutory requirements were fulfilled; the date was a surplus requirement and the error did not negate what is nonetheless a certificate, which complied with the requirements of the section.[6]
[6] Police (SA) v Modra (2000) 32 MVR 326, 336.
Ms Fuller’s argument is that there is not only an error in the date, but there is a failure to follow the wording of s 47G(3), namely a certification in the present tense that a person “is authorised” and not just simply that the person has been authorised in the past. Reliance is placed on the decision of Williams J in Searles case.[7] In that case, Williams J was in fact dealing with a certificate which was expressed exactly in the terms, “is authorised”.
[7] (2001) 34 MVR 201, 203.
In my view, the key point from Searles case is that the certificate must record that the authority has been given to the police officer before they operated the instrument, and that the authority to operate is ongoing. Although it is preferable for a certificate to follow the exact wording of the section, it does not mean that if other wording is used, the statutory requirements are not met.[8] As Millhouse J stated in Talladira,[9]
….the wording of s47G(3)(a) shows it is directory as to the words in which the certificate is couched. There is no need for the wording of the certificate to echo the provision. (emphasis added)
[8] Tallidira v Police (1999) 30 MVR 278, 279.
[9] Ibid.
In my view the certificate expressed as it is in the past tense, specifies a certain date on and from which Constable Borgas was authorised to operate a breath analyser instrument. This encompassed the date on which the test was conducted. The statutory requirements were fulfilled. There is no statutory requirement for the authorisation to have a time limit, or for the certificate to indicate a termination date. It would be unrealistic for the Commissioner to have to sign certificates on an updated basis for all officers for all occasions of operation.
I therefore reject the respondent’s argument on the alternative contention.
In summary, the Magistrate was correct in finding that the certificate was valid and in admitting it into evidence. The Magistrate was correct in finding that there was a case for the respondent to answer.
The Appeal: statutory requirements
The respondent was charged with drink driving contrary to s 47B of the Act. The only element that the prosecution needed to prove was that the respondent was driving on a road while there was present in his blood the prescribed concentration of alcohol.[10] The main evidence used to prove the concentration of alcohol in a person’s blood is the results from an alcotest and/or a breath analysis. The main procedure for obtaining this evidence is contained in s 47E of the Act, which at that time relevantly provided:
[10] Road Traffic Act 1961 (SA) s 47B; See also Police (SA) v Modra (2000) 32 MVR 326, 334 per Lander J.
(1) Where a member of the police force believes on reasonable grounds that a person, while driving a motor vehicle or attempting to put a motor vehicle in motion –
(a) has committed an offence of a prescribed class of which the driving of a vehicle is an element; or
…
(c) has behaved in a manner that indicated that his or her ability to drive the motor vehicle is impaired; or
(d) has been involved in an accident,
that member of the police force may, subject to subsection (2), require that person to submit to an alcotest or breath analysis, or both.
…
(2) Performance of an alcotest or breath analysis required under subsection (1) must be commenced within two hours of the event giving rise to the belief referred to in that subsection. (emphasis added)
This section requires a police officer to believe on reasonable grounds that at least one of the matters specified in subsection (a), (c) or (d) exists before they may require a person to submit to alcotest and/or breath analysis. As Doyle CJ stated in Police v Grozev:[11]
…what must be demonstrated or proved is the existence of facts which are sufficient to induce the relevant belief or state of mind in a reasonable person, and that [the police officer] in fact formed the relevant belief or state of mind. This is to be decided on the basis of what [the police officer] knew and saw at that time.
[11] [2006] SASC 353, [24].
In this case, the appellant relied on s 47E(1)(a) of the Act. Regulation 8 of the Road Traffic (Miscellaneous) Regulations 1999 (SA) provides that offences against the Australian Road Rules are offences of a “prescribed class” for the purposes of s 47E(1)(a). The offence which was said to enliven the power to require an alcotest and breath analysis in this case, was driving without headlights contrary to r 215(1) of the Australian Road Rules 1999 (Cth).
Section 47G(1) of the Act creates a presumption in relation to the use of evidence obtained pursuant to s 47E:
(1) Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis.
(1a) No evidence can be adduced in rebuttal of the presumption created by subsection (1) except—
(a) evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I or in accordance with the procedures prescribed by regulation; and
(b) evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysis instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.
The appellant’s submissions
In summary, Mr Grant submitted that the Magistrate erred in three respects. Firstly, he failed to appreciate the question before him, which was not whether the police proved beyond reasonable doubt that they acted lawfully, but instead whether the respondent had persuaded him on the balance of probabilities that the police had acted unlawfully in obtaining the evidence.
Secondly, the Magistrate confused the following two issues:
1.Whether the respondent was guilty of driving without lights (relevant to whether the respondent was guilty of the offence of driving without lights); and
2.Whether the police reasonably believed that the respondent was driving without lights (relevant to deciding whether the appellant’s request for the respondent to submit to a breath analysis was lawful).
Thirdly, it was submitted that even if the request was unlawful, the Magistrate erred in that he acquitted the respondent simply on the basis of the unlawfulness of the request, and failed to properly exercise his discretion by weighing-up the various considerations articulated in Bunning v Cross.[12]
[12] (1978) 141 CLR 54.
The respondent’s submissions
In summary, Ms Fuller submitted in relation to the appellant’s first argument, that if the lawfulness of a police officer’s request to submit to an alcotest and/or breath analysis pursuant s 47E(1) is challenged, then it is for the Court to examine those grounds and determine whether the request was unlawful.[13] She submitted that it was for the prosecution to prove beyond reasonable doubt the existence of facts which induced the relevant belief and to show that the police in fact formed the relevant belief.
[13] Hoobin v Samuels (1971) 2 SASR 238, 245.
As to the second argument, Ms Fuller accepted that the Magistrate’s reasons were brief and inadequate, but submitted that he nonetheless turned his mind to whether or not the police had believed on reasonable grounds that the respondent was driving without headlights.
As to the third argument Ms Fuller submitted that the test in Bunning v Cross was appropriately satisfied.
Was the Magistrate correct?
Onus and standard of proof
The effect of s 47(G)(1) is that if all the relevant procedures and requirements are complied with, and evidence in relation to breath analysing instruments and breath analysis has been proved through the tendering of certificates, then the offence of drink driving is proved.[14] It has previously been decided by this Court that it is unnecessary for the prosecution to prove a number of events leading to the obtaining of the evidence resulting from the breath analysis, including proof of the circumstances said to enliven the power to require the test in the first place.[15]
[14] Police (SA) v Modra (2000) 32 MVR 326.
[15] Police v Fountaine (1999) 74 SASR 26, 44-5; Police (SA) v Modra (2000) 32 MVR 326, 330 per Prior, 334-5 per Lander J and 336-7 per Bleby J.
In Police v Fountaine,[16] Doyle CJ (with whom Prior, Bleby and Martin JJ agreed) stated:
[71] The admissibility of the result of the analysis of blood taken in reliance upon the provisions of s47I does not depend upon proof by the prosecutor of compliance with the requirements of subs(7) to subs(13) of the section. Assuming that the taking of the blood was lawful, the admissibility of the results of the analysis of the blood will depend upon the ordinary principles of the law of evidence. Those principles require satisfactory proof of the chain of evidence linking the blood analysed to the person charged. Of course, the analysis will also have to be proved as will its meaning. Evidence will have to be led to establish the significance of the presence of alcohol in the blood at the time at which the blood was taken, in relation to the charge of driving with the prescribed concentration of alcohol present in the blood of the person in question.
[72] The prosecutor may, but need not, rely upon the tender of the certificates referred to in subs(13a), and upon the limited presumptions created by subs(13b) and subs(13ba), to establish the necessary chain of evidence and the amount of alcohol present in the blood at the time at which blood was taken.
[74] If the Court is asked to exclude the evidence of the result of the analysis, in the exercise of one or other of the discretions referred to in R v Swaffield (1998) 192 CLR 159, on the basis that one or more of the statutory provisions referred to has not been complied with, the onus will rest upon the person charged to establish the relevant non-compliance and to persuade the Court to exercise the discretion in question to exclude the evidence in question. The procedure to be followed by the Court in the event of such an application, and the approach to be taken, will be the same as in any other case in which an application is made for the exclusion of the prosecution evidence in the exercise of the Court's discretion. (emphasis added)
[16] (1999) 74 SASR 26, 44-5.
Further, in Police (SA) v Modra[17] Prior J indicated:
[14] … The prosecution does not need to prove what happened at the alcotest when proceeding with a complaint which charges a breach of s47B and successfully invokes the provisions of s47G. 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.
[15] …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.
[16] …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. 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. (footnotes omitted)
[17] (2000) 32 MVR 326, 329-30.
In the circumstances of this case, the onus was on the respondent to prove the illegality on the balance of probabilities. The illegality claimed in this case was that the power to make a request was not enlivened as the police officer did not have reasonable grounds to believe the respondent was driving without headlights. Drawing both the onus and the standard of proof together; the appellant was not required to prove that the police officer had a belief on reasonable grounds that the respondent had driven without headlights, instead the respondent was required to prove that the police officer probably did not have the belief on reasonable grounds that the defendant had driven without headlights.
In contending to the contrary, Ms Fuller relied on the decision of Doyle CJ in Grozev[18] to support the proposition that the prosecution must prove the existence of facts which induced the relevant belief and must also show that the police in fact formed the relevant belief. The particular passage relied on is at [24]:
…what must be demonstrated or proved is the existence of facts which are sufficient to induce the relevant belief or state of mind in a reasonable person, and that [the police officer] in fact formed the relevant belief or state of mind.
[18] [2006] SASC 353, [24].
This passage reflects decisions of the court as to the meaning of reasonable grounds for belief, but it is not authority for the proposition that the prosecution is required to prove the reasonable belief of the police officer as an element of its case when there is compliance with s 47G(1) and the tendering of appropriate certificates. The cases of Police v Modra and Police v Fountaine referred to above are the appropriate authorities on the onus and standard of proof.
It also follows that I reject the argument of Ms Fuller that the onus should be reversed simply because the respondent challenges aspects of the enlivenment of the power. In a case in which the prosecution successfully invokes s 47G(1), the onus of proving unlawfulness rests on the defendant on the balance of probabilities. If the Magistrate was satisfied on the balance of probabilities that the police officer did not have a reasonable belief, then his request was unlawful.[19] If the request was unlawful, then the onus remained on the respondent to persuade the Court to exercise its discretion to exclude this otherwise admissible evidence.[20]
[19] Police v Hall (1997) 25 MVR 320, 323.
[20] Brian v Froude (1992) 61 SASR 65, 73 per Cox J.
Ms Fuller also made reference to the judgment of Jacobs J in Lajos v Samuels.[21]In that case, the Court was considering the offence under s 47E(3), namely failing or refusing to comply with a reasonable direction of a police officer. Jacobs J held that the prosecution bears the onus of proving that the direction was lawfully made.
[21] (1980) 26 SASR 514, 520.
Mr Grant correctly submitted that the principles in Lajosv Samuels have no application to s 47B of the Act.[22] It was submitted that s 47E(3) requires the prosecution to prove that all reasonable directions were given to make out the offence as these are the elements of the offence, whereas the only element that needs to be proved for offence of drink driving is that the defendant was driving on a road while there was present in his or her blood the prescribed concentration of alcohol.[23] The combined effect of s 47G(1) is that if all the relevant procedures and requirements are complied with, and evidence in relation to breath analysing instruments and breath analysis has been proved through the tendering certificates, then the offence of driving with the prescribed concentration of alcohol, contrary to s 47B of the Act is proved.[24]
[22] Brian v Froude (1992) 61 SASR 65, 71 per Cox J.
[23] Road Traffic Act 1961 (SA) s 47B.
[24] Police v Modra (2000) 32 MVR 326.
Belief on reasonable grounds
Mr Grant submitted that the Magistrate erred in his approach to the test of belief by the police on reasonable grounds. He submitted that the fact that a prescribed offence, namely driving without headlights, was not proved beyond reasonable doubt, did not render the request to undertake a breath analysis unlawful. Rather, the issue was whether the police reasonably believed that the offence had been committed.
Mr Grant pointed to the clear distinction between a person having a reasonable belief that an offence has been committed on one hand, and proof of guilt of its commission on the other.[25] In Grozev[26] Doyle CJ said:
Decisions of this Court establish that a member of a police force might reasonably believe at a particular time that an offence has been committed even though it later emerges that the offence was not committed, or cannot be proved…
[25] Police v Grozev [2006] SASC 353, Williams v Bache (1982) 31 SASR 25, 31 per Bollen J.
[26] Police v Grozev [2006] SASC 353, [24].
Mr Grant submitted that the Magistrate’s conclusion that he was in doubt as to where the truth lay, in accordance with Calides, [27] may have correctly lead to a finding that the respondent should be acquitted in relation the offence of driving without lights, but that his Honour incorrectly applied this reasoning to the offence of drink driving. He submitted that the Magistrate’s reasoning, while correct for deciding the first issue, was not relevant to the alleged unlawfulness of the request and did not justify the exercise of his discretion to exclude the otherwise admissible evidence, namely the results of the breath analysis.
[27] R v Calides (1983) 34 SASR 355.
Ms Fuller accepted that the respondent’s acquittal for the offence of driving without headlights was not determinative of the legality of the initial request, but argued that in this case a finding that the respondent was not guilty of driving without headlights would inevitably lead to a conclusion that either (a) no genuine belief was entertained by the police or (b) the belief was not based on reasonable grounds. She submitted that the critical issue at trial was whether the respondent was driving without lights and that the Magistrate was unequivocally clear of his favourable impression of the respondent’s evidence.
Ms Fuller also referred to the disjunctive reference reflected in the comment by the Magistrate:
…I am not satisfied that there was a Part 3 offence (suspected or otherwise) upon which the request could be lawfully made (emphasis added).
It was submitted that the respondent had discharged its onus in satisfying the Magistrate that the breath analysis results should be excluded.
In considering these submissions, the starting point of the Magistrate’s reasoning is in paragraph [6] where His Honour said:
It is not sufficient for the prosecution to establish suspicion of the defendant’s guilt or probability or possibility of it. The prosecution must establish to my satisfaction that the defendant is guilty beyond reasonable and I am not so satisfied in this case. I am not satisfied beyond reasonable doubt that at the time of the driving of the vehicle by the defendant at 5.59am on Waratah Road the defendant’s lights on his vehicle were not operating.
In this paragraph the Magistrate seems to have explicitly focussed on whether or not he was satisfied that the offence had been committed rather than focusing on the requirements of s 47E(1), namely whether the police believed on reasonable grounds that a prescribed offence had been committed.
In paragraph [7] the Magistrate discusses the evidence of the respondent and the police officers and concludes that there were no grounds for disbelieving the respondent, but on the other hand he thought that the police officers may have been mistaken in thinking that the respondent was driving without lights.
In paragraphs [8] to [10] the Magistrate addresses the burden and standard of proof and considers whether he is satisfied beyond reasonable doubt of the guilt of the respondent based on the evidence of the prosecution witnesses, or whether he is “perfectly satisfied” with the version of the respondent. I simply note as an aside that the expressions used by the Magistrate in these paragraphs when setting out his approach to the evidence suggest error in themselves. However, the outcome expressed in paragraph [11] is that after full and careful consideration of the evidence he is unable to find where the truth lies and therefore gives the benefit of the doubt to the respondent.
The paragraphs from [6] to [11] are all concerned with the offence of driving without headlights. Then in the following paragraph [12] the Magistrate states:
[12] In this case I exclude the breath analysis test on the basis that I find that the request to do so was unlawful since I am not satisfied that there was a Part 3 offence (suspected or otherwise) upon which the request could be lawfully made.
The Magistrate appears to have approached the question of whether to exclude the results of the breath test simply on the basis of his conclusion that the driving without headlights offence was not proved. The Magistrate has only addressed whether or not the respondent in fact had his lights on, rather than considering whether the police believed on reasonable grounds that a prescribed offence had been committed.
Notwithstanding the Magistrate’s somewhat enigmatic reference to “suspected or otherwise”, having examined the Magistrate’s reasons, and making allowance for their ex tempore nature, as well as the Magistrate’s busy work load,[28] it appears that His Honour has not directed his attention to the relevant issue. In my view the Magistrate erred in concluding that the request was unlawful based on his dismissal of the driving without headlights charge.
[28] Gannon v Police (2005) 93 SASR 289, 294-5.
Bunning v Cross
Further submissions were made by the parties as to the application of the Bunning v Cross discretion. The exercise of this discretion only becomes relevant in the event of a finding of unlawfulness. I consider that the Magistrate erred in finding unlawfulness. However, there is still the question of whether I should remit the matter back to the Magistrate, or alternatively order a retrial before a different Magistrate in the light of these reasons.
This requires consideration of two further matters. Firstly, whether the evidence before the Magistrate and his findings indicate that the respondent had not fulfilled its onus of proving that the police officer probably did not have belief on reasonable grounds. Secondly, that even if that onus was discharged, whether the Bunning v Cross discretion should be exercised so as to exclude the results of the breath analysis. Both of these issues have a common denominator in the actions of the police and the findings of credit made by the Magistrate in relation to the police.
Mr Grant submitted that the Magistrate had considered matters of credit of the police, in that he concluded that the they may have been mistaken and was therefore in doubt as to whether the offence of driving without headlights was made out. Mr Grant submitted that I was not required to overturn findings of credit, or re-exercise the Bunning v Cross discretion, simply because of the finding of the Magistrate that he is in doubt. It was submitted that such a finding was inconsistent with the conclusion that the request was unlawful or that the results of the results of the breath analysis should be excluded upon the exercise of discretion. It was submitted that even if the request had been unlawful, that the respondent failed to discharge the onus of proof in persuading the Magistrate that he should exercise his discretion to exclude the otherwise admissible evidence. For these reasons it was contended that it would be inappropriate to remit the matter to the Magistrate for further consideration.
Ms Fuller submitted that the Magistrate was in error when he said, “the police … may have been mistaken as to their observations.” Ms Fuller submitted that there were only two options, namely the headlights were on or the headlights were off, and that on the evidence there could not have been a possibility of a mistake by the police. Detailed written submissions were made in support of the propositions.
Ms Fuller submitted that if I am of the view that the Magistrate’s reasons are inadequate in that I am unable discern whether there was an appropriate basis for the exercise of the Bunning v Cross discretion, then an appropriate way of remedying these defects would be to remit the matter back to the Magistrate with directions for him to further consider the exercise of this discretion. It was contended that this would not be an appropriate case for me to interfere with the Magistrate’s assessment of the witnesses, which are essentially matters of credit, by allowing the appeal in the manner sought by the appellant. She argued that remitting the matter would be an appropriate way of remedying the deficiency in His Honour’s reasons, without putting the respondent in a position where an appellate court would overturn findings of credit made in his favour.
In this case, what is primarily in issue is the credit of the police officers, rather than the credit of the respondent. To set aside the Magistrate’s conclusion of a potential mistake by the police, would in the circumstances of this case be tantamount to finding that the police were lying and acting in bad faith and that they were not just merely incorrect or mistaken.
In the course of the trial, the respondent explicitly challenged the veracity and good faith of the police and accused them of deliberately manipulating the circumstances so that the respondent would drive so that they could then charge him with drink driving. It was suggested that the charge of driving without headlights was the means to achieve that end. The Magistrate’s finding that the police officers may have been “mistaken” strongly suggests that he rejected these allegations. This finding of mistake, in conjunction with his doubt as to where the truth lay, instead suggests that the Magistrate was of the view that the police honestly, albeit mistakenly, believed that the respondent’s headlights were off. A conclusion that the police officers may have been mistaken is insufficient to sustain a finding that that the police officers probably did not believe on reasonable grounds that the respondent had driven without headlights. I consider that the Magistrate’s finding as to mistake was open to him on the evidence.On this basis, the respondent failed to discharge its onus regarding the alleged unlawfulness of the police officer’s request. As a consequence it is not necessary for me to consider the possible application of the Bunning v Cross discretion. It follows that there was no unlawful request and that there was no adequate foundation for the results of the breath analysis to be excluded in the exercise of discretion.
Conclusion
For those reasons I allow the appeal. I set aside the dismissal of Count 1. I find Count 1 proved.
The next issue is whether I should remit the matter back to the same Magistrate for penalty to be imposed or whether I should do so. The appellant suggested that I should proceed with the penalty and I heard no contrary submission from the respondent on that point. In my view, this has attraction as it would be one less process required and I have been apprised of the relevant factual matters by reason of the appeal. I will therefore hear the parties as to penalty.
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