Police v Pocius - [2018] SASC 38

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v POCIUS
[2018] SASC 38
Judgment of The Honourable Justice Doyle
23 March 2018
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES
Appeal from a Magistrate’s finding that the respondent was not guilty of failing to comply with a police officer’s reasonable direction to submit to an alcotest contrary to s 47E(3) of the Road Traffic Act 1961 (SA).
The Magistrate excluded the evidence of the police officer’s verbal direction to exhale into an alcotest apparatus, and of the respondent’s refusal to do so.
The Magistrate did so on the basis of a finding that the police officer had de facto apprehended (arrested) the respondent while preparing to carry out the alcotest, yet had failed to inform him of his statutory rights under arrest. As the evidence was unlawfully obtained, this enlivened the Magistrate’s Bunning v Cross discretion to exclude it, and he exercised his discretion to that effect.
Having excluded this evidence, the Magistrate upheld the respondent’s no case to answer submission and found him not guilty of the s 47E(3) offence. The respondent’s no case submission also relied on an alternative contention that it had not been proved that the police officer used a relevantly approved alcotest device, however it was unnecessary for the Magistrate to determine this issue.
The police appealed on the grounds that the Magistrate erred in finding that the respondent was de facto apprehended, and in any event, in exercising his discretion to exclude the evidence. By way of notice of contention, the respondent contended that the no case submission should have been upheld on the basis there was no proof the alcotester was an approved apparatus.
Held per Doyle J, allowing the appeal:
1.      The Magistrate erred in finding that the respondent was de facto apprehended because in the circumstances:
a.      the respondent’s apprehension was insufficient to constitute a de facto apprehension as it lacked the necessary degree of interference with his liberty; and in any event,
b. the express powers under s 47E(1) of the Road Traffic Act (to stop a driver, to require that they submit to an alcotest, and to give directions in relation to the latter) also include implied authority for a police officer to do what is necessary to give effect to those express powers.
2.      As there was no de facto apprehension, the Magistrate erred in finding that the police officer failed to comply with the requirement to inform the respondent of his statutory rights under apprehension; in finding that the relevant evidence had been unlawfully obtained and the Bunning v Cross discretion enlivened; and hence in excluding the evidence.
3. As to the respondent’s alternative contention, proof of the offence under s 47E(3) did not require proof that the alcotester used (or to be used) to administer the test was an approved apparatus.
4.      The finding of no case to answer and consequential finding of not guilty should be set aside, and the matter remitted to the Magistrate for further hearing.
Road Traffic Act 1961 (SA) s 47E; Australian Road Rules r 215; Summary Offences Act 1953 (SA) s 75, s 78, s 79A; Passenger Transport Regulation 2007 (NSW) r 77C, referred to.
Bunning v Cross (1978) 141 CLR 54; Police v Bleeze (2012) 112 SASR 568; Czerwinski v Hayes (1987) 47 SASR 44; R v Webb & Hay (1992) 59 SASR 563; Scott v Pavia (1987) 46 SASR 563; R v Lavery (1978) 19 SASR 515; R v Conley (1982) 30 SASR 226; State of New South Wales v Exton [2017] NSWCA 294; Norton v R (2001) 24 WAR 488; State of New South Wales v Le [2017] NSWCA 290; Marshal v Twiggs (1987) 46 SASR 451; Burgess v Hall (1988) 48 SASR 394; Police v Spitzer (2003) 85 SASR 431; House v The King (1936) 55 CLR 499; Robinett v Police (2000) 78 SASR 85; DPP v Smith (1994) 179 LSJS 25; DPP v Polyukhovich (No 3) (1993) 170 LSJS 300, discussed.

POLICE v POCIUS
[2018] SASC 38
Magistrates Appeal: Criminal

DOYLE J: The respondent was charged with two offences: driving at night without headlights (contrary to r 215(1) of the Australian Road Rules), and failing to comply with all reasonable directions of a police officer in relation to a requirement to submit to an alcotest (contrary to s 47E(3) of the Road Traffic Act 1961 (SA)). The respondent pleaded guilty to the first of these offences, but contested the second.
At the trial of the second offence, the Magistrate excluded evidence of the police officer’s direction to the respondent to exhale into an alcotest apparatus, and of the respondent’s refusal to do so. His Honour did so on the basis that by detaining the respondent the police officer in question had de facto apprehended the respondent. The police officer having then failed to inform the respondent of his rights upon apprehension under s 79A of the Summary Offences Act 1953 (SA), the Magistrate reasoned that the evidence of what followed had been unlawfully obtained, and should be excluded as an exercise of the Bunning v Cross[1] discretion. Having excluded this evidence, the Magistrate upheld the respondent’s no case to answer submission and found the respondent not guilty of the second offence.
[1] Bunning v Cross (1978) 141 CLR 54.
In this appeal against the Magistrate’s acquittal, the appellant contends that the Magistrate erred:
1. in holding that the respondent was de facto apprehended, with the result that the relevant evidence was obtained in contravention of s 79A of the Summary Offences Act; and
2. alternatively, and in any event, in his exercise of the Bunning v Cross discretion to exclude the evidence.
A further issue arose by way of an alternative contention raised by the respondent. At trial the respondent had argued that an alternative basis for upholding his no case to answer submission was that the prosecution had not adduced any evidence that the police officer had used a relevantly approved alcotest apparatus. While it was not necessary for the Magistrate to reach a concluded view on this issue, the respondent contended that it was an alternative basis for upholding the no case submission and hence dismissing this appeal.
Factual background
There was little dispute about the facts in this matter. For the purposes of determining this appeal it is appropriate to proceed on the basis that the evidence established, or at least would (if accepted) establish, the following matters.
During the night of 23 July 2016, Senior Constable Evans saw a red Landcruiser driving at night without headlights. Evans gave evidence to this effect, and it could be seen through the dashboard camera in his police car.
Evans reasonably suspected, based upon what he had seen, that the driver had committed an offence under the Australian Road Rules. He was thus empowered under the Road Traffic Act to, and did, direct the driver to stop the Landcruiser. He did so by using his flashing lights and siren.
The respondent driver of the Landcruiser stopped and got out of his vehicle. Evans also got out of his vehicle, and as he approached the respondent said “How’re you going?” This was captured by the dashboard camera, but the conversation that followed was not. However, the conversation was captured by a different camera that Evans was wearing on his body.
Evans asked the respondent to produce his licence. While the respondent looked for it in his wallet, Evans appeared to be inserting a mouthpiece into the alcotest device that he had in his hands. Both asked each other to “hang on”. The respondent handed his licence to Evans, who thanked him and then asked the respondent whether he had had anything to drink. The respondent replied “yes”. Evans again asked the respondent to “hang on”, adding “I just gotta try and get this alcotest to work”.
Evans returned to the front passenger side of his car and continued attempting to operate the alcotester. The respondent remained nearby. Evans’ attempts continued to be unsuccessful. After a couple of minutes he used his radio to ask another police officer to bring him a working alcotester. He then called out to the respondent, telling him that he was “just waiting for another patrol to bring an alcotest”.
After another minute or so, the respondent approached Evans at the front passenger door of his car. Evans asked him how much he had had to drink, to which the respondent answered “I’ve had a couple of wines, but that’s about it”, adding that he had had these drinks “Just recently. I was at the pub”. Evans said “We’ll just get you tested alright”, and the respondent said “Sure; [I’ll] just wait here.” The conversation continued for a few moments, with the respondent acknowledging that he had forgotten to put his lights on, which Evans said was in his experience a sign that someone had been drinking.
Evans continued to attempt to operate the alcotest device. After a few further minutes (and about seven minutes in total since Evans had first spoken to the respondent), other police arrived with a working alcotester.
Evans approached the respondent with the alcotester, and said “Righto. Get you to submit to this alcotest, so. You just have to take a very deep breath, and blow until I say stop. You don’t have to blow very hard …” The respondent waved the alcotester away, saying “No. I’m not interested in blowing”, while shaking his head.
After the respondent added “I don’t believe in blowing”, Evans explained that the respondent was required to listen to his direction about exhaling into the instrument, and that if he failed to comply he would be guilty of an offence which would result in the loss of his licence for 12 months and his vehicle being impounded.
The respondent said that he did not want to argue, but that he preferred not to blow. When asked whether he had a medical reason for refusing, the respondent said he did, explaining it was “because I take medications”. Evans explained that he would give the respondent the opportunity to have blood taken instead of blowing, but the respondent said “no” to this, and that he refused to have his blood taken. Upon further questioning, the respondent confirmed that he was refusing to be tested and that he was aware of the consequences.
Evans noted the serial number of the alcotester and returned it to the other police. Evans then had a conversation with his supervisor. Evans told him what had transpired, and that he was intending to give the respondent an “Instant Loss of Licence” (ILOL) notice, and to impound his car. The supervisor told Evans that he could not impound the car for the offence of refusing an alcotest, and suggested that he read inside the front cover of his ILOL book. Evans looked for his book and began reading it. He then approached another police officer to obtain a copy of the wording for the prescribed advice in relation to an alcotest refusal because he understood (presumably from the ILOL book) that this advice should be provided verbatim. That police officer provided him with the wording of the prescribed advice.
Evans told the respondent to come and stand near the bonnet of his car, because he needed to complete some paperwork. He placed some papers on the bonnet of his car, and began taking the respondent’s personal details.
The camera footage did not record Evans giving the respondent the prescribed oral advice, but a document (MFI P3) tendered through Evans recorded that, and Evans gave evidence that, he gave the respondent the prescribed oral advice. The document also recorded that the respondent (again) refused to exhale into the alcotester. The respondent signed the document, at least impliedly accepting its accuracy.
Upon recommencement of the footage from the camera on Evans’ body, Evans gave the respondent a notice (of licence disqualification). He returned the respondent’s licence to him, but explained that he was not entitled to drive and that driving while disqualified was an offence punishable by imprisonment. The respondent had spoken by telephone with his wife, and arranged for her to come and collect him.
Evans and the respondent returned to their respective cars, and Evans turned the camera off.
Legislation
Division 5 of Part 3 of the Road Traffic Act establishes a scheme that addresses drink and drug driving. The apparent object of the scheme is to reduce the incidence of death and injury consequent upon motor vehicle accidents caused by the intoxication of drivers. The scheme depends for its effective operation on the ability of the police to require those driving vehicles to submit to testing.[2]
[2] Police v Bleeze (2012) 112 SASR 568 at [10].
Since the establishment of the regime in 1967, it has included an offence of failing to comply with all reasonable directions of a police officer in relation to the requirement to submit to testing. That offence currently exists in s 47E(3) of the Road Traffic Act. So that this offence may be understood in its broader legislative context, it is appropriate to set out in full the relevant subsections of s 47E:
47E—Police may require alcotest or breath analysis
(1) Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person—
(a)     is driving, or has driven, a motor vehicle; or
(b)     is attempting, or has attempted, to put a motor vehicle in motion; or
(c)     is acting, or has acted, as a qualified supervising driver for the holder of a permit or licence,
the police officer may require the person to submit to an alcotest or a breath analysis, or both.
(2) A police officer may direct a person driving a motor vehicle to stop the vehicle and may give other reasonable directions for the purpose of making a requirement under this section that a person submit to an alcotest or a breath analysis.
(2a) A person must forthwith comply with a direction under subsection (2).
Maximum penalty: $2 900.
(2ab) A person must not, in the exercise of random testing powers, be required to submit to a breath analysis unless an alcotest conducted under subsection (1) indicates that the prescribed concentration of alcohol may be present in the blood of the person.
(2b) Without derogating from section 47DA or 47EA, an alcotest or breath analysis to which a person has been required to submit under subsection (1) may not be commenced more than 8 hours after the conduct of the person giving rise to the requirement.
(2d) The performance of an alcotest or breath analysis commences when a direction is first given by a police officer that the person concerned exhale into the alcotest apparatus or breath analysing instrument to be used for the alcotest or breath analysis.
(2e) The regulations may prescribe the manner in which an alcotest or breath analysis is to be conducted and may, for example, require that more than one sample of breath is to be provided for testing or analysis and, in such a case, specify which reading of the apparatus or instrument will be taken to be the result of the alcotest or breath analysis for the purposes of this and any other Act.
(3) A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a police officer.
Penalty:
(a)     for a first offence—a fine of not less than $1 100 and not more than $1 600;
(b)     for a subsequent offence—a fine of not less than $1 900 and not more than $2 900.
(4)     It is a defence to a prosecution under subsection (3) that—
(a)     the requirement or direction to which the prosecution relates was not lawfully made; or
(ab) the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to—
(i) the consequences of refusing or failing to comply with the requirement or direction; and
(ii) the person's right to request the taking of a blood sample under subsection (4a); or
(b)     there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction.
(4a) If a person refuses or fails to comply with the requirement or direction under this section by reason of some physical or medical condition of the person and forthwith makes a request of a police officer that a sample of his or her blood be taken by a medical practitioner, a police officer must do all things reasonably necessary to facilitate the taking of a sample of the person's blood—
(a)     by a medical practitioner nominated by the person; or
(b)     if—
(i) it becomes apparent to the police officer that there is no reasonable likelihood that a medical practitioner nominated by the person will be available to take the sample within 1 hour of the time of the request at some place not more than 10 kilometres distant from the place of the request; or
(ii)     the person does not nominate a particular medical practitioner,
by any medical practitioner who is available to take the sample.
(5)No person is entitled to refuse or fail to comply with a requirement or direction under this section on the ground that—
(a)     the person would, or might, by complying with that requirement or direction, furnish evidence that could be used against himself or herself; or
(b)     the person consumed alcohol after the person last drove a motor vehicle or attempted to put a motor vehicle in motion and before the requirement was made or the direction given.
…
In the circumstances of this case, Senior Constable Evans was, under s 47E(1), empowered to require that the respondent submit to an alcotest if he believed on reasonable grounds that the respondent had driven a motor vehicle. There is no doubt that Evans held this belief, and did so on reasonable grounds.
There is authority to the effect that while s 47E(4)(a) refers to the unlawfulness of a direction as a “defence”, it is better seen as a negative element of the offence, with the result that the lawfulness of the direction must be proved beyond reasonable doubt by the prosecution.[3]
[3] Police v Bleeze (2012) 112 SASR 568 at [14], [48]; Czerwinski v Hayes (1987) 47 SASR 44 at 45, 50, 60.
It follows that the offence of refusing to comply with all reasonable directions of a police officer in relation to a requirement to submit to an alcotest contrary to s 47E(3) required that the prosecution establish beyond reasonable doubt that:
1.   Senior Constable Evans made a reasonable and lawful direction in relation to the requirement to submit to an alcotest;
2.   the respondent refused or failed to comply with that direction after being given the prescribed oral advice, and the opportunity to comply; and
3.   there was no good cause for that refusal or failure.
The trial
At the commencement of the trial, the Magistrate was advised by defence counsel that a voir dire hearing was sought in order to determine the admissibility of the evidence of the words and conduct of the respondent as recorded on the camera footage, and about which Senior Constable Evans was to give evidence. It was contended that this evidence had been obtained unlawfully, in contravention of s 79A of the Summary Offences Act, and that it should be excluded in an exercise of the Bunning v Cross discretion. Defence counsel also informed the Magistrate that in the event that the evidence was excluded there would be a no case to answer submission.

The Magistrate determined to hear the prosecution case, and to receive de bene esse the relevant evidence (essentially, the oral evidence of Senior Constable Evans, the camera footage and the document recording the prescribed oral advice (MFI P3)).
At the conclusion of the prosecution case, the Magistrate heard argument in relation to the exclusion of the above evidence and the consequential no case to answer submission. The respondent also provided the Magistrate with written submissions.
The Magistrate’s reasons
In upholding the respondent’s application to exclude the relevant evidence, and finding no case to answer, the Magistrate gave some relatively brief ex tempore reasons. The reasons referred to, and in some respects adopted, the written submissions of the respondent.
The Magistrate commenced by noting the terms of ss 47E(1) and (2), which empowered a police officer to require that a person reasonably believed to have driven a vehicle submit to an alcotest, and to make directions for that purpose. His Honour also noted that s 47E(2d) provided that an alcotest commenced when the police officer first directed that the person exhale into the alcotest apparatus.
The Magistrate then referred to the respondent’s summary of the factual narrative, which was in terms consistent with the summary set out earlier in these reasons. The Magistrate accepted that there was no evidence that Senior Constable Evans had given any direction to the defendant to exhale into the original alcotester which was not working; that Evans’ statement “we will just get you tested” was not a direction; that Evans did not expressly state that the device in his hand was not working; but that Evans had indicated that he was waiting for another patrol to bring another alcotester and then proceeded to ask the respondent some questions about how much he had had to drink.
The Magistrate found that while Evans did not tell the respondent to remain for the purpose of submitting to an alcotest, he also did not tell the respondent that he was free to leave. The Magistrate accepted the submission that the respondent would reasonably have believed that he was not free to leave and that he was required to remain in the vicinity for the attendance of another patrol.
The Magistrate also accepted the submission that as there had been no direction to exhale given at that point, the performance of the alcotest had not commenced. The respondent’s detention was thus not able to be justified by reference to a continuing direction. The Magistrate accepted that in the absence of any direction in relation to a requirement to submit to an alcotest, there was no basis to detain the respondent at the scene, and he should have been advised he was free to leave.[4]
[4] Senior Constable Evans had obtained the respondent’s licence details, and any infringement notice issued for breach of r 215(1) of the Australian Road Rules was not required to be personally served and could have been posted to him.
The Magistrate held that the actions of Senior Constable Evans satisfied the objective test for de facto apprehension, in that they would have induced a reasonable person in the position of the respondent to suppose that he was not free to leave.[5] Further, as a result of that de facto apprehension of the respondent, s 79A of the Summary Offences Act had not been complied with, and the respondent’s rights under that section were not made available to him.
[5] Citing R v Webb & Hay (1992) 59 SASR 563.
I interpolate that s 79A(1) of the Summary Offences Act provides that when a person is apprehended by a police officer, he is entitled to make a telephone call to a nominated relative or friend to inform that person of his whereabouts, and where apprehended on suspicion of having committed an offence, he is entitled (i) to have a solicitor, relative or friend present during any interrogation or investigation; (ii) to be assisted during any interrogation by a translator if English is not his native language; and (iii) to refrain from answering any question. Further, under s 79A(3), a police officer must, as soon as is reasonably practicable after the apprehension of a person, both inform that person of his rights under subsection (1), and warn him that anything that he may say may be taken down and used in evidence. The authorities makes it plain that the notion of “apprehension” under s 79A includes not only formal apprehension or arrest, but also de facto apprehension or arrest.
The Magistrate accepted the submission that, just as a breath analysis test was an “investigation” for the purposes of s 79A,[6] so too was an alcotest. His Honour accepted that the respondent was thus entitled to have present a solicitor, relative or friend, and should have been informed of his right to do so. Further, he was questioned about the amount of alcohol he had consumed without a caution being administered. The Magistrate concluded that the failure to comply with s 79A enlivened the Bunning v Cross discretion to exclude the evidence obtained in contravention of those rights.
[6] Citing Scott v Pavia (1987) 46 SASR 563.
In support of the exercise of this discretion in favour of exclusion of the relevant evidence, defence counsel contended:
The footage reveals a disturbing lack of regard for proper procedure, despite the ostensible experience of S/C Evans in the administration of alcotests. It is clear that, absent the advice via radio from the Vixen that S/C Evans was required to administer the prescribed oral advice, S/C Evans would have proceeded to issue an ILOL, report the defendant for refusing to comply and impound his vehicle. His intention to do these things without having complied with his statutory obligations is evident from the footage as he advised the Vixen that this was what he was proposing to do and it was only after he was made aware of the requirement to provide the prescribed oral advice that he then looked for a PD 207 in his pad in the police vehicle. His evidence that he had those forms in the vehicle but simply could not find one should be rejected. The failure to advert to the requirement to provide that advice or to have to hand a form that contained the advice required by law to be provided upon a refusal to comply is a serious omission and is indicative of at best a slip shod approach to and at worse a reckless disregard of important statutory procedures and rights.
Referring to this submission, the Magistrate reasoned that he had made findings that supported that submission, adding that:
Senior Constable Evans had indeed made up his mind and in his conversation with [his supervisor] when he was told what to do, following which he looked for his [prescribed advice] form (which he was unable to find) are submissions that I would have to agree with in the circumstances which cause me to conclude that I should reject all the evidence (exhibits) received de bene esse.
Having not given a caution as a result of his detention the evidence obtained in the interim should be excluded in my view as being a breach of s79A of the Summary [Offences] Act.
The Magistrate concluded that there was no case to answer, and found the respondent not guilty of the offence of failing to comply with a direction under s 47E(3) of the Road Traffic Act.
Was the respondent apprehended?
The Magistrate’s conclusion that the Bunning v Cross discretion was enlivened by reason of a failure to comply with s 79A of the Summary Offences Act was predicated upon a conclusion that the respondent was de facto apprehended. The appellant challenges the correctness of that conclusion.
The concept of “apprehension” in s 79A of the Summary Offences Act is the same as that which exists in ss 75 and 78 of that Act. It may also be referred to as, and is interchangeable with the concept of, arrest. It extends beyond the situation of formal apprehension or arrest – that is, where words connoting apprehension or arrest are used by the police officer. It extends to what may be described as de facto apprehension or arrest – that is, where a person has been detained, or there has otherwise been an interference with, or deprivation of, their liberty, in circumstances sufficient to warrant a conclusion that they have been apprehended or arrested despite the absence of any words to that affect. De facto apprehension may occur without any intention on the part of the police officer to make an arrest.
Upon apprehension in either sense, a series of protective provisions,[7] containing both rights (on the part of the apprehended person) and obligations (on the part of the police) are triggered. They include, for example, the s 78(1) obligation on the part of the police to deliver the apprehended person, as soon as reasonably practicable, to a police station or facility. They also include the rights and obligations under s 79A that I have earlier summarised.
[7] As they were described by Duggan J in DPP v Polyukhovich (No 3) (1993) 170 LSJS 300.
Principles governing de facto arrest
Confining attention to situations where no formal words of apprehension or arrest have been used, a consideration of the circumstances (and in particular, the police officer’s words and conduct) may warrant the conclusion that a person has been de facto apprehended or arrested. Further, given the significance of the interference with a person’s liberty when they are de facto apprehended, and the importance of the provision of the above rights and obligations when that occurs, the circumstances in which those rights and obligations are triggered should not be narrowly construed.
However, it does not follow that every detention or interference with a person’s liberty by a police officer involves a de facto apprehension. It is plain that Parliament must have intended some threshold level of detention or interference before there will have been an apprehension, and the triggering of the attendant rights and obligations.
In R v Lavery,[8] King J (as he then was) said:[9]
A suspect may, voluntarily and without constraint, accede to a police officer’s request to accompany him and, if he does so, there is of course no interference with his liberty. This is so even if he goes reluctantly out of respect for authority or fear that a refusal will be construed as an indication of guilt or some other similar motive. The suspect’s liberty is not under restraint simply because the police officer would or might arrest him if he were to exercise his right to depart or to refuse to accompany the police officer. If, however, the circumstances are such as to convey, notwithstanding the use of words of invitation or request, that the suspect has no real choice, his freedom is under restraint and he cannot be regarded as accompanying the police officer voluntarily. If such a situation comes into existence, and the police officer does not wish to make an arrest, it is incumbent upon him to make it clear by words or actions that the suspect is free to refuse the invitation and is free to depart.
[8] R v Lavery (1978) 19 SASR 515.
[9] R v Lavery (1978) 19 SASR 515 at 516-517.
Subsequently, in R v Conley,[10] King CJ described the circumstances of de facto apprehension in similar terms:[11]
A person is apprehended for the purposes of ss 75 and 78(1) when he is deprived of his liberty by a police officer irrespective of whether formal words of arrest are used. Frequently a police officer invites or requests a suspect to accompany him to a police station or to some other place for the purpose of pursuing police enquiries and the suspect voluntarily complies. Such an invitation or request does not amount to deprivation of liberty (The Queen v King, per King J at pp 128-129), even though the police officer would have made an arrest if the suspect had not complied and even though the suspect believed that that would be the result of non-compliance. If, however, the circumstances are such that the words uttered, although in form an invitation or request, would in the circumstances convey to a reasonable person that he had no genuine choice as to whether to accompany the police officer, it becomes incumbent upon the police officer to make it clear that the suspect is not under arrest and is free to refuse to accompany him, and, in the absence of such an intimation, the apparent invitation or request may constitute an apprehension.
[10] R v Conley (1982) 30 SASR 226.
[11] R v Conley (1982) 30 SASR 226 at 239-240.
These formulations of the circumstances constituting de facto apprehension have been applied numerous times by this Court,[12] as well as interstate courts.[13]
[12] For example, in R v Miller (1980) 25 SASR 170 at 184; R v S and J (1983) 32 SASR 174 at 185-186; R v Webb & Hay (1992) 59 SASR 563 at 571; DPP v Polyukhovich (No 3) (1993) 170 LSJS 300.
[13] State of New South Wales v Exton [2017] NSWCA 294 at [44]; Norton v R (2001) 24 WAR 488 at [124].
In a recent decision of the New South Wales Court of Appeal in State of New South Wales v Le,[14] the Court was concerned with an allegation of false imprisonment. The Court emphasised that an interference with liberty in the form of detention may fall short of either arrest or false imprisonment. It is a matter of fact and degree. The Court explained:[15]
A person is not detained in the relevant sense if his or her departure from a planned course is voluntary or, if at the request or direction of another person, consensual. Nor will a person be detained in a relevant sense because prevented or delayed in carrying out his or her intended course by the exigencies of everyday events, such as being caught up in a crowd. As explained in Collins v Wilcock:
“Furthermore, the word ‘detaining’ can be used in more than one sense. For example, it is a commonplace of ordinary life that one person may request another to stop and speak to him; if the latter complies with the request, he may be said to do so willingly or unwillingly, and in either event the first person may be said to be ‘stopping and detaining’ the latter. There is nothing unlawful in such an act. If a police officer so ‘stops and detains’ another person, he in our opinion commits no unlawful act, despite the fact that his uniform may give his request a certain authority and so render it more likely to be complied with. But if a police officer, not exercising his power of arrest, nevertheless reinforces his request with the actual use of force, or with the threat, actual or implicit, to use force if the other person does not comply, then his act in thereby detaining the other person will be unlawful.”
There are two aspects of this passage which require clarification. First, read in context, it is clear that the characterisation of the conduct in the final sentence as “unlawful” means it was conduct requiring justification. Secondly, there may be no clear dividing line between the effect of the officer’s uniform on the one hand, and an implicit threat to use force in the event of non-compliance, on the other.
This latter point is often an important issue in particular circumstances. The test, however, is objective in the sense that the court must assess what a reasonable person in the particular circumstances of the complainant would have inferred from the conduct of the officer. The subjective state of mind of the complainant will not be determinative.
[14] State of New South Wales v Le [2017] NSWCA 290.
[15] State of New South Wales v Le [2017] NSWCA 290 at [5]-[7].
It seems to me that determination of whether the respondent in the present case was apprehended involves consideration of two issues. First, whether the facts and circumstances involved the threshold level of detention or interference with the liberty of the respondent to warrant a conclusion that he was de facto apprehended. Secondly, whether, even if the facts and circumstances might have been sufficient to warrant this conclusion, there was nevertheless some other lawful basis or justification for the detention or interference such that it does not require a conclusion of de facto apprehension. One such justification might be the existence of some implied power on the part of the police officer to detain or interfere in the relevant way, without making any arrest.
In State of New South Wales v Le, the Court was concerned with the Passenger Transport Regulation 2007 (NSW), and in particular reg 77C(2), which provided power on the part of an authorised officer to direct a person using a concession ticket to produce evidence of their entitlement to that ticket. The defendant was detained following a request by the authorised officer that he produce his concession card. The defendant’s request to leave was met with a response from the authorised officer to the effect that he was not to leave and was being detained.
Having concluded that the defendant was non-consensually detained, the Court reasoned that the exercise of power thus required justification. In holding that there was an implied power to stop and detain for the purpose of ensuring production of the relevant evidence, the Court reasoned:[16]
That leaves the critical question as to the operation of subcl 77C(2), namely whether it carries within it an implied power to stop and detain a person for the purpose of carrying out the exercise which it envisages, namely the giving of a direction and the production of evidence. While it is true that the courts will not read legislation as conferring authority to interfere with the fundamental rights of individuals, absent clear words or a necessary implication, there are two limitations implicit within that proposition. The first is that express words are not essential; the second is that what may be derived by implication will turn on the legislative context and the nature of the interference being authorised.
In the present case, there are no express words such as may appear in other contexts authorising an officer to require a person to stop, listen to the direction and remain until the inquiry has been completed. For example, there is no equivalent language to that found in the Road Transport Act 2013 (NSW) empowering an authorised officer to direct the driver of a vehicle to stop the vehicle and not move the vehicle. On the other hand, the conferral of a power (under cl 77E) to request a ticket for inspection, subject to a penalty for non-compliance, necessarily implies a power to make the request and, if necessary, stop the person to allow the request to be made and responded to. The same reasoning applies to cl 77C(2). Accordingly, the steps taken by the officer to direct the production of evidence demonstrating entitlement to the concession ticket carries with it the implied power to detain the person whilst those steps were undertaken. The fact that subcl (3) requires that the person must “immediately comply” with the direction demonstrates that the time of the relevant detention will be quite short. A failure to comply will form the basis for taking other steps, including arrest, in relation to the commission of an offence. That stage was not reached in the present case.
To impose an even tighter constraint on the powers conferred by subcl 77C(2), as proposed by the respondent, is not to advance the cause of liberty, but to force officers to move immediately they are confronted by non-compliance to exercise their far more intrusive powers of arrest. That construction would not best give effect to the purpose revealed by the legislative scheme.
[16] State of New South Wales v Le [2017] NSWCA 290 at [18]-[20].
Against the background of these general principles governing de facto apprehension, and detention in circumstances short of apprehension, I turn now to consider their operation in the context of the exercise of police power under s 47E of the Road Traffic Act.
Application of principles in context of Road Traffic Act
In Marshal v Twiggs,[17] the defendant driver was stopped by a police officer who had formed a view that the defendant had not only breached the Road Traffic Act by his manner of driving but also may have been affected by alcohol. He was told he would be required to submit to an alcotest, and he said that he would not take the test. The police officer said “I am therefore arresting you for refusing to submit to an alcotest, straddling lines and failing to keep left.” The defendant was then cautioned and informed of some, but not all, of his rights consequential upon arrest. He was taken to a police station where he submitted to (and failed) a breath analysis. The defendant was charged with both the s 47E(3) offence of failing to comply with all reasonable directions in relation to submission to an alcotest, and the s 47B offence of driving with the prescribed concentration of alcohol present in his blood.
[17] Marshal v Twiggs (1987) 46 SASR 451.

Olsson J accepted the defence submission that the defendant had been arrested, thus triggering the operation of the protective provisions of s 79A of the Summary Offences Act. Further, because a breath analysis was an “investigation” for the purposes of that section, and the rights under that section had not been afforded to the defendant, the Bunning v Cross discretion to exclude evidence unlawfully obtained had been enlivened.
His Honour explained:[18]
Whilst I am far from suggesting that s 79a necessarily has application to all circumstances in which a person is requested to submit to a breath analysis test, nevertheless, with all due respect to the learned magistrate, I entertain no doubt that it did apply to the situation of the appellant on the occasion of 29 December 1985. The facts undoubtedly were that the appellant had been arrested on his refusal to submit to an alcotest (an offence in its own right), the police officers suspected that he was affected by alcohol and probably had a blood alcohol concentration in excess of 0.08 per cent and they desired him to submit to the test as part of their inquiry into whether the suspected offence had actually been committed.
I consider that, in such circumstances, the onus was upon the police to inform him of his rights pursuant to s 79a and to facilitate his exercise of them. Such rights are of particular importance, for they bear (inter alia) upon the issue of what advice may have been tendered to him as to whether or not to seek the taking of a blood sample.
In the instant case, notwithstanding the initial statement as to the making of a telephone call made to him at the scene of the arrest, the appellant, in the events which subsequently transpired, does not really seem to have been afforded that opportunity prior to his lodgement in the cells. He was certainly not aware of the substance of s 79a(1)(b) of the Summary Offences Act 1953.
That being so the learned magistrate was clearly called upon, prior to determining the issues arising on the first charge, to consider the exercise of a discretion of the nature of that adverted to in Bunning v Cross (1978) 141 CLR 54 . He did not do so.
In so concluding I am not to be taken as adopting an approach which, it might be suggested, would render the scheme of the legislation unworkable.
[18] Marshal v Twiggs (1987) 46 SASR 451 at 458-559.
A similar issue arose in Scott v Pavia.[19] The defendant driver, after committing a driving offence under s 49 of the Road Traffic Act, and then failing an alcotest lawfully administered under s 47E, was directed by a police officer to wait for a breath analysis unit to arrive. The defendant subsequently registered a blood alcohol concentration in excess of the proscribed level, and was charged with an offence under s 47B of the Road Traffic Act.
[19] Scott v Pavia (1987) 46 SASR 563.
In answer to that charge, the defendant contended that upon the direction that he wait for the breath analysis unit to arrive, he was arrested; and that as he was not then afforded his rights under s 79A of the Summary Offences Act, it followed that the evidence subsequently obtained of his blood alcohol concentration was unlawfully obtained, and ought to have been excluded in an exercise of the Bunning v Cross discretion.
Bollen J rejected that contention. His Honour referred to the test for de facto apprehension, as articulated by King CJ in R v Conley.[20] His Honour then observed:[21]
It will be noted that his Honour said that the "apparent invitation" may constitute an apprehension. No formality is needed to constitute an apprehension nor, indeed, an arrest. If the defendant is deprived of his right to move away or decline to go with the officers then he may have been apprehended or arrested - call it what one will. Here the defendant was directed to wait. The officers would not have allowed him to leave. One can readily understand and acknowledge the force of Mr Edwardson’s submissions.
[20] R v Conley (1982) 30 SASR 226 at 239.
[21] Scott v Pavia (1987) 46 SASR 563 at 566.
Bollen J then referred to, but distinguished, Marshal v Twiggs on the basis that in that case the defendant had been arrested “in the full formal sense”. After setting out the passage from Olsson J’s reasons in that case that I have extracted above, Bollen J reasoned:[22]
These remarks demonstrate the difference between Marshal v Twiggs and this case. Olsson J said in effect that when there is an arrest then s 79a comes into play. His Honour meant and was referring to formal arrest. He was referring to the formal statement of arrest, a taking of the defendant under arrest into custody and a prompt delivery, as required by law, to a police station and charging. Mr Wainwright emphasised his Honour's remarks in the penultimate paragraph of that which I have quoted above. His Honour does say that he who accedes to a request to submit to a breath analysis, that is the step after the alcotest, has not been apprehended. Mr Wainwright turned the point of Mr Edwardson's reliance on Marshal v Twiggs against Mr Edwardson to suggest that the reasoning of Olsson J supported a submission that the defendant here was not apprehended at all. When one considers all that happens and must happen on a formal arrest I think one is left with the distinct impression that Parliament cannot have intended the word "apprehended" in s 79a to apply to a direction to a motorist to wait for the arrival of an apparatus for testing his breath to determine the concentration of alcohol in his blood. No doubt the motorist's right to silence exists while he waits. No doubt a solicitor could advise him about his rights if he came. But granting all that I do not think that Parliament meant that the waiting motorist was to be regarded as an "arrested" or "apprehended" person.
[22] Scott v Pavia (1987) 46 SASR 563 at 567-568.
Bollen J next referred to the prosecutor’s submissions that to apply s 79A to the situation where a person was required to stay on the scene pending the arrival of a breath analysis unit would render the drink driving provisions unworkable. For example, affording the opportunity to make a phone call, and permitting the presence of a solicitor, relative or friend, prior to administration of the breath analysis might cause significant practical difficulty. Bollen J reasoned:[23]
I agree with these submissions. No doubt the motorist who is requested to wait should not be subjected to any attempted interrogation. No doubt in general s 79a entitles a man to have a solicitor, relative or friend present during an investigation. A breath analysis is an investigation. But in the case of a motorist directed to wait for the arrival of the apparatus for analysing his breath I do not think Parliament intended that he should be covered by s 79a. In the interest of promoting road safety Parliament thinks that citizens should sometimes endure a tiresome, no doubt nerve-wracking wait without a right to demand the use of telephone or presence of anyone else. After all only those who fail the alcotest will be required to wait. I think that these submissions of Mr Wainwright are consistent with the views of Olsson J that he who has been requested to wait for a breath test has not been apprehended. I notice that Olsson J has not expressly spoken of a motorist waiting for the breath test but he obviously would have realised that some motorists would have had to wait after failing an alcotest for the arrival of the unit which could analyse their breath. It is, unfortunately, a common enough experience.
[23] Scott v Pavia (1987) 46 SASR 563 at 569.
Thus, while in Marshal v Twiggs Olsson J had held that a formal arrest while awaiting a breath analysis triggered the protective provisions of s 79A, in Scott v Pavia, Bollen J held that a direction to wait (as permitted by s 47E(2)) did not.
In Burgess v Hall[24] the Full Court applied Scott v Pavia. In that case the defendant driver turned into a side street as he approached a breath testing station. He was required to, and did, submit to an alcotest, which he failed. He was then told by the police officer that he was required to accompany him (or “had to go with him”) to the breath testing station to be tested on a breath analysis instrument.[25] When he refused (or at least failed) to submit to a breath analysis, he was charged with failing to comply with all reasonable directions contrary to s 47E(3) of the Road Traffic Act. The defendant sought exclusion of the evidence of his failure to comply, contending that upon being required to accompany the police officer to the breath testing station, he was arrested; and that having not thereafter been afforded his rights under s 79A, the Bunning v Cross discretion had been enlivened.
[24] Burgess v Hall (1988) 48 SASR 394.
[25] The defendant gave evidence that he thought he had no choice but to accompany the police officer the approximately 120 metres to the breath testing station.
The Magistrate at first instance had rejected this argument, holding that while the police officer told the defendant that he had to accompany him, and the defendant believed he had no choice or alternative, there had been no apprehension of the defendant. The police officer’s authority to direct the defendant to accompany him came not from the defendant being in his custody, but rather from the Road Traffic Act as a result of the positive alcotest. The Magistrate added that if the defendant had attempted to run away he would no doubt have been arrested – but for disobeying a lawful direction, not for escaping from custody. The Magistrate added that there were no grounds for the police officer to arrest the defendant merely because of the positive alcotest; nor had he purported to do so. The Magistrate did not consider that the defendant was in de facto custody any more than a driver who was stopped immediately adjacent to a random breath testing station and who, whilst still seated in his car, recorded a positive alcotest and was asked to alight and take a breath analysis.[26]
[26] Burgess v Hall (1988) 48 SASR 394 at 401.
The Full Court (Matheson, Bollen and O’Loughlin JJ) also rejected the defendant’s argument, and in particular rejected the contention that the defendant had been apprehended for the purposes of s 79A. Matheson J, after setting out lengthy passages from both Marshal v Twiggs and Scott v Pavia, concluded merely that Bollen J’s decision in the latter case was correct and that “his reasoning, mutatis mutandis, applies here, and is fatal to the [defendant’s] argument.”[27]
[27] Burgess v Hall (1988) 48 SASR 394 at 403.
Bollen J also rejected the defendant’s argument. His Honour explained:[28]
So far as the second ground is concerned I adhere to what I said in Scott v Pavia (unreported, 26 September 1987). There the motorist was directed to await the arrival of the breath analysis unit. Here he was directed, after the alcotest, to walk 120 metres to the breath analysis van. I think that my reasons in Scott v Pavia can be applied to the facts here. This appellant was not "apprehended" within the meaning of s 79(a) of the Summary Offences Act 1953. The magistrate came to the correct conclusion. There is much force in the magistrate's remarks "but Dohne's authority to direct the defendant to the van arose not from the fact that he was in custody but directly from the Road Traffic Act as a result of the positive alcotest". The idea of the man in the appellant's position in this case being under apprehension is inimical to the scheme of the Road Traffic Act in relation to alcotests and breath analysing.
[28] Burgess v Hall (1988) 48 SASR 394 at 406.
O’Loughlin J agreed with the reasoning of both Matheson and Bollen JJ.
Finally, I mention the further decision of Olsson J in DPP v Smith.[29] That case was factually removed from the present context in that it involved a police officer who stopped and detained the defendant for the purposes of carrying out a search of his person. The defendant’s counsel contended that upon the defendant being detained, he was de facto apprehended according to the test in R v Conley, thus triggering the protective provisions of s 79A of the Summary Offences Act. Olsson J rejected this argument. In so doing, his Honour not only applied a line of reasoning that justified a period of detention by reference to some other statutory power or authority, but also suggested obiter that similar reasoning was applicable in respect of the relevant provisions of the Road Traffic Act. His Honour reasoned:
It was, in my view, a situation in which the police officers were well justified in deciding to stop, search and detain the accused, given those facts to which I have referred.
In my view the whole scheme of the Act is such that s68 stands quite separately and apart from s79a, and, for that matter, s78. It establishes a code whereby, short of the arrest of a person (which of course necessitates accusing that person of either the commission of an offence or indicating the existence of suspicion of committing one) police are entitled to carry out a search of someone, where there is reasonable cause, as contemplated by the section. It is not the case, in my view, that, on every occasion on which a police officer properly wishes to exercise a s68 power, the s79a rights have to be given. The Act quite clearly discriminates between the situation of an arrest, be it formal or de facto, and simply a stop, search and detain situation. True it is that, when s68 powers are exercised, there is, in a very real sense, at least a deprivation of liberty of action. But that is specifically authorised by the section and authorised by it in a scenario short of arrest.
It seems to me that there is a direct analogy between the s68 situation and that where a person who is required to accompany a police officer to a breath testing station under s47e(2a) of the Road Traffic Act. It has been held in cases such as Burgess v Hall (1988) 48 SASR 394 and Scott v Pavia (1987) 46 SASR 563 that, in such circumstances (where a person is also deprived of liberty in a very real sense), the requirement is not an apprehension for the purposes of s79a. So it is that the conceptual position is in the same category where there is a genuine stop, search and detain.
I do not take anything emerging from the evidence to justify a conclusion that, prior to the search, there was an actual or de facto arrest. What took place occurred very quickly and in circumstances which well justified exercise of the stop, search and detain power. It seems to me, therefore, that there is simply no basis in fact or law for arguing that this was an arrest; and therefore no basis for excluding the evidence which was secured as a result of what, in my view, was a lawful search.
[29] DPP v Smith (1994) 179 LSJS 25.
Application of principles to the present case
Returning to the present case, Senior Constable Evans did not use any formal words of arrest or apprehension, or otherwise intend or purport to arrest the respondent. Nor did he direct, or even request, that the respondent wait while he attempted to obtain a working alcotester. The only direction by Evans revealed by the evidence was the subsequent direction or directions to the respondent to exhale into the (second) alcotester once it had been supplied to Evans by another police officer.
The appellant contends that in the above circumstances, an application of Scott v Pavia ought to have led to a conclusion that there was no apprehension. Whilst there was an apprehension in Marshal v Twiggs, that was because formal words of arrest were used, whereas in Scott v Pavia there was no apprehension despite a direction from the police officer that the defendant wait for arrival of the breath analysis unit. The appellant contended that if a direction to wait did not involve an apprehension, then a fortiori a mere assumption on the part of the defendant that he was required to wait would not involve any de facto apprehension triggering the protective provisions of s 79A of the Summary Offences Act. Indeed, it would be a somewhat counter-intuitive result if an assumption that one was required to wait gave rise to a de facto apprehension whereas a police direction that one must wait did not.
The respondent, on the other hand, argued that a proper analysis of Scott v Pavia supported the Magistrate’s finding that there had been a de facto apprehension. The respondent contended that on a proper analysis of Scott v Pavia, Bollen J had accepted that there had been a sufficient detention or interference with the defendant’s liberty to otherwise have involved an apprehension; and that the only reason his Honour accepted there had been no apprehension was that the detention was justified as an exercise of the police officer’s authority under the Road Traffic Act. However, on the facts of the present case, the respondent contended, Senior Constable Evans did not direct the respondent to wait under s 47E(2), with the result that the detention of the respondent could not be justified by any exercise of authority under the Road Traffic Act. It followed, on the respondent’s argument, that the detention involved a de facto apprehension and triggered the protective provisions of s 79A of the Summary Offences Act.
In my view, the respondent’s argument fails at two levels. First, I do not consider that the detention in this case was sufficient to constitute a de facto apprehension. Secondly, and in any event, to the extent that the detention required some legal justification, I consider that the relevant power or authority is be found in the provisions of the Road Traffic Act.
As to the first of these propositions, as I read Scott v Pavia, Bollen J did not go as far as to accept that the facts in that case involved a sufficient level of detention to support a conclusion or de facto apprehension. While his Honour acknowledged that the direction to wait, combined with the circumstance that the police officers would not have allowed the defendant to leave, meant that “one could readily understand and acknowledge the force in [the defence counsel’s] submissions”, his Honour then went on to distinguish Marshal v Twiggs on the basis that the police officer in that case had used formal words of arrest. His Honour also reasoned that he did not think Parliament intended “apprehension” under s 79A to apply to a direction to a motorist to wait for the arrival of a breath analysis instrument.
But even if Bollen J did intend to suggest that the nature of the detention in that case was sufficient to involve an apprehension of the defendant – with the result that the outcome turned solely upon reasoning to the effect that there was an alternative source of the authority to detain under the Road Traffic Act – I do not accept that the same reasoning would apply in the present case.
In the present case, the absence of any direction by Senior Constable Evans supports a conclusion that the respondent’s decision to wait was voluntary, or at least consensual. While he may well have assumed that if he had attempted to leave he would be prevented from doing so, and while Evans may well have been prepared to give a formal direction that required him to stay (or indeed have apprehended him) if he attempted to leave, as the authorities surveyed above have made plain, this is not determinative. In my view, the detention of the respondent in this case lacked the necessary degree of interference with his liberty (whether through the duration or nature of the detention, or the degree of compulsion), to warrant a conclusion that the defendant was de facto apprehended, or that his detention otherwise required some legal justification.[30]
[30] I note that in some cases (for example, DPP v Polyukhovich (No 3) (1993) 170 LSJS 300) it has been suggested that a conclusion of de facto apprehension requires satisfaction of not only the objective test that I have addressed, but also a subjective belief by the defendant that he has been apprehended. Perhaps as a result of the procedure adopted here (that is, receipt of the evidence de bene esse rather than a voir dire at which the respondent might have given evidence) there was no evidence from the respondent as to his subjective belief. But as this point was not taken or argued, I do not propose to take it any further.

As to the second of the above propositions, even if the detention of the respondent was sufficient to require some legal justification, I consider that this can be found in the provisions of the Road Traffic Act, without there being any need or occasion to invoke the concept of de facto apprehension. The respondent accepts that the effect of Scott v Pavia is that if there is a direction to wait under s 47E(2) of the Road Traffic Act, then this will involve an exercise of power under the Road Traffic Act that provides a justification for detention without invoking any concept of apprehension. However, the respondent contends that in this case there was no such direction and hence no exercise of power under the Road Traffic Act. The respondent contends that despite the express conferral of the power to make “directions” under s 47E(2), and indeed precisely because that power has been expressly conferred, the Court should not imply some power or authority to detain a person (or otherwise require them to do anything) for the purpose of requiring that they submit to an alcotest.
I do not accept this contention. While a direction[31] for the purposes of s 47E(2) is necessary in order for there to be an offence of failing to comply with a reasonable direction under s 47E(3), it does not follow that s 47E(2) is an exhaustive statement of a police officer’s authority or power under s 47E. In my view, like the powers under consideration in State of New South Wales v Le, the express powers under s 47E(1) to stop a driver, to require that they submit to an alcotest, and to give directions in relation to the latter, also include an implied power or authority to do what is necessary to give effect to those express powers. There is an implied power, for example, to request that a person remain present for the purpose of requiring them to submit to an alcotest and giving any direction that this might entail.
[31] And a direction in the relatively narrow or formal sense described by Duggan J in Police v Spitzer (2003) 85 SASR 431 at [15].
To conclude otherwise would in my view be to give rise to an impractical, if not unworkable, situation that Parliament is unlikely to have intended. It would give rise to a situation where any delay in the provision of the alcotest might give rise to an apprehension, and trigger the protective provisions of s 79A of the Summary Offences Act. It would represent a significant impediment to the smooth operation of the drug and alcohol testing provisions of the Road Traffic Act, and hence undermine the achievement of the object of those provisions.
Whilst it might be argued that the difficulty could be overcome by a police officer utilising a formal direction at each stage of the process, it is my view that this solution would be cumbersome at best, and is unlikely to have been what Parliament intended. To the contrary, I consider a more likely intention of Parliament is that it intended that the drug and alcohol testing provisions of the Road Traffic Act operate in an efficient manner, and largely without recourse to the powers of apprehension, and hence the operation of the protective provisions under s 79A.
For these reasons, I am satisfied that the Magistrate erred in finding that the respondent was de facto apprehended. It follows that the Magistrate erred in finding that there was any non-compliance with the protective provisions of s 79A of the Summary Offences Act, and that the Bunning v Cross discretion had been enlivened.
The Bunning v Cross discretion
Having found that the respondent was not apprehended, or otherwise unlawfully detained, it follows that there was no occasion for the exercise of the Bunning v Cross discretion. For that reason, it is not strictly necessary for me to consider whether the Magistrate erred in his exercise of that discretion. However, for the sake of completeness I shall set out briefly my reasons for concluding that even if the respondent had been arrested, and not afforded his s 79A rights, I nevertheless consider that the Magistrate erred in his exercise of that discretion.
As the appellant’s challenge is to the exercise of a discretion, it is subject to the principles of appellate restraint in House v The King.[32] It is not enough merely that I would have exercised the discretion differently, or would have attached more or less weight to a particular consideration or considerations. But here I consider that the Magistrate failed to consider all relevant considerations, with the result that the exercise of his discretion miscarried.
[32] House v The King (1936) 55 CLR 499 at 504-404.
The exercise of the Bunning v Cross discretion to exclude unlawfully obtained evidence involves balancing, on the one hand, the public interest in bringing criminals to justice, and, on the other hand, the public interest in protecting individuals from unfair and unlawful treatment and discouraging the use of unlawful means by excluding evidence so obtained. This involves consideration of matters including the following:
·    the seriousness of the alleged offending;
·    whether the unlawful conduct involved conscious impropriety, or a deliberate or reckless disregard for the police officer’s obligations;
·    the nature and extent of the unlawfulness;
·    the ease with which compliance with the police officer’s obligations could have been achieved;
·    the apparent purpose or objective of any statutory requirement that was not complied with; and
·    whether the unlawful circumstances in which the evidence has been obtained have affected the cogency of the evidence.
Here the Magistrate gave only very short reasons for exercising his discretion to exclude the evidence. Essentially they involved an adoption of defence counsel’s submissions to the effect that Senior Constable Evans had shown a lack of regard for proper procedure in his administration of the alcotest, including demonstrating an intention to proceed to issue an ILOL notice and impound the respondent’s car even though the prescribed oral advice had not been given and the latter was not within his power. Against that background, the Magistrate reasoned that, Evans having not given a caution upon his detention of the respondent, the evidence should be excluded as having been obtained through a contravention of s 79A of the Summary Offences Act.
While the matters taken into account by the Magistrate were not irrelevant to a consideration of the overall circumstances guiding the exercise of the discretion (including the general attitude and approach of Senior Constable Evans to his obligations), his Honour’s reasons suggest a failure to focus upon the particular impropriety that enlivened the discretion. A general lack of understanding about alcotest procedures, and a somewhat lax approach to those procedures, may be probative of Senior Constable Evans’ approach more generally. However, Senior Constable Evans did ultimately comply with the requirement to provide the prescribed oral advice, and did not ultimately purport to impound the respondent’s vehicle. The only unlawfulness on the part of Senior Constable Evans (which I assume for this part of my reasons, despite my earlier conclusion to the contrary) was in failing to afford the respondent his rights consequential upon apprehension under s 79A of the Summary Offences Act.
While the rights consequential upon apprehension are important procedural safeguards that ought not lightly be put to one side, the impropriety here was hardly an egregious one. If there was an obligation on the part of Evans to afford the rights under s 79A of the Summary Offences Act, then his failure to afford those rights was a product of his failure to appreciate that he had made a de facto apprehension. There is no basis in the evidence to think that this was a deliberate or conscious failure, or that it involved a reckless disregard for the respondent’s rights on the part of Evans. Given some of the subtleties that I have explored earlier in my reasons, even if Evans was wrong in assuming no apprehension on the facts of this case, then it was a reasonable error to have made in the circumstances.
Further, in terms of the impact of the failure, I do not consider that it was of much significance in the circumstances of this case. The impropriety involved a failure to administer a caution, and a failure to advise the respondent of his entitlement to a telephone call to, and have present during the alcotest, a solicitor, friend or relative.
While the failure to administer a caution may be said to have contributed to the respondent’s decision to inform the police officer what he had had to drink (“a couple of wines, but that’s about it”), the respondent had earlier, and before any issue of impropriety arose, acknowledged that he had had something to drink. Further, in the context of the charge in this case (namely, failure to comply with all reasonable directions in relation to submission to an alcotest, rather than driving with more than the prescribed concentration of alcohol in his blood) this evidence is not relied upon as directly probative of the offence. The evidence the focus of the application to exclude was the evidence of Senior Constable Evans’ provision of the prescribed oral advice and the respondent’s consequential failure to submit to the alcotest. I do not see how the failure to administer a caution can be said to have had any impact in respect of the conduct the subject of this evidence.
The respondent points to the possibility that if informed of his right to have a solicitor present, this might have led to the respondent exercising that right and obtaining advice that might have led to him adopting a different approach to submission to the alcotest. While somewhat speculative, I acknowledge this possibility. On the other hand, it is relevant to my mind that the evidence sought to be excluded was not confessional or other evidence as to the commission of some earlier offence prior to the impropriety, but rather evidence of the actus reus of a subsequent offence. Even if the Bunning v Cross discretion may in an appropriate case extend to exclusion of such evidence,[33] I do not consider this to be such a case. Certainly the failure to comply with s 79A did not affect the cogency of the evidence of what followed thereafter.
[33] cf Robinett v Police (2000) 78 SASR 85 at [38]-[40].
For these reasons, and on the assumption that the Bunning v Cross discretion had been enlivened, I consider that the Magistrate erred in his exercise of that discretion. In my view, the evidence should have been received.
Approved alcotester
An alternative contention relied upon by the respondent in support of his no case to answer submission was that because the prosecution did not adduce any evidence that the alcotester used (or intended to be used) by Senior Constable Evans was of a kind approved as an alcotester by the Governor, it followed that the prosecution had not established that the direction to submit to an alcotest was lawfully made within the meaning of s 47E(4).[34]
[34] As mentioned earlier, despite being expressed in terms of a defence, this requirement is an aspect of the offence that must be proved beyond reasonable doubt by the prosecution.
The appellant rejects this contention as misconceived, contending that proof of this matter was not a precondition to the lawfulness of the direction to submit given in this case and hence not a precondition to proof of the offence.
Both parties sought to support their conflicting contentions by reference to the decision of the Full Court in Police v Bleeze.[35]
[35] Police v Bleeze (2012) 112 SASR 568.
In that case, the defendant was convicted by a Magistrate of failing to comply with a direction in relation to the requirement to submit to a breath analysis, contrary to s 47E(3) of Road Traffic Act. The defendant purported to exhale into the breath analysis instrument on several occasions in compliance with the directions to him that he do so. However, the printout from the instrument recorded that several of his attempts had resulted in an “insufficient sample”.
On appeal to a single judge of this Court, the conviction was challenged on the basis that establishing lawfulness of the direction given required proof that the breath analysis instrument was in good working order. The single judge upheld this contention and allowed the appeal. On further appeal to the Full Court, the Court (Gray, Kourakis and Blue JJ) rejected the contention that proof the instrument was in proper working order was a precondition to proof of the offence, allowed the appeal and restored the conviction imposed by the Magistrate.
Gray J began his analysis by pointing out that none of the authorities concerning s 47E(3) or its progenitor had ever suggested that the matters which required proof for a direction to be lawful included proof of the objective fact of the proper working of the breath analysis instrument.[36] His Honour considered that such an implication should not be drawn from the provisions of the Road Traffic Act.[37]
[36] Police v Bleeze (2012) 112 SASR 568 at [20].
[37] Police v Bleeze (2012) 112 SASR 568 at [25].
His Honour explained:[38]
The statutory scheme treats the issue of proper order and operation of the instrument as an issue relevant to proof. It is not a matter that bears on the lawfulness of a direction. Accordingly, the implication drawn by the judge under appeal transforms an evidentiary requirement into a precondition for a lawful direction. In doing so, the implication requires a reading of s 47E such that the fact of the instrument not being in working order means not only the requirement is unlawful, but that the output from the instrument cannot be used as a matter of evidence. This would suggest that the implication is not necessary.
Section 47E(3) applies in cases of an outright refusal by a driver to submit to a breath analysis. In such a case, no occasion will arise to have recourse to use any particular instrument. This aspect of s 47E explains why s 47K(18) of the Act does not permit the tender of a certificate in a prosecution of s 47E(3) to prove the proper order and operation of the instrument. Put simply, the breach is about behaviour of the driver, independent of any output from an instrument.
The implication drawn by the judge under appeal would apply to all prosecutions under s 47E(3). This follows because the implication arises from the definition of “breath analysis” in s 47A which “means an analysis of breath by a breath analysing instrument”.
The implication would therefore require that notwithstanding the fact that the instrument had not ever been used, its proper working order must still be established. Proof of the accuracy of the instrument is an appendix that serves no apparent purpose. This is to be contrasted to a prosecution under s 47B — namely, driving while having a prescribed concentration of alcohol in blood — which hinges on the accuracy of the instrument’s output. Further, the decision of the judge under appeal does not identify at what point the prosecution would need to establish that the instrument is in proper working order.
The circumstance may arise when a person is required under s 47E(3) to submit to a breath analysis where that person refuses at the outset to participate at all. In those circumstances, it is not incumbent on the prosecution to prove that they proposed to utilise an instrument that was in proper working order. The direction given would be a lawful direction and it would not be incumbent upon the prosecution to go through the futile process of proving that if the instrument was used, it would perform properly.
In my view, no implication can be drawn from the Act that the proper working of the instrument is a precondition to the making of a lawful requirement.
[38] Police v Bleeze (2012) 112 SASR 568 at [30]-[35].
Kourakis and Blue JJ, in their joint reasons, also rejected the contention that there was any implication in the legislation that lawfulness of a direction to submit to a breath analysis required proof that the instrument was in proper working order. Their Honours noted the definition of “breath analysis” in s 47A (“an analysis of breath by a breath analysing instrument”) and the definition of “breath analysing instrument” (“an apparatus of a kind approved as a breath analysing instrument by the Governor”). Their Honours also noted that s 47K(3)(b)(ii) provided that a certificate by the Commissioner of Police certifying that a breath analysing instrument was in proper order and was properly operated is, in the absence of proof to the contrary, proof of those facts.
Their Honours then reasoned:[39]
The construction of ss 47A and 47E adopted by the judge would have the practical consequence that, notwithstanding the most blatant and pre-emptive refusal to submit to a breath analysis, the prosecution would always need to prove that the instrument was in proper working order in order to prove the commission of an offence under s 47E(3). While it is possible theoretically that this was the intention of Parliament, it is an improbable intention which in the circumstances would require very clear manifestation.
In an extreme case in which the evidence at trial disclosed that the apparatus used was manifestly not a breath analysing instrument (eg, if only the mouthpiece were used but not the balance of the machine), the requirement to submit and directions for that purpose would presumably be unlawful. However, in the present case, there was no issue that the particular Drager Alcotest 7110 used was an apparatus of the kind approved as a breath analysing instrument by the Governor.
If, on the evidence at trial, it was apparent to the police officer before imposing the requirement and giving the directions that the apparatus was not working properly, it may be that the directions given would not be considered “reasonable”. The defendant puts that contention in this case and we address it below. However, that is a different issue to the question of lawfulness of the directions.
For these reasons and for the reasons given by Gray J (with which we agree), the judge was in error in holding that the requirement and directions given to the defendant were not lawfully made because the prosecution had not proved that the instrument was in proper working order.
[39] Police v Bleeze (2012) 112 SASR 568 at [75]-[78].
Returning to the present case, which involved an allegation of a failure to comply with a direction in relation to a requirement to submit to an alcotest rather than a breath analysis, I observe “alcotest” is defined in relevantly equivalent terms to “breath analysis”. It is defined in s 47A to mean “a test by means of an apparatus of a kind approved by the Governor for the conduct of alcotest”.
However, despite the equivalence of the legislative definitions of an alcotest and breath analysis, I do not think Police v Bleeze is determinative of the outcome in the present case. The Court in that case was focused upon whether lawfulness of a test required that the instrument be in proper working order. Their Honours did not need to address the different question of whether lawfulness required that the instrument be one approved by the Governor. Even accepting the Full Court’s decision that there is no room for implying the former requirement as a condition of lawfulness, it might be said that when s 47E(3) is read in conjunction with the express terms of the definition of an alcotest or breath analysis, it can be seen that the offence requires proof that the relevant apparatus was of a kind approved by the Governor – either through the terms of s 47E(3) or by reason of the requirement of lawfulness in s 47E(4)(a).
There is some force in this contention, at least when the legislation is construed in a literal or mechanical fashion. As the offence involves a failure to comply with a direction in relation to the requirement to submit to an alcotest or breath analysis, it might be said that proof of the offence includes proof of an alcotest or breath analysis in the defined sense and hence that the relevant apparatus was of a kind approved by the Governor.

However, in my view, this involves a misconstruction of ss 47E(3) and (4). The initial words in s 47E(3) are intended merely to identify those to whom the sections applies – namely, persons who are required to submit to an alcotest. And, as Gray J pointed out in Police v Bleeze, the balance of the words (in particular, “fail to comply with all reasonable directions of a police officer in relation to the requirement”) are intended to focus upon the nature of the direction given and the behaviour of the defendant, rather than the output of any particular instrument.
The reference to alcotest in s 47E(3) is thus in the context of, and descriptive of, the requirement to which the defendant is to be subjected, rather than the outcome of any particular test. It is in the context of identifying the defendant and his non-compliant behaviour in relation to a requirement that he submit to an alcotest, rather than the alcotest or its outcome. The reference to alcotest is thus used in a descriptive and prospective way, rather than as a reference to a particular alcotest that has been carried out, or the apparatus used to carry it out.
Indeed, as the Court pointed out in Police v Bleeze, s 47E(3) is intended to operate in situations where there has been no attempt to use a particular alcotester. Its operation is intended to extend to cases where the defendant has refused from the outset to participate, and in the case of the most blatant and pre-emptive refusal to comply. In such cases it may not be possible to identify the particular apparatus or instrument that was to be used, and it is difficult to see how or why Parliament would have intended this to be an aspect of the offence.
For these reasons, I do not consider that proof of an offence under s 47E(3), including the lawfulness of the relevant direction under s 47E(4), requires proof that the alcotester used, or intended to be used, was one approved by the Governor.
That said, I do not go so far as to say that the nature of the apparatus used, or intended to be used will never be relevant. It would be relevant in the context of offences turning upon the output or results of a breath analysis unit or alcotester, such as an offence under s 47B of the Road Traffic Act. Further, even in the context of a failure to comply offence under s 47E(3), if the apparatus used, or intended to be used, was plainly not of the approved kind, and this was or ought to have been known to the police officer who gave the relevant direction, then it may be that the direction would not be a “reasonable” one, and perhaps not even a “lawful” one. But there was nothing in the evidence in this case to suggest that it involved such a situation.
Disposition of the appeal
For these reasons, I allow the appeal. I set aside the finding that there was no case to answer, and the consequential finding of not guilty. I remit the matter for further hearing by the Magistrate in accordance with these reasons.