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…