Police v Prinse No. Scgrg-97-1706 Judgment No. S6567

[1998] SASC 6567

POLICE  v  PRINSE

Magistrates Appeal

Bleby J

The Facts

The respondent was charged with, and on 19 August 1997 in the Magistrates Court of South Australia at Holden Hill pleaded not guilty to the following charges:

1. On the 20th day of October 1995 at Vale Park in the said State, drove a vehicle on a road namely Ascot Avenue whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the said vehicle. Section 47, Road Traffic Act 1961.

1. On the 20th day of October 1995 at Vale Park in the said State drove a motor vehicle on a road namely Ascot Avenue while there was present in his blood the prescribed concentration of alcohol as defined in Section 47a of the Road Traffic Act, 1961. Section 47B, Road Traffic Act 1961.

It is further alleged that the concentration of alcohol was 0.113 grams in a hundred millilitres of blood.

1. On the 20th day of October 1995 at Vale Park in the said State drove a motor vehicle on a road namely Ascot Avenue whilst he was disqualified from holding or obtaining a licence. Section 91, Motor Vehicles Act 1959.

At the close of the prosecution case, and after hearing substantial argument on the question, the learned magistrate acceded to a submission of counsel for the respondent that there was no case to answer.  That ruling was given, with reasons, on 5 December 1997, and the learned magistrate ordered payment of the sum of $1180 by way of costs by the complainant.

By way of background to the events giving rise to the charges I set out the relevant portions of the learned magistrate’s reasons:

"On the 20th October 1995 at approximately 1.15 am., Constable Baker was on mobile patrol with Constable Schild when he determined to stop a Chrysler station wagon, registration number SMH-676, being driven by the defendant.

Constable Baker stated that he was travelling in a westerly direction along North East Road when he observed the defendant’s vehicle which was travelling in the same direction.  By use of a KDT terminal, a computer in the police car, he conducted a motor vehicle check.  He explained that patrol officers conduct random motor vehicle checks to assist in the detection of traffic offences.  Constable Baker explained the technology enables patrol officers to ascertain particulars as to vehicle’s (sic) registration and the current status of the registered owner’s drivers licence.  By keying in the registration number of the vehicle, within 3 to 5 seconds these details together with the registered owner, advice as to whether the vehicle was stolen can be obtained.

After conducting a computer check on the vehicle being driven by the defendant, he ascertained that it was registered to a female who resided at Glandore.  He ascertained there was a previous notification that the vehicle was stolen, although it was now recorded as a ‘closed stolen vehicle’ meaning it was no longer recorded as stolen....

Constable Baker stated that after receiving this information, he observed that the driver was male although the registered owner was female.  He considered the vehicle’s location was a long way away from the address of the registered owner.  Given the time of night he thought it was suspicious that the vehicle was on North East Road and when the vehicle turned left into Ascot Avenue, he determined to stop the vehicle."

Constable Baker was not aware nor did he suspect, from observation of the vehicle, that the driver had committed or was committing any offence, and he was not concerned about the manner in which the vehicle was being driven.  As the learned magistrate said:

"He explained that the vehicle was stopped because of the suspicion he held given the vehicle was being driven by a male but registered to a female, and the registered owner lived a long way away from the vehicle location, the time of night and he stated he stopped it because he had power pursuant to the Road Traffic Act. He noted that there was a female passenger in the vehicle being driven by the defendant."

At the time of stopping the vehicle Constable Baker had no reason to believe that any of the pre-conditions had been met for him to require that the driver of the vehicle submit to an alcotest or breath analysis in accordance with the provisions of s47E of the Road Traffic Act 1961.

After the vehicle had stopped, Constable Baker approached the driver’s window, which was wound down, and noticed a strong smell of liquor from within the vehicle.  Constable Baker asked the driver to step out of the car and noticed that he was unsteady on his feet and unbalanced, "to the point where he was almost falling over".  He described the swaying and stumbling as very obvious.  The driver moved from the driver’s door to the rear of the vehicle and onto the footpath just behind the vehicle.  A conversation then ensued between the appellant and Constable Baker, during which Constable Baker noticed that there was still a strong smell of liquor from the defendant’s breath, that he had glassy eyes and that his speech was slurred.  Constable Baker formed the opinion that he was affected by liquor.  He said he believed that the appellant had committed an offence against a provision of Part III of the Act of which the driving of a motor vehicle is an element, namely driving under the influence of alcohol, and he required the appellant to undertake a breath analysis.

In due course a breath analysis unit arrived, and the analysis was undertaken by Senior Constable Thomson, resulting in the reading alleged in Count 2.  The appellant was then arrested and charged with the three offences the subject of the present appeal.

The hearing before the Magistrate

After oral evidence had been led from Constable Baker and Constable Schild, various certificates referred to in s47G of the Road Traffic Act were tendered. The transcript then records the following:

"CASE FOR PROSECUTION
DISCUSSION RE COUNT ONE
NO EVIDENCE IN REGARDS TO COUNT ONE HAS BEEN SUBMITTED
ADJOURNED 3.45 P.M.
RESUMING 4.14 P.M.
EXHIBIT p8       Statement of breath analysis tendered by APP Howell.  Admitted.
DISCUSSION RE COUNT ONE AND CALLING OF THE BREATH ANALYSIST CONTINUING
PROSECUTION CASE NOT CLOSED
ADJOURNED 4.25 P.M. TO TUESDAY, 23 SEPTEMBER 1997 AT 10 A.M."

I infer from the above that the prosecution case having been closed and a no case to answer submission commenced, the prosecution was given leave to re-open its case for the purpose of calling further evidence.

Exhibit P8 referred to in that extract was in fact a four page pro forma document which Senior Constable Thomson had completed as notes of his observations, conduct and conversations with the appellant in relation to the breath analysis procedure and associated matters.

Upon the resumption of the hearing, Constable Thomson gave oral evidence and was cross-examined. I will need to refer to that evidence in more detail when referring to proof of the matters required under s47G of the Act. It was after the hearing of that evidence that the matter was further adjourned for argument, resulting in the ruling of no case to answer.

The principal reason for holding that there was no case to answer was that, in the learned magistrate’s view, there was no justifiable reason for Constable Baker to stop the respondent’s car. She considered that it was not "the lawful execution of police duty to randomly select motorists and stop them in circumstances described by Constable Baker". She found that Constable Baker’s direction for the defendant’s vehicle to stop was unlawful and that that action tainted his investigation thereafter. Her Honour then proceeded to exercise her discretion to exclude Constable Baker’s evidence of his observations and conversation with the respondent and any evidence relating to the analysis of the respondent’s breath and the result of that analysis. In exercising her discretion to reject the evidence Her Honour relied on the principles established in Bunning v Cross (1978) 141 CLR 54. She said:

"I consider the public interest in ensuring police powers are used within the framework as authorised by the legislation is fundamental to our system of justice.  In these circumstances fairness to the defendant outweighs the public interest in the enforcement of drink driving laws or the detection of driving in contempt of an order of disqualification."

Once that evidence was excluded there was, of course, no evidence in support of Counts 1 and 2, and I infer that, even if there were evidence that the respondent was disqualified from holding or obtaining a driver’s licence (a matter to which I shall return in due course), there was no other acceptable evidence that he was driving a vehicle as alleged in Count 3, and therefore no case to answer on Count 3.

Section 42, Road Traffic Act

Whether the learned magistrate was correct in excluding the evidence depends upon the proper application of s42 of the Road Traffic Act 1961. That section reads:

"42. (1) a member of the police force or an inspector may -

(a)     request the driver of a vehicle on a road to stop that vehicle;
(b)     ask the driver or the person apparently in charge of a vehicle (whether on a road or elsewhere) questions for the purpose of ascertaining the name and place of residence or place of business of that driver or person, or of the owner of the vehicle, or the nature or constituents of the load on the vehicle, or for the purpose of estimating the mass of the vehicle.

(2) A person must forthwith -

(a)     comply with a request made under subsection (1) to stop a vehicle;
(b)     truthfully answer any questions put under subsection (1)."

On the hearing of the appeal, counsel for the appellant did not seek to justify Constable Baker’s stopping of the vehicle by reference to any or all of the reasons he gave in evidence. He was content to rely solely on the apparently unfettered powers conferred on a police officer by s42.

On its face, the exercise of the power to request the driver of a vehicle to stop and to ask the relevant questions is not conditional upon the holding of a belief or suspicion as to any particular state of affairs. It is an absolute power exercisable by a member of the police force. In this regard, it is to be contrasted with s47E of the Road Traffic Act which requires a member of the police force to believe on reasonable grounds that a certain state of affairs exists before he or she can require a person to submit to an alcotest or breath analysis. Similar observations may be made in respect of a number of other sections of the Road Traffic Act. Section 53B(2) precludes seizure of a device unless a police officer has reasonable cause to suspect that the device is a radar detector or jammer. A direction under s152(1) of the Act to a person to drive a vehicle to a weighbridge for the purpose of determining its mass cannot be given by a police officer unless he or she has reasonable grounds that the vehicle has been driven on a road in contravention of a provision of the Act relating to mass: s152(2). A direction under s160(2) of the Act to produce a vehicle for examination at a specified time and place can only be given where a member of the police force or an inspector suspects on reasonable grounds that the vehicle does not comply with any one or more of the requirements of the Act or for any reason cannot safely be driven on roads.

Many similar examples appear in the Summary Offences Act 1953 where the exercise of many police powers is conditional upon a state of belief or suspicion having arisen. See, for example, Summary Offences Act 1953 s75 (power of arrest), s81(2) (examination of a person by medical practitioner), s83B (prevention of entry of persons to a dangerous area) and s83C (special powers of entry). Similarly, the exercise of many powers under s52 of the Controlled Substances Act 1984 are conditional upon a belief or suspicion being held.

All these sections provide a contrast with the provisions of s42 of the Road Traffic Act, for which no such pre-condition is specified. Section 42 is not the only section of that nature in the Act where it is contemplated that certain police powers may be exercised in the apparent unfettered discretion of the police officer concerned. Section 41 enables a police officer to give directions to various types of road user for the safe and efficient regulation of traffic on the road or for the purpose of ascertaining whether an offence against the Act has been or is being committed. Section 160(1b) enables a police officer to direct the driver of a vehicle of a prescribed class to stop the vehicle and to examine the vehicle for the purposes of determining whether the vehicle complies with the requirements of the Act or for any reason cannot safely be driven. That power may be exercised "whether or not there is reason to suspect that the vehicle does not so comply or cannot be so driven". Section 42 is therefore not unique in providing an apparently unfettered discretion on a police officer to stop a vehicle and to interfere with a person’s immediate right to drive a vehicle on the road. The question is whether there are to be implied any fetters on the exercise of that discretion.

Because breaches of the Road Traffic Act or the Motor Vehicles Act can, in some cases, not readily be detected, it is understandable that Parliament considered that there needs to be adequate powers vested in those who have the responsibility of policing the relevant laws to detect and prevent such breaches. Without the ability to stop and question motorists, many offences, some of a quite serious nature, could well go undetected, thereby encouraging others to commit similar offences, knowing that there is little risk of detection. Apart from coincidental discovery if a driver is involved in an accident or in the commission of some other traffic offence, s42 provides the only effective method of detecting possible breaches of s74 (Driving without holding a licence or permit) and s91(5) (Driving whilst disqualified) of the Motor Vehicles Act.

The requirement to stop and identify oneself, even where an offence has not been committed, is a small sacrifice to make and a very minor infringement of the right - I would prefer to call it a privilege - to drive a motor vehicle on public roads.

There may be circumstances where it can be shown that the exercise of the powers under s42 has been carried out capriciously or for an identifiable purpose not connected at all with legitimate policing of the law. In those circumstances, the stopping and what follows may be unlawful. Examples, some of which were mentioned in argument, may include that of a male police officer stopping a vehicle and asking the female driver for her identity for the purposes of inviting her out, or stopping a vehicle and offering to purchase it, or to inquire of the driver about the result of a sporting event.

Responsible policing does not necessarily require in all circumstances the disclosure of the immediate or ultimate purpose of an inquiry. Indeed, in some circumstances, such disclosure may well be contra-indicated. It cannot be presumed, because the exercise of the power under s42 is not justified in a particular case by reference to a suspicion or belief, that it is exercised for an unlawful purpose. However, if it is quite apparent from the nature of the inquiry made or directions given that the stopping and questioning has no connection whatever with proper policing inquiries but is merely a capricious exercise of the power or an abuse of the power for a purpose irrelevant to law enforcement, then it may well fall into the unlawful category. However, without such a finding, I cannot agree with the learned magistrate that the exercise of the powers in respect of a random selection of motorists is unlawful, or that there was anything in the evidence to suggest that Constable Baker was, on this occasion, acting unlawfully.

The view I have taken of s42 appears to be consistent with the approach taken in other cases. In Lovegrove v Spangler (1988) 145 LSJS 411, evidence of breath analysis had been rejected by a magistrate because he held that the police officer who made the observations and conducted the test had no cause to stop the defendant. There was nothing in the driving of the vehicle to suggest that the driver was committing an offence. An appeal against that decision was allowed, O’Loughlin J holding that in finding that the police officer had no authority to stop the defendant, the learned magistrate fell into error. It was held that he had the requisite authority under s42 of the Act, even though he had no reason to suspect at the time of stopping the vehicle that the driver was either driving under the influence or driving with the prescribed concentration of alcohol in his blood. Citing Cavanagh v Galkowski (1979) 20 SASR 322, O’Loughlin J (at p413) held that the section had general application to all vehicles on the road. The evidence was therefore lawfully obtained and was admissible. It was quite appropriate for the nature of the inquiry to have changed once the vehicle had been stopped and the police officer then formed a belief on reasonable grounds that the driver may have committed an offence against a provision of Part III of the Road Traffic Act. That then justified the requirement to submit to a breath analysis test.

Cavanagh v Galkowski (supra) was a case of two charges, one of failing to answer questions contrary to s42 of the Road Traffic Act, and one of hindering a member of the police force in the execution of his duty, contrary to s6 of the (then) Police Offences Act 1953. The ability of a police officer to require the driver to answer questions under s42 was not in question, even though the vehicle was at all material times stationary on the side of a road, with no evidence to suggest that the driver had at any stage committed or was about to commit an offence.

In Jones v Daire (1983) 32 SASR 369 police officers, members of the vice squad, stopped a motor car being driven on the road and requested the female driver of the car to produce her driver’s licence as a means, it was held, of identification. The driver had not committed any traffic offence. The report of the case does not suggest that any reason for the police officers’ actions was offered at all. The driver’s husband, who was a passenger, intervened and challenged the right of the police officer to stop the vehicle and to ask for production of the licence. An altercation continued for some time, and the passenger was arrested and charged with hindering a member of the police force in the execution of his duty, contrary to s6 of the (then) Police Offences Act 1953. It was not suggested that evidence of the conversation with the defendant was inadmissible because of an unlawful stopping of the vehicle. Section 96 of the Motor Vehicles Act 1959 did not require the existence of any pre-conditions to the making of a request under that section of the driver of a motor vehicle to produce his or her licence. When speaking of that section Zelling J said, at p372:

"I do not think that it matters why the police asked for production of the licence and whether they were doing so for the purpose of identification or for any other reason, nor that they were not on traffic duty at the time of the request....

I think that all police officers have a duty to carry out their respective instructions by all proper means in their power and the police officers were not going beyond that at the time in question."

The learned judge dismissed an argument that the police officers were not acting in the course of their duty at the time.

My approach to s42 of the Road Traffic Act also seems to be consistent with the approach taken in the UK to the equivalent section in the UK Road Traffic Act: Winter v Barlow [1980] RTR 209; Beard v Wood [1980] RTR 454. It also gains support from the Supreme Court of Queensland in respect of analogous, though not identical, provisions: Garrow v Plastis [1989] 1 QdR 154.

In my view there was nothing in the evidence which suggested that the exercise by Constable Baker of his powers under s42 of the Road Traffic Act was outside the course of his duty or that it was an improper exercise of his power. Of course, at the time when the request was made, there was no justification for the requirement to submit to a breath analysis, but from the events which followed, it was apparent that justification for such requirement under s47E of the Road Traffic Act then emerged. There was nothing to prevent the nature of Constable Baker’s inquiry from changing, once he was alerted to the possibility of the respondent being affected by alcohol.

In my opinion the evidence was wrongly excluded by the learned magistrate, and the occasion for the exercise of a discretion under the principles stated in Bunning v Cross (supra) did not arise.

Case to Answer - Counts 1 and 2

I have referred in summary form to the evidence which was led in support of Count 1. There was nothing in the actual driving of the vehicle which suggested that the driver was incapable of exercising effective control of the vehicle. There was evidence of the respondent’s condition and conduct immediately after the vehicle was stopped which could prove beyond reasonable doubt all the necessary elements of Count 1. The question to be asked by the learned magistrate was as stated by King CJ in R v Bilick and Starke (1984) 36 SASR 321 at 337:

"The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt....Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?"

In my opinion the admissible evidence met that test, and there was a case to answer Count 1.  That is not to say that at the end of the case, if the evidence remains the same, the learned magistrate cannot entertain a reasonable doubt as to the alleged inability of the respondent to control the vehicle or as to any other element of the charge.  That is a matter for the learned magistrate to determine on all of the evidence.

It follows that the evidence which was excluded by the learned magistrate was also admissible in relation to Count 2, and subject to consideration of evidence relating to compliance by Senior Constable Thomson with the requirements of s47G(2a) of the Road Traffic Act, there was also a case to answer on Count 2.

Section 47G(2a) - Proof of compliance

Section 47G of the Act contains a number of provisions in aid of proof of an offence under s47B of the Act. Subsections (3), (3a), (3b), (3c), (4) and (5) all provide for the proof of various matters by certificates signed by the appropriate persons specified in those subsections. In the proceedings before the learned magistrate, a number of certificates referred to in those subsections were indeed produced and relied on. They are not in question.

As at 20 October 1995 s47G(2a) read as follows:

"(2a) Where a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument shall forthwith -

(a)     give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person’s blood;
and

(b)     at the request of the person made in accordance with the regulations, deliver to the person a blood test kit in a form approved by the Minister for facilitation of the taking and analysis of a sample of the person’s blood;"

The prescribed oral advice and the prescribed written notice referred to in paragraph (a) of the subsection were prescribed in Part A and Part B respectively of Schedule 1 of the Road Traffic (Breath Analysis and Blood Test) Regulations 1994.  Both parts of the Schedule were substituted by way of amendment to those Regulations which came into effect on 4 April 1996, after the date of the alleged offence but before the hearing before the learned magistrate.

Subsection (7) of s47G was also inserted in the Road Traffic Act with effect from 4 April 1996. It reads as follows:

"(7) A certificate purporting to be signed by a person authorised under subsection (1) and to certify -

(a)     that, on a date and at a time specified in the certificate, a sample of the breath of a person named in the certificate was furnished for analysis in a breath analysing instrument; and

(b)     that the prescribed oral advice and the prescribed written notice were given and delivered to the person in accordance with subsection (2a)(a); and

(c)     that -

1. the person did not make a request for an approved blood test kit in accordance with the regulations; or

1. at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subsection (2a)(b).
   is, in the absence of proof to the contrary, proof that the requirements of subsection (2a) were complied with in relation to the person."

Although not in operation at the date of the alleged offence, it had retrospective effect and could be called in aid for the purposes of this hearing: Cadd v Police (Unreported, Duggan J, 18 March 1997, Judgment No S6148).

I have already pointed out that after hearing the evidence of Constables Baker and Schild and the tendering of a number of certificates, the prosecution case was closed and a no case to answer submission commenced in respect of Count 1. It was apparently reopened for the purpose of tendering Exhibit P8 and for calling further evidence on 23 September 1997 from Senior Constable Thomson. At the close of Thomson’s evidence the prosecution sought to tender a certificate under s47G(7), being a certificate completed and signed by Senior Constable Thomson. However, it certified that "On 20th October 1997" a sample of breath was furnished by the respondent. That was plainly a mistake, as it related to a future date. The certificate had been prepared and signed by Senior Constable Thomson on the date on which he gave evidence, namely 23 September 1997. The certificate was plainly worthless for the purpose of proving compliance with subsection (2a).

The prosecutor then sought to reopen his case to recall Senior Constable Thomson and to tender a fresh certificate under s47G(7). The application was rejected by the learned magistrate principally, it seems, on the ground that it would be unfair to admit such evidence without prior notice to the respondent of the certificate, the defective certificate having only been prepared on the day of the giving of evidence by Senior Constable Thomson, and a substitute certificate obviously being intended to be prepared on the same day.

In my opinion that is no ground for rejecting the certificate. Many of the other certificates which were received in evidence pursuant to other subsections of s47G of the Act were not dated, and there was no evidence led as to when they were prepared or as to whether the defendant had any prior notice of them. In my opinion, it is not a ground for rejecting such certificates that they were prepared on the date of the hearing. If the late preparation causes embarrassment such that an adjournment is sought for good reason by the opposing party, such an application should be heard and determined on its merits, and may result in an adjournment on terms. Whether the prosecution should have been allowed to reopen its case either for the calling of further evidence from Senior Constable Thomson or for the tendering of an accurate certificate is another question. The learned magistrate appears to have granted some latitude to the prosecution in allowing it to call Senior Constable Thomson at all. Whether she should have allowed a further reopening in order to correct an apparently technical defect is a matter which has to be considered in the light of the decision of Cox J in McDonald v Camerotto (1984) 36 SASR 66. However, for reasons which I am about to mention, nothing turns on the refusal of the learned magistrate in this case to allow the prosecution further to reopen its case.

Senior Constable Thomson had given oral evidence relating to his compliance with subsection (2a)(a).  Having rejected the application to reopen the prosecution case to present another certificate, the learned magistrate said:

"Further, I am not satisfied that Senior Constable Thomson complied with Section 47G(2a)(a). The obligation to ‘inform’ in subsection (2a)(a) is to ‘thoroughly and correctly inform’ (Eubel v Martin (1992) 57 SASR 290). Senior Constable Thomson was unable to give evidence to satisfy his requirement to deliver to the defendant the prescribed written notice pursuant to Section 47G(2a)(a). I am unable to rely on Senior Constable Thomson’s evidence as to his compliance. He candidly admitted inexperience. I consider it was his inexperience that lead him to complete the pro forma breath analysis statement, P8, and in the section ‘Observations of Subject’ noted that when walking he was staggering moderately. When he recorded these observations he had not seen the defendant walk."

A number of observations need to be made about that passage. Before I make them, however, it needs to be remembered that the learned magistrate was dealing with the question of whether there was a case to answer in accordance with the test prescribed in R v Bilick and Starke (supra). It was not the function of the learned magistrate to decide whether there was reasonable doubt at that stage of the evidence as to whether all the elements of Count 2 had been proved. Furthermore, it must be remembered that the tendering of a certificate under S47G(7) is not essential to proof of the facts which have to be proved in order to succeed on Count 2. The certificate merely constitutes proof, in the absence of proof to the contrary, that the requirements of subsection (2a) have been complied with. It is not the only way of proving the relevant facts. Furthermore, it seems to have been overlooked by the learned magistrate and by the prosecutor that there already was in evidence (Exhibit P4) a certificate pursuant to subsection (5) of s47G of the Act which, as it happened, certified compliance with the requirements of subsection (2a). It certified:

1. that on the 20th day of October 1995, at 1.53am in accordance with subsection (5)(d) of s47g of the Act the requirements of subsection (2a) of s47g of the Act, were complied with in relation to the person named in the certificate."

The certificate was signed (but not dated) by Senior Constable Thomson. Paragraph (d) of subsection (5) of s47G of the Act was repealed also with effect from 4 April 1996, but at the time of the offence was the paragraph which authorised proof of compliance with the then subsection (2a) by means of a certificate from the police officer concerned. However, that does not make it any the less a certificate for the purposes of s47G(7), and any further certificate under that subsection was, in the circumstances of this case, superfluous.

I return to the passage quoted above from the learned magistrate’s reasons for decision.  In the first place, the learned magistrate appears to have misconceived the requirements of subsection (2a).  She referred to the obligation to "inform" the defendant of certain matters, and she relied on an earlier authority of this Court as to what that meant.  In so doing, the learned magistrate was referring to a version of subsection (2a) which had been amended by Act No 86 of 1993.  Subsection (2a) at the time of this alleged offence made no reference to any obligation to "inform" anyone of anything.  Secondly, in relation to Senior Constable Thomson’s obligation under subsection (2a) to give to the respondent "the prescribed oral advice", Senior Constable Thomson in the course of his oral evidence (Transcript pages 91-92) was asked by the learned magistrate to read out what he read to the respondent or what he said to the respondent.  He then proceeded to read in full what he said he had read out to the respondent.  The fact that he read such information to the respondent appears not to have been challenged or questioned in cross-examination, and as the evidence stood at the close of the prosecution case, there was evidence on which the Court could have found beyond reasonable doubt that the prescribed oral advice had been given to the respondent.

The third point relates to the learned magistrate’s finding that Senior Constable Thomson was unable to give evidence to satisfy his requirement to deliver to the defendant the prescribed written notice pursuant to section 47G(2a)(a). It will be remembered that between the date of the alleged offence and the date of the hearing the prescribed written notice had been changed with an amendment to the Road Traffic (Breath Analysis and Blood Test) Regulations 1994, which came into effect on 4 April 1996. Portion of Exhibit P8, the pro forma statement signed by Senior Constable Thomson to which I have already referred, contained the following statement:

"In the presence of the abovenamed member, I delivered to the subject Part B of Schedule 1 pursuant to s47G(2a)(a) of the Road Traffic Act 1961."

Part B of Schedule 1 was the form of the prescribed written notice for the purposes of subsection (2a).  At page 71 of the transcript Senior Constable Thomson was shown that passage in Exhibit P8, and then was asked whether he remembered giving that document to the respondent.  He answered:

"That is the first of the certificates in writing I was required to give to him.  That was handed to him immediately or shortly after I had advised him of what his breath analysis reading was."

In answer to a question by the learned magistrate Senior Constable Thomson then described to the best of his recollection the nature and content of the "certificate". He was later asked whether he had any copies of the form of certificate which he gave to the respondent. He said he did not, because at some time after return from his annual leave at the end of 1995 he was advised that the form had changed. He therefore destroyed, as he was requested to do, all the old forms. That is consistent, of course, with the amendment to the regulations effected in April of 1996. He was nevertheless able to describe the nature of the form as being on a white A4 piece of paper. He was then shown an extract from the South Australian Government Gazette dated 20 January 1994 entitled "The written notice for the purposes of s47G(2a)(a) of the Road Traffic Act 1961", and said that that was similar to the document which he handed to the respondent. The prosecutor then sought to tender the extract from the Government Gazette which he had shown the witness. The tender was opposed. The witness was then asked and answered one question on the voir dire:

"Q.    When my friend was first asking you about this form which he showed you, these 2 pages, you said did you not it was similar to what you had given the defendant.
A.     Yes, from memory they are similar.  I can’t swear that they are exactly the same though.  I wouldn’t like to say that they are exactly the same but they are similar."

The transcript records that there was then a discussion on tendering of the document, the tender of which, I infer, was opposed.  The transcript then records that the prosecution withdrew their application to tender the document and relied on the fact that the Government Gazette for 20 January 1994 had been shown to the witness.

I can see no grounds on which the tender of the document could successfully have been opposed, if for no other reason but to identify the document which the witness had identified in evidence and as being the document which he identified as being similar to the document which he gave to the respondent. In the circumstances, it may not matter a great deal, because it was identified as the Government Gazette of 20 January 1994, and the heading of the relevant part was read to the witness. The Court was obliged to take judicial notice of the Regulations and the Schedule as being a "legislative instrument" as defined in s35 of the Evidence Act 1929. Section 35 in its present form was enacted in 1990 and now requires a court to take judicial notice of a legislative instrument. The dilemma which faced the Full Court in R v Harm (1975) 13 SASR 84 has now therefore been resolved by the mandatory effect of s35. It follows that cases which, in the past, have held that judicial notice cannot be taken of notices in the Gazette (Freeman v Griffiths (1976) 13 SASR 494), proclamations (Leydon v Tomlinson (1979) 22 SASR 302) and regulations (Harrison v Flaxmill Road Foodland Pty Ltd (1979) 22 SASR 385; Reynolds v Bogan Holdings Pty Ltd (1984) 36 SASR 193) would now have to be decided differently, at least as to those points.

In my opinion the production of the Gazette containing the Schedule and its identification as such, and the asking of the witness to compare that with what he handed to the respondent was tantamount to asking whether the form he handed to the respondent was the same or similar to Schedule 1 of the Regulations of which the magistrate was required to take judicial notice.  In other words, his evidence was to the effect that the form he gave the respondent was similar to the form contained in the Schedule at the relevant time.

There was, therefore, considerable oral evidence of Senior Constable Thomson’s compliance with s47G(2a)(a) - far more and in much more detail than there would have been if the prosecution had merely relied on a certificate under subsection (7) or indeed if it had merely relied on the relevant part of the certificate comprising Exhibit P4. There was, therefore, in accordance with the principles to which I have already referred, a case for the respondent to answer on Count 2, and in my opinion the learned magistrate erred in holding that there was not.

Other matters

The final point arising out of the passage I have quoted from the learned magistrate’s reasons concerns her finding in relation to Senior Constable Thomson’s observations, recorded in Exhibit P8, of the respondent’s conduct.  These observations have some bearing on the finding of no case with respect to Count 1.  The finding that "When he recorded these observations he had not seen the defendant walk" was just not open on the evidence that was then before the learned magistrate.

Senior Constable Thomson said that he did not see the respondent enter the breathalyser unit.  He did not see him until he was actually seated in the van.  He made and later recorded some observations of the respondent as he supplied the sample of breath and in the short conversation that followed.  He saw the respondent get up and leave the van.  He went outside and made some further observations of the respondent standing.  I will not repeat all the references to this topic in the evidence occurring between pages 63 and 91 of the transcript, but he consistently and repeatedly said that he completed the notes of the "Observation of the Subject" on page 4 of Exhibit P8 concerning the respondent’s walking and stance after he had made all those observations.  There was nothing to suggest otherwise.  I can therefore see no evidence on which the finding could have been made.  I can only assume that there was some misunderstanding by the learned magistrate of Senior Constable Thomson’s evidence or of the sequence of events to which he deposed.

Count 3 - Evidence

As to the third count, there was no documentary or other evidence of any order that the respondent was disqualified from holding or obtaining a driver’s licence.  The only evidence relevant to Count 3 comprised evidence of a conversation between the respondent and Constable Baker.  In the course of the conversation which occurred shortly after the respondent got out of his car, Constable Baker gave evidence of the following:

"I said ‘Our records show that your licence is disqualified.  Is that correct.’
He said ‘I have a New South Wales driver’s licence.’
I said ‘Are you disqualified in this State from driving.’
He said ‘No, that was July ’86.  I was disqualified ages ago.’
I said ‘Our records show you were disqualified until further order.  Is that correct.’
He said ‘No, 12 months.’

After his breath analysis had been performed the respondent had another conversation with Constable Baker which included the following, as related by Constable Baker:

"I said ‘What is your reason for driving disqualified.’
He said ‘It is just not registered here.  In July ’85 I lost my licence.  That was a long time ago.  I didn’t realise it was until further order.’
I said ‘Are you telling me you have an interstate driver’s licence.’
He said ‘There was.  It probably hasn’t been paid.’
I said ‘How long ago did you have that.’
He said ‘A long time ago.’"

In my opinion, such evidence constituting merely an assertion by Constable Baker which was not unequivocally admitted by the respondent is insufficient evidence to hold that there was a case to answer in respect of Count 3, and in my opinion the learned magistrate was correct in so holding, but not for the reasons given by her.

Conclusion

It follows that the appeal must be allowed.  The question remains as to what formal order should be made.

In her reasons for decision the learned magistrate seems to have concentrated solely on Counts 1 and 2, as she makes no specific reference at all to Count 3.  Her reasons for decision conclude: "I find there is no case to answer.", which on the face of it would appear to apply to all three charges, although the reasons themselves appear only to deal with the first two.  The formal order signed by the magistrate records: "SM finds no case to answer.  Both counts dismissed."  There follows the order for costs to which I have already referred.  The reference to "both counts" in the circumstances is equivocal.  It may relate only to Counts 1 and 2, in which case it seems that Count 3 may not formally have been dealt with.  It may have been intended to relate to all three counts.  There is nothing before me to indicate the reason for failing to lead any documentary evidence in relation to Count 3.

It may have been due to inadvertence, inexperience, incompetence, a deliberate choice or some agreement not recorded in the transcript.  If, as a result of the learned magistrate’s order or any order I may make, Count 3 is not dismissed, any further application to re-open the prosecution case in respect of Count 3 would be for the learned magistrate to decide in accordance with the principles expressed in McDonald v Camerotto (supra) and like authorities.

There can be no doubt that in the circumstances any order of dismissal in relation to Counts 1 and 2 will need to be quashed, as will the order for costs, and that the matter will have to be referred back to the learned magistrate to continue with the hearing.  In the circumstances I will hear counsel as to what formal orders should be made in respect of all three counts and in respect of the costs of this appeal.