Police v RHODES - [2005] SASC 311

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v RHODES
Judgment of The Honourable Justice Vanstone
16 August 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - STATUTORY PROVISIONS AS TO PRIMA FACIE EVIDENCE - OTHER PROVISIONS - TRAFFIC OFFENCES
Appeal against decision of magistrate dismissing charge of driving a motor vehicle with the prescribed concentration of alcohol contrary to s 47B Road Traffic Act - whether error in date made in course of completing a blood test kit request form under s 47G(2a)(b) and the regulations amounted to non-compliance with s 47G(2a) so as to preclude reliance on s 47G(1) presumption - magistrate's finding of non-compliance correct - appeal dismissed.
Road Traffic Act 1961 s 47B, s 47G, s 47E; Road Traffic (Miscellaneous) Regulations 1999 reg 8A, reg 10, reg 11, sch 2; Australian Road Rules r 20, referred to.
Lloyd v Police (2004) 89 SASR 383, discussed.

POLICE v RHODES
[2005] SASC 311
Magistrates Appeal: Criminal

VANSTONE J: This appeal by the police again raises the question of whether the failure to strictly comply with the legislative regime governing breath analysis of drivers denies the prosecution resort to evidentiary aids found within the legislation.
Specifically, the question is whether error made in the course of completing a request form for the purpose of s 47G(2a)(b) Road Traffic Act 1961 (“the Act”), amounts to non-compliance with s 47G(2a), such as to preclude tender of a certificate under s 47G(7), thereby disentitling the prosecution to the benefit of the presumption under s 47G(1), that presumption giving relevance to the result achieved by the breath analysis instrument.
The respondent was charged with driving a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol, contrary to s 47B of the Act. The actual concentration alleged was 0.08 grams per hundred millilitres of blood. He was further charged with exceeding the speed limit, contrary to r 20 Australian Road Rules.
The respondent was stopped by a police officer, Senior Constable Pongracz. The officer issued a traffic infringement notice in respect of the speeding offence and required the respondent to undergo an alcotest. That test gave a positive result and the respondent was taken to the Sturt Police Complex. There the officer required the respondent to submit to a breath analysis.
The Magistrate admitted a certificate, given pursuant to s 47G(5) of the Act, proving that the respondent submitted to an analysis of breath at 2108 hours on 10 December 2003, that the reading given by the breath analysis instrument at 2111 hours that day was 0.080 grams per hundred millilitres of blood, and that at 2113 hours the operator provided the respondent with a statement in writing, as required by s 47G(2), specifying the reading and the date and time of analysis (“the statement in writing”). The Magistrate then turned to s 47G(2a). That subsection provides as follows:
s 47G(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 must forthwith ––
(a) give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person’s blood; and
(b) at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.
The Magistrate found that there was compliance with s 47G(2a)(a), but not with s 47G(2a)(b). The latter provision brings into play regulation 10 of the Road Traffic (Miscellaneous) Regulations 1999. That regulation provides as follows:
10.(1) For the purposes of section 47G(2a)(b) of the Act, a request for an approved blood test kit must be made in accordance with the following provisions:
(a)     the request may, in the first instance, be made orally to the person operating the breath analysing instrument (the operator);
(b) on such a request having been made by the person, the operator or any other member of the police force present at the scene must complete a written request form in the form set out in Schedule 2 by inserting the particulars required by the form;
(c)     the person making the request must then sign the request form in the presence of the operator or other member of the police force and the person’s signature must be attested to by the signature of the operator or other member;
(d)     the original of the signed request form may be retained by the person making the request;
(e)     a copy of the signed request form must be delivered to the operator or other member of the police force.
(2)The copy of the request form delivered to the operator or other member of the police force must be delivered to the Minister or retained on the Minister’s behalf for 12 months from the day on which the request form was signed by the person making the request.
The form set out in Schedule 2 to the Regulations is as follows:
SCHEDULE 2 [RTR.1920]
Form of request (Section 47G(2a)(b))
ROAD TRAFFIC ACT 1961
REQUEST FORM FOR THE PURPOSES OF SECTION 47G(2a)(b)
…………………………………………………….. of ………………………………
(Name)
…………………………………………………………………………………………
(Address)
submitted to a breath analysis at ……………………………………………………...
(Address or description)
at …………… am/pm on the ……………………...day of ………… 19 ……………
I (the person named above) now request that I be supplied with an approved blood test
kit.
Signature: ………………………………In the presence of:……………………………
(Person making request) (Name of Police Officer)
Signature of witnessing Police Officer:…………………………….
The Magistrate found that the form had been incorrectly completed by the officer in two particulars. For that reason, he found that there had been non‑compliance with reg 10, and therefore with s 47G(2a)(b), in two respects. First he found that the time of the breath analysis was given as 9.08 p.m., where it should have been 9.11 p.m. Then, the Magistrate found that the year was incorrectly written as 2004, instead of 2003. On that basis he determined that the prosecution could not utilise the presumption otherwise available in s 47G(1) to the effect “ … that the concentration of alcohol [indicated by the breath analysing instrument] was present in the blood of the defendant at the time of the analysis”.
I turn then to a consideration of the two errors identified by the Magistrate. The time which the operator was required to insert into the Schedule 2 form was the time at which the respondent “submitted to a breath analysis”. The Magistrate in effect found that each time the respondent provided a sample of his breath he submitted to a breath analysis. Since the second of the samples of breath provided by the respondent gave the lower reading, and in light of the fact that reg 8A(3) requires that the lower result of the two samples provided is to be taken to be the reading produced, the Magistrate concluded that the time at which that particular sample of breath was furnished was the time which should have been entered on the Schedule 2 form. With great respect to the Magistrate, I do not agree with his conclusion. The legislative scheme draws a distinction between the concept of submitting to a breath analysis and provision of one or more samples of breath. Both s 47E and reg 8A provide examples of that. The words of reg 8A(1) are instructive:
8A. (1) Pursuant to section 47E(2e), where a person submits to a breath analysis, the breath analysis must be conducted in the following manner:
(a)     the person must provide two separate samples of breath for analysis; and
(b)     each sample must be provided in accordance with the directions of the operator of the breath analysing instrument and must consist of not less than one litre of breath; and
(c)     there must be an interval of not less than two minutes and not more than 10 minutes between the provision of the samples.
Section 47G(2) and s 47G(5) also allow for a distinction to be drawn between the time of submission to an analysis of breath and the production of a reading.
There was evidence before the Magistrate that the first direction to blow into the instrument was given at 9.08 p.m. In my view, what the Schedule 2 form called for, in terms of specification of a time, was the time at which the respondent submitted to the operator’s direction, which would normally be the time when the direction was first given and the first sample of breath was furnished, irrespective of whether that sample gave the lesser result. Consequently I do not consider that the Schedule 2 form was incorrectly completed by the operator insofar as the time of submission was concerned.
However, clearly an error was made on the Schedule 2 form in respect of the year of the submission to the breath analysis. The first position of Mr Stratton‑Smith, for the appellant, was that under s 47G(2a)(b) it is the person making the request for an approved blood test kit who must, in making it, comply with the regulations. Although the subparagraph speaks of the “request of the person made in accordance with the regulations”, it is the “person operating the instrument” who supervises the procedure and who, in my view, has, under the subsection, the obligation and the responsibility to see that the procedure followed is in compliance with the legislation and regulatory provisions. Counsel further argued that, in any event, the nature of the error was analogous with that made in Lloyd v Police (2004) 89 SASR 383. In that regard he submitted that:
The question is whether, once the purpose of the legislation is examined, Parliament intended that a failure to insert with complete accuracy each and every particular on the prescribed request form should result in non-compliance with s 47G(2a)(b) and hence an inability to rely on the s 47G(1) presumption.
He suggested that it was the information in the statement in writing required by s 47G(2) which was of crucial importance to the respondent, rather than the Schedule 2 form. Plainly, the respondent would recognise the error on the Schedule 2 form as a clerical one and would not be in any way affected by it. He suggested that, apart from the Schedule 2 form providing a record both to the Minister and to the respondent as to the respondent’s request for an approved blood test kit, it had no further work to do.
The decision in Lloyd suggests that the question to be posed in this situation is whether the failure of the operator to correctly fill in the Schedule 2 form has the consequence that there is a failure to comply with s 47G(2a)(b). That, in turn, raises the question whether the legislature intended that a failure to strictly comply with the subparagraph should invalidate the act. In Lloyd it was held, by majority, that the nature of the provision requiring the operator to give the person the “prescribed oral advice” – s 47G(2a) – was such that “substantial compliance” would suffice for the purpose of s 47G(1). It was said that “minor” or “inconsequential” departures from the text prescribed by regulation would not amount to non-compliance: Debelle J at 392, Doyle CJ agreeing.
The answer to the relevant questions in this case, then, turns on the importance of the information conveyed by the Schedule 2 form. As seen, the filled up form is the formal record of the respondent’s request for an approved blood test kit. Such a record is important because, unless such a request is made and complied with, the person cannot proceed to challenge the breath analysis result: s 47G(1a) and reg 11.
As far as I can see, there is no requirement, either in reg 11 or elsewhere, that the defendant’s copy of the filled up request form be produced to the doctor taking the blood sample, or to anyone else. Nevertheless, reg 11 imposes certain duties upon a medical practitioner who is asked to take a sample of blood for the purposes of s 47G, and it would not be unreasonable for that practitioner to wish to satisfy himself, by an examination of the request form, as to the circumstances leading to the provision of the blood test kit. Moreover, if the defendant wishes to rebut evidence of the breath test result, as comprehended by s 47G, he would need to demonstrate that the sample of his blood was ‘taken and dealt with … in accordance with the procedures prescribed by regulation”: s 47G(1a)(a). Regulation 11 requires delivery to the practitioner of the blood test kit supplied in accordance with s 47G(2a)(b). Tender of the filled up request form would be an appropriate means of proving compliance with that part of the relevant procedures, that is, delivery under s 47G(2a)(b).
Viewed in this light, the correctness of the date placed on the request form would appear to be of greater importance than the precise time of submission to breath analysis. I would have thought that, were a mistake made in the day or month entered on the form, that would amount to non-compliance with s 47G(2a)(b). I am unpersuaded that a mistake in the year entered stands on any different footing. The suggestion that the error was readily detectable and can, therefore, be excused is unappealing. It is tantamount to proposing that the greater the magnitude of error, the more readily it can be overlooked. Therefore, I conclude that there was non-compliance with s 47G(2a)(b), and the Magistrate was correct in denying the prosecution the benefit of the s 47G(1) presumption. Since the prosecutor did not adduce other evidence to prove the accuracy of the breath analysis, the Magistrate had no alternative but to dismiss the charge.
In his dissenting judgment in Lloyd, White J held that in determining whether, for the purpose of s 47G(1) the requirements of s 47G(2a)(a) had been complied with, it was inappropriate to qualify the concept of “compliance”. Rather, the issue was simply whether there was compliance, and in determining that question, trifling departures from the text of the “prescribed oral advice” required to be given by the operator to the person tested, could be ignored. Doyle CJ accepted the validity of such an approach. However, like Debelle J, the Chief Justice regarded the departure there under consideration as trifling. Therefore, upon each analysis, the majority reached the same result.
I am unable to discern more than a subtle difference between those two approaches. However, were I to apply to the error in the request form the analysis of White J, I would be unable to categorise the error as trifling, for the reasons already given.
For these reasons, I would dismiss the appeal.