Police v RUDZINSKAS - [2005] SASC 384

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v RUDZINSKAS
Judgment of The Honourable Justice Duggan
30 September 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
Crown appeal against a decision of a magistrate to dismiss a charge against the respondent of driving whilst there was present in his blood the prescribed concentration of alcohol - whether magistrate erred in dismissing the charge on the ground that police officers failed to comply with requirements of the Road Traffic Act 1961, s 47FA - whether a failure to comply with s 47FA precludes the operation of the presumption under s 47G - appeal allowed - order for dismissal of the charge set aside.
Road Traffic Act 1961 s 47FA, 47G, referred to.
Taylor v Daire (1982) 30 SASR 453; Police v Jervis (1988) 70 SASR 429, discussed.

POLICE v RUDZINSKAS
[2005] SASC 384
Magistrates Appeal

DUGGAN J. The respondent appeared before the Adelaide Magistrates Court charged with driving without due care and a further charge of driving a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol. He pleaded guilty to driving without due care, but not guilty to driving with the prescribed concentration of alcohol. The latter charge was then heard and dismissed by a magistrate.
According to the evidence, the respondent’s vehicle was observed by police officers as it was being driven along Portrush Road, Glen Osmond at approximately 3.30 am on 8 June 2001. The vehicle spun out of control and slid across the road, hitting a light pole on the southern side of Portrush Road.
The police officers who observed this incident were Senior Constable Ausserlechner and Constable Vonow who were attached to the Mount Barker Police Station. They required the respondent to submit to an alcotest which proved positive. They then took him to the Mount Barker Police Station in order to conduct a breath analysis. The analysis gave a result of .113 grams of alcohol in 100 millilitres of blood.
The issue raised by the appeal is whether the magistrate was correct in dismissing the charge on the ground that the police officers failed to comply with the requirements of s 47FA of the Road Traffic Act 1961 (“the Act”) which provides as follows:
47FA -      Police to provide transport assistance for blood tests in certain circumstances outside Metropolitan Adelaide
(1)     Where
(a) a person submits to a breath analysis conducted under this Act at a place outside Metropolitan Adelaide; and
(b) the person requests a blood test kit as referred to in section 47G(2a); and
(c) it appears to a member of the police force that the person has failed or will fail, despite reasonable endeavours, to make safe and appropriate transport arrangements within the period of two hours after the conduct of the breath analysis to attend a place at which a sample of the person’s blood may be taken and dealt with in accordance with the procedures prescribed by regulation for the purposes of section 47G(1a); and
(d) the person requests of a member of the police force that a member of the police force transport the person, or arrange for the transport of the person, to such a place,
a member of the police force must transport, or arrange for the transport of, the person to such a place.
(2)     In subsection (1) –
“Metropolitan Adelaide” has the same meaning as in the Development Act 1993.
In order to deal with this issue it is necessary to have regard to the relevant evidence and findings of the magistrate.
Senior Constable Ausserlechner stated in evidence that the respondent was conveyed to Mount Barker because, to the witness’s knowledge, a breath analysis operator was not available at that time at the Adelaide Police Station. He explained that he was an authorised breath analysis operator and decided to conduct the analysis at Mount Barker.
The breath analysis was completed at 4.29 am. After the reading was obtained the respondent was given the oral advice and the written notice required by the legislation. He was asked if he wanted a blood test kit and he replied in the affirmative. He was then given a kit.
It is not in dispute that the police officers subsequently drove the respondent to where he had left his vehicle at Glen Osmond. He then walked into the Royal Adelaide Hospital. He said he arrived at the hospital at about 6.30 am. A sample of his blood was taken at the hospital at 6.47 am.
The police officers agreed in evidence that there was some conversation with the respondent about a blood test. No notes of the conversation were made. Senior Constable Ausserlechner said:
AI believe I had a conversation with him in regards to taking him to Mount Barker Hospital for a blood test to facilitate a blood test and it was my understanding he just wanted to go back to where his vehicle was down near Glen Osmond and while we were en route there I recall having a short conversation with him regarding offering him to be taken to the Royal Adelaide Hospital to facilitate his blood.
QWhere did that conversation in relation to taking of blood occur?
AI recall having a conversation with him in the car with me, in the patrol vehicle on the way down.
He said that he did not believe that the respondent asked to be taken to the hospital. The witness denied in cross-examination that the respondent was told the only place he could get a blood test was at the Royal Adelaide Hospital.
Constable Vonow gave the following evidence:
AConstable Ausserlechner then offered to take him to the Mount Barker Hospital where he could have bloods taken, he declined that offer. He said he would make his own arrangements to go to the Royal Adelaide Hospital. We took him down to the bottom of the hill there at the Tollgate.
QAt who’s request?
AAt his request. We then again offered at the bottom of the Tollgate that we were more than happy to take him to the Royal Adelaide Hospital and he again declined saying that he would make his own arrangements.
QDid he ever request you to take him to the hospital, Royal Adelaide Hospital or any hospital?
ANo.
Constable Vonow denied that she refused to take the respondent to the Royal Adelaide Hospital.
The respondent gave evidence. He was asked about the conversation he had with the police officers after he had been given the blood test kit:
QHaving been provided with a blood test kit was there any subsequent conversation between you and the breath analysis operator and any other police officer as to how you might go about getting that blood test?
AThe conversation went along the lines of I would like a blood test, okay he said here’s the kit. The only place that will do it at that time of day is the Royal Adelaide.
QWas there any mention in any conversation you had with any police officer of the possibility of you obtaining a blood test at the Mount Barker Hospital?
ANo.
QHow sure are you of that?
AI’m 100 per cent.
QThe evidence in this court was to the effect that the breath analysis operator on two occasions offered to take you to the Mount Barker Hospital so that you could obtain a blood test did any such conversation occur at all?
ANo, it did not.
He said that the only hospital mentioned in discussion with the police was the Royal Adelaide Hospital.
The respondent gave evidence that the police officers said they would take him to Stirling and, on the way there, he rang a taxi company on his mobile telephone. He requested a taxi, but the operator refused to send one. He said that at this point he asked the police to take him back to his vehicle. He denied that either police officer offered to take him to the Mount Barker or Royal Adelaide Hospitals.
The magistrate gave short reasons for the dismissal of the charge. He said:
The defendant pleaded not guilty to a charge of driving with a prescribed concentration of alcohol. The issue I have to determine in this matter is whether or not [the] police officers, after they had conducted the Breath Analysis test, offered to drive the defendant to the Mount Barker Hospital to facilitate a blood test which the defendant sought (and there is no dispute about this) or whether they offered to drive him to the Royal Adelaide Hospital to do so. Neither police officer had any hand-written notes regarding this issue of transport.
I have the defendant’s contrary evidence that no offer was made to transport him. The defendant tells me that the Mount Barker Hospital was never mentioned in conversations relating to the facilitating of a blood test. He says that he was told that the only place where he could have a blood test was at the Royal Adelaide Hospital. His evidence further is that, initially, police were unwilling to drive him anywhere, but finally agreed to drive him only to Stirling. He says that when at Stirling, he tried to call a taxi to pick him up from there and upon being unable to do so, his evidence is that the police agreed to take him back to his car. His evidence is that he then travelled on foot from the location of his vehicle to the Royal Adelaide Hospital and that eventually a blood test was taken at 6.47 am. He corroborates his version of events by records from a Telstra account of a phone call being made from his mobile phone indicating that at 5.05 am on the 8^th of June a call was made to 131 008. As I said, this corroborates his testimony.
I have no corroborative evidence in relation to the police officers’ testimony. The first police officer stated that he had no actual memory of conversations relating to transport. The second police officer gave evidence that although she has no notes in relation to [t]his issue, she relies on her memory and I note that this incident occurred almost four years ago. I can say that I do not have confidence in her evidence. The first police officer who gave evidence trod very carefully on this issue and could say nothing other than what was his usual practice and therefore concluded that he would have done so on this occasion. The second police officer took it further, her evidence clearly contradicts the defendant’s evidence and there is a further contradiction in the evidence in that the defendant states he had no conversations with her at all in relation to the issue of transport, but spoke only to the male police officer.
It would seem rather ridiculous that the defendant, having made it clear to police that he wanted a blood test and having been dropped off at his car, would volunteer to walk in to the Royal Adelaide Hospital if an offer of transport had in fact been made by the police. I accept, therefore, the defendant’s evidence on this issue and reject that of the police witnesses.
Accordingly there has not been compliance with the Act and the charge is dismissed.
Section 47FA requires the police to provide or arrange for the transport of a person to a place where a sample of blood can be taken for analysis, in the event that the pre-conditions set out in s 47FA exist. It is not in dispute that two of the pre-conditions existed in the present case: the respondent had submitted to a breath test outside Metropolitan Adelaide and he requested a blood test kit.
However, the appellant has argued that the evidence did not establish the existence of the remaining pre-conditions. According to the argument, the evidence does not support the conclusion that it appeared to one or both of the police officers that the respondent would fail, despite reasonable endeavours, to make safe and appropriate transport arrangements within the period of two hours after the analysis to attend at a place where a blood sample could be taken for the purposes of the Act. Nor, so it was said, was there evidence of any request made by the respondent to the police officers to arrange for transport to such a place.
The first of these requirements contemplates an assessment by a police officer of the circumstances referred to in s 47FA(1)(c). The assessment itself is subjective, although that does not mean that it cannot be tested by reference to the objective facts. However, the police officers were not asked whether they had made such an assessment and there is insufficient evidence from which to infer that an assessment which led to the conclusion identified in the sub-section took place. There was evidence that the blood sample could have been taken at the Mount Barker Hospital. Presumably, that consideration would have been taken into account if an assessment had been made. As I said, however, the question whether either police officer addressed the circumstances referred to in s 47A(1)(c) was not raised at the hearing. In my view, the pre-condition required by the sub-section was not established.
Furthermore, there was no evidence that the respondent requested either officer to convey him to a place where the blood sample could be taken. According to the respondent’s evidence he asked to be taken back to his vehicle. This was also the evidence of the police officers. Accordingly, the pre-condition required by s 47FA(1)(d) was not established.
Unfortunately, the magistrate did not address these issues in his reasons. He said the issue which he had to decide was whether the police officers offered to drive the respondent to the Mount Barker Hospital or the Royal Adelaide Hospital. The judgment did no more than resolve this question in favour of the respondent. In order to decide the case, it was necessary to go further and determine whether the pre-conditions in s 47FA(1)(c) and (d) had been fulfilled. If they did not exist, or there was no evidence that they existed, there was no basis for holding that the procedure prescribed in s 47FA had not been followed.
Before considering the consequences of these conclusions, it is necessary to refer to a further argument put forward by the appellant. The decision of the magistrate proceeded on the assumption that, if there was a failure to comply with s 47FA, the prosecution were prevented from relying on the presumption in s 47G(1) of the Act to the effect that the concentration of alcohol indicated by the breath analysing instrument was present in the blood at the time of the analysis. The appellant challenged this aspect of the magistrate’s reasoning.
In so far as it is relevant, s 47G provides as follows:
47G. (1) Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis.
(1a) No evidence can be adduced in rebuttal of the presumption created by subsection (1) except—
(a)     evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I or in accordance with the procedures prescribed by regulation; and
(b)     evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.
(1ab) If it is proved in proceedings that a concentration of alcohol was present in the defendant's blood at the time of a breath analysis, it must be conclusively presumed that that concentration of alcohol was present in the defendant's blood throughout the period of two hours immediately preceding the analysis.
(1b) No evidence can be adduced as to a breath or blood alcohol reading obtained from a coin-operated breath testing or breath analysing machine installed in any hotel or other licensed premises.
(2) As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying—
(a)     the reading produced by the breath analysing instrument; and
(b)     the date and time of the analysis.
(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. (emphasis added)
According to the appellant’s argument, the requirements of s 47FA are not “requirements and procedures in relation to breath analysing instruments and breath analysis” under the Act.
The right of a person who has submitted to a breath analysis to arrange for a sample of blood to be taken and analysed and, if appropriate, to rely on the results of the blood analysis to rebut the statutory presumption, is the central safeguard against inaccurate readings obtained from the breath analysing instrument.
It is recognised in s 47G(1) that the requirements to advise a person as to the procedures prescribed for the taking and analysis of a sample of the person’s blood and to deliver, upon request, an approved blood test kit to the person, are part of the procedures in relation to breath analysis under the Act.
Under the legislation as it stood at the time when Taylor v Daire (1982) 30 SASR 453 was decided, if a person requested a sample of blood to be taken by a medical practitioner, the police were required to do all things necessary to facilitate the taking of the sample: s 47f of the previous Act. If the sample was taken by a medical practitioner, it was to be taken in the presence of a member of the police force.
Doyle CJ commented on Taylor v Daire in Police v Jervis (1998) 70 SASR 429 at 444:
In Taylor v Daire King CJ (at 463) treated the obligations imposed by s 47f, as it then stood, as procedures upon which the availability of the statutory presumption depended. Wells J appears to have proceeded upon the same basis (at 473), and Jacobs J agreed with King CJ. It is understandable that they should have so concluded. At that time, a person whose breath analysis indicated the presence of the prescribed concentration of alcohol, had to be informed "of his right pursuant to section 47f of this Act to have a sample of his blood taken by a medical practitioner" (s 47g(2a)). Section 47f, in turn, imposed specific obligations upon a member of the police force to whom a request was made. In that context, it was natural to treat the obligations imposed by s 47f as "requirements and procedures in relation to breath analysing instruments and breath analysis under this Act".

The Chief Justice added that the present legislation differed in that “there is no longer a statutory obligation upon a member of the police force to facilitate the taking of the sample, or to be present at the taking of the sample, or to be involved in the taking of the sample”.
In Police v Jervis it was held that regulations for the taking and analysis of a sample of blood were not “requirements and procedures within s 47G(1)”. It was pointed out that police officers are no longer involved in any significant way in the procedures for the taking and analysis of a sample of blood.
However, there remains a statutory requirement under s 47FA, in the event that the conditions precedent in the section are fulfilled, to transport the person or arrange for transport, to a place where the sample of blood can be taken. This obligation is properly considered as a requirement in relation to the breath analysis. It follows directly upon the delivery of the blood test kit in accordance with s 47G(2a), an action which is acknowledged by the Act as being part of the breath analysis procedure.
It is difficult to see how there could be any relevant difference, for present purposes, between an obligation of this nature and the general obligation to do all things necessary to facilitate the taking of the blood sample which existed under the legislation as it was when Taylor v Daire was decided and which was considered in that case to be part of the procedures upon which the statutory presumption depended. One of the requirements discussed in Taylor v Daire was the provision of police transport, if necessary, to convey the person to a place where the blood test could be carried out: 30 SASR 453 at 464; 467.
For these reasons, I am of the view that the obligation imposed on police officers pursuant to s 47FA is a requirement in relation to breath analysis under the Act and failure to comply with the requirement would preclude the operation of the presumption under s 47G.
There was a further argument that, if the police officers in the present case had failed to comply with s 47FA, it would have been appropriate to exclude the result of the breath analysis by the exercise of either the Bunning v Cross discretion or the overall discretion to exclude evidence because of unfairness.
It is unnecessary for me to deal with this argument in the light of my view that a failure to comply with s 47FA would result, of itself, in the exclusion of the presumption provided for in s 47G(1).
However, as I have found, it does not appear from the evidence that there was a failure by the police officers to comply with s 47FA. The prosecution were entitled to rely on the presumption in s 47G(1) and the magistrate should have found the charge of driving with the prescribed concentration of alcohol proved.
The appeal will be allowed and the order for dismissal of the charge set aside. I will give the parties an opportunity to make submissions on what further orders should be made.