Police v Rudzinskas (No 3) - [2006] SASC 342

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v RUDZINSKAS (No 3)
[2006] SASC 342
Judgment of The Honourable Justice Gray
17 November 2006
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
Appeal against the dismissal of a complaint - Magistrate exercised discretion to exclude evidence of breath analysis relied upon as evidence of the concentration of alcohol present in the respondent’s blood – the respondent was required to submit to a breathalyser test - reading recorded in excess of 0.08 - respondent charged with having in his blood the prescribed concentration of alcohol contrary to section 47B of the Road Traffic Act 1961 (SA) – respondent obtained a blood test which confirmed the presence of alcohol in his blood - whether police conduct was improper - whether police complied with section 47FA of the Road Traffic Act - whether evidence of breath analysis certificate should be admitted - appeal allowed.
Road Traffic Act 1961 (SA) s 45, s 47B, s 47E, s 47FA, s 47G, referred to.
Police v Rudzinskas [2005] SASC 384 ; Bunning v Cross (1978) 141 CLR 54; Burton v Police (2004) 88 SASR 152; Question of Law Reserved (No 1 of 1998) 70 SASR 281 ; French v Scarman (1979) 20 SASR 333; Ujvary v Medwell (1985) 39 SASR 418 ; Police v Hall [2006] SASC 281; Ridgeway v R (1995) 184 CLR 19; Nicholas v R (1998) 193 CLR 173; R v Lobban (2000) 77 SASR 24 ; Taylor v Daire (1982) 30 SASR 453; Eubel v Martin (1992) 57 SASR 290; R v Ireland (1970) 126 CLR 321, considered.

POLICE v RUDZINSKAS (No 3)
[2006] SASC 342
Magistrates Appeal
GRAY J:
Introduction

This is an appeal from a decision of a Magistrate to dismiss a complaint for an offence against section 47B of the Road Traffic Act 1961 (SA).
The respondent, Timothy Matthew Rudzinskas, was charged on complaint that on 8 June 2001, he drove a motor vehicle whilst there was present in his blood the prescribed concentration of alcohol, contrary to section 47B of the Road Traffic Act, the alleged concentration of alcohol being 0.113 grams of alcohol in a hundred millilitres of blood. He was further charged with driving without due care, contrary to section 45 of the Act.
The respondent pleaded not guilty to driving with the prescribed concentration of alcohol. The matter was tried before a Magistrate in the Magistrates Court sitting at Adelaide on 11 April 2005. The respondent pleaded guilty to driving without due care.
Circumstances of the offending
The circumstances of the alleged offending were that police officers saw the respondent driving on Portrush Road, Glen Osmond. The respondent’s car spun through 360 degrees and then continued to slide across the road until it collided with a light pole on the southern side of Portrush Road. The respondent reversed, drove south, and stopped at the Tollgate at Glen Osmond. The police officers followed the respondent and stopped at the Tollgate.
Pursuant to section 47E(1) of the Act,[1] one of the police officers, Constable Ausserlechner, required the respondent to submit to an alcotest. The alcotest proved positive. The police then took the respondent to the Mount Barker Police Station for the purpose of conducting a breath analysis test.
[1] 47E—Police may require alcotest or breath analysis:
(1)Subject to this Act, if a member of the police force (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 member of the police force may require the person to submit to an alcotest or a breath analysis, or both.
Constable Ausserlechner gave evidence that he took the respondent to Mount Barker rather than the closer Adelaide Police Station because, as he recalled, there were no breath analysis operators on duty in Adelaide, he chose to conduct the test himself, and because his breath analysis book was at Mount Barker
The breath analysis was conducted at 4.29am and gave a reading of 0.113 grams of alcohol in 100 millilitres of blood. Constable Ausserlechner delivered a statement in writing to the respondent as required by section 47G(2) of the Act. He read the prescribed oral advice to the respondent and delivered to him the prescribed written notice as required by section 47G(2a)(a). The respondent was provided with a blood test kit.
At the relevant time, Division 5 of Road Traffic Act dealt with persons driving motor vehicles whilst under the influence of liquor or drugs. Section 47B made it an offence to drive whilst having a prescribed concentration of alcohol present in the driver’s blood and set out the penalties for an offence under that section. Section 47DA gave the police power to establish breath testing stations in order to test drivers randomly. Section 47E empowered the police to stop drivers and require them to submit to a breath analysis test when certain conditions had been satisfied or suspicions aroused.
At the conclusion of the breath analysis procedure, Constable Ausserlechner said that the respondent did not ask to be driven to hospital. He said he believed he:
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 [Constable Ausserlechner’s] understanding that [the respondent] just wanted to go back to where his vehicle was down near Glen Osmond.
Constable Vonow, the other prosecution witness, said that Constable Ausserlechner:
offered to take [the respondent] 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 … at 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.
Constable Vonow claimed that the respondent did not request to be taken to a hospital and that she indicated to the respondent three times that she was prepared to take the respondent to a hospital.
In contrast, the respondent gave evidence that neither police officer offered to transport him to Mount Barker Hospital. He said the only hospital that was mentioned by the officers was the Royal Adelaide Hospital. He said that he initially asked the officers to take him to his car but they refused. However, after an argument, the police officers agreed to take him as far as Stirling. On the way to Stirling, the respondent telephoned a taxi company but they would not send a taxi. The respondent corroborated this aspect of his version of events by tendering his mobile phone records for the day in question.
The respondent said that having been left at the Tollgate and after a 30 or 40-minute walk, he arrived at the Royal Adelaide Hospital. His blood sample was taken at approximately 6.47am.
First decision of the Magistrate
The Magistrate accepted the evidence of the respondent and concluded that the police had not complied with section 47FA of the Road Traffic Act. Section 47FA then provided:
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.
...
As the trier of fact, the Magistrate had to determine whether to accept the police version of events or that of the respondent. He identified the issue for determination as whether or not the police officers, after they had conducted the Breath Analysis test, offered to drive the respondent to the Mount Barker Hospital to facilitate a blood test or whether they offered to drive him to the Royal Adelaide Hospital to do so. Having concluded that it “would seem rather ridiculous” that the respondent, having made it clear to police that he wanted a blood test and having been dropped off at his car, would volunteer to walk to the Royal Adelaide Hospital if an offer of transport had in fact been made by police, the Magistrate accepted the respondent’s evidence with regard to this issue and rejected that of the police officers. In so deciding, the Magistrate concluded that the police had not complied with section 47FA of the Road Traffic Act and accordingly dismissed the charge.
First appeal to Supreme Court
The dismissal of the charge was the subject of an appeal to this Court. On appeal, it was not disputed that two of the pre-conditions set out in section 47FA had been met – the respondent had submitted to a breath test outside Metropolitan Adelaide and he had requested a blood test kit. However, counsel for the Crown argued that the evidence did not establish the existence of the remaining pre-conditions and that accordingly, the police were under no obligation to provide transport to the respondent. Counsel contended that the evidence did 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. In addition, it was said that there was no evidence of any request made by the respondent to the police officers to arrange for transport to such a place.
Duggan J, in allowing the police appeal, observed that neither of the police officers had been asked when giving evidence whether they had made an assessment in terms of section 47FA(1)(c) and he concluded that there was insufficient evidence from which to infer that such an assessment had been made. In the circumstances therefore, he concluded that the pre-condition required by section 47FA(1)(c) had not been established.
In addition, Duggan J concluded that there was no evidence that the respondent had requested the police officers to convey him to a place where the blood sample could be taken. His Honour therefore concluded that the pre-condition required by section 47(1)(d) has not been established. Accordingly, Duggan J found that no breach of section 47FA of the Act had been established and set aside the dismissal of the complaint.
Following further submissions, Duggan J remitted the matter to the Magistrate for further hearing.[2]
[2] Police v Rudzinskas [2005] SASC 384 30 September 2005.
Second decision of the Magistrate
At the further hearing, the Magistrate again dismissed the complaint. The basis on this occasion being the exclusion of the result of the breath analysis in the purported exercise of a Bunning v Cross[3] discretion. The Magistrate found improper behaviour on the part of the two police officers concerned. The Magistrate concluded:
[3] Bunning v Cross (1978) 141 CLR 54.
There is no doubt that in my findings I was not satisfied with the credibility of the police officers who gave evidence. I made a finding at the conclusion of my reasons that I accepted the defendant’s evidence and rejected that of the police witnesses.
I found that the defendant had been informed by the police that the only place he could obtain a blood test was the Royal Adelaide Hospital. (This proved not to be the case).
I accepted the defendant’s evidence that he had informed the police that he wanted a blood test. I accepted his evidence that he had asked the police to take him back to his car, but that the police had initially refused; that subsequently they did agree to take him as far as Stirling and that en-route, because he was unable to procure the services of a taxi to take him back to his car, they finally agreed to take him back to his motor vehicle near the Tollgate. I rejected the evidence of police in relation to the defendant’s evidence regarding these matters.
[Defence counsel] submits that because of the improper acts by the police officers in this case I should exercise my discretion and exclude the results of the defendant’s breath analysis. Certainly the police officers had not acted unlawfully but I do not agree with the submission put by the complainant that there is no basis for public policy discretion to be exercised by me.
[Defence counsel] submitted that the public policy considerations considered in the case of Bunning v Cross apply to this case. [Defence counsel] referred me to the case of Coleman v Zanker and quoted Olson J. He further referred to the remarks of King CJ in Ujvary v Medwell, 1986, 39 SASR pg.418 and 420, and he quoted the following:
“Generally speaking police conduct which deters a suspect from requesting a blood test will render it unsafe to admit the evidence of a breath test. The blood test is the only means by which a citizen can question the correctness of the result of the breath analysis. It must be the paramount concern of the courts to ensure that the citizen has already access to that check. If obstacles are placed in the way of the citizen the evidence of the breath analysis should be excluded unless there is some cogent reason to admit it. When applying Bunning v Cross principles the public interest in securing a conviction for an individual drink driving offence will rarely outweigh the public interest in protecting the citizen’s rights to have the results of the blood breath analysis checked by means of a breath analysis test.”
In my view, these comments fit precisely the facts in this particular case, given my findings viz:
1.The police informed the defendant that the only place he could have a blood test was the Royal Adelaide Hospital.
2.That the defendant had indicated to the police that he wanted a blood test.
3.That he had asked the police initially to take him back to his car but that the police had refused.
4.That the police later agreed to take him as far back as Stirling.
5.That when unable to obtain a taxi they finally agreed to take him back to his car.
In these circumstances I find this to be improper conduct on the part of the police and therefore exclude, on public policy grounds, the breath analysis result.
A Preliminary Matter
On the hearing of this appeal counsel for the respondent sought to advance a submission not previously made. Counsel for the Crown did not object.
Counsel for the respondent contended that the misinformation provided by the police – that the appellant would not be able to obtain a blood test at the Mount Barker Hospital – materially affected the oral and written advice given to the respondent. Counsel said that this information had the effect of counter-minding what had been written and said to a degree that officiated those earlier advices.
In order to understand this submission, it is necessary to refer to the relevant subject provisions.
Section 47G relevantly provides:
(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 breath or blood alcohol reading obtained from a coin-operated breath testing or breath analysing machine installed in any hotel or other licensed premises."
Subsection (2a) sets out the obligations relating to the provision of an approved test kit. It provides:
(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 terms of the oral advice were as follows:
The breathalyser reading just taken shows that you had a prohibited level of alcohol in your blood.
Therefore, it appears that you have committed an offence against section 47B of the Road Traffic Act.
In any court proceedings for that offence, or for an offence against section 47 of the Road Traffic Act (driving under the influence of liquor), it will be presumed that the breathalyser accurately indicated your blood alcohol level at the time of the reading and for the preceding two hours. However, the Road Traffic Act allows for contrary evidence based on the results of a blood test.
If you want to have such a blood test you will have to make your own arrangements and follow certain procedures, using a special blood test kit. This blood test kit will be supplied to you on your signing a written request.
If you obtain a blood test kit and want to have your blood tested, you should take the kit promptly to a hospital or medical practitioner in order to have a sample of your blood taken.
…….
Under the blood test procedure, the sample of blood is divided and sealed in two containers. You will have to sign a form that will be given to you by the medical practitioner. …….
One of the sealed containers will be given to you and you may make your own arrangements to have the blood in the container analysed.
In any event, the blood in the other container will be analysed by State Forensic Science and you will be given written notice of the results of the analysis.
Further information as to these matters is contained in the written notice which will be delivered to you shortly.

The terms of the written advice were as follows:
Part B – Written notice for the purposes of section 47G(2a)(a) of Road Traffic Act 1961
Operation of Road Traffic Act in relation to results of breath analysis
1 Offence
A person commits an offence against section 47B(1) of the Road Traffic Act 1961 if the person
(a)drives a motor vehicle; or
(b)attempts to put a motor vehicle in motion,
while there is present in his or her blood the prescribed concentration of alcohol (as defined in section 47A of the Act).
2Breath analysis
Your breath has just been analysed by means of a breath analysing instrument which indicated that the prescribed concentration of alcohol was present in your blood.
Accordingly, it appears that you have committed the offence described above.
3Legal effect of breath analysis result
In proceedings for the offence described above or an offence against section 47(1) of the Road Traffic Act 1961 (driving under the influence of liquor), the result of the breath analysis will be presumed to accurately record the concentration of alcohol in your blood at the time of the analysis and throughout the preceding 2 hours (section 47G(1),(1ab)).
In any proceedings against you for such an offence, you will be able to challenge the accuracy of the breath analysis reading –
·if you have a sample of your blood taken and analysed as described below AND
·if the result of analysis of the blood sample shows that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in your blood (section 47G(1a)).
Procedures for optional blood test
1 You may have a sample of your blood taken and analysed if you wish.
2For that purpose, you must request the breath analysis operator to supply you with an approved blood test kit (you must sign a written request form for the kit and should retain a copy of the signed request form).
3You should then proceed promptly to a hospital or a medical practitioner [*or registered nurse] of your choice and request that a sample of your blood be taken (using the blood test kit).
4Do not consume any further alcohol before the sample is taken.
5Do not open the blood test kit.
6The medical practitioner [*or registered nurse] taking the sample of your blood will divide it and place it into two containers and seal the containers. One container will be delivered to you – do not break the seal on this container.
7Sign the form presented to you by the medical practitioner [*or registered nurse] – the original of the form will be given to you which you should retain.
8You may, if you wish, have the blood sample (in the container delivered to you) analysed at a laboratory to determine the concentration of alcohol present in the blood.
9The other blood sample container will, in any event, be sent to State Forensic Science where the blood will be analysed. The results of this analysis will be sent to you at your address (as indicated on the form presented to you by the medical practitioner [*or registered nurse] who took the blood sample).
*The alternative of a registered nurse applies only if the breath analysis was conducted outside Metropolitan Adelaide.
Counsel submitted that the presumptive powers contained in section 47G(1) did not operate as there had not been compliance with section 47G(2a).
This submission should be rejected. The statutory advices, both oral and written, were given in correct form. The difficulty that arose was that after advice had been given misinformation, on the Magistrate’s findings, was given by the police officers that may have operated to preclude a preferred location being chosen for the taking of a blood sample. However, it was unclear whether the respondent would have elected or sought to go to Mount Barker. It is to be recalled that his car was by the Tollgate at Glen Osmond. It may be inferred that he wished to return to his motor vehicle as he later informed the police. In any event, the appellant did have a blood test taken using the blood test kit provided and taken at a time that permitted the respondent to exercise the statutory avenue open to him to challenge the breath analysis reading.
This case is to be distinguished with the case of Burton,[4] where the officer, in giving the oral advice, did not follow the prescribed form and in the process provided material misinformation to the driver with the consequence that he did not obtain a blood sample that could be used to give effect to his statutory rights.
[4] Burton v Police (2004) 88 SASR 152.
As earlier observed, this submission should be rejected. The evidence sought to be excluded was admissible and absent the exercise of discretion to exclude that evidence, the statutory presumptions would take effect.
The Present Appeal
Evidence of the breath analysis reading of 0.113 was legally admissible and could only be excluded by the exercise of a relevant discretion. The discretion in Bunning v Cross (conventionally referred to as a “public policy” discretion) arises if the evidence in question has been procured by unlawful or improper conduct.[5] The undertaking of the breath analysis in this case occurred before the conduct complained of. However, the discretion has been held by this Court in French v Scarman[6] to also arise when a driver is dissuaded by the improper conduct of the police from taking advantage of the only means afforded by statute to challenge a breath analysis reading - namely a blood test. The correctness of French v Scarman has been recently confirmed by this Court in Police v Hall,[7] where Doyle CJ observed:[8]
Nevertheless, in light of the submissions by [the Solicitor General], and of the decision in Director of Public Prosecutions v Moore (above), I have reconsidered the comments made in Lobban about the decision in French v Scarman. By agreeing with the reasons of Martin J I agreed with those observations.
On reflection, the criticism of the reasoning in French v Scarman was unnecessary for the purpose of the decision in Lobban. In any event, I consider that I took too strict a view of the scope of the Bunning v Cross discretion in Lobban.
The decision in French v Scarman is based on a conclusion that the relevant safeguard (the obligation on the police officer to do all things necessary to facilitate the taking of a sample of blood, upon a request that a sample be taken) was, as King CJ said at 338:
… so closely connected with the obligation to submit to the breath test that non-observance by the police of the safeguard is a sufficient foundation for the discretion.
King CJ recognised that in one sense the evidence provided by the breath analysis was not unlawfully or unfairly obtained, but as the passage just cited indicates, took the view that the connection between the obtaining of the evidence and the safeguard was so close that the discretion arose. That is how Chernov JA in Director of Public Prosecutions v Moore approached the matter in the passage that I set out above.
I acknowledge the force of that reasoning. While it introduces an element of imprecision, and requires an assessment of the legislation, I agree that there may be cases in which the statutory safeguard is so closely connected to the obligation to submit to a breath test that the obtaining of that evidence cannot meaningfully be separated from the observance of the safeguard.
The other members of the Court – Nyland,[9] Bleby,[10] Gray[11] and Vanstone[12] JJ – agreed that the observations of King CJ in French v Scarman remained a correct statement of principle and of its proper application to the relevant facts.
[5] Question of Law Reserved (No 1 of 1998) 70 SASR 281 at 287.
[6] French v Scarman (1979) 20 SASR 333 at 338 per King CJ See also Ujvary v Medwell (1985) 39 SASR 418 at 420 per King CJ.
[7] Police v Hall [2006] SASC 281.
[8] Police v Hall [2006] SASC 281 at
[9] Police v Hall [2006] SASC 281 at [87].
[10] Police v Hall [2006] SASC 281 at [96].
[11] Police v Hall [2006] SASC 281 at [88], [188]-[190].
[12] Police v Hall [2006] SASC 281 at [216].
The essence of the Bunning v Cross discretion is that it involves a weighing of “public policy” considerations. A relevant consideration is whether a court should prevent the prosecution from gaining a “curial advantage” by using improperly or illegally obtained evidence. In that way the court will not appear to condone or approve of the illegality or impropriety by which the evidence was obtained by allowing the use of the evidence as part of the prosecution case. In weighing public policy considerations, the importance of securing a conviction of offenders is a relevant and important factor. [13]
[13] Bunning v Cross (1978) 141 CLR 54; Ridgeway v R (1995) 184 CLR 19; Nicholas v R (1998) 193 CLR 173.
If the illegal or improper behaviour is not the means by which the evidence is procured, then the operation of the discretion is necessarily restricted because in such a case there is no “curial advantage” gained as a result of the improper behaviour and there is not an issue of the court being “demeaned” by the use of “the fruits of illegality”.[14]
[14] R v Lobban (2000) 77 SASR 24 at [40] (Martin J).
The central question in this appeal therefore is whether there were circumstances established that enlivened the Magistrate’s discretion to exclude otherwise admissible evidence. If there were, did the exercise of discretion miscarry?
In Hall, I reviewed the nature of the direction of the discretion to exclude otherwise admissible evidence. I then observed:[15]
The discretion to exclude admissible evidence has been from time to time described as “a residual discretion”, “an unfairness discretion”, “an overall discretion” and “a public policy discretion”. The refinements in terminology have been used as the result of the particular circumstances arising before the courts. These differences of terminology should not be allowed to obscure the fact that as observed in Swaffield, there exists a general discretion to reject otherwise admissible evidence if the circumstances call for its exclusion. The circumstances that enliven that discretion vary and have the capacity to overlap. The question is whether in the particular case the circumstances that arise in a particular case enliven the discretion. Once enlivened, a court should weigh and consider all relevant factors and reach a decision as to the manner in which the enlivened discretion should be exercised.
[15] Police v Hall [2006] SASC 281 at [**].
Whether the discretion to exclude otherwise admissible evidence is the one discretion subject to being enlivened by a variety of circumstances or whether there are separate discretions that overlap should not lead to a different result. Whichever the correct analysis, the same considerations are brought into play by the court.
In the present case, the Magistrate had a discretion to exclude the evidence that miscarried. As earlier observed, the Magistrate relied upon the observations of King CJ in Ujvary v Midwell,[16] in particular on a passage commencing with the words:[17]
generally speaking police conduct which deters a suspect from requesting a blood test will render unsafe to admit the evidence of a breath test. The blood test is the only means by which a citizen can question the correctness of the result of the breath analysis. It must be the paramount concern of the courts to ensure that the citizen has ready access to that check. If obstacles are placed in the way of the citizen, the evidence of the breath analysis should be excluded unless there is some cogent reason to admit it.
[16] Ujvary v Midwell (1986) 39 SASR 418.
[17] Ujvary v Midwell (1986) 39 SASR 418 at **.
The Magistrate was correct to refer to this authority. However, he overlooked that the police conduct in the present proceedings did not deter the respondent from requesting and obtaining a blood test. The Magistrate failed to identify the relevant statutory safeguard – the right to a blood test and the right to a portion of that sample for independent testing. Those rights were respected in the present proceedings – the respondent went to the Royal Adelaide Hospital and had his sample taken. On the hearing of this appeal counsel for the respondent accepted that in this respect the appellant would receive a fair trial. His submission was advanced on the basis that the statutory safeguard included the appellant’s choice of a hospital or doctor at which to have the test taken and that this choice was frustrated or foreclosed by the misinformation from the police officers. This submission should be rejected.
In all of the applicable authorities, where the court has seen fit to exercise either a Bunning v Cross or an unfairness discretion or the overlapping discretion to exclude evidence of the breath analysis, it has been because, for whatever reason, the person charged was unable, through no fault of their own, to obtain an effective blood test.[18] The circumstances here differ. The statutory safeguard was available to the respondent. The correct oral or written advices were given to him by the officers concerned. He was given a blood kit test. The police later provided on the Magistrate’s findings misinformation that restricted the respondent’s choice of hospitals. This misinformation however did not in the event deny the respondent access to the statutory safeguard. This is an important basis for distinguishing the present proceedings or other cases where evidence has been excluded in circumstances where access to the statutory safeguard was foreclosed.
[18] French v Scarman (1979) 20 SASR 333; Taylor v Daire (1982) 30 SASR 453; Ujvary v Medwell (1985) 39 SASR 418; Burton v Police (2004) 88 SASR 152; Eubel v Martin (1992) 57 SASR 290.
The Magistrate reached the conclusion that there was improper conduct on the part of the police. However, he did not evaluate the gravity of the impropriety. Although on the Magistrate’s findings the police did not properly inform the appellant that he could have a blood test taken at the Mount Barker Hospital, they did advise him of where he could have a blood test taken, namely the Royal Adelaide Hospital. Although the police were initially, on the Magistrate’s findings, reluctant to assist the respondent with transport, ultimately they did assist him and, at his request, took him and left him at his vehicle. The police conduct, as found by the Magistrate, should be characterised as a failure to provide full assistance rather than a deliberate obstruction of the appellant’s rights. As earlier observed, the appellant was able to attend at the Royal Adelaide Hospital and have blood taken to enable an appropriate test to be performed.
The Magistrate erred in failing to properly consider the nature and extent of the improper conduct that he found had occurred and in particular, he failed to have regard to its effect on the respondent’s rights. For these reasons the exercise of discretion of the Magistrate should be reviewed.
Re-exercise of discretion
This is an appropriate case in which this Court should re-exercise the discretion. On my reconsideration of the factual material, counsel for the police tendered, without objection, the blood analysis reading resulting from the blood sample taken at the Royal Adelaide Hospital. That reading was 0.097. Counsel for the respondent accepted that this evidence could be received on the re-exercise of the discretion by this Court. It is appropriate to receive and act on this evidence. It is presented in the form of an apparently genuine business record. Counsel for the respondent did not seek to challenge or assert any inaccuracy with respect to the document. Counsel for the respondent did not seek to place any evidence before the Court by way of answer or response.
As was pointed out by Barwick CJ in Ireland’s case,[19] the court, when faced with improper conduct on the part of the police, must weight the nature and extent of that improper conduct and the need for the court to take steps to ensure proper police practice with the public interest in having a guilty party convicted.
[19] R v Ireland (1970) 126 CLR 321.
In the present case, the improper conduct as found by the Magistrate, although serious, did not lead to any injustice or inappropriate advantage to the prosecution. Although the officers concerned on the Magistrate’s findings were unhelpful, they did not obstruct the appellant in exercising his rights. The statutory safeguard was available. The respondent utilised that safeguard.
In the circumstances, no proper basis for the exclusion of the evidence was made out. The evidence should have been admitted.
Conclusion
The consequence of the admission of the relevant breath analysis certificate and the statutory presumptions is that the charge has been made out. In the circumstances, the appeal is allowed and a conviction imposed.