Police v Short

Case [2012] SASCFC 27

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

POLICE v SHORT

[2012] SASCFC 27

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Peek)

29 March 2012

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE - BREATH TEST AND ANALYSIS

EVIDENCE - DOCUMENTARY EVIDENCE - PUBLIC DOCUMENTS - GAZETTES

Police appeal against a decision of a Judge of this Court - the defendant was charged with driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol, contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA) - at trial it was held by the Magistrate that there was no case to answer - the complaint was dismissed.

An appeal to a Judge of this Court by the police was dismissed.

The principal issue before the Full Court was whether the prosecution was entitled to call in aid the statutory presumption in section 47K(1) of the Road Traffic Act - whether extract from the Government Gazette was a certificate within the terms of section 47K(3)(a), triggering the presumption under 47K(1) - whether the unchallenged evidence of the Constable established the relevant authority.

Held: Appeal allowed.

(Gray and Sulan JJ): The Commissioner of Police was acting pursuant to section 47K(3)(a) in providing a certificate under that subsection - "to conduct" ought to be given the meaning as and from that day, until authorisation is withdrawn - the Senior Constable was authorised by the Commissioner of Police to operate breath analysing instruments - no material difference between the use of the word "conduct" and "operate" - the name of the Commissioner of Police typed at the end satisfies the certification required under section 47K(3)(a).

The rebuttable presumption raised by section 47K(1) arose - the appeal is allowed, the dismissal of the complaint set aside and the matter remitted for rehearing.

(Peek J, in dissent): The wording "a person authorised to conduct breath analysis" in the Government Gazette was insufficient to engage the presumptions in section 47K(1) of the Road Traffic Act because such wording did not establish that the Commissioner of Police had previous to such publication authorised the person "to operate the breath analysis instrument".

The wording in the Government Gazette did not constitute a certificate under section 47K(3)(a) of the Road Traffic Act because it did not purport to be signed by the Commissioner of Police and because it did not purport to certify that the relevant person was authorised "to operate the breath analysis instrument".

Road Traffic Act 1961 (SA) s 47B and s 47K; Evidence Act 1929 (SA) s 35 and s 37; Passenger Transport Act 1994 (SA) s 31, referred to.
Martin v The Department of Transport, Energy and Infrastructure (SA) (2010) 269 LSJS 403;

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Police v Short [2012] SASCFC 27
Case
[2012] SASCFC 27
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CaseChat Overview and Summary

The Police appealed against a decision of a Judge of the Supreme Court of South Australia, which had upheld a Magistrate's finding of no case to answer. The defendant was charged with driving a motor vehicle with the prescribed concentration of alcohol, contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA).

The legal issues before the Full Court concerned the operation of the presumptions provided by section 47K of the Road Traffic Act 1961. Specifically, the Court had to determine whether an entry in the Government Gazette, purporting to authorise police officers to conduct breath analyses, satisfied the requirements of section 47K(1) to engage the statutory presumptions. Further questions arose as to whether the date of the authorisation in the Gazette was sufficient to prove authorisation at the time of the alleged offence, and whether the Gazette entry constituted a "certificate" for the purposes of section 47K(3)(a).

The Court, in a joint judgment, reasoned that the wording of the Government Gazette entry, despite not being a verbatim replication of the statutory language, sufficiently indicated the Commissioner of Police's intention to authorise Constable Pullen to operate breath analysing instruments. The Court found that the structure of section 47K(1) centres on the breath analysing instrument and the authorisation of its operator. By establishing that Constable Pullen was authorised, the Court concluded that the rebuttable presumption under section 47K(1) arose.

Consequently, the appeal was allowed, the dismissal of the complaint was set aside, and the matter was remitted to the Magistrates Court for a rehearing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having determined that Senior Constable Pullen is authorised by the Commissioner of Police to operate breath analysing instruments, then it has been established that he is a person authorised pursuant to section 47K(1) to operate the breath analysing instrument. That having been established, Senior Constable Pullen is, therefore, a person who can certify the matters referred to in section 47K(3)(b) and section 47K(7). The two certificates signed by Senior Constable Pullen referred to above establish that the breath analysing instrument used, in this case the Dräger Alcotest 7110, is a breath analysing instrument within the meaning of the Act.Conclusion We consider that the rebuttable presumption raised by section 47K(1) arose. In this circumstance, the appeal should be allowed, the dismissal of the complaint set aside and the matter remitted to the Magistrates Court for rehearing. PEEK J: This is an appeal against the decision of a single Judge to dismiss an appeal against the decision of a Magistrate to dismiss a charge of an offence against s 47B of the Road Traffic Act 1961. The background On 29 July 2010 the respondent (who hereafter will be referred to as the defendant) was subjected to a “random driver test”. The alcotest was positive and he was required to submit to a formal breath test conducted by Constable Pullen. It is alleged that this disclosed a reading of 0.127 grams of alcohol in 210 litres of breath. Constable Pullen issued the defendant with an instant loss of licence for six months to commence on 29 July 2010. Because the defendant had a probationary licence, a condition of which was that the relevant prescribed concentration of alcohol was zero, he was charged on complaint with two counts, the first alleging a breach of s 47B of the Road traffic Act 1961 (hereafter “RTA”) and the second alleging a breach of s 81AB(5) Motor Vehicles Act, 1959. He pleaded not guilty to both charges.The trial in the Magistrates court The trial was held on 17 May 2011. During the course of the evidence-in-chief of Constable Pullen, the following evidence was adduced:Q: Who was it that conducted the breath analysis test?A: I did.Q: Are you qualified to conduct breath analysis tests?A: Yes. Immediately following that answer, a portion of an extract from the Government Gazette was tendered and received without objection as exhibit P4. The content of the subject entry in the Government Gazette is as follows:ROAD TRAFFIC ACT 1961Authorised Officers to Conduct Breath AnalysisI, MALCOLM ARTHUR HYDE, Commissioner of Police, pursuant to section 47K(3)(a) of the Road Traffic Act 1961, do hereby certify that on 7 July 2009, the following Police Officers were authorised to conduct breath analysis.PD Officer NameNumber… …85278 Pullen, Brett Ronald… …Dated 7 July 2009.MALCOLM ARTHUR HYDE, Commissioner of Police The above contained literally hundreds of names in alphabetical order and only that of the relevant officer is reproduced.[12][12] It should also be noted that P4 as tendered at trial in fact did not contain the bottom two lines as reproduced above, namely the words “Dated 7 July 2009 MALCOLM ARTHUR HYDE, Commissioner of Police”, and nor was this additional material tendered before Anderson J. There may be an argument that, in so far as the court is asked to proceed by way of the grounds of appeal, that is by reference to the notice in the Government Gazette as an alternative to proving the matter in issue, other than by way of a certificate tendered pursuant to 47K(3)(a), the receipt by this Court of the whole of the entry may be acceptable but that the additional material should not be received if the Court were to be asked to consider a contention (contrary to the grounds of appeal) that the s 47K presumptions were to be enlivened by the use of a s 47K(3)(a) certificate. This matter was not raised by counsel for the respondent and I find it unnecessary to address it in the present case.

Ratio Decidendi

Legal Principle Established

In the light of the joint judgment of Gray and Sulan JJ, the questions necessary for me to address may be summarised as follows:ADid the wording of the entry in the Government Gazette engage the operation of the presumptions in RTA s 47K(1)? BIf the first question is answered in the affirmative, is the reference to the date of 7 July 2009 sufficient to prove authorisation as at 29 July 2009, the date of the alleged offence?CWas the entry in the Government Gazette a “certificate” within the meaning of RTA s 47K(3)(a)?A DID THE WORDING OF THE GAZETTE ENTRY ENGAGE THE OPERATION OF THE S 47K(1) PRESUMPTIONS? Section 47K(1) is reproduced above. The essence of the defendant’s contention is relatively straight forward: the Commissioner has either complied with the requirements to produce “authorisation” of Constable Pullen or he has not; the Gazette entry clearly does not follow the wording in s 47K(1) and, while minor typing errors may be overlooked, the present wording simply does not purport to perform the particular act of authorisation that is required. However, before considering the matter further, it may be helpful to examine its broader context.The structure of s 47K(1) It is important to appreciate that the breath analysing instrument indicating the reading alleged against the defendant in a particular case is made the very centrepiece of s 47K(1). It is first so delineated by the words “by a breath analysing instrument”. The immediately following words “operated by a person authorised to operate the instrument by the Commissioner of Police” then make it quite plain that it must be established that the “person” referred to had, prior to the subject breath test, been authorised by the Commissioner of Police to operate the breath analysing instrument (in the sense of “the particular kind of breath analysing instrument) which had indicated the concentration of alcohol in the subject breath test.[14] [14] In Police v Brown [2008] SASC 115 Kelly J held that the phrase “purporting to be signed by a person authorised under subsection (1)” which then appeared in s 47G(3)(b), s 47G(5) and s 47G(7) is a composite one, so that the words “purporting to” govern all of the words that follow down to the end of the phrase “subsection (1)”. Her Honour proceeded to hold, in my respectful view correctly, that it is apparent that the intention of what was then s 47G(6) is to allow defendants to call and test the evidence of the breath analysing instrument operator which would otherwise have been admissible by way of certificate and that the efficacy of that safeguard would be considerably reduced if the person referred to in each of the subsections as a person authorised under subsection (1) does not refer to the person authorised to operate the breath analysing instrument at the relevant time when the sample was taken; accordingly, the only sensible interpretation of the phrase then appearing in each of the sections 47G(3)(b), 47G(5) and 47G(7) “purporting to be signed by a person authorised under subsection (1)”, is that it must refer to the person authorised to operate the breath analysing instrument which provided the indication of the concentration of alcohol in the blood of that particular defendant.