Police v SHORT - [2011] SASC 131

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v SHORT
[2011] SASC 131
Judgment of The Honourable Justice Anderson
16 August 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
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
EVIDENCE - DOCUMENTARY EVIDENCE - PUBLIC DOCUMENTS - GAZETTES
Appeal from decision of magistrate - offence against s 47B of the Road Traffic Act 1961 (SA) ("the Act") - respondent convicted by magistrate for driving with prescribed concentration of alcohol in blood.
Respondent subjected to breath analysis test pursuant to the Act - magistrate found that the prosecution failed to tender a certificate purporting to be signed by the Commissioner of Police certifying that the police officer who operated the breath analysis instrument was authorised to do so pursuant to s 47K(3)(a) - magistrate found that there was no case to answer.
Government Gazette tendered by prosecution at trial as evidence of authorisation by the Commissioner of Police - whether Gazette sufficient evidence of authorisation pursuant to s 47K(3)(a) - alternatively, whether magistrate required to take judicial notice of the Gazette pursuant to s 37 of the Evidence Act 1929 (SA).
Held: Appeal dismissed - Gazette not evidence of authorisation by the Commissioner of Police - wording of Gazette not in form required for certificates under s 47K(3)(a) - Gazette not signed - wording of Gazette does not suggest that any purported authorisation was current at the time of the offence.
Road Traffic Act 1981 (SA) s 47A, s 47B(1)(a) and s 47K; Evidence Act 1929 (SA) s 35 and s 37; Motor Vehicles Act 1959 (SA) s 81AB(5), referred to.

POLICE v SHORT
[2011] SASC 131
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

This is an appeal by the police from the decision of a magistrate who dismissed a complaint that the respondent drove whilst there was present in his blood a prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961 (SA) (“the Act”).
The complaint was laid in respect of an incident which occurred on 29 July 2010 at Modbury on Montague Road when the respondent was driving his Holden Combo van.
The respondent had in fact been charged on complaint with two offences, the first contrary to s 47B(1)(a) of the Act when the concentration of alcohol alleged was alleged to be 0.127 grams in 100 millilitres of blood. In addition the respondent was charged with a contravention of a prescribed condition of his probationary licence contrary to s 81AB(5) of the Motor Vehicles Act 1959 (SA).
At the conclusion of the prosecution case submissions were made by defence counsel that there was no case to answer on the first count. The magistrate then delivered her ruling agreeing that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v SHORT

Details

AGLC: Police v SHORT [2011] SASC 131
Case: [2011] SASC 131
Decision Date: 16 August 2011

CaseChat Overview and Summary

In the case of Police v Short, the respondent was convicted by a magistrate for driving with a prescribed concentration of alcohol in their blood, in contravention of section 47B of the Road Traffic Act 1961 (SA). The prosecution attempted to rely on a breath analysis test conducted by a police officer, but the magistrate found that the prosecution had failed to tender a certificate certifying that the officer was authorised to operate the breath analysis instrument, as required by section 47K(3)(a) of the Act. The magistrate concluded that there was no case to answer and dismissed the charge. The prosecution appealed this decision to the Supreme Court of South Australia.

The central legal issue in this appeal was whether the Government Gazette, which was tendered by the prosecution as evidence of the authorisation by the Commissioner of Police, was sufficient to satisfy the requirements of section 47K(3)(a) of the Act. Alternatively, the court considered whether the magistrate was required to take judicial notice of the Gazette under section 37 of the Evidence Act 1929 (SA). The court examined the wording of the Gazette, its form, and whether it suggested that any purported authorisation was current at the time of the offence.

The Supreme Court of South Australia held that the appeal should be dismissed. The court found that the Gazette was not sufficient evidence of authorisation by the Commissioner of Police, as it was not in the form required for certificates under section 47K(3)(a). The Gazette was not signed and did not indicate that any authorisation was current at the time of the offence. The court concluded that the prosecution had not proven that the machine was operated by a person authorised by the Commissioner of Police to do so, and that the authorisation was current. Consequently, the appeal was dismissed, upholding the decision of the magistrate.

ORDERS:
The Supreme Court dismissed the appeal, thereby upholding the decision of the magistrate.

Orders

Orders of the court

I dismiss the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The prosecutor relied on the provisions of s 47K to establish the breath analysis used. I will set out the relevant sub-sections.47K—Evidence(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 and throughout the preceding period of 2 hours.…(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.(3)A certificate—(a) purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments; or(b) purporting to be signed by a person authorised under subsection (1) and to certify that—(i)the apparatus used by the authorised person was a breath analysing instrument within the meaning of this Act; and(ii)the breath analysing instrument was in proper order and was properly operated; and(iii)the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with,is, in the absence of proof to the contrary, proof of the matters so certified.…(9)A certificate—(a) purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to conduct oral fluid analyses or drug screening tests; or(b) purporting to be signed by a person authorised to conduct oral fluid analyses or drug screening tests under section 47EAA and to certify that the apparatus used to conduct an oral fluid analysis or a drug screening test was in proper order and the oral fluid analysis or drug screening test was properly conducted,is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters so certified.…

Decision

Reasons for decision

ANDERSON J

As to the third argument, I agree that the certificate on its face must show that the authority is current at the time of the offence. This Gazette does not do that. Even if the Gazette were regarded as being sufficient as a certificate under the section, it does not overcome the difficulty of failing to prove that the authority is current. It is not to the point that someone was authorised at an earlier point of time.Conclusion It is my view that for the provisions of s 47K(1) to have effect as the deeming provisions for forming the concentration of alcohol in the blood, the prosecution is required to prove that machine was in fact operated by a person authorised by the Commissioner of Police to operate the machine. The authorisation must be proved to be current. That has not been proved. Therefore for the reasons of the magistrate and for the additional matters submitted by Ms Fuller I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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