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 there was no case to answer. She found a case to answer on the alternate count, convicted the respondent and fined him $700.
The appeal is only in respect to the dismissal of count 1.
The legislative requirements
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.
…
The magistrate found that the prosecution failed to tender a certificate purporting to be signed by the Commissioner of Police certifying that the operator of the instrument was a person authorised to operate the breath analysing instrument.
There was tendered however a Government Gazette indicating that the Commissioner of Police had certified certain police officers as being authorised to conduct breath analysis testing and that one of the persons named in that Gazette was Brett Ronald Pullen. He was the operator on the night. The Gazette however is not signed.
The respondent pointed to the difference in wording between subsection (3) of s 47K of the Act and the wording in the Government Gazette. The Government Gazette states that the Commissioner of Police certifies the police officers to be authorised to conduct breath analysis. Section 47K(3) refers to a person authorised to operate breath analysing instruments and it was argued that the situation may be that it was a different person conducting the breath analysis but not necessarily operating the equipment. (my underlining)
The magistrate found that there must be strict compliance for a document such as the Gazette to be relied on. She found that it had not been established that Senior Constable Pullen was in fact a person who is authorised to operate the instrument.
Arguments on appeal
Ms Halliday for the appellant argued that exhibit P4, which was the extract from the Government Gazette, did satisfy s 47K(3)(a). She argued in the alternative that the Gazette was evidence which could prove the relevant officer’s authorisation by the Commissioner of Police.
Ms Halliday submitted that although the Gazette used the words “conduct breath analysis” rather than “operate breath analysis instrument” there was no significant difference when one considered the definition of “breath analysis” in s 47A. Because “breath analysis” was defined as meaning “an analysis of breath by a breath analysing instrument”, Ms Halliday submitted that there was really no essential difference. She submitted that any difference in the wording did not affect the safeguards for drivers who are subject to the harsh regime of the presumption afforded by the legislation.
Ms Halliday further submitted in the alternative that s 35 of the Evidence Act 1929 (SA) (“the Evidence Act”) required the court to take judicial notice of legislative instruments and that that included the relevant Gazette. She also referred to s 37 of the Evidence Act providing that the publication in the Gazette is proof of the administrative act to which it refers. She submitted that even if it is accepted that P4 was not a certificate according to s 47K(3)(a) of the Act, it was nevertheless admissible evidence, of which the magistrate was obliged to take judicial notice, of the authorisation of Senior Constable Pullen and was therefore evidence of the administrative act of the granting of that authorisation according to s 37 of the Evidence Act.
Ms Fuller for the respondent supported the decision of the magistrate on three bases. She supported the decision on the basis of the magistrate’s finding that there is a substantive difference between the wording of the authorisation required under s 47K(a) compared with the wording of the Gazette. In addition she argued that the certificate did not comply because it did not purport to be signed by the Commissioner of Police and she further argued that it did not prove any current authorisation, that is, current at the time of the offence.
In relation to the last aspect, Ms Fuller submitted that even if, as the appellant contended, judicial notice could be taken of the Gazette as a legislative instrument and also as publication of the administrative act to which it refers, it must on is terms establish that this operator was authorised to operate breath analysing instruments on the date upon which the respondent was required to submit to a breath test. The preamble to exhibit P4 states that:
I, 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.
Ms Fuller contends that to be effective, the Gazette must describe an ongoing authority. She stated as an example that words such as “as from” evidence such an ongoing authority: see Talladira v Police (1999) 30 MVR 278 and Police v Owens [2007] SASC 118. According to Ms Fuller, the use of the words “on 7 July 2009” in the Gazette rather than “as from 7 July 2009” or “on and from 7 July 2009” simply evidences that on 7 July 2009 those police officers were authorised to conduct breath analysis, on that day, and that day alone.
Discussion
I agree with the magistrate in her reasons relating to the wording. In my view the wording is sufficiently different. As Ms Fuller submitted, the breath analysis instrument conducts the breath analysis because it is actually performing that analysis. That is not the same as operating an instrument. The operator must be authorised to operate the instrument. The Gazette notice is not in those terms.
As to the second argument, namely, that the certificate does not purport to be signed by the Commissioner of Police, as Ms Fuller points out it is not signed at all. However, I am not so certain about this aspect.
The certificate purports to be a certificate signed by the Commissioner of Police, as required under the section. It is doubtful in my view that it is. However, even if it is a certificate which purports to be signed by the Commissioner, it is defective for the reasons I have stated.
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.