Police v Short

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.