Police v Stevenson

[2008] SASC 143

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

POLICE v STEVENSON

[2008] SASC 143

Judgment of The Honourable Justice Gray

26 May 2008

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

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - EVIDENCE AND COURSE OF TRIAL - GENERAL PRINCIPLES - NO CASE TO ANSWER

Appeal from dismissal of complaint – defendant pleaded not guilty to driving with prescribed concentration of alcohol in blood, contrary to section 47B(1)(a) of Road Traffic Act 1961 (SA) – section 47K(2) of Road Traffic Act provides that person operating breath analysing instrument must deliver to person whose breath has been analysed a “statement in writing” specifying the “reading” produced by the instrument and date and time of analysis – section 47K(1) provides a statutory presumption of proof in favour of prosecution where compliance with section 47K(2) – trial before magistrate – prosecution tendered original printed readout from alcotest instrument recording defendant’s blood alcohol concentration as the relevant “statement in writing” – date and time of analysis and two figures after the words BrAC expressed in g/210L were clearly recorded on readout – writing following words “subject’s analysis result” expressed in grams of alcohol in 210 litres of breath was illegible – defendant submitted that readout was not a “statement in writing” for purpose of section 47K(2) as it did not specify the “reading” produced by the instrument – magistrate found that tendered readout did not specify the “reading” produced by the instrument and concluded that a “statement in writing” had not been delivered to defendant in accordance with section 47K(2) – magistrate found no case to answer at law and dismissed complaint – appellant appealed to single judge – appellant submitted that the “reading” for the purpose of section 47K(2) was the lower of the two figures expressed in g/210L which were both clearly recorded on readout – appellant further submitted that illegible writing was the “result” of the alcotest, which was additional information not required by section 47K(2) – respondent submitted that the “reading” for the purpose of section 47K(2) was the figure expressed in grams of alcohol in 210 litres of breath which was illegible – consideration of legislative scheme – consideration of construction of section 47K(2) – whether words “subject’s analysis result” and concentration of alcohol therein stated constituted the “reading” for the purpose of section 47K(2) – whether abbreviation “g/210L” sufficiently specified the reading for the purpose of section 47K(2) – whether prosecution entitled to benefit of the statutory presumption.

Held, allowing the appeal: Dismissal of complaint set aside and matter remitted for further hearing – “reading” for purpose of section 47K(2) was the lower of the two figures expressed in g/210L which was clearly recorded on readout – abbreviation “g/210L” sufficiently specified reading – recording of the “subject’s analysis result” is additional information not required by section 47k(2) – tendered…