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 readout constituted a “statement in writing” in compliance with section 47K(2) – prosecution entitled to benefit of statutory presumption.

Road Traffic Act 1961 (SA) s 47B, s 47DA, s 47E, 47EB, s 47K and 47GA; Road Traffic (Miscellaneous) Regulations 1999 (SA) s 8A; Road Traffic (Drug Driving) Amendment Act 2005 (SA); Statutes Amendment (Drink Driving) Act 2005 (SA); Magistrates Court Act 1991 (SA) s 42, referred to.
Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation (1985) 156 CLR 651; Coleman v Gray (1994) 55 FCR 412; Deputy Federal Commissioner of Taxation for SA v Ellis & Clarke Ltd (1934) 52 CLR 85; Ellul v Fauser (1981) 28 SASR 300; Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149; French v Scarman (1979) 20 SASR 333; Lloyd v Police (2004) 89 SASR 383; Mercorella v Police (2004) 88 SASR 575; Police v Hall (2006) 95 SASR 482; Police v Harvey (1999) 73 SASR 534; Police v Mercorella (2003) 87 SASR 218; Saade v Police (2005) 242 LSJS 481; Semmens v Police (1999) 202 LSJS 272; Sparrow v Police (2005) 242 LSJS 481; Taylor v Daire (1982) 30 SASR 453; Ulvary v Medwell (1985) 39 SASR 418, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"reading", "result"

POLICE v STEVENSON
[2008] SASC 143

Magistrates Appeal

GRAY J

1. This is an appeal from the dismissal of a complaint. 

   Introduction

2. The complainant alleged that on 10 February 2007, the defendant and respondent, Leon William Stevenson, drove a motor vehicle on Main South Road at Old Reynella while there was present in his blood a concentration of alcohol of 0.090 grams in 100 millilitres of blood, a concentration that exceeds the prescribed concentration of alcohol of 0.05 grams in 100 millilitres of blood contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA). The defendant pleaded not guilty and the matter proceeded to trial before a magistrate. The Magistrate found that there was no case to answer and dismissed the complaint.

3. The primary issue on this appeal concerns the adequacy of information provided to the defendant, the driver of a motor vehicle, following a positive breath analysis test, and whether the extent of the information provided, and the form in which it was provided, was sufficient to enliven a statutory presumption concerning the breath analysis.

4. It is convenient at the outset to provide a summary of my overall conclusions. 

5. It was the prosecution case was that it was entitled to the benefit of the statutory presumption as to the concentration of alcohol present in the blood at the time of the offending, contained in section 47K(1) of the Road Traffic Act. Once this presumption operated, subject to proof to the contrary, the concentration of alcohol indicated by the breath analysing instrument in the blood of the defendant at the time of analysis and driving would be established. The circumstances in which the presumption could be rebutted would then be limited to those matters identified in section 47K(1a). However, the prosecution had to prove compliance with section 47K(2) before the statutory presumption would be enlivened.

6. Section 47K(2) required the breath analysis operator to provide a statement in writing to the defendant specifying the reading produced by the breath analysing instrument. The reading is the subject of a deeming provision under regulation 8A. Regulation 8A requires two readings to be taken. Regulation 8A(3) of the Road Traffic (Miscellaneous) Regulations 1999 (SA) deems the lower of the two readings to be the result for the purposes of the Road Traffic Act. The breath analysis instrument in the present case produced two readings of the number of grams of alcohol in 210 litres of the defendant’s breath. The lower of the two readings recorded 0.090 grams of alcohol in 210 litres of breath. Section 47EB specifies that, for the purposes of the Road Traffic Act, that reading is taken to be the number of grams of alcohol in 100 millilitres of the person’s blood.  A statement in writing was provided to the defendant by the breath analysis operator.  The statement disclosed both readings, in particular the reading of 0.090 grams of alcohol in 210 litres of breath.

7. The effect of these provisions was to establish, for the purposes of section 47K(1), the concentration of alcohol as being present in the blood of the defendant. Compliance with section 47K(2) was established. The presumption under section 47K(1) operated. In these circumstances, the Magistrate was in error in finding no case to answer and dismissing the complaint. A detailed review of the provisions of the legislation is necessary to provide the explanation for my conclusion.

   The Magistrates Court Proceedings

8. The prosecution called evidence from the police officer who conducted the breath screening test and later submitted the defendant to the breath alcohol test.  In addition, certificates and other documents were tendered by consent and admitted into evidence:

   -Certificate of Establishment of a Driver Testing Station (section 47K  (3c) of the Road Traffic Act).  The Certificate was dated 19 February 2007, and specifies that the Driver Testing Station was established on 10 February 2007;

   -Certificate pursuant to section 47K(3a) of the Road Traffic Act;

   -Certificate of Submission of a Person to an Alcotest (section 47K(3b) of the Road Traffic Act);

   -Copy of Extract from The South Australian Government Gazette, Road Traffic (Apparatus for Conducting Alcotests) Notice 2005 (section 47H(1)(b), Road Traffic Act), dated 18 August 2005;

   -Extract from The South Australian Government Gazette, Road Traffic Act 1961, Section 47H(1)(a): Approval of Apparatus as Breath Analysing Instruments, dated 23 May 2002. This notice approves the Dräger Alcotest 7110 Mk V as an approved breath analyser instrument;

   -Certificates pursuant to Section 47K(3b) and 47K(7) of the Road Traffic Act;

   -Certificate of Authority pursuant to Section 47G(3)(a)[1] of the Road Traffic Act, dated 4 September 1997;

   -Readout from Dräger Alcotest 7110, dated 10 February 2007;

   -Prescribed Oral Advice for the purpose of Section 47K(2a)(a) of Road Traffic Act; and

   -Written Notice for the purpose of Section 47G(2a)(a) of the Road Traffic Act.[2]

   It is relevant to note that the Dräger Alcotest 7110 readout dated 10 February 2007, was tendered as the “statement in writing” as envisaged by section 47K(2) of the Road Traffic Act.

   [1]    Section 47G was redesignated as section 47K by Road Traffic (Drug Driving) Amendment Act 2005 (SA) which came into operation on 1 July 2006.

   [2]    Section 47G was redesignated as section 47K by Road Traffic (Drug Driving) Amendment Act 2005 (SA) which came into operation on 1 July 2006.

9. The Magistrate rejected an application by the prosecution to tender a certificate pursuant to section 47K(5) of the Road Traffic Act, certifying that the defendant submitted to a breath analysis on 10 February 2007 at 11.52pm and 11.55pm, that the breath analysis instrument produced a specified reading, and that a statement in writing was delivered to the defendant specifying the reading produced by the breath analysis instrument and the date and time of the analysis in accordance with section 47K(2) of the Road Traffic Act. 

10. Section 47K(17) provides:

    A certificate referred to in subsection (4), (5) or (11) cannot be received as evidence in proceedings for an offence—

    (a)unless a copy of the certificate proposed to be put in evidence at the trial of a person for the offence has, not less than 7 days before the commencement of the trial, been served on that person; or

    (b)if the person on whom a copy of the certificate has been served under paragraph (a) has, not less than 2 days before the commencement of the trial, served written notice on the complainant or informant requiring the attendance at the trial of the person by whom the certificate was signed; or

    (c)if the court, in its discretion, requires the person by whom the certificate was signed to attend at the trial.

    At the trial, although the defendant had not given notice pursuant to section 47K(17)(b), his counsel informed the Court that there was a challenge concerning the adequacy of the Dräger Alcotest 7110 alcotest readout, and that the defendant wished to have the person who signed the certificate attend to give evidence. The prosecution took no objection to the late notice, and as a result, the Magistrate declined to receive the section 47K(5) certificate into evidence.

11. As earlier observed, the prosecution called one witness.  Sergeant Bond had been employed as an operational police officer for 30 years, and had been attached to the traffic task force for the past 20 years.  He became qualified to conduct breath analysis tests in 1981.  He held a certificate of authority to operate a breath analysis certificate from the Commissioner of Police.  Sergeant Bond had been involved in random breath testing stations as an operational officer since 1981.

12. Sergeant Bond gave evidence that on the evening of 10 February 2007 he was performing random breath testing duties on southbound traffic on Main South Road at Old Reynella.  More specifically, he was undertaking driver screening tests and administering alcotests using the “Lion Alcometer SD 500”.  At approximately 11.35pm he submitted the defendant to an alcotest.  The test gave a positive reading and he directed the defendant to accompany him to the breath analysis bus. 

13. Sergeant Bond performed a breath analysis test of the defendant using the Dräger Alcotest 7110 instrument.  He gave evidence that the first breath sample was given at 11.52pm and the second at 11.55pm.  The first breath sample showed 0.093grams of alcohol in 210 litres of breath.  The second breath sample showed 0.090 grams of alcohol in 210 litres of breath. 

14. Sergeant Bond gave evidence that these figures, “0.093 g/210L” and “0.090 g/210L”, were recorded on a statement which was printed by the instrument.  Sergeant Bond described the production of the printed statement:

    [T]he instrument produces a printout which is also referred to as a statement … [which contains] [t]ime, date and location of the test, serial number and test number of the instrument, details of the accused, details of the stopping or reporting officer, details of the testing officer and the result of the breath analysis test expressed in grams per 210 litres of breath. … It is a single printout that has three originals with the same information. … One is issued to the accused, one remains with the breath analysis operator, one is given to the reporting or arresting officer.  In this case that was me.

    Sergeant Bond gave one original of the statement to the defendant, attached one original to the breath analysis book and attached the third original to the documentation which was subsequently forwarded to the South Coast Prosecution Unit.[3]  Sergeant Bond did not compare the three originals but he believed that they were the same.  Sergeant Bond checked that the reading recorded on the original statement provided to the defendant was in fact the reading that was recorded by the instrument, and he circled the reading for the benefit of the defendant. 

    [3]    It was the prosecution copy of the printout that was tendered as Exhibit P7 at trial.

15. Sergeant Bond gave evidence that the Dräger Alcotest 7110 readout was accurate in all respects and that there was no difference between the original statement tendered in the trial and the original statement provided to the defendant.

16. Following the breath analysis, Sergeant Bond informed the defendant that he had exceeded the prescribed concentration of alcohol. He gave the defendant the required oral advice in relation to his right to have a blood test. The defendant was then given the form titled “Written Notice for the Purpose of Section 47G(2a)(a) of Road Traffic Act 1961”.[4]  The defendant requested and was supplied with a blood test kit. 

    [4]    Section 47G was redesignated as section 47K by Road Traffic (Drug Driving) Amendment Act 2005 (SA) which came into operation on 1 July 2006.

17. Counsel for the defendant submitted that the original readout from the Dräger Alcotest 7110, which was provided to the defendant, was not a statement in writing for the purpose of section 47K(2) of the Road Traffic Act as it did not specify the reading produced by the breath analysis instrument.  The submission was based upon the illegibility of what was recorded following the words “Subject’s Analysis Result” on the printed statement.  The Magistrate described the irregular appearance of the printed statement as follows:

    [The Dräger Alcotest 7110 readout] on the face of it appears to have had a printing problem as certain words on the document are not easily discernible.  The date and time of the analysis is clearly shown.  The time of the two samples taken, being 2352 and 2355 is clearly shown.  On the face of the document, I would infer that the results of each sample are clearly shown, the first result being .093 and the second result being .090.  However, after the words ‘Subject’s Analysis Result’, what is recorded there cannot be seen.  The second portion of the word ‘Result’ is not printed and thereafter the only portion of the document that can clearly be seen is the word ‘grams’.  I am unable to distinguish what is printed between those words, having looked at the document on a number of occasions.  I therefore conclude as a matter of fact that Exhibit P7 does not specify the reading produced by the breath analysing instrument.

18. On the basis of this illegibility the Magistrate reasoned that the Dräger Alcotest 7110 readout did not specify the reading produced by the breath analysis instrument. As a result the Magistrate concluded that a statement in writing had not been delivered to the defendant in accordance with section 47K(2).

19. The defendant submitted that there was no case to answer at law.  The Magistrate accepted the no case submission and dismissed the complaint, concluding:

    The prosecution has thus failed to establish that the requirements and procedures in relation to breath analysing instruments and breath analysis including ss.[47K](2) have been complied with. In the absence of such proof, the prosecution cannot rely upon s.47K(1) of the Road Traffic Act and I therefore rule that as a matter of law there is no case to answer. The complaint is therefore dismissed.

    Preliminary Observations

    Nature of Appeal

20. An appeal from a magistrate is regulated by section 42 of the Magistrates Court Act1991 (SA), which relevantly provides:

    (4)On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.

    (5)On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:

    (a)     it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;

    (b)     it may remit the case for hearing or further hearing before the Magistrates Court;

    (c)     it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.

    (6)Where a judgment or order has been confirmed, varied or made on appeal under this section, the Magistrates Court has the same authority to enforce that judgment or order as if it had not been appealed against or had been made in the first instance.

21. An appeal pursuant to section 42 of the Magistrates Court Act is an appeal by way of rehearing.  On a rehearing, the appeal court is to make an independent review of the evidence and to thoroughly and critically scrutinise of the findings.

    Legislative Scheme

22. The provisions of Part 3, Division 5 of the Road Traffic Act address drink driving.  Section 47B makes it an offence to drive while having a prescribed concentration of alcohol in blood and sets out the penalties for an offence against that section.  Section 47DA provides the police with power to establish driver testing stations for the purpose of conducting alcotests on drivers.  Section 47E obliges a person, in certain circumstances, to submit to an alcotest or breath analysis or both.  Section 47E(2e) provides:

    The regulations may prescribe the manner in which an alcotest or breath analysis is to be conducted and may, for example, require that more than one sample of breath is to be provided for testing or analysis and, in such a case, specify which reading of the apparatus or instrument will be taken to be the result of the alcotest or breath analysis for the purposes of this and any other Act.

1. Regulation 8A of the Road Traffic (Miscellaneous) Regulations prescribes the procedure to be followed for a breath analysis and relevantly provides:

   (1)Pursuant to section 47E(2e) of the Act (Police may require alcotest or breath analysis), where a person submits to a breath analysis, the breath analysis must be conducted in the following manner:

   (a)     the person must provide two separate samples of breath for analysis; and

   (b)     each sample must be provided in accordance with the directions of the operator of the breath analysing instrument and must consist of not less than one litre of breath; and

   (c)     there must be an interval of not less than two minutes and not more than 10 minutes between the provision of the samples.

   …

   (3)Where a person submits to a breath analysis, the result of the breath analysis will, for the purposes of the Road Traffic Act 1961 and any other Act, be taken to be the reading produced by the breath analysing instrument, on analysis of the samples of breath provided by the person in accordance with this regulation, that indicates the lower concentration of alcohol in the person’s breath (not taking into account any samples that, in accordance with this regulation, are to be disregarded).

   It can be seen from this extract that it is regulation 8A(3) which specifies what constitutes a statement in writing for the purposes of section 47K(2).

2. Section 47EB[5] provides that where an alcotest apparatus or breath analysing instrument produces a reading in terms of concentration of alcohol in the breath, it will be taken to indicate the concentration of alcohol in the blood:

   Where a person submits to an alcotest or a breath analysis and the alcotest apparatus or the breath analysing instrument produces a reading in terms of a number of grams of alcohol in 210 litres of the person's breath, the reading will, for the purposes of this Act and any other Act, be taken to be that number of grams of alcohol in 100 millilitres of the person's blood.

   [5] Formerly section 47EA, and redesignated as section 47EB by Statutes Amendment (Drink Driving) Act 2005 (SA), which came into operation on 1 June 2005.

3. Section 47K[6] addresses the admissibility of evidence and provides for the operation of statutory presumptions in favour of the prosecution.  It relevantly provides:

   [6]    Section 47G was redesignated as section 47K by Road Traffic (Drug Driving) Amendment Act 2005 (SA) which came into operation on 1 July 2006.

   (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.

   (1a)No evidence can be adduced in rebuttal of the presumption created by subsection (1) except—

   (a)     evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I and Schedule 1 or in accordance with the procedures prescribed by regulation; and

   (b)     evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.

   (1ab) If, in any proceedings for an offence, it is proved—

   (a)     that the defendant drove a vehicle, or attempted to put a vehicle in motion; and

   (b)     that a concentration of alcohol was present in the defendant's blood at the time of a breath analysis performed within the period of 2 hours immediately following the conduct referred to in paragraph (a),

   it must be conclusively presumed that that concentration of alcohol was present in the defendant's blood at the time of the conduct referred to in paragraph (a).

   …

   (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.

   The Dräger Alcotest 7110 Readout

4. In order to understand the arguments raised on the appeal it is necessary to set out the contents of the Dräger Alcotest 7110 readout.  The document is in the following form:

5. It can be seen that the date and time of the analysis and the time of the two samples taken are shown.  The figures after the words BrAc – 0.090 g/210L and 0.093 g/210L – are also shown.  However, after the words “Subject’s Analysis Result”, what is there recorded cannot be seen. 

   The Appeal

6. It is to be observed that the statutory presumption created by section 47K(1) will only arise after there has been compliance with section 47K(2).[7] As will be discussed shortly, strict compliance with these subsections is necessary. As a result, it was critical for the prosecution to establish the provision of a statement in writing complying with section 47K(2).

   [7]    There was no dispute that there had been compliance with section 47K(2a).

7. In the present case, the issue for determination was whether the statement in writing delivered to the defendant complied with section 47K(2). More specifically, the question was whether the words “Subject’s Analysis Result” and the concentration of alcohol therein stated, constituted the reading for the purposes of section 47K(2), and must have therefore been included in the statement in writing in order for the statutory presumption in section 47K(1) to operate.

8. The proper construction of section 47K(2) is central to the consideration of this question. There is no doubt that if the reading is not specified in the statement in writing, compliance with section 47K(2) has not been established, the document is inadmissible, and the presumption cannot operate.

9. Before addressing the submissions of the parties it is convenient to make some preliminary observations about the operation of section 47K(2) of the Road Traffic Act. The scope and purpose of section 47K(2) and its predecessor,[8] section 47G(2), has been the subject of analysis in earlier decisions of this Court.  The following principles can be summarised from these decisions:

   -The purpose of section 47K(2) is to ensure that a driver who has failed a breath analysis test is given accurate and timely information in a permanent form. That information may assist the driver in the making of a decision to request a blood kit and blood test. Given the limited circumstances in which a driver may contest the allegation of the concentration of alcohol in the blood, this information assumes importance;[9]

   -Section 47K(2) operates as a legislative safeguard to redress the significant imbalance brought about by the section 47K(1) presumptions in favour of the prosecution, and to protect the rights of drivers who may be dissatisfied with the breath-testing regime. This legislative safeguard is critical and forms an integral part of the legislative scheme;[10]

   -The driver must have accurate information in order to be able to test the result of the breath analysis by means of analysis of a sample of blood.  It cannot be expected that the driver will necessarily know or remember any of these pieces of information if the required statement is not given to him.  The onus is cast upon the relevant police officer to provide accurate information;[11] and

   -The section 47K(1) presumptions are only to apply if there has been strict compliance with section 47K(2).[12]

   [8]    Section 47G was redesignated as section 47K by Road Traffic (Drug Driving) Amendment Act 2005 (SA) which came into operation on 1 July 2006.

   [9]    Police v Mercorella (2003) 87 SASR 218 at [15], [21]; Semmens v Police (1999) 202 LSJS 272 at 279; Ulvary v Medwell (1985) 39 SASR 418 at 420.

   [10] Police v Hall (2006) 95 SASR 482 at [153]; Lloyd v Police (2004) 89 SASR 383 at [53]; Police v Mercorella (2003) 87 SASR 218 at [16]; French v Scarman (1979) 20 SASR 333 at 337-338;

   [11] Police v Mercorella (2003) 87 SASR 218 at [21]; Semmens v Police (1999) 202 LSJS 272 at 279; French v Scarman (1979) 20 SASR 333 at 337-338.

   [12] Mercorella v Police (2004) 88 SASR 575 at [13]; Police v Mercorella (2003) 87 SASR 218 at [21]; Semmens v Police (1999) 202 LSJS 272 at 279; Taylor v Daire (1982) 30 SASR 453 at 463, 473.

   Submissions on Appeal

10. The Crown challenged the Magistrate’s finding that the Dräger Alcotest 7110 readout did not specify the reading produced by the breath analysing instrument. Reliance was placed on the wording of section 47K(2)(a) which required that the statement in writing specify “the reading produced by the breath analysing instrument”. It was submitted that the readings recorded on the Dräger Alcotest 7110 readout for the purpose of the section 47K(2)(a) were 0.093 g/210L and 0.090 g/210L. It was submitted that it was evident from the Magistrate’s findings that the two readings were clearly shown.

11. In support of these submissions it was contended that Regulation 8A(1)(a) requires a person to provide two separate samples of breath for analysis and that the testing of each of those samples is treated by the legislation as a separate breath analysis. It was pointed out that the requirement in section 47K(2) to provide a statement in writing specifying the reading arises after each analysis of breath. Both readings may be on the same statement in writing. Reliance was placed on the following observations of Duggan J in Mercorella v Police:[13]

    The Act envisages that the regulations may require more than one sample of breath to be provided (s 47E(2e)). However, each testing is treated by the legislation as a separate breath analysis and, in my view, the requirement to provide a statement in writing specifying the reading produced by the breath analysing instrument arises after a person has submitted to each analysis of breath. There is no basis for reading into the legislation the qualification that only the reading to be relied upon for a prosecution is to be specified and not the readings from other analyses of the person’s breath carried out in the course of the same procedure. Section 47E(2e) draws a clear distinction between a reading and a result for the purposes of the Act. The requirement imposed by s 47G(2)[14] is to deliver details of the reading which follows an analysis of breath. The section does not refer to the result of the breath analysis for the purposes of the Act.

    Apart from the wording of the Act, it might also be said that the argument for restricting the information in the statement to the lower reading takes too narrow a view of the scheme of these provisions. The advantages available to the prosecution in the form of evidentiary presumptions are conditional upon compliance with requirements which place particular emphasis on providing information to the person whose breath has been analysed. The results recorded in relation to all analyses of a person’s breath are relevant. Information in respect of each reading enables the driver to determine whether the lower of the readings has been correctly identified. It also allows a check on the extent to which the readings differ and, in particular, whether the difference in readings is such that samples must be disregarded in accordance with reg 8A(2)(c). The readings from all breath analyses might also be relevant to a driver’s decision as to whether he or she should arrange for a blood test.

    For these reasons I am of the view that the relevant details of each analysis of breath are to be provided in writing to the driver. The Act does not require a separate statement for each reading. In my opinion, the print-out delivered to the appellant in the present case which contains the readings from both analyses complied with s 47G(2).[15]

    [13] Mercorella v Police (2004) 88 SASR 575 at [23]-[25] (Duggan J).

    [14] Section 47G was redesignated as section 47K by Road Traffic (Drug Driving) Amendment Act 2005 (SA) which came into operation on 1 July 2006.

    [15] Section 47G was redesignated as section 47K by Road Traffic (Drug Driving) Amendment Act 2005 (SA) which came into operation on 1 July 2006.

12. It was pointed out that section 47E(2e) of the Road Traffic Act provides that the Regulations may specify which of the two readings from the instrument will be taken to be the result of the breath analysis for the purposes of the Act.  Attention was drawn to regulation 8A(3) – extracted earlier in my reasons – which provides that the result will be the reading that indicates the lower concentration of alcohol.  Accordingly, the result of the breath analysis is, by operation of the legislation, taken to be the lower of the two readings. 

13. It was submitted that what was illegible on the Dräger Alcotest 7110 readout was additional information not required by the Road Traffic Act, namely, a repeat of the lower of the two readings next to the words “Subject’s Analysis Result”.  It was said that the likely purpose of this entry was to reflect the wording of Regulation 8A(3) and identify the reading that is to be used for the purposes of the Act.[16]

    [16] Mercorella v Police (2004) 88 SASR 575 at [37].

14. It was contended that there is no statutory requirement that this additional information form part of the statement in writing. The fact that the instrument is programmed to add that information to the printout is a convenience which assists police and drivers alike, but its inclusion does not render the document inadmissible for the purpose of establishing the provision of information in section 47K(2).[17] 

    [17] Mercorella v Police (2004) 88 SASR 575 at [27]-[28].

15. It was further submitted that there is no requirement that the result be included specifically in the statement in writing – it is not mentioned in section 47K(2). Rather, only the readings are required to be specified in the statement in writing. It was further submitted that the court should not read additional requirements into the legislation that defeat the intention of Parliament.[18]

    [18] Police v Harvey (1999) 73 SASR 534 at [11].

16. It was noted that in her ruling the Magistrate referred to Saade[19] as supporting the proposition that the reading produced by the breath analysing instrument is the reading that would in the ordinary course of events occur on the part of the Dräger Alcotest 7110 readout under “Subject’s Analysis Result”.  It was submitted that Saade does not support that proposition.  It was noted that in Saade, Debelle J referred to Regulation 8A(3) and stated that:[20]

    The reading is, therefore, the lower of the results of the breath analysis. On this occasion, there were two analyses of breath. The lower was 0.085 grams per 210 litres of breath. That is what Regulation 8A(3) prescribes to be the reading for the purposes of s 47G(2)[21] and is, in fact, what the document produced by the breath analysing instrument described as ‘Subject’s Analysis Result’.

    [19] Saade v Police (2005) 242 LSJS 481 at [14].

    [20] Saade v Police (2005) 242 LSJS 481 at [14].

    [21] Section 47G was redesignated as section 47K by Road Traffic (Drug Driving) Amendment Act 2005 (SA) which came into operation on 1 July 2006.

17. It was suggested that when compared against the Act and Regulations, it was clear that his Honour had inadvertently swapped the terms “reading” and “result”.  However, it was said that his Honour’s proposition was clear.  By virtue of Regulation 8A(3), the result for the purposes of section 47G(2) (now renumbered section 47K(2)) is the lower of the readings of the breath analysis.  Debelle J went on to observe that the lower reading was, in fact, described on the relevant document as “Subject’s Analysis Result”.  Debelle J did not state that the Subject’s Analysis Result was required as a matter of law.

18. In conclusion, it was submitted that on the facts as found by the Magistrate, the Dräger Alcotest 7110 readout was a statement in writing delivered to the defendant which specified the date and time of the analysis of each sample of breath and the reading of each analysis produced by the breath analysing instrument. Accordingly, it followed that section 47K(2) of the Road Traffic Act was satisfied and the statutory presumption in section 47K(1) was available to the prosecution.

19. The defendant contended that the Magistrate was correct in concluding that the Dräger Alcotest 7110 readout, the statement in writing for the purposes of section 47K(2) of the Road Traffic Act, did not specify the reading produced by the breath analysing instrument.

20. It was submitted that in the context of the statutory framework and in reliance on the decision in Saade,[22] the reading, for the purpose of compliance with section 47K(2) of the Road Traffic Act, was the lower of the two readings expressed in terms of a number of grams of alcohol in 210 litres of breath, that would in the ordinary course of events appear on the part of the printout after the words “Subject’s Analysis Result”.  It was contended that the reading must necessarily refer to a specification of the reading to be relied upon for the purposes of the Road Traffic Act, and upon which the presumptions are to operate.  It was contended that Debelle J did not “inadvertently swap” the term reading for result in the earlier extracted paragraph of his reasons in Saade.

    [22] Saade v Police (2005) 242 LSJS 481 at [14].

21. It was further contended that in the absence of the “Subject’s Analysis Result”, the two readings of 0.093 g/210L and 0.090 g/210L were insufficient for the purposes of section 47K(2) and regulation 8A(3). It was pointed out that the conversion from alcohol in grams per litres of breath to per millilitres of blood as prescribed in section 47EB contemplated the production of a reading in terms of a number of grams of alcohol in 210 litres of the person’s breath. It was submitted that it was only when the reading was expressed in those terms that the conversion provision in section 47EB can operate. It was pointed out that the terms are the terms usually used in the portion of the statement entitled “Subject’s Analysis Result”. It was submitted that the abbreviated form of g/210L in the two readings above the “Subject’s Analysis Result” were meaningless in the absence of the reading after “Subject’s Analysis Result”, and so did not comply with section 47EB.

    Result or Reading?

22. For the purpose of determining whether the words “Subject’s Analysis Result” and the concentration of alcohol therein stated constitutes the reading for the purposes of section 47K(2) it is necessary to consider both the Road Traffic Act and the Road Traffic (Miscellaneous Regulations).It should be noted that the provisions of section 47 to 47K of the Act and of regulation 7 to regulation 13A of the Regulations constitute the one legislative scheme in relation to the detection and apprehension of persons driving under the influence of alcohol or drugs,[23] such that it is legitimate to refer to the Regulations for the purpose of ascertaining the operation of the scheme.[24]

    [23] Sparrow v Police (2003) 242 LSJS 292 at [25].

    [24] Deputy Federal Commissioner of Taxation for SA v Ellis & Clarke Ltd (1934) 52 CLR 85 at 89-95 (Dixon J); Brayson Motors Pty Ltd (in liq)  v Federal Commissioner of Taxation (1985) 156 CLR 651 at 652 (Mason J); Coleman v Gray (1994) 55 FCR 412 at 423; Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149 at 196-197.

1. Relevantly there are five references to the term “reading” in the Road Traffic Act, and three references in the Road Traffic (Miscellaneous) Regulations. Section 47E(2e) refers to the Road Traffic (Miscellaneous) Regulations as specifying which reading of the apparatus or instrument will be taken to be the result of the alcotest or breath analysis for the purposes of the Road Traffic Act and any other Act. Section 47EB (conversion provision) refers to a breath analysing instrument producing a reading in terms of a number of grams of alcohol in 210 litres of the person’s breath, such reading for the purposes of the Act, being taken to be that number of grams of alcohol in 100 millilitres of the person’s blood. Section 47K(2) refers to delivery of a statement in writing specifying the reading produced by the breath analysing instrument. Section 47K(5) refers to the breath analysing instrument producing a reading specified in the certificate.

2. Regulation 8A(2)(c) refers to the reading obtained on analysis of the first sample of breath and the reading obtained on analysis of the second sample of breath.  Regulation 8A(3) refers to the “reading produced by the breath analysing instrument … that indicates the lower concentration of alcohol in the person’s breath”.

3. Relevantly there are three references to the terms “result” or “results” in the Road Traffic Act and one reference in the Road Traffic (Miscellaneous) Regulations. Section 47GA(1) refers to the “results of a breath analysis … relied on to establish the commission of the offence” against section 47(1) or section 47B(1). Section 47K(2a)(a) refers to the delivery of prescribed oral advice and written notice “as to the operation of the [Road Traffic Act] in relation to the results of the breath analysis”. As earlier observed, section 47E(2e) refers to the Road Traffic (Miscellaneous) Regulations as specifying “which reading of the apparatus or instrument will be taken to be the result of the alcotest or breath analysis” for the purposes of the Road Traffic Act and any other Act.  As earlier observed, regulation 8A(3) provides that the “result of the breath analysis will … be taken to be the reading produced by the breath analysing instrument … that indicates the lower concentration of alcohol in the person’s breath”.

4. On the basis of the above analysis, the following may be concluded:

   -The reading and the result produced by the breath analysing instrument are distinct concepts:  regulation 8A(3). 

   -The first sample of breath into the breath analysing instrument and the second sample of breath into the breath analysing instrument each produce a separate reading: section 47E(2e); regulation 8A(2)(c). 

   -The reading produced by the breath analysing instrument is expressed in terms of a number of grams of alcohol in 210 litres of the person’s breath: section 47EB;

   -It is implicit that the reading to be included on the statement in writing for the purposes of section 47K(2) must be expressed in terms of a number of grams of alcohol in 210 litres of the person’s breath: section 47E(2e); section 47EB; regulation 8A(3); and

   -The reading which indicates the lower concentration of alcohol in the person’s breath is taken to be the result of the breath analysis for the purposes of the Road Traffic Act: regulation 8A(3).

5. With respect to the final conclusion, it must then be determined what is the meaning of the term “indicates”.  In Sparrow v Police,[25] in the context of the interpretation of the term in regulation 8A(2)(c), Debelle J (with whom Duggan and Besanko JJ agreed) held that the word indicate, did not require any specific method to be followed – indeed, regulation 8A was entirely silent on this question.  Debelle J also held that the use of the word “indicates” did not import any requirement to the manner in which the thing to be indicated should be indicated.  The verb indicate meant to point out, to point to, and to make known, and that, plainly, there could be more than one means of pointing out something or making something known. 

   [25] Sparrow v Police (2003) 242 LSJS 292 at [19].

6. These observations apply equally to an understanding of the term “indicate” in regulation 8A(3).  The indication of the lower of the two readings is demonstrated by the inclusion on the written statement of each of the two readings produced by the breath analysing instrument.  In accordance with the observation of Duggan J in Mercorella,[26] there was compliance with section 47K(2) even if only the lower reading was identified.

   [26]  Mercorella v Police (2004) 88 SASR 575 at [26].

7. The result of the breath analysis is, for the purpose of the Road Traffic Act, prescribed by regulation 8A(3) as the lower of the two readings. It follows that once the conversion provision in section 47EB is applied, the lower of the two readings is the concentration of alcohol indicated as being present in the blood in the defendant by a breath analysis instrument for the purposes of section 47K(1) of the Road Traffic Act. 

8. In the context of this statutory presumption in section 47K(1), I find that the reading of 0.090g/210L on the Dräger Alcotest 7110 readout was the relevant reading for the purposes of the provisions of the Road Traffic Act.  I agree with the finding of the Magistrate that this reading is clearly printed on the statement. 

   Sufficiency of Abbreviation “g/210L”

9. Having concluded that the reading formed part of the statement provided to the defendant, it must next be considered whether the abbreviated form of g/210L sufficiently specified the reading for the purposes of section 47K(2) and for the operation of the conversion provision in section 47EB. It should be noted that the meaning of the word “specified” was discussed by Duggan J in Mercorella[27] where the following observation of Cox J in Ellul v Fauser[28] was cited with approval:

   The cases show, then, as one would expect, that “specified” is a protean word, the requirements of which will vary according to subject matter and the evident policy of the legislative prescription. No doubt in many cases there will be a question of degree involved as well.

   Duggan J noted the Oxford English Dictionary definition of “specify” as meaning:[29]

   To mention, speak of, or name (something) definitely or explicitly; to set down or state categorically or particularly; to relate in detail.

   [27] Mercorella v Police (2004) 88 SASR 575 at [30].

   [28] Ellul v Fauser (1981) 28 SASR 300 at 303.

   [29] Mercorella v Police (2004) 88 SASR 575 at [31].

10. The question whether an abbreviation sufficiently identifies the unabbreviated text is a question of fact. It is significant that the conversion provision in section 47EB refers to a different unit of measurement for breath and blood reading and also a different quantity of breath and blood. Section 47EB refers to number of grams of alcohol in 210 litres of the person’s breath and number of grams of alcohol in 100 millilitres of the person’s blood. The abbreviations “g” and “L” are well-known abbreviations for grams and litres. Given the use of different quantities and units of measurement of breath compared to blood in section 47EB, I consider that the abbreviation “g/210L”is sufficiently specific for the purpose of section 47K(2). I reject the defendant’s submission that it is only when the reading is expressed in an unabbreviated form that the conversion provision in section 47EB operates.

    Subject’s Analysis Result

11. I accept the Crown’s submission that the recording of the “Subject’s Analysis Result” on the statement in writing is additional information which is not required by section 47K(2) of the Road Traffic Act.  It is a repeat of the lower of the two readings, and although this information is a convenience which assists police and drivers alike, its exclusion does not render the document inadmissible for the purpose of establishing the provision of information.  As Duggan J observed in Mercorella:[30]

    The mere inclusion of other information in the statement could not render it ineffective for the purposes of the Act. In this respect, I agree with the observations made by Lander J in Ferguson v SA Police (1998) 27 MVR 11 in relation to the precursor of s 47G(2)[31] …

    [30] Mercorella v Police (2004) 88 SASR 575 at [27].

    [31] Section 47G was redesignated as section 47K by Road Traffic (Drug Driving) Amendment Act 2005 (SA) which came into operation on 1 July 2006.

12. It could be the case that extra information on a document may operate in particular circumstances to mislead a defendant.  If a relevant unfairness arises then an application to exclude the evidence in the exercise of the Court’s discretion may be advanced. 

    Conclusion

13. This appeal should be allowed. A statement complying with section 47K(2) of the Road Traffic Act was delivered to the defendant.  A case to answer had been made out.  The dismissal of the complaint should be set aside, and the matter should be remitted for further hearing.