Police v STONE - [2015] SASC 38

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v STONE
[2015] SASC 38
Judgment of The Honourable Justice Peek
11 March 2015
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN BLOOD
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE - BREATH TEST AND ANALYSIS
EVIDENCE - DOCUMENTARY EVIDENCE - PUBLIC DOCUMENTS - GAZETTES
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against conviction for driving a motor vehicle with the prescribed concentration of blood alcohol.
After a trial before a Magistrate, the appellant was convicted of driving a motor vehicle with the prescribed concentration of blood alcohol contrary to s 47B(1)(a), Road Traffic Act 1961. The factual circumstances of the offending were not in dispute at trial. A police officer found the appellant asleep in the driver’s seat of his motor vehicle on the side of the road. The officer administered an alcotest which returned a positive result. The officer then conveyed the appellant to a police station where the appellant submitted to having his breath analysed by a breath analysing instrument operated by the officer. This instrument returned a result of 0.093 grams of alcohol in 210 litres of breath.
What was disputed at trial, and forms the basis of this appeal, was whether the officer was authorised by the Commissioner of Police to operate the breath analysing instrument within the meaning of s 47K(1), Road Traffic Act 1961. In particular the issue was whether a notice published in the Government Gazette amounted to proof that the officer was so authorised. The respondent argued the notice could be relied upon as such proof on two alterative bases. The first basis was that the notice constituted a certificate pursuant to s 47K(3)(a), Road Traffic Act 1961. The second, alternative and independent basis, was that the notice was admissible pursuant to s 37, Evidence Act 1929 as evidence of an administrative act namely that the Commissioner of Police had authorised the officer to operate breath analysing instruments within the meaning of s 47K(1), Road Traffic Act 1961.
Held per Peek J (dismissing the appeal):
1. The notice published in the Government Gazette does not constitute a “certificate” under s 47K(3)(a), Road Traffic Act 1961. (at [19], [28]).
2. The notice published in the Government Gazette gives notice of an administrative act namely that the Commissioner of Police authorised the respective police officers to operate breath analysing instruments. The notice is therefore admissible pursuant to s 37, Evidence Act 1929 as proof of that matter, and the presumption in s 47K(1) is engaged. The charge was thereby proven. (at [29]-[36]).
3. The appellant is granted an extension of time within which to appeal. (at [38]).
4. The appeal is dismissed. (at [38]).
Road Traffic Act 1961 (SA) ss 47B(1)(a), 47K(1), 47K(3)(a); Evidence Act 1929 (SA) ss 35(1), 35(2)(d), 37, referred to.
Police v Short (2012) 112 SASR 463, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"Commissioner of Police", "authorised", "breath analysing instrument", "certificate"

POLICE v STONE
[2015] SASC 38
Magistrates Appeal.

PEEK J. Appeal against conviction for driving with the prescribed concentration of blood alcohol.
Background
The appellant was charged with driving a motor vehicle with the prescribed concentration of blood alcohol contrary to s 47B(1)(a), Road Traffic Act 1961 (Road Traffic Act) on 18 March 2014. At 12:52am that morning, police found him asleep in the driver’s seat of his vehicle stationary on the side of a road with the engine still running. After rousing the appellant, Senior Constable Thomas (Thomas) administered an alcotest which returned a positive result and conveyed him to the Aldinga Police Station where Thomas administered a breath analysis test. At 1:09am a reading of 0.093 grams of alcohol in 210 litres of breath (the blood alcohol concentration reading) was thereby obtained.
The trial in the Magistrates Court
At trial the above factual circumstances were not in dispute. The area of dispute, forming both the subject matter of a submission of no case to answer before the Magistrate and this appeal, was whether Thomas was a person authorised by the Commissioner of Police within the meaning of s 47K(1), Road Traffic Act to operate the breath analysing instrument from which the blood alcohol concentration reading was obtained (“an authorised person”). The relevant provisions of the Road Traffic Act provided as follows:
47K—Evidence
(1) Without affecting the admissibility of evidence that might be given otherwise than under 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.
...
(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.
...
If Thomas was not an authorised person, the prosecution could not rely on the evidentiary presumption set out in s 47K(1), and, on the evidence before the Court, the charge would not be proven.
The evidence relied upon to prove that Thomas was an authorised person was Exhibit P1, an extract from page 4903 of the Government Gazette dated 6 November 2012, which relevantly appeared as follows:
I, GARY T. BURNS, Commissioner of Police, do hereby notify that on and from the dates stated, the following persons were authorised by the Commissioner of Police to operate breath analysing instruments as defined and for the purposes of the:
- Road Traffic Act 1961
- Harbours and Navigation Act 1993
- Security and Investigation Act 1995
- Rail Safety Act 2007
PD Number Officer Name Authorised Date
[various Officers specified in alphabetical order]
...
73502 THOMAS, William Keith 04/07/2012
...
[various Officers specified in alphabetical order]
(Emphasis added)
The reasons of the Magistrate
The Magistrate rejected the appellant’s submission of no case to answer and held that Exhibit P1 could be relied upon to prove that Thomas was an authorised person on each of two alternative bases put forward by the prosecution.
The first basis was that Exhibit P1 constituted a certificate purporting to be signed by the Commissioner of Police pursuant to s 47K(3)(a), Road Traffic Act and certifying that Thomas had been authorised by the Commissioner of Police to operate breath analysing instruments.
In support of that first basis, the prosecutor relied upon the decision of Gray and Sulan JJ in Police v Short[1] which held that a notice in the Government Gazette may constitute a certificate for the purposes of s 47K(3). Counsel before the Magistrate and on appeal sought to distinguish Short on the bases that, unlike Exhibit P1 in the present case, the notice in Short specifically used the words “do hereby certify”, specifically referred to s 47K(3), Road Traffic Act and was followed by the name and title of the Commissioner of Police (a “signature block”). Thus the notice in Short appeared as follows:
[1] (2012) 112 SASR 463, 474-475 [29]-[31].
ROAD TRAFFIC ACT 1961
Authorised Officers to Conduct Breath Analysis
I, MALCOLM ARTHUR HYDE, Commissioner of the 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:
PD  Officer Name
Number
…
85278   Pullen, Brett Ronald
…
Dated 7 July 2009
MALCOLM ARTHUR HYDE, Commissioner of Police[2]
[2]    The extract as tendered did not include the date or the printed name of the Commissioner of Police. However, the Government Gazette, as published, does.
However, despite these important distinguishing factors, the Magistrate held that Exhibit P1 did constitute “a certificate”. His Honour stated:
[9]Prosecution rely upon the Gazette notice P1 to prove that Senior Constable Thomas has been authorised by the Commissioner to operate breath analysing instrument [sic]. Prosecution submitted that P1 comprised a certificate pursuant to s 47K(3)(a) of the Act. Prosecution relied upon the decision of the Full Court of the Supreme Court in Police v Short [2012] SASCFC 27. In that matter a notice in the Gazette was relied upon as a certificate pursuant to s 47K(3)(a). That notice was not signed by the Commissioner. However, the majority at [30] held that “the purpose of this requirement (of s 47K(3)(a)) is to allow the reader of the certificate to understand that the certification is the act of the Commissioner. The Government Gazette is one of the official means of publication by the State and the terms of the Government Gazette notice make it plain that the certification referred to is the act of the Commissioner of Police”. Similarly P1 makes it plain that the Commissioner of Police has certified that Senior Constable Thomas is authorised by the Commissioner of Police to operate breath analysing instruments.
[10]The defendant distinguishes the Gazette extract in Short from P1 and submits that Short is not authority for the proposition that P1 is a certificate in accordance with s 47K(3)(a). Contrary to the extract in Short, P1 does not in its terms even purport to be a certificate pursuant to s 47(3)(a). There is no mention of s 47K(3)(a) in P1 and the term ‘certify’ is nowhere to be found in P1. The name of the Commissioner does not appear typed at the end of the extract in P1 as it did in the extract in Short, a fact that the majority in Short placed weight on in concluding that the extract in that matter was a s 47K(3)(a) certificate. P1 bears little resemblance to an earlier certificate used by police, D1.
[11]I accept that there are distinguishing features between the extract in Short and P1. Amongst other things, the extract in Short only seeks to address s 47K(3)(a) of the Act whereas P1 purports to prove authorisation to operate breath analysing instruments for the purposes of the Act as well as the Harbours and Navigation Act 1993, the Security and Investigation Act 1995 and the Rail Safety Act 2007. Despite these distinguishing features, I prefer the prosecutor’s argument. Having regard to the ratio of the decision of the majority in Short, in my view P1 is a certificate pursuant to s 47K(3)(a). It is plain that the notice is the act of the Commissioner of Police and it is plain from the notice that Senior Constable Thomas has been authorised to operate breath analysing instruments by the Commissioner.
The second, alternative and independent, basis upon which the Magistrate held that Exhibit P1 proved that Thomas was an authorised person was that it constituted a notification of an administrative act (namely, that the Commissioner of Police authorised Thomas to operate breath analysing instruments under s 47K(1), Road Traffic Act) and that, pursuant to s 37, Evidence Act 1929 (Evidence Act), Exhibit P1 was admissible as evidence of that fact. His Honour stated:
[12]If I am wrong about the application of the decision in Short, in my view there is an alternative basis upon which P1 can be relied upon to prove that Senior Constable Thomas is an authorised person. Section 37 of the Evidence Act 1929 (SA) provides that “the Gazette … is admissible in any legal proceeding as evidence of any … administrative acts published or notified in it”.
[13]P1 in my view comprises a notification in the Gazette of an administrative act, namely, the authorisation by the Commissioner of Police of Senior Constable Thomas to operate breath analysing instruments as defined in and for the purposes of the Act. Accordingly, by operation of s 37 Evidence Act, P1 is evidence that Senior Constable Thomas is authorised by the Commissioner to operate breath analysing instruments.
The Magistrate found the charge proved beyond reasonable doubt. His Honour disqualified the appellant from holding or obtaining a driver’s licence, and ordered that he pay a fine of $900, a victims of crime levy of $160, and prosecution costs of $100.
The appeal to the Supreme Court
The appellant challenges each of the two independent bases for the finding that Thomas was an authorised person. The ground of appeal is as follows:
The learned Magistrate erred in finding the charge proven.
In particular, His Honour erred in finding that the breath analysis operator was “a person authorised by the Commissioner of Police to operate a breath analysing instrument within the meaning of s 47K(1) of the [Road Traffic] Act” (judgment of Magistrate G Fisher 25 September 2014, pgh 14)
Two issues therefore arise for consideration:
·Does Exhibit P1 constitute a certificate purporting to be signed by the Commissioner of Police that Thomas has been authorised by the Commissioner of Police to operate breath analysing instruments for the purposes of s 47K(3)(a), Road Traffic Act?
·If Exhibit P1 does not constitute such a certificate, is it admissible pursuant to s 37, Evidence Act as evidence of an administrative act that the Commissioner of Police had authorised Thomas to operate breath analysing instruments for the purposes of s 47K(1), Road Traffic Act?
Does Exhibit P1 constitute a certificate under s 47K(3)(a), Road Traffic Act?
There is a critical difference between the notice in Short (extracted at [8]), and the present notice, Exhibit P1 (extracted at [5]) in that in Short the word used was “certify”, whereas here it is “notify”.
The majority in Short held that the use of the word certify connoted that the notice in that case engaged s 47K(3)(a), Road Traffic Act.[3] However, subsequent to the decision in Short, the Commissioner of Police, no doubt pursuant to legal advice, has jettisoned the former word “certify” and adopted the word “notify”. The deliberate substitution of the word notify makes clear that there is now no attempt to construct a certificate under s 47K(3)(a), Road Traffic Act but rather that there is an intention to invoke the procedure under s 37, Evidence Act.
[3] Police v Short (2012) 112 SASR 463, 474 [29] - 475 [32].
This approach is in fact congruent with the approach taken by the Crown Solicitor’s Office on the prosecution appeal in Short. The notice of appeal there complained that the Magistrate and single Judge had erred by “categorising the notice in the Government Gazette as if it was a certificate tendered pursuant to s 47K(3), Road Traffic Act when it was not a certificate, but an alternative to proving the matter in issue other than by way of such a certificate”.[4] The summary of argument filed in Short in support of the prosecution application for permission to appeal to the Full Court made plain that the appeal was to be conducted on the basis that:[5]
·the Commissioner of Police relied on the Government Gazette as a stand alone method of proving that the police officer there in question was authorised to operate breath analysing instruments;
·the Commissioner of Police did not contend that the notice in the Government Gazette was a certificate under s 47K(3)(a), Road Traffic Act; and
·the courts below had in fact erred in treating the notice in the Government Gazette as if it proffered as a certificate under s 47K(3)(a) and then further erred in dismissing the charge upon the basis that the notice was defective because it failed to comply with the requirements of the certificate procedure under s 47K(3)(a), Road Traffic Act.
[4] Police v Short (2012) 112 SASR 463, 491 [103].
[5] Police v Short (2012) 112 SASR 463, 491 [104].
Accordingly, I held in Short that, in all the circumstances and including the position there adopted by the appellant, it was not possible to find that the notice proffered was such a certificate. The majority took a different view and that decision of course binds me.
However, there is a critical difference here in that the use of the word “notify” makes it clear that the notice in Exhibit P1, does not purport to be a certificate under s 47K(3). Rather, it purports to be a notification that an administrative act(s) has occurred, namely that the relevant Commissioner of Police has on the respective dates authorised the respective police officers to operate breath analysing instruments.
It follows that the Magistrate erred in relation to the first of the two bases for finding that Thomas was a person “authorised by the Commissioner of Police to operate breath analysing instruments”.
The lack of a signature or signature block
Although strictly unnecessary to do so, I note a further submission made by the appellant concerning the matter of a certificate.
It is to be noted that there were a number of sequential pages in the Government Gazette of that same date, 6 November 2012, (from pages 4836 to 4909) dealing with three different classes of authorisations which were: to conduct oral fluid analyses; to conduct drug screening tests; and to operate breath analysing instruments.
Each of the pages in the first class (from pages 4836 to 4844) had the following preamble:
I, GARY T. BURNS, Commissioner of Police, do hereby notify that on and from the dates stated, the following persons were authorised by the Commissioner of Police to conduct oral fluid analyses as defined and for the purposes of the:
- Road Traffic Act 1961;
- Harbours and Navigation Act 1993; and
- Rail Safety Act 2007 (Emphasis added)
Each of the pages in the second class (from pages 4845 to 4860) had the following preamble:
I, GARY T. BURNS, Commissioner of Police, do hereby notify that on and from the dates stated, the following persons were authorised by the Commissioner of Police to conduct drug screening tests as defined and for the purposes of the:
- Road Traffic Act 1961;
- Harbours and Navigation Act 1993; and
- Rail Safety Act 2007 (Emphasis added)
Each of the pages in the third class (from pages 4861 to 4909) had the following preamble:
I, GARY T. BURNS, Commissioner of Police, do hereby notify that on and from the dates stated, the following persons were authorised by the Commissioner of Police to operate breath analysing instruments as defined and for the purposes of the:
- Road Traffic Act 1961;
- Harbours and Navigation Act 1993;
- Security and Investigation Act 1995; and
- Rail Safety Act 2007 (Emphasis added)

The three respective preambles on each of the above pages of the Government Gazette were each followed by an alphabetical list of police officers. However, it is important to note that nothing appears below any of the lists of officers on pages 4836 to 4908. It is only on page 4909 that additional words appear thus:
GARY T. BURNS, Commissioner of Police
Having regard to the fact that three different classes of authorisations are dealt with, and that there is a separate preamble on each page within each class, it seems to me that there is a strong argument that each of the pages from 4836 to 4908 constitute a separate notice. If that is so, it appears that the only one of the notices that bears anything that might be contended to be a signature of the Commissioner of Police (as required by s 47K(3)(a), Road Traffic Act) is page 4909 which alone bears the additional words “GARY T. BURNS, Commissioner of Police”. That page 4909 contains a list of ten officers but does not include the name Thomas, which name only appears on page 4903.
In Short, the majority held that a “signature block” would suffice to render the notice a certificate but in Short there was only one list with a signature block and date at the foot of that list. However, in the present case there is only a signature block on the last notice on page 4909.
My tentative view is that this deficiency would independently lead to the conclusion that there is no certificate “purporting to be signed by the Commissioner of Police” as required by s 47K(3)(a), Road Traffic Act. However, I am content to rest my judgment on the basis that the substitution of the word notify for the word certify is sufficiently determinative of the conclusion that there is no certificate as required by s 47K(3)(a), Road Traffic Act and that the Magistrate erred in this regard.
Was Exhibit P1 admissible under s 37, Evidence Act as evidence of an administrative act?
I turn to the second independent basis upon which the Magistrate found that it was proven that Thomas was a person “authorised by the Commissioner of Police to operate breath analysing instruments”.
Sections 35(1) and 35(2)(d), Evidence Act provide as follows:
35—Judicial notice of legislative instruments
(1)     A court must take judicial notice of a legislative instrument.
(2)     In this section—
legislative instrument means—
(a)an Act of this State, or an Act or ordinance of any other State or a Territory of the Commonwealth;
(b)an Act of the Imperial Parliament that forms part of the law of this State or of any other State or a Territory of the Commonwealth;
(c)a regulation, rule, by-law or other form of subordinate legislation made under the law of this State or of any other State or a Territory of the Commonwealth;
(d)a proclamation, order or notice published in the Gazette or the corresponding official publication of some other State or a Territory of the Commonwealth;
(e)an Act or other instrument of a kind referred to in a preceding paragraph as published or republished under—
(i)    the Legislation Revision and Publication Act 2002; or
(ii)a former Act; or provision of an Act, of this State that provided for the reprinting or consolidation of any such instruments; or
(iii)a corresponding Act or ordinance of any other State or a Territory of the Commonwealth.
Section 37, Evidence Act in turn provides that:
37—Evidentiary value of official publications
The Gazette or the corresponding official publication of some other State or a Territory of the Commonwealth is admissible in any legal proceedings as evidence of any legislative, judicial or administrative acts published or notified in it.
Is Exhibit P1 a “notice” within the meaning of s 35(2)(d), Evidence Act?
Exhibit P1 is a “notice” within the meaning of s 35(2)(d) because, first, the form of the entry(ies) is that of a “notice” within the meaning of s 35(2)(d) and, secondly, the use of the word notify, coupled with the act of publication in the Government Gazette, cannot connote any other conclusion than that the contents of Exhibit P1 is to be treated as a “notice” within the meaning of s 35(2)(d).
Does Exhibit P1 give notice of “an administrative act”?
It is self evident that Exhibit P1 does give notice of “an administrative act(s)”, namely that the relevant Commissioner of Police had, on the respective dates referred to, authorised the respective police officers to “operate breath analysing instruments”.
Does the proof of an administrative act referred to in the notice engage the aids to proof set out in s 47K(1), Road Traffic Act?
There is a critical difference between the situation as it was in Short and as it is here. In Short the words used were “certify that on 7 July 2009, the following Police Officers were authorised by the Commissioner of Police to conduct breath analysis”, whereas here it is “notify that on and from the dates stated, the following persons were authorised by the Commissioner of Police to operate breath analysing instruments …”.
In Short, I was of the view (as had been the Magistrate and the single Judge)[6] that the words “to conduct breath analysis” were inadequate to engage the s 47K(1) presumptions, but the majority of the Full Court held that those words were adequate to do so.
[6] Police v Short [2011] SASC 131, [17].
Subsequent to the decision in Short, the Commissioner of Police (no doubt pursuant to legal advice) has jettisoned the old words “authorised to conduct breath analysis” and adopted the new words “authorised to operate breath analysing instruments …” which precisely correspond with the language of s 47K(1). That was, with respect, a wise decision. The result is that it is now clear beyond argument that the s 47K(1) presumptions are intended to be engaged and, in my view, they are so engaged.
Accordingly, the Magistrate was correct in relation to the second alternative basis. The charge was proven and the appellant was correctly convicted. I therefore dismiss the appeal.
Conclusion and orders
I make the following orders.
1The appellant is granted an extension of time within which to appeal.
2The appeal is dismissed.