Police v Tully - [2011] SASC 242

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v TULLY
[2011] SASC 242
Judgment of The Honourable Justice Gray
22 December 2011
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
Appeal by police against the dismissal of a complaint - the defendant was charged with driving a motor vehicle on a road while there was present in his blood the prescribed concentration of alcohol contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA) - the alleged blood alcohol concentration was 0.086 grams of alcohol in 100 millilitres of blood - whether it had been established that the blood alcohol reading disclosed by the breath analysis testing was exaggerated.
Held: Appeal allowed - the evidence did not demonstrate that the breath analysing instrument gave an exaggerated reading - orders of the Magistrate set aside - defendant convicted of the offence of driving a motor vehicle on a road while there was the prescribed concentration of alcohol in his blood.
Road Traffic Act 1961 (SA) s 47A, s 47B and 47K, referred to.

POLICE v TULLY
[2011] SASC 242
Magistrates Appeal
GRAY J:

This is an appeal against the dismissal of a complaint.
The defendant and respondent, Peter George Tully, was charged with driving a motor vehicle on a road while there was present in his blood the prescribed concentration of alcohol as defined in section 47A of the Road Traffic Act 1961 (SA) in contravention of section 47B(1)(a) of the Road Traffic Act. It was alleged that this occurred on 5 June 2010 and that the concentration of alcohol was .086 grams in 100 millilitres of blood.
The defendant pleaded not guilty. The trial proceeded in the Adelaide Magistrates Court. The prosecution led evidence from a police officer who stopped the defendant, administered an alcotest and who later administered the breath analysis test. There was no challenge to this testimony. There was no suggestion that the alcotest or breath analysis test were conducted other than in accordance with correct processes and procedures. It was accepted that the prosecution had made out a case to answer.
The defence case was that on the balance of probabilities it had been established that the blood alcohol reading disclosed by the breath analysis testing was exaggerated. In that circumstance, it was said that the reading was unreliable and that as a consequence the prosecution were unable to establish that at the time of driving the defendant did so with a prescribed concentration of alcohol in his blood. The defendant gave evidence, tendered analysis certificates and called a forensic scientist, the manager of the toxicology section of Forensic Science SA, Peter Felgate, to give expert evidence as to the analysis of a sample of the defendant’s blood taken at a hospital later that day.
Before coming to discuss the evidence, it is convenient…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Tully

Details

AGLC: Police v Tully [2011] SASC 242
Case: [2011] SASC 242
Decision Date: 22 December 2011

CaseChat Overview and Summary

The Police sought to appeal against the decision of a Magistrate who dismissed a complaint against the defendant, Tully, who was charged with driving a motor vehicle on a road while there was present in his blood the prescribed concentration of alcohol, contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA). The specific charge related to a blood alcohol concentration of 0.086 grams of alcohol in 100 millilitres of blood. The central legal issue was whether the evidence demonstrated that the breath analysis testing, which gave the blood alcohol reading, provided an exaggerated result. The court was required to determine if the Magistrate's decision to dismiss the complaint was appropriate, given the evidence presented regarding the accuracy of the breath analysis test.

The court considered the evidence and arguments presented by both parties. The police argued that the blood alcohol reading was accurate and that the Magistrate should have convicted the defendant. In contrast, the defendant contended that the breath analysis instrument provided an exaggerated reading. The court examined the evidence and concluded that it did not substantiate the claim that the breath analysis instrument provided an exaggerated reading. The court held that the Magistrate's decision to dismiss the complaint was erroneous, as the evidence did not support the defendant's argument that the breath analysis result was exaggerated.

The appeal was allowed, and the orders of the Magistrate were set aside. The court found that the evidence did not demonstrate that the breath analysis testing was exaggerated. Consequently, the defendant was convicted of the offence of driving a motor vehicle on a road while there was the prescribed concentration of alcohol in his blood. The court ordered that the defendant be convicted of the offence, with a specific concentration of 0.086 grams of alcohol in 100 millilitres of blood. Additionally, the orders of the Magistrate, including the order as to costs, were set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In these circumstances, the order of the Magistrate dismissing the complaint should be set aside and an order made recording the conviction of the defendant of the offence of driving a motor vehicle on a road while there was present in his blood the prescribed concentration of alcohol as defined in section 47A of the Road Traffic Act. Conclusion The appeal is allowed. The orders of the Magistrate including the order as to costs are set aside. The defendant is convicted of the offence of driving a motor vehicle on a road while there was present in his blood the prescribed concentration of alcohol; namely, a concentration of 0.086 grams of alcohol in 100 millilitres of blood.

Ratio Decidendi

Legal Principle Established

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