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 to make reference to the relevant statutory provisions. The offence was alleged to be contrary to section 47B(1)(a) of the Road Traffic Act. That section provides:
(1)     A person must not—
(a)     drive a motor vehicle; or
(b)     attempt to put a motor vehicle in motion,
while there is present in his or her blood the prescribed concentration of alcohol as defined in section 47A.
Compliance with the requirements of section 47K(1) of the Road Traffic Act allows the prosecution to rely on a presumption as to a defendant’s blood alcohol reading at the time of driving. That section provides:
(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 and throughout the preceding period of 2 hours.
The Road Traffic Act restricts the manner in which this presumption may be challenged. Relevantly, section 47K(1a) and section 47K(1ab)[1] provide:
[1] It would appear that section 47K(1ab) remains in the statute as an anomaly.
(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).
The Magistrate described the issue to be decided as whether the reading of 0.086 per cent, which would otherwise be deemed to be accurate, was an exaggerated reading of the concentration of alcohol present in the defendant’s blood at the time of driving. The Magistrate noted that there was no contest to any other aspect of the prosecution case.
On 5 June 2010 the defendant, a 63 year old man, following a game of bowls, consumed four glasses of white wine between about 5:00 pm and 6:00 pm. He then left the club to drive home and was stopped by police following his failure to stop at a stop sign. At 6:41 pm, a breath analysis test disclosed a reading of 0.086 grams of alcohol in 100 millilitres of blood. The defendant made arrangements to have a blood sample taken at the Flinders Medical Centre at 10:45 pm that day. An analysis of this sample disclosed a blood alcohol reading of 0.041 grams of alcohol in 100 millilitres of blood.
In his report tendered in evidence at the trial, Mr Felgate expressed the following view:
In preparing the report I have assumed the following information:
Time of driving:          1800 hours on 5 June 2010
Time of breath test:      1833 hours on 5 June 2010
Blood alcohol result:    0.086%
Time blood taken:               2245 hours on 5 June 2010
Blood alcohol result:    not less than 0.035%
A quantity of alcohol was consumed at a steady rate from 1700 hours to 1800 hours on 5 June 2010 with his last drinking being consumed just prior to driving, but no alcohol was consumed after driving.
In considering the relationship between breath and blood test results it should be noted that Forensic Science SA blood alcohol results have 0.006% alcohol subtracted before reporting to allow prosecutions based on results to proceed with 99.9% confidence that the true concentration was “not less than” the reported figure. This is normal statistical practice. Thus, in assessing the subject’s apparent rate of elimination, it is more appropriate to use the actual determined blood test result which is the average of two independent analyses and which represents the best estimate of the true concentration. In this case the subject’s actual blood test result was 0.041%.
Assuming that the subject’s blood alcohol concentration would have been falling at a roughly steady rate in the interval between the breath test and the blood test and that the breath test result is accurate for the purposes of this calculation, his apparent rate of elimination was 0.011% per hour. This value lies within the normal reported range of 0.006% to about 0.030% per hour and can be explained by the normal processes of metabolism and elimination. However, since there is no means of determining the subject’s actual rate of elimination during the time of interest independently of the breath test result, the apparent value of 0.011% per hour may not represent his true rate of elimination at that time.
[Emphasis in original.]
The Magistrate accepted Mr Felgate as an appropriately qualified expert and accepted the above evidence. However, the Magistrate then referred to a further opinion expressed by Mr Felgate concerning the defendant’s blood alcohol concentration at the time of driving. In that respect, Mr Felgate had expressed the following opinion:
Using the alcohol concentration of 0.041% determined in the blood sample taken at 2245 hours on the 5 June 2010 and assuming a steady drinking pattern, 40 minutes for the time taken to achieve the blood alcohol concentration maximum after the finish of drinking, 0.03% for the rise in blood alcohol concentration after the finish of drinking and the subject’s apparent rate of elimination of 0.011% per hour the subject’s blood alcohol concentration was probably about 0.04% at the time of driving at 1800 hours, but this should not be regarded as a firm figure.
[Emphasis in original.]
The Magistrate noted in her reasons that Mr Felgate had calculated that at the time of driving the defendant’s blood alcohol concentration was probably about 0.04 per cent. The Magistrate then reasoned and concluded:
The only evidence that the defendant can rely on to rebut the presumption is evidence of the analysis of the blood sample, which is what Mr Felgate used and if I am satisfied that on the balance of probabilities that evidence as explained through the expertise of Mr Felgate demonstrates that the breath analysis instrument gave an exaggerated reading, the defendant is entitled to be found not guilty.
Having accepted the evidence of Mr Felgate, I find that at the time of driving the defendant’s blood alcohol reading was probably .04%. The deemed reading of .086 is significantly more than that and therefore the blood analysis has demonstrated that the breath analysis did give an exaggerated reading.
I am satisfied on the balance of probabilities that the defendant has rebutted the presumption in the legislation.
Having regard to these findings, the Magistrate dismissed the complaint.
The Appeal
Counsel appearing for the police on the appeal submitted that the evidence of Mr Felgate provided confirmation that the breath analysis reading was not exaggerated. Mr Felgate tested the breath analysis reading by assuming its correctness, by assuming that the defendant’s blood alcohol concentration would have been falling at a roughly steady rate in the interval between the breath test and the blood test, by accepting the correctness of the blood alcohol reading taken at 10:45 pm and by working out the necessarily implicit elimination rate. This led to the conclusion that the elimination rate would be 0.011 per cent per hour. Mr Felgate gave evidence that this was toward the middle of the range of elimination rates that studies have established and to this extent, provided confirmation that the breath analysis reading was not exaggerated.
Mr Felgate’s evidence suggested that the blood alcohol reading of the defendant at the time of driving may have been as low as 0.04 per cent. His report and evidence were unclear as to the basis of this opinion. With the consent of the parties, a further report of Mr Felgate was prepared and tendered on the appeal. In this further report, Mr Felgate modified his earlier opinion and concluded that it was possible that the defendant’s blood alcohol concentration at the time of driving could have been as low as 0.04 per cent. Mr Felgate in his further written statement explained the basis of this conclusion as follows:
As some of the alcohol was consumed rapidly just prior to driving Mr Tully’s blood alcohol concentration would have been increasing for some time after the finish of drinking until it had been fully absorbed, at which time Mr Tully would have reached his maximum blood alcohol concentration. Given the quantity of alcohol consumed it is reasonable to assume that this maximum blood alcohol concentration would have been reached at the time of the breath test some 33 minutes after driving.
Calculation of the estimate of the minimum blood alcohol concentration at the time of driving relies on the maximum reported value for the rise in blood alcohol concentration after the finish of drinking. However, estimating a possible value for this is problematical since it will be substantially dependent on the individual and the actual rate of drinking. For example, in drinking studies, Bayly and McCallum (1959) tested 56 volunteers who consumed alcohol as rapidly as possible and found a maximum rise of 0.083% for a volunteer who consumed 17 standard drinks in one hour. One the other hand, in a simulation of social drinking conditions for up to three hours, Jones and Neri (1991) found a maximum rise of 0.045% for 16 volunteers, Moore (1991) a maximum rise of 0.02% for 14 volunteers and Ganert and Bowthorpe (2000) a maximum rise of 0.022% for 10 volunteers. Zink and Reinhardt (1988) allowed 14 volunteers to consume alcohol for between four and ten hours and found that eight (57%) showed no rise in blood alcohol concentration after the finish of drinking.
In this case, assuming a steady pre-driving drinking pattern resulting in a maximum rise of 0.045% after the finish of drinking, it is possible that Mr Tully’s blood alcohol concentration at the time of driving could have been as low as 0.04%.
[Emphasis in original.]
This analysis further confirms the breath analysis reading of 0.086 per cent. Rather than demonstrating that the breath analysis gave an exaggerated reading, the opposite may be inferred.
In my view, the Magistrate erred in her application of the relevant statutory provisions. The statutory presumption contained in section 47K(1) of the Road Traffic Act arose. Evidence was given of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument. That instrument was operated by a person authorised to operate the instrument by the Commissioner of Police. The requirements and procedures in relation to the breath analysing instrument and breath analysis under the Act were complied with. In those circumstances, the subsection provides that “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”. In the present proceeding, it follows that, if the presumption has application, it must be presumed that at the time of driving the defendant had a concentration of alcohol of 0.086 per cent present in his blood.
The only basis for rebutting the presumption is provided for by section 47K(1a). That subsection restricts the evidence that may be led to the results of an analysis of a sample of blood taken in accordance with the Act – in the present case, the evidence that may be led is the analysis of the blood taken at Flinders Medical Centre and evidence of whether that analysis demonstrates that the breath analysis instrument gave an exaggerated reading. In the present proceeding, as discussed above, Mr Felgate’s evidence confirmed that the breath analysing instrument did not give an exaggerated reading. To express the matter a different way, the evidence did not demonstrate that the breath analysing instrument gave an exaggerated reading. It is not to the point to suggest that it is possible that there was a lower reading at the time of driving. The statutory provision in the circumstances of the present proceeding mandated that the Court should presume that the concentration of alcohol indicated, namely 0.086 per cent, was present in the blood of the defendant at the time of driving. It is to be noted that the defendant’s driving took place during the two hours preceding the taking of the breath analysis.
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.