Praniess v Police

[2011] SASCFC 22

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

PRANIESS v POLICE

[2011] SASCFC 22

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice White)

4 April 2011

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG - SENTENCE AND PENALTY

TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO FULL COURT

Offences against s 47(1) and s 47B Road Traffic Act 1961 (SA) - appellant pleaded not guilty to both counts - appellant convicted and sentenced by magistrate for driving under the influence - prosecution withdrew driving with prescribed concentration of alcohol charge prior to sentencing - appeal to single judge of the Supreme Court against conviction for the offence of driving under the influence contrary to s 47(1) and the finding of guilt for the offence of exceeding the prescribed concentration of alcohol contrary to s 47B - appeal to Full Court of the Supreme Court against order of single judge dismissing the appellant's appeals.

Appellant subjected to breath analysis test pursuant to Road Traffic Act 1961 (SA) - appellant requested and was supplied with a blood analysis kit - whether Court should exercise unfairness and public policy discretions to exclude evidence of breath analysis where blood sample taken but unsuitable for analysis.

Held: Not necessary to decide question of exclusion of evidence of breath analysis by exercising discretion - sufficient evidence independent of breath analysis to prove appellant driving under the influence - appeal dismissed.

Road Traffic Act 1961 (SA) s 47(1), s 47(2), s 47B(1)(a), s 47E, s 47K(1)(a), s 47K (1ab), s 47K(2a)(b) and s 47K(8), referred to.
Police v Parker (2002) 81 SASR 240; Police v Hall (2006) 95 SASR 482; Bunning v Cross (1978) 141 CLR 54, considered.

PRANIESS v POLICE
[2011] SASCFC 22

Full Court:  Doyle CJ, Anderson and White JJ

1. DOYLE CJ:          I have had the advantage of reading the reasons of Anderson J.  I agree with his reasons.  For the reasons that he gives, I would dismiss the appeal against the orders made by the single Judge.  For the reasons that Anderson J gives, it is neither necessary nor appropriate for this Court to make any order in relation to the appeal against the finding that the charge contained in count 2 of the complaint was proved.  I would hear the parties on the question of costs and any incidental orders.

2. ANDERSON J:

   Introduction

3. The appellant was charged with two offences pursuant to the Road Traffic Act 1961 (SA) (the Act) which arose from his driving of a motor vehicle at Tanunda on 17 May 2009. The first was driving a vehicle whilst so much under the influence of intoxicating liquor and/or drug as to be incapable of exercising effective control of the vehicle contrary to the provisions of s 47(1)(a) of the Act (the DUI charge). He appeared before a magistrate and pleaded not guilty.

4. The appellant was also charged with driving a motor vehicle while there was present in his blood more than the prescribed concentration of alcohol contrary to s 47B(1)(a) of the Act (the PCA charge). It was alleged that the concentration of alcohol in his blood was 0.199 grams of alcohol in a 100 millilitres of blood. The reading was obtained from a breath analysis conducted by a police officer pursuant to s 47E of the Act. The appellant also pleaded not guilty to this charge.

5. The magistrate found both charges had been proved beyond reasonable doubt. After the magistrate had delivered his reasons for judgment the prosecution withdrew the charge of driving with the prescribed concentration of alcohol so that the appellant was not penalised twice for the same conduct. He was therefore convicted and sentenced by the magistrate only for the offence of driving under the influence. The appellant then appealed to a judge of this Court against his conviction for the DUI charge. The judge dismissed that appeal but allowed a cross-appeal by the police against sentence. The judge did not make any order in relation to the finding of guilt on the PCA charge.

   The notice of appeal

6. The notice seeks orders including:

   2.The evidence of the breath analysis result is excluded and the finding of guilt of the charge of exceeding the prescribed concentration of alcohol is set aside and the charge dismissed.

   3.The conviction on the charge of driving under the influence of intoxicating liquor is set aside and the charge dismissed.

7. In the Magistrates Court the magistrate’s order endorsed on the file is:

   2.Drive with Excess Blood Alcohol

   PLEA:NO PLEA

   Judgment delivered

   HH finds the charge proved

   Crown seeks to withdraw Count 2

   WITHDRAWN

8. In the appeal to a single judge, the judge identified in his reasons that he was dealing with both an appeal against conviction on the DUI count and the finding of guilt on the PCA count. The judge dismissed the appeal against conviction on the DUI count but made no order in respect of the finding of guilt on the PCA count.

9. I take the view that there was nothing to be dealt with in relation to the finding of guilt on the PCA charge because the charge was withdrawn, albeit after the magistrate indicated that he found the charge proved.

10. The appeal against the finding that the PCA charge was proved is, in any event, a theoretical or academic argument which the court should not have to deal with. I will find that on the facts of this case the DUI charge can be easily made out without the need to use the results of the breath analysis test. It is not necessary to deal with the finding that the PCA charge was proved.

    The relevant legislation

11. Section 47(1) of the Act creates the offence of driving a motor vehicle whilst under the influence of intoxicating liquor so as to be incapable of exercising effective control.

12. Section 47(2) then provides:

    47—Driving under influence

    …

    (2)For the purposes of subsection (1), a person is incapable of exercising effective control of a vehicle if, owing to the influence of intoxicating liquor or a drug, the use of any mental or physical faculty of that person is lost or appreciably impaired.

    This subsection does not restrict the meaning of the words "incapable of exercising effective control of a vehicle".

13. After a breath analysis test was conducted pursuant to the provisions of s 47E, the appellant requested and was then provided with an approved blood test kit in compliance with s 47K(2a)(b). A sample of the appellant’s blood was taken at the Angaston Hospital. When the blood sample was analysed it was found that the blood was denatured and unsuitable for analysis.

14. The appellant was therefore in the position that he was denied the opportunity to challenge the breath analysis reading pursuant to s 47K(1a) of the Act.

15. Section 47K(1ab) creates a presumption that the concentration of alcohol recorded by a breath analysis instrument is in fact the concentration at the time of driving.

16. The appellant argued before the magistrate, before the judge of this Court and before the Full Court that the evidence of the breath analysis test should have been excluded on the basis of either or both a general unfairness discretion or for matters of public policy. This appeal proceeded with an analysis by counsel of the relevant sections of the Act and in particular s 47K(8) and whether the enactment of the sub-section removed the exercise of the discretion.

17. Section 47K(8) provides:

    47K—Evidence

    …

    (8)A prosecution for an offence will not fail because of a deficiency of a kit delivered to the defendant in purported compliance with subsection (2a)(b) and the presumption under subsection (1) will apply despite such a deficiency unless it is proved—

    (a)     that the defendant delivered the kit unopened to a medical practitioner for use in taking a sample of the defendant's blood; and

    (b)     by evidence of the medical practitioner, that the medical practitioner was, because of a deficiency of the kit, unable to comply with the prescribed procedures governing the manner in which a sample of a person's blood must be taken and dealt with for the purposes of subsection (1a).

18. I have set out the extracts from the relevant legislation merely to show how the argument developed in this appeal. I have formed the view that the appeal should be decided on a much narrower basis.

19. I have come to the view that the evidence against the appellant for driving under the influence of liquor apart from the breath analysis was so overwhelming that it is not necessary to consider whether a discretion should have been exercised to exclude the evidence of the breath analysis reading in relation to either the PCA charge or the DUI charge.

    Background

20. I adopt the background set out by the magistrate in his reasons at [2] to [5] inclusive.

    [2]At 3.05 am on 17 May 2009 police stopped a vehicle driven by the defendant on Murray Street, Tanunda for a random breath test. The defendant submitted to an alco-test which produced a positive result and Senior Constable McNally and Senior Constable First Class Underwood then took the defendant to the Nuriootpa Police Station. He underwent a breath analysis test which produced a reading of 0.199 grams of alcohol per 100 millilitres of blood.

    [3]Senior Constable McNally an authorised breath analyser operator conducted the breath analysis test which was recorded on video tendered in evidence as P10. He issued the defendant with the various required certificates under Section 47K of the Road Traffic Act, 1961, including the reading to the defendant of the oral advice pursuant to Section 47K(2a)(a). He also provided the defendant with the prescribed written notice which included the statement that if he was supplied with an approved blood test kit, he should then proceed promptly to a hospital or medical practitioner and request that a sample of his blood be taken. Schedule 1 to the Act provides that if a breath analysis was conducted outside the metropolitan area then a registered nurse may take a sample of the defendant’s blood. The defendant requested and was provided with an approved blood test kit. Senior Constable McNally and Senior Constable Underwood conveyed the defendant to the Angaston Hospital, even though there was no legal obligation on the police to do that, in order for the defendant to have a sample of his blood taken.

    [4]He was attended to at the Angaston Hospital by registered nurse Kyla Palk and a sample of his blood was taken at 4.20 am on 17 May 2009. The sample of blood was dealt with in accordance with the procedures prescribed by Regulation 11 of the Road Traffic (Miscellaneous) Regulation 1999. Upon analysis it was reported that, “The blood was denatured and unsuitable for analysis” (refer to the Certificate of Analysis tendered as P6). The defendant’s sample was analysed by Gribbles Pathology and returned a similar finding. As a result the defendant was denied the opportunity to challenge the breath analysis reading pursuant to Section 47K(1a) of the Act.

    [5]The prosecution called the two police officers, Senior Constable McNally and Senior Constable Underwood and registered nurse Ms Palk to give evidence and tendered a number of certificates pursuant to the Act. The defendant also gave evidence and called Doctor David Thomas, a Consultant Chemical Pathologist as an expert witness.

    The appellant’s consumption of alcohol

21. The appellant admitted that he had been drinking throughout the evening but does not have an actual recollection of the number of drinks he consumed. His evidence was that he estimated that he had about three stubbies of Cooper’s stout between the hours of 5.00 pm and 10.00 pm at his home before he drove to the Tanunda Hotel. There he had, according to him, another three or four pints of Cooper’s stout between 10.00 pm and the time he left the hotel, being shortly before 3.00 am. He was stopped in his car on Murray Street at Tanunda by the police at 3.05 am. The appellant told the court that he had worked a long day and felt tired and he agreed that the alcohol combined with his tiredness affected his behaviour that night.

22. The magistrate described the police observations at [37] of his reasons as follows:

    [37]The defendant admitted driving on the date, time and place in question. The police evidence is that their attention was drawn to the defendant driving a little erratically on Murray Street, Tanunda. He veered from left to right within the lane over a distance of 500 metres. It was not sufficiently bad to amount to a due care charge but it was sufficient for them to stop him and to submit him to an alco-test which was positive and as a result he was taken to the Nuriootpa Police Station where a breath analysis test was conducted and a reading of 0.199 grams of alcohol per 100 millilitres of blood was recorded.

23. There is evidence as to the appellant’s conduct at the police station at the time he was required to undergo the breath analysis test. Senior Constable Underwood told the court that he observed the appellant after taking the test and that he showed signs of being affected by alcohol. He said he was unsteady on his feet, was swaying, had slurred speech and watery eyes. He also said that he was argumentative and unco-operative and concluded that he was moderately affected by alcohol.

24. A video recording of the breath analysis procedure was examined by both the magistrate and by the single judge on appeal. The magistrate summarised his observations by saying that the defendant was in an aggressive mood and showed constant mood swings. The appellant agreed that his conduct at the police station as shown on the video was due to a combination of both tiredness and alcohol. He also said that he had a liver problem and that alcohol affected him very quickly. The judge indicated that the magistrate’s views were generous as to his observations regarding the appellant in the police station. The judge said at [46]:

    [46]In my view it is apparent from the tape that Mr Praniess’ thought processes and his belligerent behaviour, accompanied by abusive and threatening language to the police officer conducting the procedure, were due to his alcoholic state and were of considerable relevance to the question whether he had been able to exercise effective control of a vehicle.

25. I agree entirely with those comments having viewed the tape.

26. At the Angaston Hospital where the appellant had a blood sample taken, the registered nurse who was authorised to take the sample of blood said she observed that the appellant was speaking loudly and behaving somewhat irrationally. She also said that she saw him “pacing” and that he was unbalanced. She said he was not able to walk in a straight line.

27. The judge on appeal concluded that there was ample evidence before the magistrate to enable him to conclude that the offence against s 47(1) of the Act had been proved. As the judge said at [42]:

    [42]The Magistrate relied upon the observations made of Mr Praniess by the arresting police officers relating to his manner of driving and his demeanour while the breath analysis was in progress.  He also took into account the results of the breath analysis.

28. The question raised by the appellant in this appeal is whether the results of the breath analysis should have been taken into account. The argument is that an injustice has resulted because the appellant was denied his opportunity of challenging the analysis due to no fault of his own.

    The reasoning of the magistrate

29. The magistrate dealt with the PCA charge by considering whether the discretion applied and if so whether it should be used. He analysed the evidence in detail. He discussed the relevant decisions on the point. The magistrate admitted the breath analysis reading, found that the presumption under s 47K(1) of the Act operated and found the charge proved.

30. His Honour then turned to the DUI charge. He correctly directed himself on the elements required to prove the charge beyond reasonable doubt. The magistrate summarised the evidence of Senior Constable McNally in his reasons at [39]. He said:

    [39]Senior Constable McNally gave evidence that when he approached the defendant on Murray Street he could smell liquor on his breath, that he was slightly unsteady on his feet and his eyes were bloodshot. He made notes of his observations of the defendant during the breath analysis procedure. Those notes contain the following observations:

    ·    Moderate odour of liquor on breath.

    ·    Clothes disarranged.

    ·    Attitude was talkative, carefree, and indifferent.

    ·    Eyes dilated, bloodshot (moderately) and slightly watery.

    ·    Walking, moderate staggering.

    ·    Staunch, swaying slightly.

    ·    Speech, slight slurred.

31. The magistrate went on to say at [40], [41] and [42]:

    [40]The evidence is that the breath analysis test took place some 25-30 minutes after the defendant’s detection on Murray Street. Mr Lloyd submits that those observations made at the Nuriootpa Police Station during the breath analysis procedure were not relevant to the time of driving as the defendant’s condition could have deteriorated in the mean time. He contended that the defendant was not affected at the time of driving but it hit him when he reached the police station. Both the police officers gave evidence that they were asked to prepare statements about two months after the date in question and both included their observations of the defendant when first detected on Murray Street. Senior Constable Underwood said that he’s observations of the defendant after the positive alco-test were that the defendant was exhibiting signs of being affected by alcohol, such as unsteady on his feet, bit of swaying, speech was slurred and he could see by torch light that his eyes were watery, bloodshot and that he was argumentative and uncooperative and concluded that he was moderately affected by alcohol. ….

    [41]However the video recording of the breath analysis procedure clearly corroborates some of these observations that the defendant was in an aggressive manner, that he showed constant mood swings and was changing his mind and I did not accept the theory that he was not affected during the driving but suddenly hit him only when at the police station some 25-30 minutes after that. There is also some significant other evidence to support that he was affected by alcohol, the defendant admitted that he had been drinking steadily and gradually during the evening, he does not have a clear recollection of the number of drinks he had during the night but he estimated that he had about three cooper stout stubbies between about 5.00 pm and 10.00 pm at home and then he went to the Tanunda Hotel and had another three to four pints of coopers stout between 10.00 pm and the time he left the hotel about 2.50 am. He was stopped on Murray Street by the police at 3.05 am which was within one kilometre of the hotel on his way home.

    [42]The defendant also admitted that he had worked a long day and that he felt tired and he conceded that the alcohol combined with his tiredness affected his behaviour on the night. He conceded that his conduct at the police station as evidenced on the video footage was due to a combination of tiredness and alcohol. The defendant also conceded that he has a liver problem and thus alcohol will affect him very quickly. The police officers conceded in evidence that they had no training and had not expertise in assessing whether faculties could be impaired by a number of other factors not connected by alcohol. However there was no other satisfactory evidence of any existing medical condition which could have affected the defendant’s facilities in the absence of alcohol (refer Cooper v SA Police (1993) 18 MVR 114).

1. On the basis of the magistrate’s consideration of the factors referred to above he concluded that the DUI charge had been proved beyond reasonable doubt. He was clearly correct in doing so.

2. The simple fact is that a breath analysis reading by itself, without any expert evidence to interpret the likely effect on a person’s faculties, is really of no significance in relation to the DUI charge. There was no such interpretative evidence called. If the case for the prosecution had involved both the reading and interpretative evidence the position may have been different in relation to an unfairness.

3. It could be said that the whole argument relating to the breath analysis reading is irrelevant. It is not a case where the defence sought to argue that the appellant’s conduct was caused by anything other than alcohol.

   The appeal to a single judge

4. In dealing with the appeal against the decision not to exclude the breath analysis results in the exercise of a discretion the judge considered the relevant provisions of the Act. These provisions included the presumption in s 47K(1) that the breath analysis results accurately record the concentration of alcohol in blood at the time of the analysis and the provision that a prosecution will not fail because of a deficiency in a blood test kit provided in purported compliance with the Act (s 47K(8)).

5. The judge analysed the evidence of Professor Thomas, the consultant chemical pathologist who was called by the appellant to give expert evidence in relation to the denaturing of the blood samples. The judge then considered a decision of Mullighan J in Police v Parker (2002) 81 SASR 240 but took a different view from Mullighan J in relation to the availability of the discretion to exclude the evidence of the breath analysis. His Honour said at [27]:

   [27]... In my view the effect of the subsection [s 47K(8)] is to override the Court’s discretionary power to exclude evidence on the ground of unfairness in relation to the trial.

6. His Honour took the view that even if there was a discretion to exclude the evidence this was not an appropriate case for the discretion to be used. His Honour then considered the decision in Police v Hall (2006) 95 SASR 482.

7. In dealing with the DUI charge, the judge set out the passage from the magistrate’s reasons which I have set out earlier. He then dealt in some detail with the other evidence that had been called by the prosecution as to the appellant’s driving and the observations made of him at the time. That evidence is set out earlier in these reasons. His Honour concluded that there was ample evidence to support the conviction by the magistrate and dismissed the appellant’s appeal against his conviction.

   Appellant’s argument

8. Ms Fuller for the appellant argued that s 47K(8) did not operate so as to exclude the availability of either the unfairness or public policy discretions to refuse to admit the evidence of the breath analysis. She further argued that there was an issue as to whether either discretion, if one remains after the enactment of s 47K(8), is the same for a PCA offence as for a DUI offence. She argued that the court should determine whether on the facts of this case the discretion should have been exercised in favour of the appellant so as to prevent an unjust result.

9. Ms Fuller further argued that even if the breath analysis was admissible on the DUI charge then because of the way in which the trial proceeded before the magistrate, there was an injustice based on the lack of any ruling by the magistrate at the close of the prosecution case as to the admissibility of the breath analysis. It was put to the court by Ms Fuller that the magistrate erred in not ruling at an earlier stage of the trial.

10. As I understand the argument it was suggested that this may have affected the way in which the defence conducted its case. No request was made at any earlier stage for a ruling. Counsel could have made such a request. Although raised on this appeal, it has not been supported by an affidavit from counsel at the trial as to what effect the failure of the magistrate to rule on the admissibility of the breath analysis at the close of the prosecution case had on counsel’s decision to call evidence. I can see no unfairness arising from the magistrate’s decision not to make a ruling at the end of the prosecution case.

    Consideration

11. As I have already indicated, I have come to the clear view that the evidence supporting the DUI charge in this matter is so overwhelming that it is not necessary to deal with the arguments relating to unfairness. On the facts of this case, if the view is taken that there was ample evidence to convict the appellant for driving under the influence regardless of the admission of the evidence of the blood alcohol analysis, the question of discretion or no discretion does not arise.

12. As was pointed out during argument, there was an abundance of evidence before the magistrate to show that the appellant drove under the influence of intoxicating liquor. This was regardless of the breath analysis. I have set out the various observations made of the defendant. The case against him was a strong one.

13. The prosecution clearly proved that the appellant was affected by alcohol at the time he drove the motor vehicle. Even if the evidence of the breath analysis reading is excluded and even if the appellant’s own evidence, containing some admissions, is excluded, this was still a strong prosecution case. Ms Fuller argued that although it was a strong case it lacked expert evidence of faculty impairment. In my view that simply was not necessary in this case for the reasons I have already given.

14. I agree with Mr Grant for the respondent, who submitted that in relation to the DUI charge the issue for the Court was whether the appellant’s faculties were impaired and was not related to the precise level of alcohol in his blood at the time of his driving. He submitted that aside from the question of the breath analysis results there was adequate evidence to prove beyond reasonable doubt that the appellant was driving under the influence.

15. In my view this appeal should be decided on a narrow basis. It is not a case which requires an analysis of the reasoning in Parker v Police or Police v Hall. Likewise it is not a case in which it is necessary to consider the exercise of the Bunning v Cross discretion nor the public policy discretion.

    Conclusion

16. In my view the appeal should be dismissed. The evidence that the appellant drove his motor vehicle whilst under the influence of intoxicating liquor was very strong. Leaving aside the breath analysis reading, the observations of the police officers and a nurse are compelling. The magistrate and the judge of this Court both examined the video taken whilst the appellant was undergoing the breath analysis procedure. They were both of the view that this evidence supported the charge. I have viewed the video myself and I agree with their conclusions. I would therefore dismiss the appeal on the conviction for the DUI charge.

17. WHITE J:             I agree with the orders proposed by Anderson J and with his reasons.