Praniess v Police

Case [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…

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AGLC
Praniess v Police [2011] SASCFC 22
Case
[2011] SASCFC 22
Decision Date

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal by the appellant against an order of a single judge of that court, which had dismissed the appellant's appeals against his conviction for driving under the influence of intoxicating liquor contrary to section 47(1) of the *Road Traffic Act 1961* (SA) and a finding of guilt for exceeding the prescribed concentration of alcohol contrary to section 47B of the same Act. The prosecution had withdrawn the latter charge prior to sentencing by the magistrate. The appellant had pleaded not guilty to both counts.

The central legal issue before the court was whether the court should exercise its discretions to exclude evidence of a breath analysis reading on grounds of unfairness or public policy, given that a blood sample had been taken but was subsequently found to be unsuitable for analysis, thereby preventing the appellant from challenging the breath analysis result as permitted by the Act.

The court held that it was unnecessary to determine the question of whether the breath analysis evidence should have been excluded. This was because there was overwhelming independent evidence to prove the appellant was driving under the influence of intoxicating liquor. The observations made by police officers and a nurse, as well as video evidence taken during the breath analysis procedure, were considered compelling and sufficient to establish the charge beyond reasonable doubt, irrespective of the breath analysis reading.

Consequently, the appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 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

Evidence

Evidence Before The Court

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). 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. 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 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

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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. 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 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.