Praniess v Police; Police v Praniess - [2010] SASC 275

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PRANIESS v POLICE; POLICE v PRANIESS
[2010] SASC 275
Judgment of The Honourable Justice Duggan
10 September 2010
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - PARTICULAR CASES
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG - SENTENCE AND PENALTY
Appeals heard jointly - defendant subjected to breath test pursuant to Road Traffic Act 1961 (SA) and subsequently supplied with blood analysis kit - blood sample obtained in compliance with prescribed procedures but unable to be analysed through no fault of defendant or police - Magistrate found defendant guilty of driving under the influence and driving with prescribed concentration of alcohol in his blood - prosecution withdrew driving with prescribed concentration of alcohol charge - defendant convicted and sentenced for driving under the influence - defendant previously convicted of driving under the influence when riding a bicycle - defendant appeals conviction and finding of guilt - police appeal against penalty - whether Court able to exclude evidence of breath analysis in exercise of unfairness discretion - whether sufficient evidence for finding of guilt on driving under the influence charge - whether Magistrate incorrectly allowed evidence of breath analysis in light of contention that defendant belched prior to test - whether conviction of driving under the influcence while riding a bicycle ought to have been regarded as previous offence for the purpose of s 47(4) leading to heavier penalty.
Held: appeal against conviction dismissed - appeal against sentence allowed - s 47K(8) overrides Court's discretionary power to exclude evidence on the ground of unfairness - Court permitted to act on the evidence of the breath analysis - even if Court had discretion to exclude the evidence it would be inappropriate for discretion to be exercised in present case - ample evidence to establish that offence of driving under the influence had been committed - Magistrate entitled to find that defendant did not belch - even if belch did occur exclusion of evidence not warranted - offence of driving under the influence on occasion of riding the bicycle constitutes a previous offence for the purposes of s 47(4) - present offence comprised a subsequent offence - sentence imposed by Magistrate set aside - fine of $1,500 and disqualification of 3 years imposed.
Road Traffic Act 1961 (SA) s 5, s6, s 47, s 47(1)(a), s 47(2), s 47(3)(a), s 47(4), s 47B(1), s 47EB, s 47G(1), s 47K, s 47K(1), s 47K(1a), s 47K(1ab), s 47K(8) Sch 1 cl 3; Summary Procedure Act 1921 (SA) s 76A, referred to.
Police v Parker (2002) 81 SASR 240; R v Lobban (2000) 77 SASR 24; Police v Hall (2006) 95 SASR 482; Police v Henwood (2005) 92 SASR 15, considered.

PRANIESS v POLICE; POLICE v PRANIESS
[2010] SASC 275
Magistrates Appeals: Criminal

DUGGAN J: Mr Praniess was charged on complaint with two offences arising from a single driving incident. The first count alleged driving a motor vehicle under the influence of intoxicating liquor contrary to s 47(1)(a) of the Road Traffic Act 1961 (SA) (“the Road Traffic Act”). The second count alleged that Mr Praniess drove a motor vehicle while there was present in his blood the prescribed concentration of alcohol contrary to s 47B(1)(a) of the Road Traffic Act. He was tried and found guilty of both offences by a Magistrate in the Adelaide Magistrates Court.
The Magistrate delivered his reasons for judgment at a hearing on 4 June 2010. The Prosecution withdrew the charge of drive with prescribed concentration of alcohol at the hearing. This was done in order to avoid Mr Praniess being penalised twice for the same conduct, as both of the offences attracted a mandatory minimum sentence. In turn, the Magistrate sentenced Mr Praniess for the driving under the influence offence only and imposed a fine of $800.00 and disqualification for a period of 12 months.
Mr Praniess appeals against conviction on the first count and the finding of guilt on the second count. The Police appeal against the penalty imposed. The two appeals were heard together by this Court.
According to the prosecution case the offences were committed at approximately 3.05am on 17 May 2009. From 5.00pm on the evening of 16 May 2009 until approximately 2.50 am on the morning of 17 May 2009 Mr Praniess consumed alcoholic beverages at his home and a local hotel. At about 3.05 am he was seen driving a motor vehicle on Murray Street, Tanunda. He was stopped by Senior Constables McNally and Underwood and subjected to an alcotest, which gave a positive reading. Further breath analysis tests occurred at the Nuriootpa Police Station commencing at approximately 3.26 am. The breath analysis tests were recorded on a video which was tendered at the trial in the Magistrates Court.
With application of the Road Traffic Act[1] the result of the breath analysis tests was that Mr Praniess is taken to have had a blood alcohol concentration of 0.199 grams of alcohol in 100 millilitres of blood at the time of driving.
[1] Sections 47EB and 47K(1ab).
Unless otherwise indicated, references to provisions in the Road Traffic Act in these reasons relate to the Act as it stood at the time of the alleged offences.
Pursuant to s 47K(1a) of the Road Traffic Act evidence of a breath analysis reading can be challenged by evidence of the concentration of alcohol in a defendant’s blood as indicated by analysis of a sample of blood. During the course of the breath analysis test Mr Praniess asked for a blood test kit so that a sample of his blood could be obtained and tested for this purpose. Senior Constable McNally gave him a blood test kit and drove him to the Angaston Hospital. A registered nurse took his blood at 4.20 am on the morning of 17 May 2009. One portion of the sample was sent to the Forensic Science Centre and another was given to Mr Praniess, who arranged for it to be tested by Gribbles Pathology. It was reported that neither portion could be successfully analysed as they had become denatured.
Initially Mr Praniess was only charged with driving with the prescribed concentration of alcohol. It was after the outcome of the blood analysis was known that a fresh complaint was laid also charging Mr Praniess with driving under the influence.
If the requirements and procedures prescribed in the Road Traffic Act in relation to breath analysing instruments have been followed, it must be presumed, in the absence of proof to the contrary, that the breath analysis results accurately record the concentration of alcohol in blood at the time of the analysis (s 47K). The only way relevant to the present case in which this presumption can be rebutted is by evidence of the analysis of a sample of blood taken in accordance with the procedure set out in the legislation (s 47K(1a)).
According to Mr Praniess’ argument, he was deprived of the only means by which he could rebut the breath analysis reading. This resulted from the denaturing of the blood, which occurred through no fault of his own. It is argued that the Magistrate erred in not exercising his discretion to exclude the evidence of the breath analysis in these circumstances.
It is necessary to set out the relevant provisions of the Road Traffic Act as it stood at the time of the alleged offence. Section 47K(1) provides for the admission into evidence of the reading obtained by the breath analysis instrument. The subsection also creates a presumption as to the concentration of alcohol in the blood of the defendant at the time of the analysis. It states:
47K—Evidence etc
(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.
Section 47K(1a) restricts the scope of the rebuttal evidence:
(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.
Section 47K(1ab) creates a conclusive presumption that the concentration of alcohol as recorded by the breath analysing instrument was the concentration of alcohol as at the time of driving.
Section 47K(2a)(b) directs that a defendant is to be provided with an approved blood test kit upon request. Section 47K(8) provides as follows:
(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).
If the defendant arranges for a blood sample to be taken by a medical practitioner or, in some cases, a registered nurse approximately equal proportions of the sample are to be placed in two containers.
In the present case one of these containers was forwarded to the Forensic Science Centre by the registered nurse who took the sample. Mr Praniess arranged for the other container to be sent to Gribbles Pathology for analysis. As stated previously the samples in the containers could not be tested.
Professor Thomas, a consultant chemical pathologist, was called by Mr Praniess to give evidence. A report prepared by him was tendered at the trial as exhibit D3.
Professor Thomas stated in his report that there were three possibilities in relation to the cause of the denaturing of the samples:
1.a manufacturing problem – with errors in the addition of anticoagulant and preservative to the sample tubes;
2.improper storage/transport of sample tubes prior to use – such that the anticoagulant and/or preservative were rendered ineffective; or
3.inappropriate blood collection procedure – such as contamination of the blood with tissue fluids or inadequate mixing of the blood with the anticoagulant and preservative after being added to the tubes.
He continued:
I am unable to give an opinion on which of the above possibilities caused both blood samples collected from Mr Praniess to become denatured. If the first or second possibility was the cause, then it would be my opinion that the blood test collection kit provided to Mr Praniess was defective and unsuitable for the collection of blood for the purpose of measuring the alcohol content.
Professor Thomas was asked about these possibilities in examination in chief:
Q.You outline one as a [sic] manufacturing, two as improper handling of storage and three as inappropriate blood collection procedure, now if you assume that the blood collection was taken as required by the Road Traffic Act by the registered nurse, what is your opinion about the blood test kit that was given to Mr Praniess by police on 17 May 2009.
A.My opinion would be that the blood test kit was defective and that the anticoagulant and preservative was not effective in preventing this blood specimen from clotting and as the blood specimen clotted then it was unsuitable for analysis.
Reference has been made to the fact that the blood sample was taken from Mr Praniess by Ms Palk, a registered nurse. If the blood is to be taken at a place outside metropolitan Adelaide the Road Traffic Act authorises the performance of this task by a registered nurse instead of a medical practitioner. The provisions in the legislation regulating the taking of blood apply as if reference in those provisions to a medical practitioner included a reference to a registered nurse.[2]
[2] Road Traffic Act Sch 1 cl [3].
Ms Palk gave evidence before the Magistrate. She stated that the correct procedures were followed in the taking of the blood sample. It was not suggested during her evidence that she did not comply with the prescribed procedures. There is nothing in the evidence to support the view that the denaturing was caused by an inappropriate blood collection procedure.
This leaves open the other alternatives put forward by Professor Thomas, namely, a problem in the manufacture of the kit or improper storage or transport of the sample tubes prior to use, thus rendering the anticoagulant or preservative ineffective.
The Magistrate said he was unable to make a finding as to how the blood in the containers was denatured. However, as I have said, there was no evidence to support the suggestion that this resulted from the blood taking procedure. I think it can at least be said that, if Professor Thomas’ evidence is accepted, the probabilities are that the problem occurred as a result of either the manufacture of the kit or its handling prior to use. If this is so, then, as Professor Thomas pointed out, the kit was defective.
Mr Lloyd, for Mr Praniess, argues that the evidence establishes that the kit was defective and I understand that this is also the argument put forward by Mr McDonald for the Police.
If these submissions are accepted, as I think they should be, then s 47K(8) applies. Where there is a deficiency in the kit the presumption attaching to the breath analysis reading nevertheless applies unless it is proved that the defendant delivered the kit unopened to the medical practitioner taking the sample and the medical practitioner gives evidence that, because of a deficiency in the kit, it was not possible to comply with the prescribed procedures for the taking of blood. Neither of these events were proved and the presumption referred to in subsection (1) must apply in accordance with s 47K(8). The Court is permitted to act on the evidence.
Mr Lloyd submits that it remains open for the Court to exclude the breath analysis evidence in circumstances such as the present. He relies on the decision of Mullighan J in Police v Parker[3] where his Honour held that it was open to the Court to exclude breath analysis results in the exercise of the unfairness discretion in the event that the defendant was supplied with a defective kit. An appeal against the decision of Mullighan J was upheld by the Full Court.[4] However it was unnecessary for the Court to deal with this aspect of his Honour’s reasons.
[3] (2002) 81 SASR 240 at [38] f.
[4] Parker v Police (2002) 83 SASR 267.
I respectfully differ from the view taken by Mullighan J in relation to the availability of a discretion to exclude the evidence in circumstances such as the present. Section 47K(8) specifically directs that, despite the defect, the offence will not fail and the presumption as to the concentration of alcohol indicated as being present in the blood will apply. The consequences of a defect in a kit supplied to a defendant are set out in the subsection. In my view the effect of the subsection is to override the Court’s discretionary power to exclude evidence on the ground of unfairness in relation to the trial.
Even if the Court had a discretion to exclude the evidence, I am of the view that it would be inappropriate for it to be exercised in this case.
It is necessary to identify the nature of the discretion which Mr Lloyd relies upon. In R v Lobban[5] this Court discussed the different categories of discretionary rejection of evidence in a criminal case. It was acknowledged that the Court had a discretion to exclude non-confessional evidence “on the ground that to receive it would be unfair to an accused in the sense that the trial would be unfair”.[6] Martin J commented on this discretion as follows: [7]
·the purpose of this discretion is to ensure that an accused person receives a fair trial and is not improperly convicted;
·the operation of this discretion is not dependent upon the conduct of law enforcement authorities;
·in principle, this discretion applies to any evidence, but in those areas where special bodies of law exist with respect to the admissibility and discretionary exclusion of particular types of evidence, this discretion may be subsumed by or overlap with well established principles.
[5] (2000) 77 SASR 24.
[6] R v Lobban (2000) 77 SASR 24 per Martin J at [89].
[7] R v Lobban (2000) 77 SASR 24 per Martin J at 51, [89].
Mr Lloyd argues that the breathalyser reading should have been excluded by the Magistrate in the exercise of the discretion described by Martin J in the above passage.
The relevance of this discretion in a context similar to that which exists in the present case was discussed in Police v Hall.[8] In that case the appellant appealed against the decision of a Magistrate to exclude evidence of a breathalyser test performed on the respondent. The respondent had been involved in an accident at 10:30 pm and a breath analysis had taken place at 11:21 pm. After the breathalyser test the respondent went promptly to a hospital to arrange for a blood sample to be taken. Moreover, the hospital staff were occupied in attending to more urgent situations and as a result the sample of blood was not taken until 5:30 am.
[8] (2006) 95 SASR 482.
When analysed there was no alcohol in the blood. However this result was of no use for the purpose of challenging the accuracy of the result obtained by breath analysis because a negative reading of blood taken at 5:30 am was consistent with the breathalyser reading. In short, the lapse of time between the breath analysis and the taking of blood deprived the respondent of the sole avenue of rebutting the breathalyser reading. This was through no fault on his part.
The majority of the Court were in favour of allowing the appeal, setting aside the dismissal of the charge and remitting the matter to the Magistrates Court for further consideration.
Doyle CJ, who was in the majority, held that the question to be decided was “whether, in the circumstances, the trial would be unfair if the result of the breath analysis was not excluded in the exercise of the unfairness discretion”.[9]
[9] Police v Hall (2006) 95 SASR 482 at [47].
The Chief Justice took as the starting point the consideration that evidence obtained by a breath analysis instrument is not unreliable evidence. Section 47G(1) (the equivalent of s 47K(1)) required that it be admitted and treated as reliable evidence. The Chief Justice referred to his earlier statement in Lobban[10] that the scope of the exercise of the discretion:
will be limited when the matters relied upon by the defendant do not affect the reliability of the evidence tendered by the prosecution, and involved no impropriety or misconduct by the police or law enforcement officers more generally.
[10] R v Lobban (2000) 77 SASR 24 at [2].

In summarising his views in Police v Hall Doyle CJ said:[11]
The issue in the present case is whether Mr Hall is able to receive a fair trial if the evidence of the result of the breath analysis is not excluded. The issue is not whether a conviction could be said to involve unfairness in a more general sense: see Lobban at [73], citing Rozenes v Beljajev [1995] 1 VR 533.
Obtaining a conviction on the basis of the result of the breath analysis and the statutory presumption under s 47G(1) of the RTA cannot be said to make the trial unfair. Parliament provides for proof of guilt in this manner.
The fact that the only possible source of evidence to rebut the statutory presumption is not available to Mr Hall cannot, of itself, be a reason to describe the trial as unfair.
The reason why that evidence is unavailable (the circumstances surrounding the taking of the blood sample) does not provide a basis for describing the trial as unfair. The statutory scheme, for better or worse, leaves it to a driver whose breath has been analysed to attend to the taking of a blood sample using an approved blood test kit. A blood sample, from which a conclusion about the blood alcohol level at the time of the breath analysis can be drawn, might not be obtained for all sorts of reasons. They might range from the driver changing his or her mind and not having a blood sample taken (and that change of mind might be attributable to all sorts of factors), through to circumstances such that one could say that the driver’s intention to have a sample taken has been defeated. Categorising those circumstances in terms of whether or not they reflect the fault of the driver is, in my opinion, a rather elusive task, and introduces an element that is difficult to reconcile with the statutory scheme. Quite apart from that I cannot agree that the trial is unfair if the explanation for the failure to obtain a blood sample, from which a conclusion about the blood alcohol level at the time of the breath analysis can be drawn, involves no fault of the driver. There can be all sorts of mishaps that attend the trial of an offence. It would have far reaching consequences if the inability of the defence to pursue a line of enquiry that might assist the defence, through no fault of the defendant, was said to make a trial unfair. Perhaps that is expressing it too broadly. Mr Hall has been unable to make use of the only line of enquiry that might have assisted him. But the statutory scheme involves the risk of that happening. I remain unpersuaded that the recording of a conviction on the basis of the result of a breath analysis in those circumstances would amount to a trial that is unfair. It is simply a case in which the defendant has been unable to present evidence that provides a basis to attack the statutory presumption.
[11] Police v Hall (2006) 95 SASR 482 at [80] f.
Vanstone J agreed with Doyle CJ. Her Honour said:[12]
In my view this case illustrates the very limited role such a discretion could play where the evidence sought to be excluded is real evidence. Real evidence is not intrinsically unreliable. Of course it may be of limited probative value (which might lead to exclusion on the basis of it being more prejudicial than probative) and it might give rise to competing inferences. Even where the evidence is said to be unreliable, perhaps through some deterioration of the “thing” in issue – R v Clarke (2003) 87 SASR 203 providing an example of such a case – there seems to be no justification to deny the jury its usual role of evaluating it, having regard to its limitations.
[12] Police v Hall (2006) 95 SASR 482 at [218].
Bleby J, who was also part of the majority, stressed that: [13]
[T]he essence of the unfairness discretion relates not to a general sense of unfairness but to the fairness of a defendant’s trial.[14]
However his Honour also placed emphasis on the fact that a defendant has control over the process of obtaining a blood sample and that:[15]
The present legislative scheme contemplates that there may be all sorts of reasons why a suitable sample of blood may not be able to be obtained. The Chief Justice has identified some of them. Those reasons may have nothing to do with the conduct of law enforcement authorities or compliance with regulations by those to whom the taking and processing of blood samples is committed. They may also have nothing to do with the reliability of the evidence justifying the conviction. Where the defendant has greater control over the process which has failed for some reason, the less likely it is that the defendant will be able to engage the unfairness discretion to exclude proof of the offence.
[13] Police v Hall (2006) 95 SASR 482 at [95].
[14] R v Lobban (2000) 77 SASR 24 at 51 [89].
[15] Police v Hall (2006) 95 SASR 482 at [120].
The breath analysis in the present case took place in accordance with the statutory procedure. No criticism could be made of the conduct of the police. They were not responsible for the fault in the kit and they went beyond the strict requirements of their duty by assisting Mr Praniess to travel to the hospital so that the blood sample could be taken. Neither was Mr Praniess responsible for the problem in testing the blood, but that was also the position in Police v Hall. If it had been open to the Court to exercise the unfairness discretion to exclude the evidence of the breath analysis, I do not think that the circumstances warranted such exclusion.
Next Mr Lloyd challenges the sufficiency of the evidence relied upon by the Magistrate in finding that the charge of driving under the influence of intoxicating liquor had been proved.
Section 47(1) of the Road Traffic Act makes it an offence for a person to drive a vehicle whilst under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle. Section 47(2) provides as follows:
(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’.
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.
Senior Constable McNally’s attention was drawn to Mr Praniess’ vehicle which, while it kept to its lane, was veering slightly from side to side. The police officer said he stopped the vehicle so that the driver could be alcotested.
The Magistrate summarised Senior Constable McNally’s observations in his judgment:[16]
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.
[16] Judgment at [39].
Senior Constable Underwood, who accompanied Senior Constable McNally, said he noticed, after the alcotest was performed, that Mr Praniess was showing signs of being affected by alcohol. Mr Praniess was unsteady on his feet, swaying slightly and his speech was slurred. According to this witness’ evidence Mr Praniess’ eyes were watery and bloodshot. In his view Mr Praniess was moderately affected by alcohol.
The entire breath analysis process at the police station was video taped. It commenced 19 minutes after Mr Praniess was apprehended. The Magistrate commented on the contents of the video recording. He said that it showed that Mr Praniess was behaving in an aggressive manner and that he displayed constant mood swings. I have viewed the recording. If anything the Magistrate was generous in restricting his comments to the above matters. 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.
Mr Praniess’ explanation in evidence was that he had not been like this when he was driving and his condition began to deteriorate when he got out of the car. He said he had been working hard all day and that he had consumed alcohol after work. The following evidence in chief was given by Mr Praniess:
Q.What comments can you make, firstly you’ve seen the start of the video, how would you describe yourself there.
A.Well from the beginning to the end I was getting worse, I mean like getting out of my vehicle or into the air or from the hotel and into the car, you know that’s, that’s one of those things that can hit you like this and then with the tiredness and you know those few drinks, that was basically the tiredness and it just took – took effect and I knew that it was happening, I could see it on the video.
Q.What was happening.
A.Well I was deteriorating, you know getting – just not – in – you know like, in full control of what I was saying, I wasn’t thinking properly because I am tired. I was working all day as well.
Professor Thomas said in evidence that other factors such as tiredness could have resulted in Mr Praniess’ behaviour as observed by the police officers and on the video recording. However, the Magistrate was entitled to find that alcohol played an important role in Mr Praniess’ conduct and the impairment of his functions during the procedure.
It is not in dispute that Mr Praniess had been drinking before he was apprehended. Prior to the hearing Professor Thomas was provided with a drinking history supplied by Mr Praniess to his solicitor. Professor Thomas expressed the following view in his report based on that information:
I have made a ‘forward’ calculations of Mr Prainess’s likely blood alcohol concentration at 3.05 a.m. on 17 May 2009 on the basis of the amount of alcohol you advised that he had consumed between 9.00 p.m. on 16 May and 2.50 a.m. on 17 May 2009. In these calculations I have used the lower limit, average value and upper limit of Alcohol Elimination Rates (AER) for male social drinkers of 0.011, 0.0150 and 0.0200 g/100 mL whole blood per hour, respectively. This approach is used to account fully for the variation in AER within an individual on a day-to-day basis. I have also assumed that between 9.00 p.m. on 16 May and 2.50 a.m. on 17 May 2009 Mr Praniess consumed the amount of alcohol that you advised at a steady rate, that the amount consumed between 9.00 p.m. on 16 May and 1.25 a.m. on 17 May was completely absorbed and distributed by 3.05 a.m. on 17 May, and that 30% of the amount consumed between 1.25 a.m. and 2.50 a.m. on 17 May 12 completely absorbed and distributed by 3.05 a.m. On this basis I estimate Mr Praniess’s likely blood alcohol concentration at 3.05 a.m. on 17 May 2009 to be between 0.089 and 0.150 g/100 mL whole blood, depending on his AER at that time (see page 3 for details). This wide range of values is consequent an alcohol elimination occurring over a long period of time (over 6 hours).
I emphasise that these estimates should not be taken as firm values as some of the assumptions made, particularly the rate of consumption of alcohol, may not be valid.
The drinking history which Mr Praniess gave to the Court in evidence was summarised in the Magistrate’s judgment:[17]
There is also some significant evidence 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 p.m. and 10.00 p.m. at home and then he went to the Tanunda Hotel and had another three to four pints of coopers stout between 10.00 p.m. and the time he left the hotel about 2.50 a.m. He was stopped on Murray Street by the police at 3.05 a.m. which was within one kilometre of the hotel on his way home.
[17] Judgment at [41].
Ms Paulk, the registered nurse, said that she saw Mr Praniess at the hospital at approximately 4:15 am. She said he was speaking loudly and at one stage lifted his hand up towards her and made a fist. She said she observed him “pacing” in the sense of taking a few steps either side and was unbalanced. She said he was not able to walk in a straight line.
It is important to remember that these observations by Ms Paulk were made a little over an hour after Mr Praniess had been driving. Nevertheless they are of some relevance in determining what his condition was at the time of driving.
In my view there was ample evidence before the Magistrate to enable him to conclude that the offence against s 47(1) of the Road Traffic Act had been committed.
An issue arose as to whether Mr Praniess belched shortly before the breath analysis process and whether this may have affected the accuracy of the readings. The issue was summarised by the Magistrate in his judgment:[18]
Mr Lloyd for the defendant also submitted that the breath analysis reading should be excluded on the basis that the requirements and procedures under the Road Traffic Act had not been complied with. This was based on the fact that after viewing the video footage of the breath analysis procedure it seemed as though the defendant may have belched just before he blew into the instrument. It wasn’t clear from viewing of the video footage, whether it was a cough, that is the defendant clearing his throat, or a belch. There was some discussion about that in the presence of Senior Constable McNally. He said that in his opinion the defendant had coughed because if the defendant had belched, then he would have followed the police general orders, which required the observation of a 15 minute waiting period before the test. He said that the belching would bring alcohol vapour into the mouth and would cause a higher alcohol reading. The defendant in his evidence said that he was handed the mouth piece and that he coughed to clear his throat but he also believed that he belched before blowing into the instrument. This evidence came after the discussion during the viewing of the video footage in court as to whether the defendant had coughed or belched before the test. There had been no suggestion before then that the defendant had belched during the breath analysis procedure. The defendant seemed very vague about that and the video footage was not definitive either. McNally who was present during the breath analysis testing said that in his opinion the defendant did not belch before the test. I accepted that evidence and I found that in fact there was no belching on the part of the defendant prior to the test.
[18] Judgment at [22].
Neither the Road Traffic Act nor the Regulations made under it deal with such an occurrence. However attention was drawn to the Police Commissioner’s General Order 8760 (“the Order”) which contains instructions for procedures which are to be adopted at random breath testing stations. Section 7.4 of the Order states:
7.4 Waiting Period
You must allow at least 15 minutes from the last intake of alcohol to the time the breath sample for analysis is provided. This waiting time also applies if anything is taken by mouth (includes any medication, ventolin, etc) after the alcotest and before the subject submits to a breath analysis.
The 15 minute waiting period is also necessary after vomiting or belching. Rinsing the mouth with water does not reduce the time needed before the person can be tested.
There was no evidence in the case as to the effect which belching might have on the reading. The suggestion was made on appeal that it could increase the concentration of alcohol in the mouth and on the person’s breath.
The status of the Order was discussed by Doyle CJ in Police v Henwood.[19] The Chief Justice pointed out that the Order was not made under the Road Traffic Act and was not part of the prescribed procedure for breath testing; it was simply an administrative instruction. The Chief Justice held that a failure to wait for 15 minutes after a defendant had belched before proceeding with the breath analysis would not justify excluding the evidence of the reading.
[19] (2005) 92 SASR 15.
In my view, the Magistrate was entitled to conclude that Mr Praniess did not belch. Even if this conclusion was incorrect and the breath analysis took place immediately after he belched, this would not have warranted excluding the evidence of the result of the breath analysis.
I have said that there was sufficient evidence upon which to base a finding that Mr Praniess had driven his vehicle while so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle. In my view the Magistrate correctly took into account the evidence of the breath analysis results in considering whether the charge had been proved.
I turn to the Police appeal against the sentence. As previously indicated the Magistrate imposed a fine of $800 and disqualified Mr Praniess from driving for a period of 12 months. It is argued that the sentence is manifestly inadequate.
First it is necessary to deal with the police argument that the offence committed by Mr Praniess was a subsequent offence for the purposes of the Road Traffic Act and that the higher penalties for a subsequence offence were applicable. The Magistrate rejected this argument.
Section 47(1) of the Road Traffic Act provides as follows:
47—Driving under influence
(1)     A person must not—
(a)     drive a vehicle; or
(b)     attempt to put a vehicle in motion,
while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle.
Penalty:
If the vehicle concerned was a motor vehicle—
(a)     for a first offence—
(i)    a fine of not less than $700 and not more than $1 200; or
(ii)     imprisonment for not more than three months; and
(b)     for a subsequent offence—
(i)    a fine of not less than $1 500 and not more than $2 500; or
(ii)     imprisonment for not more than six months.
If the vehicle concerned was not a motor vehicle—$300.
Section 47(3)(a) states:
(3)Where a court convicts a person of an offence against subsection (1) in which the vehicle concerned was a motor vehicle, the following provisions apply:
(a) the court must order that the person be disqualified from holding or obtaining a driver's licence—
(i)in the case of a first offence—for such period, being not less than twelve months as the court thinks fit; or
(ii)in the case of a subsequent offence—for such period, being not less than three years, as the court thinks fit;
Section 47(4) states:
(4)In determining whether an offence is a first or subsequent offence for the purposes of this section, any previous offence against subsection (1) or section 47B(1), 47E(3) or 47I(14) for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the prescribed period immediately preceding the date on which the offence under consideration was committed.
The prescribed period in the present case is five years.
Mr Praniess was convicted on 24 January 2005 of driving under the influence. The offence took place on 12 September 2004. At the time of the offence he was riding a bicycle which is a “vehicle” for the purposes of the Road Traffic Act (s 5). A reference in the Act to “driving” includes a reference to “riding”(s 6). He was fined $150. Mr Praniess argues that this offence cannot be regarded as a previous offence for the purposes of s 47(4). It is said that any previous offence must involve the driving of a motor vehicle.

In my view s 47(4) cannot be read down to refer only to a motor vehicle in the case of a breach of s 47(1) resulting from the driving of a motor vehicle. It must be acknowledged that the other subsections referred to in s 47(4) concern offences involving a motor vehicle. However, s 47(4) refers to any previous offence against subsection (1). The use of the word “any” emphasises the intention that all offences contrary to s 47(1) are to be considered as previous offences no matter what sort of vehicle was involved. I do not think that the limiting of the penalty to a maximum fine of $300 for any offences not involving a motor vehicle excludes such an offence from being regarded as a previous offence for the purpose of imposing a penalty.
As stated previously, I have been dealing with the matter by reference to the provisions in the Road Traffic Act which were applicable at the time of the offence. Section 47(4) of the Road Traffic Act has since been amended. The amendment received the Royal Assent on 9 April 2009, over a month before the commission of the offence. However, the operation of s 47(4) and certain other sections in the amending Act were suspended and did not come into effect until 1 February 2010. It follows that s 47(4) in the form applicable for determining whether an offence is a first or subsequent offence for the purposes of s 47 was as set out above.
In his sentencing remarks the Magistrate assumed that the amendment to s 47(4) was applicable. The subsection in its amended form is as follows:
(4)In determining whether an offence is a first or subsequent offence for the purposes of this section, any previous drink driving offence or drug driving offence for which the defendant has been convicted will be taken into account, but only if the previous offence was committed within the prescribed period immediately preceding the date on which the offence under consideration was committed.
“Drink driving offence” is defined in s 5 as:
(a)an offence against section 47(1) involving the driving of a motor vehicle, or attempting to put a motor vehicle in motion, while so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle; or
(b)[irrelevant]
Under the present law the riding of a bicycle while under the influence of intoxicating liquor would not qualify as a previous offence for the purposes of s 47. However, for the reasons which I have explained, this was not the position under the Road Traffic Act at the time of the commission of the present offence.
It follows that the Magistrate erred in not sentencing on the basis that the present offence was a subsequent offence and so attracted a higher penalty. I have not been asked to impose a sentence of imprisonment, but the minimum fine for a subsequent offence is a fine of not less than $1,500. In addition the licence disqualification must be for a minimum of three years.
The suggestion that I should utilise the power under s 76A of the Summary Procedure Act 1921 (SA) to set aside the order that a conviction be recorded in the case of the previous offence must be rejected. Even if it was open to consider the exercise of this power, there is no defect in the sentence which would justify interference with it.
The appeal against conviction will be dismissed.
The appeal against sentence will be allowed and the sentence imposed by the Magistrate will be set aside.
In lieu thereof Mr Praniess will be fined the sum of $1,500. He will be disqualified from holding or obtaining a driving licence for a period of three years less the period of disqualification already served.
I will hear submissions on other orders which should be made, including the order as to costs.