Pringle v Police

Case [2021] SASCA 52

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

PRINGLE v POLICE

[2021] SASCA 52

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Doyle)

3 June 2021

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

TRAFFIC LAW - OFFENCES - EVIDENCE - OTHER MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL

Appeal against conviction.

The appellant was pulled over by a police officer while driving, and was required to submit to a drug screening test.  When the results of that test indicated the presence of methylamphetamine or ecstasy in his oral fluid, he was required to submit to an oral fluid analysis.

The police officer collected a sample of the appellant’s oral fluid using a device known as a Pathtech Oral Fluid Collection Kit. He placed the sample in two vials, which were delivered to Forensic Science SA (FSSA). At the FSSA, the contents of one of the vials was tested by an analyst for the presence of a prescribed drug, and was found to contain methylamphetamine. The appellant was subsequently charged with driving with a prescribed drug in his oral fluid, in contravention of s 47BA(1)(a) of the Road Traffic Act 1961 (SA).

Following a trial before a Magistrate, in which the prosecution tendered various certificates as evidentiary aids as provided for under the Road Traffic Act, the appellant was found guilty of the charged offence.

The appellant now appeals from the Magistrate’s order on four grounds.  Ground 1 contends that the Magistrate erred in finding that the Pathtech Oral Fluid Collection Kit is not an apparatus that is required to be approved pursuant to the Road Traffic (Miscellaneous) Regulations 2014 (SA).  Ground 2 contends that his Honour erred in finding that there was no proof to the contrary of the facts in the certificate of analysis which was Exhibit P5 at trial, which included a certification that “an oral fluid analysis was properly conducted”.  In particular, the appellant complains that the phrase “oral fluid analysis” in Exhibit P5 extends to the collection of the oral fluid sample, such that the analyst has purported to certify matters outside of her knowledge.  Ground 3 complains that the Magistrate erred in failing to exercise his Honour’s discretion to exclude Exhibit P5.  Ground 4 contends that his Honour erred in finding that the certificate which was Exhibit P3 at trial amounted to proof that the oral fluid collection procedure was properly conducted, and includes a contention that Exhibit P3 certifies the “taking” of a sample, as distinct from “collection”.

Held, per the Court, dismissing the appeal:

1. The Governor has no power to approve apparatus of a prescribed kind for the purpose of collecting oral fluid samples, and no such approval is contemplated or required by the Road Traffic Act;

2.      Exhibit P5 did not purport to certify any part of the process prior…

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Pringle v Police [2021] SASCA 52
Case
[2021] SASCA 52
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Pringle against his conviction for driving under the influence of a drug. The prosecution relied on several certificates tendered as evidence, including certificates relating to a drug screening test, the proper functioning of the testing apparatus, the collection of an oral fluid sample, and the analysis of that sample by an analyst at the Forensic Science South Australia (FSSA). Mr Pringle challenged the admissibility and evidentiary weight of these certificates, particularly Exhibit P5, which was the analyst's certificate.

The central legal issues before the Court were whether the Governor had the power to approve apparatus for collecting oral fluid samples, the extent to which Exhibit P5 purported to certify matters prior to the sample reaching the FSSA, whether the prosecution was entitled to rely on Exhibit P5 for the analysis conducted at the FSSA, and whether there were grounds to exercise a discretion to exclude Exhibit P5 due to unfairness. Additionally, the Court considered whether Exhibit P3, relating to the collection of the oral fluid sample, adequately encompassed the collection process and whether the police officer's evidence before the Magistrate sufficiently addressed the propriety of that process.

The Court held that the Governor had no power to approve apparatus for collecting oral fluid samples, and such approval was not required by the Road Traffic Act. It was determined that Exhibit P5 did not purport to certify any part of the process before the oral fluid sample arrived at the FSSA, and the prosecution only relied on it to certify the analysis performed at the FSSA. The Court found no circumstances warranting the exercise of the *Christie* discretion or a general unfairness discretion to exclude Exhibit P5. Furthermore, the Court concluded that Exhibit P3 was intended to cover the collection process, and in any event, the police officer's unchallenged evidence before the Magistrate addressed the propriety of the collection.

Consequently, the appeal was dismissed.

Orders

Orders of the court

Held, per the Court, dismissing the appeal:

1. The Governor has no power to approve apparatus of a prescribed kind for the purpose of collecting oral fluid samples, and no such approval is contemplated or required by the Road Traffic Act;

2. Exhibit P5 did not purport to certify any part of the process prior to the arrival of the oral fluid sample at the FSSA, and in any event, the prosecution was only reliant upon Exhibit P5 to certify the analysis carried out at the FSSA;

3. The appellant has not pointed to any circumstances that would warrant the exercise of the Christie discretion, or a more general ‘unfairness’ discretion, to exclude Exhibit P5; and

4. Exhibit P3 was intended to encompass the process of collecting the oral fluid samples, and in any event, the police officer addressed the propriety of the collection process in his evidence before the Magistrate, which has not been challenged or undermined on appeal.

Background

Background to the litigation

SC Scutter gave evidence of the circumstances surrounding the drug screening test and the oral fluid collection process, and was cross-examined by counsel for Mr Pringle. The prosecution also made the analyst from FSSA who conducted the oral fluid analysis, Dr Danielle Butzbach, available for cross-examination.Factual and evidentiary background Given Mr Pringle’s focus in this appeal upon the evidentiary aids tendered by the prosecution, it is necessary to set out not only the factual background to the matter, but also the evidence to the extent that it related to the preparation of those certificates, before turning to the Magistrate’s reasons. As mentioned, in the early evening of 3 December 2018, Mr Pringle was pulled over by SC Scutter while driving in Elizabeth Vale. SC Scutter required Mr Pringle to submit to a drug screening test using a Securetec Drugwipe II Twin. The results of that test indicated the presence of methylamphetamine or ecstasy in Mr Pringle’s oral fluid. SC Scutter prepared a certificate pursuant to s 47K(10) of the Road Traffic Act, certifying that Mr Pringle had submitted to a drug screening test which indicated that a prescribed drug may have been present in his oral fluid. That certificate was received as Exhibit P1: SC Scutter also prepared a certificate pursuant to s 47K(9a), certifying that the Securetec Drugwipe II Twin used was in proper order, and the test was properly conducted. The prosecution also tendered that certificate, which was admitted as Exhibit P2: SC Scutter then required Mr Pringle to provide a sample of his oral fluid using a Pathtech Oral Fluid Collection Kit. SC Scutter placed the sample in two vials, which were labelled with an identification number and delivered to FSSA. SC Scutter subsequently prepared a certificate pursuant to s 47K(3a), certifying that a sample of oral fluid had been taken from Mr Pringle for the purposes of an oral fluid analysis, and that the relevant provisions of the legislation had been complied with in this respect. That certificate was tendered by the prosecution and received as Exhibit P3: SC Scutter also prepared a certificate pursuant to s 47K(11) and cl 7(d) of sch 1. This certified a number of facts, including SC Scutter’s identification number; the time, date and place at which the sample was taken; Mr Pringle’s name and address; and that SC Scutter had given Mr Pringle the notice referred to in cl 7(a) of sch 1. That certificate was tendered by the prosecution, and received as Exhibit P4: At FSSA, Dr Butzbach, an analyst for the purposes of the Road Traffic Act, tested the contents of one of the vials for the presence of a prescribed drug, and found that the sample contained methylamphetamine. Dr Butzbach prepared a document that certified, pursuant to s 47K(11) and cl 7(f) of sch 1 of the Road Traffic Act, the identification number of the sample tested; her name and professional qualifications; the date the sample was received in the laboratory; information identifying the detected drug; and the absence of any factors that may have adversely affected the accuracy or validity of the analysis. This document also certified that the oral fluid analysis was properly conducted pursuant to s 47K(9). That certificate was tendered by the prosecution, and admitted in evidence over Mr Pringle’s objection as Exhibit P5:

Evidence

Evidence Before The Court

Finally, s 47K provides for the admission of various certificates as proof, in the absence of proof to the contrary, of particular matters relevant to proving an offence against various provisions of the Road Traffic Act, including s 47BA(1)(a). Insofar as it is relevant to the sampling and analysis of oral fluid, s 47K provides:47K—Evidence …(3a) A certificate purporting to be signed by a police officer and to certify that—(a) a sample of oral fluid for the purposes of an oral fluid analysis was taken on a specified day and at a specified time from a person named in the certificate; and (b) the provisions of this Act with respect to the taking of samples of oral fluid for such purposes were complied with,is, in the absence of proof to the contrary, proof of the matters so certified.…(9)A certificate purporting to be signed by an analyst and to certify that an oral fluid analysis was properly conducted is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matter so certified.(9a) A certificate purporting to be signed by a police officer and to certify that the apparatus used to conduct a drug screening test was in proper order and the drug screening test was properly conducted is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters so certified.(10) A certificate purporting to be signed by a police officer and to certify that a person named in the certificate submitted to a drug screening test on a specified day and at a specified time and that the drug screening test indicated that a prescribed drug may then have been present in the oral fluid of the person is, in the absence of proof to the contrary, proof of the matters so certified.(11) Subject to subsection (17), an apparently genuine document purporting to be a certificate under Schedule 1 and purporting to be signed by a police officer, medical practitioner or analyst, or copy of such a certificate, is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters stated in the certificate.…(14) If a certificate of an analyst relating to a sample of oral fluid or blood taken under section 47EAA, or a sample of blood taken under section 47E or 47I, is received as evidence in proceedings before a court and states that a prescribed drug has been found to be present in the sample of oral fluid or blood to which the certificate relates, it will be presumed, in the absence of proof to the contrary, that the prescribed drug stated in the certificate was present in the sample when the sample was taken.(15) If it is proved by the prosecution in proceedings for an offence that a prescribed drug was present in the defendant’s blood or oral fluid at the time at which a sample of oral fluid or blood was taken under section 47EAA, or a sample of blood was taken under section 47E or 47I, it will be conclusively presumed that the prescribed drug was present in the defendant’s oral fluid or blood (as the case may require) throughout the period of 3 hours immediately preceding the taking of the sample.(16) If certificates of a police officer and analyst, or a medical practitioner and analyst, under Schedule 1 are received as evidence in proceedings before a court and contain the same identification number for the samples of oral fluid or blood to which they relate, the certificates will be presumed, in the absence of proof to the contrary, to relate to the same sample of oral fluid or blood.…The trial

Decision

Reasons for decision

Ground 4 has not been made out.Conclusion For the reasons set out, we would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.