Pringle v Police

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 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.
Road Traffic Act 1961 (SA) ss 47A, 47BA, 47EAA, 47EA, 47E, 47H, Schedule 1; Road Traffic (Miscellaneous) Regulations 2014 (SA) regs 14(3), 16(b), 24; Statutes Amendment (Drink and Drug Driving) Act 2017 (SA); Acts Interpretation Act 1915 (SA) s 19(2)(a), referred to.
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; Owen v South Australia (1996) 66 SASR 251; Attorney-General (SA) v Bell (2013) 117 SASR 482; Redman v Return to Work Corporation of South Australia [2021] SASCA 25; Police v Dunstall (2015) 256 CLR 403, considered.

PRINGLE v POLICE
[2021] SASCA 52

Court of Appeal – Criminal: Kelly P, Lovell and Doyle JJA

THE COURT: The appellant (Mr Pringle) was 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).
In the early evening of 3 December 2018, Mr Pringle was pulled over by Senior Constable Scutter while driving in Elizabeth Vale. He was required by SC Scutter to submit to a drug screening test using a device known as a Securetec Drugwipe II Twin. 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.
SC Scutter collected a sample of Mr Pringle’s oral fluid using a device known as a Pathtech Oral Fluid Collection Kit. He placed the sample in two vials, which were labelled with an identification number and delivered to Forensic Science SA (FSSA). At FSSA, the contents of one of the vials was tested for the presence of a prescribed drug, and was found to contain methylamphetamine. Mr Pringle was subsequently charged with an offence under s 47BA(1)(a).
Following a trial before a Magistrate, in which the prosecution tendered various certificates as evidentiary aids as provided for under the Road Traffic Act, Mr Pringle was found guilty of the charged offence.
Mr Pringle now appeals from the Magistrate’s order, relying upon four grounds. He contends that the Magistrate erred:
1.   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);
2.   in finding that there was no proof to the contrary of the facts stated in the certificate of analysis which was Exhibit P5 at trial;
3.   in failing to exercise his Honour’s discretion to exclude Exhibit P5; and
4.   in finding that the certificate which was Exhibit P3 at trial amounted to proof that the oral fluid collection procedure was properly conducted.
Legislative scheme
Section 47BA(1)(a) of the Road Traffic Act provides that “[a] person must not…drive a motor vehicle…while a prescribed drug is present in the person’s oral fluid or blood”. Pursuant to reg 16(b) of the Road Traffic (Miscellaneous) Regulations, methylamphetamine is a prescribed drug.
When considering the performance of an oral fluid analysis in connection with a charge under s 47BA(1)(a), the appropriate starting point is s 47E. That section prescribes the circumstances in which a police officer may require a person to submit to an alcotest or a breath analysis, and relevantly provides:
47E—Police may require alcotest or breath analysis
(1) Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person –
(a)is driving, or has driven, a motor vehicle; or
(b)is attempting, or has attempted, to put a motor vehicle in motion; or
(c)is acting, or has acted, as a qualified supervising driver for the holder of a permit or licence,
the police officer may require the person to submit to an alcotest or a breath analysis, or both.
…
The following section, s 47EAA, then empowers a police officer to require that a person who has submitted to an alcotest or breath analysis pursuant to s 47E submit to a drug screening test, and, if that test indicates the presence of a prescribed drug, an oral fluid analysis or blood test. Section 47EAA relevantly provides:
47EAA—Police may require drug screening test, oral fluid analysis and blood test
(1)     Subject to this Act, if a person has submitted to an alcotest or breath analysis as a result of a requirement under section 47E, a police officer may require the person to submit to a drug screening test.
(2)     If—
(a)a person has submitted to a drug screening test as a result of a requirement under subsection (1) and the drug screening test indicates the presence of a prescribed drug in the person’s oral fluid; …
a police officer may require the person to submit to an oral fluid analysis or a blood test.
…
(3)     A police officer may give reasonable directions for the purpose of making a requirement under this section that a person submit to a drug screening test, oral fluid analysis or blood test.
…
(5)     Without derogating from section 47DA or 47EA, a drug screening test, oral fluid analysis or blood test to which a person has been required to submit under this section may not be commenced more than 8 hours after the conduct of the person giving rise to the requirement that the person submit to the alcotest or breath analysis.
(6)     The performance of a drug screening test, oral fluid analysis or blood test that has been required under this section commences when a direction is first given by a police officer that the person concerned provide a sample of oral fluid or blood (as the case may be) to be used for the drug screening test, oral fluid analysis or blood test.
(7)     A drug screening test may only be conducted by a police officer.
(8)     The regulations may prescribe the manner in which a drug screening test, oral fluid analysis or blood test is to be conducted.
The terms “drug screening test” and “oral fluid analysis” are defined in s 47A(1) as follows:
drug screening test means a test by means of an apparatus of a kind approved by the Governor for the conduct of drug screening tests;
…
oral fluid analysis means the analysis of a person’s oral fluid to determine whether a prescribed drug is present in the oral fluid;
The power to require a person’s submission to a drug screening test under s 47EAA(1) is qualified by s 47EA(1)(ca), which provides:
47EA—Exercise of random testing powers
(1) The following provisions apply in relation to the exercise of random testing powers consisting of the giving of a direction to stop a motor vehicle or the making of a requirement to submit to an alcotest or drug screening test:
…
(ca)a police officer must not make such a requirement relating to a drug screening test unless the officer has in the officer’s possession, or a police officer in the immediate vicinity of the place at which the requirement is made has in the officer’s possession, an apparatus of a kind approved by the Governor for the conduct of drug screening tests;
…
The approval by the Governor of apparatus and kits for use in conducting various kinds of analyses and tests under the Road Traffic Act is provided for by s 47H, which is in the following terms:
47H—Approval of apparatus and kits for breath analysis etc
The Governor may, by regulation, for the purposes of this Act—
(a)     approve apparatus of a prescribed kind as breath analysing instruments; or
(b)     approve apparatus of a prescribed kind for the purpose of conducting alcotests; or
(c)     approve apparatus of a prescribed kind for the purpose of conducting drug screening tests; or
(d)     declare a kit of a prescribed kind to be an approved blood test kit.
The Securetec Drugwipe II Twin is an approved apparatus for the purpose of conducting drug screening tests.[1]
[1] Road Traffic (Miscellaneous) Regulations 2014 (SA), reg 14(3).
As to the process by which a sample of oral fluid is to be taken and analysed for the purpose of an oral fluid analysis, s 47F provides that schedule 1 “makes further provision regulating oral fluid and blood sample processes for the purposes of this Division.” Clause 7 of sch 1 then relevantly provides:
7—Oral fluid sample processes
The following provisions apply if a sample of oral fluid is taken under section 47EAA(2):
(a)     the police officer who takes a sample of oral fluid for the purposes of an oral        fluid analysis must—
(i)place the sample of oral fluid (and any reagent or other substance required by the regulations to be added to the sample) in approximately equal proportions, in 2 separate containers marked with an identification number distinguishing the sample from other samples of oral fluid and seal the containers; and
(ii)give to the person from whom the sample was taken a notice in writing –
(A)    advising that the sample has been taken under section 47EAA(2);              and
(B)advising that a container containing part of the sample and marked with the identification number specified in the notice will be available for collection by or on behalf of the person at a specified place; and
(C)containing any other information prescribed by the regulations; and
(iii)complete and sign a certificate containing the information required under paragraph (d);
(b)     each container must contain a sufficient quantity of oral fluid to enable an analysis to be made of the presence of a prescribed drug in the oral fluid;
(c)     it is the duty of the police officer who takes the sample of oral fluid for the purposes of the oral fluid analysis to take such measures as are reasonably practicable in the circumstances to ensure that the sample is not adulterated (other than as required under paragraph (a)) and does not deteriorate so as to prevent a proper analysis of the presence of a prescribed drug in the oral fluid;
(d)     the certificate referred to in paragraph (a) must state—
(i)the identification number of the sample marked on the containers referred to in that paragraph; and
(ii)the name and address of the person from whom the sample was taken; and
(iii)the identification number of the police officer by whom the sample was taken; and
(iv)the date, time and place at which the sample was taken; and
(v)that the police officer gave the notice referred to in that paragraph to the person from whom the sample was taken;
(e)     one of the containers containing the sample must—
(i)as soon as reasonably practicable be taken by a police officer or an approved courier to the place specified in the notice given to the person or left with the person’s personal effects under paragraph (a); and
(ii)be kept available at that place for collection by or on behalf of the person for the period prescribed by the regulations;
(f)     after analysis of the sample in a container referred to in paragraph (a), the analyst who performed or supervised the analysis must sign a certificate containing the following information:
(i)the identification number of the sample marked on the container;
(ii)the name and professional qualifications of the analyst;
(iii)the date on which the sample was received in the laboratory in which the analysis was performed;
(iv)the information required by the regulations in relation to any prescribed drug or drugs found to be present in the sample;
(v)any factors relating to the sample or the analysis that might, in the opinion of the analyst, adversely affect the accuracy or validity of the analysis;
(vi)any other information relating to the sample or analysis or both that the analyst thinks fit to include;
(g)     on completion of an analysis of a sample, the certificate of the analyst who performed or supervised the analysis must be sent to the Minister or retained on behalf of the Minister and, in either event, copies of the certificates must be sent—
(i)to the Commissioner of Police; and
(ii)to the person from whom the sample was taken or, if the person is dead, a relative or personal representative of the deceased;
(h)     if the whereabouts of the person from whom the sample is taken, or (that person being dead) the identity or whereabouts of a relative or personal representative of the deceased is unknown, there is no obligation to comply with paragraph (g)(ii) but copies of the certificates must, on application made within 3 years after completion of the analysis, be furnished to any person to whom they should, but for this paragraph, have been sent.
The “information required by the regulations”, as referred to in cl 7(f)(iv), is information identifying the drug or drugs.[2] Further, an “analyst”, as referred to in cls 7(f)-(g), is defined in s 47A(1) to mean:
(a) a person appointed by the Minister as an analyst for the purposes of this Act; or
(b) a person holding an office of a class approved by the Minister for the purposes of this Act;
[2] Road Traffic (Miscellaneous) Regulations 2014 (SA), reg 24.
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

The prosecution case at trial relied largely upon statutory and evidentiary aids to proof. Counsel for Mr Pringle objected to several of the certificates prepared pursuant to s 47K of the Road Traffic Act and tendered by the prosecution. However, those objections were ultimately withdrawn other than the objection to the certificate of analysis which became Exhibit P5 (see below). The Magistrate ruled against this objection and received Exhibit P5.
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:

CERTIFICATE OF SUBMISSION OF A PERSON TO A DRUG SCREENING TEST PURSUANT TO SECTION 47K(10) OF THE ROAD TRAFFIC ACT

I, Andrew SCUTTER, a police officer certify that Andrew Robert PRINGLE submitted to a drug screening test on 03/12/2018 at about 1822 hours and that the drug screening test indicated that a prescribed drug may then have been present in the oral fluid of that person.

[signed] [Senior Constable] [45924] [12/10/2019]__

(signature - police officer) (rank) (ID) (date)

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:

CERTIFICATE PURSUANT TO SECTION 47K(9a) OF THE ROAD TRAFFIC ACT 1961

In the matter relating to    ____[Andrew Robert PRINGLE]______

  (Subject’s Name)

I,    ___[Andrew SCUTTER]________

                   Full Name

being a police officer do hereby certify that the apparatus used to conduct a drug screening test was in proper order and the drug screening test was properly conducted.

______[signed] ___       ___[Senior Constable]___       __[45924]__            __[27/05/2019]__

(signature - police officer)               (rank)  (ID)  (date)

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:

CERTIFICATE PURSUANT TO SECTION 47K(3a) OF THE ROAD TRAFFIC ACT 1961

I   ___[Andrew SCUTTER] _________

          Full Name

being a police officer do hereby certify that a sample of oral fluid for the purposes of an oral fluid analysis was taken

on the____ [3^rd]___ day of          ___[December] __ 20       _[18]_ at      __[1831]__ hours

                  (Day)  (Month)                  (Year)              (Time)

from    __[Andrew Robert PRINGLE]______

  Full Name

and the provisions of the Act with respect to the taking of samples of oral fluid for such purposes were complied with.

_____[signed]____        ___[Senior Constable]___       __[45924]__           __[27/05/2019]__

(signature - police officer)              (rank)  (ID)  (date)

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:

PD651 CERTIFICATE ORAL FLUID SAMPLE COLLECTION

I, ____ [A. Scutter] ____        ___[S/Const] __              _[045924]_        do hereby certify:

   (Sample collector name)                 (Rank)  (ID)

1. that at about __[1834]__ hours on __[3/12/18]__ at __[Mofflin Road Elizabeth Vale]__

  (Time)                   (Date)              (Sample Collection Location)

a sample of oral fluid was taken from      _____[Andrew Robert Pringle]_____

  (Subject Name)

of   __[89A Mofflin Road Elizabeth Vale]___

                  (Subject Address)

2. that the required Notice in Writing was given from whom the sample was taken

______[signed]________              Sample Identification Number:        [D004119]

(Sample Collector Signature)

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:

CERTIFICATE OF

ORAL FLUID ANALYSIS

FOR DRUGS

Pursuant to s 47K(9) and Schedule 1 of the Road Traffic Act 1961

Two sealed vials containing oral fluid sample and bearing the identification number D004119 were received at Forensic Science SA on 10 December 2018. A chain of custody form with the same identification number was received with the vials.

The oral fluid sample was analysed for the presence of drugs as prescribed in the Act.

Result of the drugs analysis:

delta-9-Tetrahydrocannabinol (THC):  NOT DETECTED

Methylamphetamine:  DETECTED

3,4-Methylenedioxymethamphetamine (MDMA):       NOT DETECTED

I certify that an oral fluid analysis was properly conducted.

There were no factors that adversely affect the accuracy or validity of the analysis.

The analysis was performed using liquid chromatography with tandem mass spectrometry (LC/MS/MS)

Cut off concentrations in neat oral fluid:       delta-9-Tetrahydrocannabinol                 10ng/mL

Methylamphetamine  25ng/mL
3,4-Methylenedioxymethamphetamine       25ng/mL

[Signed]

D. Butzbach, B. Tech, B.Sc. (Hons), PhD

(An analyst approved by the Minister for Transport)

Printed on 18-Dec-2018 17:58 TRAFFIC OPS

Dr Butzbach gave evidence in cross-examination that her certification that there were no factors that adversely affected the accuracy or validity of the analysis related only from the point of receipt of the samples at FSSA.
The Magistrate’s findings
The Magistrate commenced his reasons with a summary of both the background to the alleged offending and the evidence adduced by the prosecution, in a manner similar to that set out above.
His Honour noted that Mr Pringle’s case was based largely upon objections to the admission of certificate evidence, it being agreed that Mr Pringle had been driving the vehicle at the relevant time, and had been subjected to a drug screening test and subsequently required to provide a sample of oral fluid.
The Magistrate then engaged in an analysis of the evidence, focussed upon four evidentiary challenges made by Mr Pringle. As those four complaints broadly form the basis of Mr Pringle’s contentions in this appeal, it is appropriate to summarise his Honour’s reasons in respect of each.
First, the Magistrate considered Mr Pringle’s submission that devices used to collect oral fluid for the purpose of conducting oral fluid analyses are required to be approved pursuant to the Road Traffic Act or otherwise.
In considering this contention, the Magistrate set out the terms of s 47H. His Honour observed that that section had been amended by the Statutes Amendment (Drink and Drug Driving) Act 2017 (SA) with effect from 24 April 2018, noting that, prior to these amendments, s 47H had provided for the approval of “apparatus of a specified kind for the purpose of conducting drug screening tests or oral fluid analyses or both”. His Honour considered it significant that the amendment “removed the requirement formerly contained in the section, for apparatus for conducting oral fluid analysis to be approved.”
The Magistrate proceeded to consider, and reject, Mr Pringle’s reliance on statements made by the Minister for Road Safety in the course of the Second Reading Speech, in which the Minister said that the proposed amendments required “all drug and alcohol testing apparatus” to be approved by way of regulation.[3] In this regard, the Magistrate emphasised the amendments to which he had already referred, and considered that there “is no reason to conclude that the Parliament inadvertently omitted this requirement in error and thus created a legal lacuna.”
[3] South Australia, House of Assembly, Parliamentary Debates (Hansard), 27 September 2017 at 11228.
To the contrary, his Honour considered the removal of the requirement to be consistent with the purpose of s 47H, which he regarded to be directed to instruments for testing or measurement, as opposed to collection or storage. While the Magistrate acknowledged that oral fluid collection devices “can be sophisticated”, in that they are specialised and must be capable of use in compliance with the procedures in cl 7 of sch 1, his Honour considered that such devices did not yield analysis nor require calibration. The Magistrate also rejected Mr Pringle’s reliance on case law in this regard, reasoning that the authorities referred to had been decided in the distinguishable context of instruments for measurement, and not collection.
On this basis, his Honour concluded that devices used for oral fluid collection do not require approval under the Road Traffic Act or otherwise.
Secondly, the Magistrate considered Mr Pringle’s contention that there was proof to the contrary of the facts stated in Exhibit P5. The basis of Mr Pringle’s submission was that Exhibit P5 purported to be proof that the oral fluid samples were properly collected by SC Scutter, when the evidence of Dr Butzbach was that her certification applied only from the point of receipt by FSSA.
His Honour explained that the textual basis for the submission stemmed from an interpretation of ss 47K(9) and 47EAA(6) of the Road Traffic Act. In particular, Mr Pringle’s submission was that an “oral fluid analysis”, as referred to in s 47K(9) and Exhibit P5, must, in accordance with s 47EAA(6), commence “when a direction is first given by a police officer that the person…provide a sample of oral fluid”.
The Magistrate considered that the term “oral fluid analysis” was used in two different contexts in s 47EAA(6). The first reference to “oral fluid analysis” was used to identify a starting point for the operation of the preceding section, s 47EAA(5), so as to preclude a direction to provide an oral fluid sample being given to a person more than eight hours after driving. By contrast, his Honour considered that the second use of the phrase “oral fluid analysis” referred to the subsequent analysis of the sample, as was contemplated by s 47K(9) and sch 1. His Honour held:
The use of the term “analysis” in the certificate prepared by Dr Butzbach is used in the sense referred to in Schedule 1, Part 3, clause 7(f)...
…
The statement contained in the certificate of Dr Butzbach that “there were no factors that adversely affect the accuracy or validity of the analysis” refers only to the analysis of the sample undertaken by her as the analyst in the laboratory in which the analysis is performed. The use of the “analysis” in this context is not a reference to the entire process as defined in the RTA. It does not purport to extend back to the taking of sample by the police officer and the RTA does not contemplate that it should extend back to that procedure.
On this basis, the Magistrate rejected Mr Pringle’s submission that Exhibit P5, if admitted, would become proof of the proper conduct of the process from SC Scutter’s first direction, and found that Dr Butzbach’s evidence consequently could not constitute evidence to the contrary of the facts in that certificate.
Thirdly, the Magistrate considered, and rejected, any scope for the application of the unfairness discretion arising from the admission of Exhibit P5. His Honour emphasised that prosecution compliance with statutory procedures relating to the admission of certificate evidence does not ordinarily give rise to unfairness in the relevant sense, and found no reason to depart from the usual position in light of his earlier finding that Exhibit P5 did not purport to provide evidence of matters outside of those delineated in cls 7(f)-(g) of sch 1.
Finally, the Magistrate turned to consider whether the prosecution had proven compliance with the requirements of the Road Traffic Act for the collection of oral fluid samples.
The Magistrate observed that, despite the Road Traffic Act providing that the Road Traffic (Miscellaneous) Regulations may prescribe procedures for the conduct of an oral fluid analysis, the only statutory requirements governing the collection of samples were those in cl 7 of sch 1. His Honour reproduced cl 7, and explained that “[e]xhibit P3 was admitted as evidence of proof of compliance with these procedures, subject to proof to the contrary.”
The Magistrate then proceeded to consider whether there was evidence to the contrary of the facts in Exhibit P3. His Honour observed that Mr Pringle’s counsel had attempted to impugn the conduct of the collection process through her cross-examination of SC Scutter, and summarised the effect of SC Scutter’s evidence as to the weather conditions on the night the sample was taken; the conditions of the swab, including whether it was disintegrating or discoloured; the process of taking the sample of Mr Pringle’s oral fluid, including its exposure to the weather; and the conditions in which the sample was stored before it was secured at the patrol base. Equally, his Honour noted Dr Butzbach’s evidence to the effect that she had no concerns about the impacts of any heat or air exposure on the analysis of the sample.
After summarising the evidence, the Magistrate concluded:
The evidence of SC Scutter and Dr Butzbach, including under cross examination, confirmed the efficacy of the collection and testing process. Their evidence was not capable of providing proof to the contrary of the matters certified in Exhibit P3.
The Magistrate thus considered that the prosecution had proven compliance with the requirements of the Road Traffic Act for the taking of the sample of Mr Pringle’s oral fluid.
His Honour, being satisfied that Mr Pringle was the driver of the vehicle on the date and at the place alleged, and that he drove the vehicle at that time with methylamphetamine present in his oral fluid, found Mr Pringle guilty of driving with a prescribed drug in his oral fluid in contravention of s 47BA(1)(a).
Grounds of appeal
As mentioned, the appellant relies on four grounds of appeal. There is some overlap between those grounds, in the sense that each arises from the appellant’s overarching complaint that there is a “lacuna” in the legislation in that the Road Traffic Act does not squarely address the process of oral fluid collection. However, it is convenient to deal with each of the grounds separately
Ground 1: approval of the apparatus for collection of oral fluid
The appellant contends that the Magistrate erred in holding that the Pathtec Oral Fluid Collection Kit used by SC Scutter was not an apparatus requiring approval under the Road Traffic (Miscellaneous) Regulations.
Section 47H confers power upon the Governor to approve apparatus and kits for use in conducting particular kinds of analyses and tests provided for under the Road Traffic Act. Relevantly, s 47H(c) provides for the approval of prescribed apparatus for the purpose of conducting drug screening tests, such a test being a necessary precondition to a requirement that a person submit to an oral fluid analysis by operation of s 47EAA(2)(a). However, it is notable that s 47H does not confer any such power upon the Governor in respect of apparatus for the purpose of collecting oral fluid samples.
Indeed, as was recognised by the Magistrate, a power on the part of the Governor to approve apparatus for the purpose of conducting oral fluid analyses was removed by operation of the Statutes Amendment (Drink and Drug Driving) Act. Prior to these amendments, s 47H had provided:
47H—Approval of apparatus for the purposes of breath analysis, alcotests, drug screening tests and oral fluid analysis
(1) The Governor may, by notice in the Gazette—
(a)approve apparatus of a specified kind as breath analysing instruments; or
(b)approve apparatus of a specified kind for the purpose of conducting alcotests; or
(c)approve apparatus of a specified kind for the purpose of conducting drug screening tests or oral fluid analyses or both.
(2) The Governor may, by subsequent notice, vary or revoke any such notice.
The words that we have underlined were removed by the amendments to the Road Traffic Act and so do not appear in the current version of s 47H.
Prior to the amendments to remove these words, the statutory procedure for the conduct of an oral fluid analysis was different, in that the police would themselves conduct an analysis of a collected sample at the roadside, before then sending the kit to FSSA for further analysis. The effect of the amendments to which we have referred was to remove from the police any responsibility for the analysis of an oral fluid sample. In our view, the removal of a power on the part of the Governor to approve apparatus for use in oral fluid analyses is consistent with the removal of any responsibility on the part of the police to conduct such analyses. It can be inferred from the removal of the reference to approval of the apparatus for the purpose of conducting oral fluid analyses in s 47H(1)(c) that it was Parliament’s intention that such apparatus would no longer require approval.
The appellant sought to avoid the consequence of the removal from s 47H(1)(c) of the reference to the approval of apparatus used for “oral fluid analyses” by drawing a distinction between the apparatus used for oral fluid analyses and the apparatus used for the collection of oral fluid samples. Even accepting the potential validity of this distinction, we do not think it assists the appellant. It would not address the absence in s 47H of any reference to, and hence contemplation or requirement of, the approval of an apparatus for the collection of oral fluid samples.
Further, we do not consider the observations made by the Minister for Road Safety in the Second Reading Speech to be of any assistance to the appellant. As at trial, the appellant relied upon the following passage from that Speech in support of his submission that all devices used pursuant to the Road Traffic Act, including those for the collection of oral fluid samples, must be approved:[4]
The Bill requires all drug and alcohol testing apparatus to be approved by way of regulation. Seven types of alcohol and drug testing apparatus are currently used by SAPOL. They are published in the Government Gazette, but they are sometimes challenged in legal proceedings. Under these amendments they would be listed in regulations instead.
Listing them in the regulations will aid transparency and avoid difficulties encountered during prosecutions regarding apparatus make, model or description. It is anticipated that the regulations listing the apparatus will need to be amended every three to five years to account for changes in instrumentation.
[4] South Australia, House of Assembly, Parliamentary Debates (Hansard), 27 September 2017 at 11228.

There are well established limits to the use that may be made of extrinsic materials, including Second Reading Speeches, in construing legislation. That use is confined to ascertaining the mischief and underlying purpose of the legislation. It does not extend to using statements of legislative intention contained in those extrinsic materials to overcome the need to carefully consider the words of the legislation in order to determine its meaning, let alone to alter or displace the clear meaning of those words.[5]
[5] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey & Gummow JJ); K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [51]-[53] (French CJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan & Kiefel JJ); Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Owen v South Australia (1996) 66 SASR 251 at 255-257; Attorney-General (SA) v Bell (2013) 117 SASR 482 at [40]; Redman v Return to Work Corporation of South Australia [2021] SASCA 25 at [103]-[108].
Here, even if some relevant intention could be divined from the Minister’s very general summary of the operation of the proposed legislation, it cannot alter the plain meaning of the words used in that legislation. A fortiori, it cannot be used to read back into the legislation something very close to the words that were removed, particularly when (as we have described) there was an apparent rationale for the removal of those words rather than there being any reason to think this was the result of a legislative oversight or slip.
For completeness, we note the appellant’s submission that the terms of s 47H are in the nature of a non-exhaustive list, such that it can be inferred that the Governor may approve apparatus of a prescribed kind for tests and analyses beyond those set out in the section. We reject that submission. There is no textual basis for such a construction. The appellant’s attempt to draw support for this submission from the inclusion of the abbreviation “etc” in the heading of the current version of s 47H is misconceived. Not only does the section heading not form part of the Act,[6] but also the use of “etc” in that heading is plainly intended merely to indicate that the heading does not reflect the entirety of what is contained in the section, rather than to extend or alter the content of that section.
[6] Acts Interpretation Act 1915 (SA), s 19(2)(a).
Consistently with the Magistrate’s findings, in our view, the removal by Parliament of the power previously contained in s 47H(1)(c) reinforces what is clear on the face of post-amendment s 47H; namely, that the Governor has no power to approve apparatus of a prescribed kind for the purpose of collecting oral fluid samples, and that no such approval is contemplated or required by the Road Traffic Act. We would thus dismiss Ground 1.
Ground 2: proof contrary to the facts in the Exhibit P5 certificate of analysis
In Ground 2, the appellant contends that the Magistrate erred in finding that there was no proof to the contrary of the facts stated in the certificate of analysis which was Exhibit P5.
It will be recalled that the Exhibit P5 certificate was prepared by the analyst from the FSSA, Dr Butzbach. It included a statement certifying that “an oral fluid analysis was properly conducted. There were no factors that adversely affect the accuracy or validity of the analysis.”
As we understand the appellant’s complaint under this ground of appeal, it relies upon a contention that as the phrase “oral fluid analysis” refers to the entire process, including the collection of the oral fluid sample, Dr Butzbach purported to certify matters that occurred prior to the arrival of the sample at the FSSA and hence which were outside of her knowledge.
The difficulty with this contention is that we do not accept that Exhibit P5 purported to certify any part of the process prior to the arrival of the oral fluid sample at the FSSA. Even accepting, as we do, that, for certain purposes within the Road Traffic Act, the performance of the oral fluid analysis commences when a direction is given by a police officer to provide a sample (s 47EAA(6)), we do not think this is determinative of the meaning of the words “oral fluid analysis” as they appear in the Exhibit P5 certificate. As mentioned earlier in these reasons, the Exhibit P5 certificate was prepared by an analyst pursuant to ss 47K(9) and (11), and cl 7(f) of sch 1. Those provisions contemplate and permit the preparation of a certificate by the analyst carrying out the analysis of the oral fluid sample (as opposed to its collection). As such, the certificate is plainly to be read and understood as speaking to the conduct of the analysis undertaken by the analyst, and not some earlier part in the process in which the analyst had no involvement. This accords with Dr Butzbach’s evidence as to what she understood she was certifying.
Understood in this way, the Exhibit P5 certificate does not purport to certify anything that was beyond the knowledge of Dr Butzbach. And no other basis for impugning the accuracy of this certification has been identified or advanced by the appellant.
Further, and in any event, even if the Exhibit P5 certificate were to be understood in the manner contended for by the appellant, we do not think this exposes any difficulty with the appellant’s conviction. It is true that upon this construction of the certificate, it would have purported to certify matters beyond Dr Butzbach’s knowledge. It might also be said that proof of the limits of Dr Butzbach’s knowledge through her evidence would have been sufficient to overcome any purported operation of the Exhibit P5 certificate to certify the process prior to the arrival of the samples at the FSSA (including the collection process). However, we do not think that this exposed any gap in the prosecution’s proof of the appellant’s offending. The prosecution did not rely upon Exhibit P5 to certify the collection process. It relied upon the Exhibit P3 certificate (and the Exhibit P4 certificate) prepared by SC Scutter for this purpose. The prosecution was only reliant upon Exhibit P5 to certify the analysis carried out at the FSSA, and even if, upon its proper construction, it erroneously purported to certify matters beyond this, we do not think that this would operate to prevent reliance upon it as certification of the analysis carried out at the FSSA.
For these reasons, we do not consider that Ground 2 has been made out.
Ground 3: discretion to exclude Exhibit P5
In Ground 3, the appellant contends that the Magistrate erred in failing to exercise his discretion to exclude Exhibit P5.
The legal basis upon which the Magistrate might have exercised a discretion to exclude Exhibit P5 is not entirely clear to me. The appellant’s submissions refer to the exclusion of Exhibit P5 “on the basis that it is more prejudicial than probative and it would be unfair to the defendant for it to be admitted”, and hence appear to invoke both the Christie discretion and a more general ‘unfairness discretion’.[7]
[7] Both were considered in Police v Dunstall (2015) 256 CLR 403.
As to the circumstances said to warrant the exercise of one or both of these discretions, the appellant contended that there was prejudice or unfairness in permitting the prosecution to rely upon the one document to address the certification of the matters contemplated by ss 47K(9) and (11) respectively. There is no merit in this contention. There was no need for the prosecution, or Dr Butzbach, to provide the certifications from the analyst contemplated by s 47K(9) and (11) in two separate documents. As both related to the analysis that was conducted by the analyst at the FSSA, there was no difficulty with them being included in the one document. The decision to do so was not productive of any confusion or lack of clarity, and did not otherwise disadvantage, prejudice or work an unfairness upon, the appellant.
The appellant also contended that reliance upon Exhibit P5 to establish matters that were beyond the knowledge of Dr Butzbach worked an unfairness or injustice. For the reasons addressed in the context of Ground 2, this contention was based upon a false premise. The prosecution did not rely upon Exhibit P5 in this way, and neither did the Magistrate.
We would reject Ground 3.
Ground 4: challenge to the sufficiency of the Exhibit P3 certificate
In Ground 4, the appellant contends that the Magistrate erred in finding that the Exhibit P3 certificate was sufficient to establish that the oral fluid collection procedure was properly undertaken.
As explained earlier, s 47K(3a) of the Road Traffic Act contemplates certification from a police officer that (i) a sample of oral fluid was taken on a specified day, at a specified time, from a specified person, and (ii) the provisions of the Road Traffic Act with respect to the taking of such samples were complied with. That subsection provides that in the absence of proof to the contrary, this will operate as proof of the matters so certified.
Further, s 47K(11) and cl 7(d) of sch 1 also contemplate certification from a police officer of various items of information in relation to the collection process.
In the present case, both of these contemplated certificates were prepared by SC Scutter, and were received as Exhibits P3 and P4 respectively at the trial.
The appellant’s challenge to the adequacy or sufficiency of these exhibits relies upon a contention that they are only intended to address the “taking” of the oral fluid samples, and that this is somehow distinct from the “collection” of those samples. The appellant further contends that in the absence of any certificate relating to the collection of the samples, as opposed to the taking of those samples, the prosecution was required to prove the regularity of what occurred through some other means.
There are two difficulties with this contention. The first is that we do not accept the validity of the distinction the appellant seeks to draw between the collection and taking of the oral fluid samples. In our view, the certificates to which we have referred are intended to encompass the process of collecting the oral fluid samples. The second is that, to the extent that the certificates were not sufficient to prove the regularity of the collection process, this was a matter addressed by SC Scutter’s evidence before the Magistrate. Nothing has been identified in that evidence, or otherwise, to challenge or undermine the propriety of the collection process.
Ground 4 has not been made out.
Conclusion
For the reasons set out, we would dismiss the appeal.

[2021] SASCA 52

3 June 2021

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Procedural Fairness

Statutory Construction