Robert Wayne Hoffrichter v James Wingfield Nixon No. SCGRG 93/1354 Judgment No. 4088 Number of Pages 11 Vehicles and Traffic Offences

[1993] SASC 4088

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Vehicles and traffic - offences - Appeal against conviction - driving under the influence - onus in a no case to answer submission - magistrate failed to resolve important disputed facts - whether conduct of police officer deterred or discouraged appellant from exercising s47fRoad Traffic Act rights determined objectively - consideration of obligations on police officers under Act - trial miscarried before magistrate - injustice to appellant if new trial ordered. Road Traffic Actss47b, 47e, 47f, 47g, 122. French v Scarman (1979) 20 SASR 333 and Taylor v Daire (1982) 30 SASR 453, applied. Eubel v Martin
(1992) 57 SASR 290 and Ujvary v Medwell (1985) 39 SASR 418, considered.

HRNG ADELAIDE, 4 August 1993 #DATE 18:08:1993
Counsel for appellant:     Mr J D Edwardson
Solicitors for appellant:    Armour and Co
Counsel for respondent:     Ms H Nichols
Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed, conviction and orders set aside.

JUDGE1 OLSSON J This is an appeal against a conviction recorded by a stipendiary magistrate against the appellant of an offence against section 47b of the RoadTraffic Act (the "RTA"). 2. Certain of the facts giving rise to it are recited, in definitive terms, by the learned magistrate in the course of detailed reasons for decision published by him. Many aspects are not really in contention, although some are. 3. At about 2.35am on 22 March 1992 Constables Tappin and Puckridge were on mobile patrol in and around the township of Ceduna. They were proceeding south along Murat Terrace. As was to be expected, it was dark and the township street lights were illuminated. 4. As they proceeded along Murat Terrace the police officers became aware of the approach of another vehicle from the opposite direction. This proved to be a 4-wheel drive Toyota Hilux, which was equipped with a pair of driving lights, fitted to a front bull-bar, in addition to the normal headlights. The Toyota, as it subsequently appeared, belonged to a friend of the appellant. It was equipped with a dipping device on the right hand side of the steering column. 5. The police officers were dazzled by the lights of the Toyota (all four of which were illuminated) as it approached. No apparent attempt was made to dip them. Indeed it later became common ground that the appellant did not dip them. 6. After the vehicles had passed one another, the police executed a U-turn, pursued the appellant's vehicle and then stopped it. Constable Tappin approached the appellant's vehicle on foot and asked him to step out of the Toyota. He did so. 7. At no time did either police officer physically check the Toyota to ascertain whether it was fitted with a device to dip both the driving lights and the headlights. They assumed that, as was in fact the case, it was so equipped. 8. When asked by Tappin why the lights had not been dipped, the appellant responded "I didn't realise. It's not my car." 9. Tappin then ascertained that the appellant had been at a cabaret and had been drinking. He informed the appellant that he believed that, in the preceding two hours, the appellant had committed an offence of failing to dip his headlights. He requested that the appellant accompany him to the Ceduna Police Station and there submit to a breath analysis. The appellant complied. It seems to have been conceded that, en route, some discussion took place with regard to possible disqualification outcomes in the event of a section 47b conviction. 10. It is not in dispute that, at that time, Tappin had duly been authorised by the Commissioner of Police to operate breath analysing instruments, pursuant to section 47g of the RTA. 11. The learned magistrate ultimately found that, on arrival at the Ceduna Police Station, the following events took place:-
    (1) Tappin said to the defendant 'I am Senior Constable
    Tappin. I'm qualified to analyse samples of a person's breath.
    I believe that within the last two hours you were driving a motor
    vehicle and committed the offence of failing to dip headlights,
which is an offence against Section 122 of the Road Traffic Act,
    1961. You are now required to exhale into this breath analysing
    instrument 3 in accordance with my directions. Do you understand
    that?' The defendant said 'I do'.
    (2) Tappin said 'I now direct you to exhale through this mouth
    piece into the breath analysing instrument with one continuous
    calm breath until I tell you to stop. Do you understand that?'
    The defendant said 'Yep'.
    (3) Tappin said 'You need to blow for a long time pretty hard
    until this lights up with stars across here.' At that time Tappin
    indicated to the defendant the breath analysing instrument which
    was on his left. The defendant said 'When?' Tappin said 'Go'.
    (4) The defendant exhaled into the mouth piece of an approved
    breath analysing instrument at 2.52am. The breath analysing
    instrument was in proper working order and was operated by Tappin
    in accordance with operating instructions and instructions he had
    received during training. After the defendant had exhaled into
    the mouth piece Tappin obtained a reading from the breath
    analysing instrument. It was obtained by means of a printed read
    out from the instrument.
    (5) At 2.55am Tappin handed the defendant exhibit P6, a statement
    as to the result of the analysis, in conformity with the
requirements of section 47g of the RTA.
    (6) Tappin then had a further conversation with the defendant.
    He said 'The analysis shows you have a blood alcohol
    concentration of 0.131 per cent. This is over the legal limit.
    Do you understand that?' The defendant said 'Yep.' Tappin said
    'You have the right to have a sample of your blood taken by a
    medical practitioner at your expense. Do you understand that?'
    The defendant said 'Yep.'
    (7) Tappin said 'I warn you that if you do not exercise your
    right to have a sample of blood taken by a medical practitioner
    it may be conclusively presumed for the purpose of proceedings
    against the Road Traffic Act that the concentration as indicated
    by the breath analysing instrument was the concentration of
    alcohol in your blood during the period of two hours preceding
    the analysis. Do you understand that?' The defendant said 'Yes.'
    (8) Tappin said 'I warn you that if you do not have a sample of
    blood taken the court may conclusively accept the breath analysis
    of 0.131 per cent as being your correct blood alcohol
    concentration for the last two hours. Do you understand that?'
    The defendant said 'Yep' Tappin said 'Do you want to have a
    sample of your blood taken?' The defendant said 'Yeah.'
    (9) In the course of the continuing conversation between Tappin
    and the defendant the defendant said 'Can I ask you a question?'
    Tappin said 'Hang on until I ask you, no, go for it.'
    (10) The defendant said 'If I have blood and it's say 0.2 can I
    just throw it out the window?' Tappin said 'All I can tell you is
    if the doctor comes he takes a sample of blood, puts it into two
    phials - containers, gives one to me and one to you. You can do
    as you wish with yours, but mine gets sent away for analysis.
    That's all I can tell you. I'm not allowed to tell you if it is
    good or bad - nothing at all, just the procedure.'
    (11) During the course of some conversation with Tappin the
    defendant expressed the words 'fifty bucks' in reference to the
    cost of having a blood sample taken. Tappin said in reply
    'Something like that.' (This apparently related to the cost of
    attendance of a medical practitioner to take a blood sample.)
    (12) During the course of his conversation with Tappin the
    defendant also used the words 'twelve months' (He was there
    adverting to a possible period of disqualification.) Tappin said
    in response 'I'm not sure. It's up there somewhere.'
    (13) At some stage Tappin again said to the defendant 'Do you
    want to have a blood sample taken?' The defendant said 'No, I'll
    let him sleep.' (Referring to the medical practitioner who would
    need to attend to take blood.) Tappin said 'Can you sign here
    where I've crossed out your first answer and put 'no.' The
    defendant then signed the notes made by Tappin.
    (14) At one late point Tappin again said 'Are you sure you do not
    want a sample of blood taken?' The defendant said 'Sure.' The
    learned magistrate also specifically found that the appellant was
    not dissuaded from having a blood test by reason of a lack of
funds with which to pay the cost of it. 12. In reviewing the evidence before him the learned magistrate expressly concluded that, at the time at which the appellant's vehicle was stopped, Tappin entertained, on reasonable grounds, a belief that the appellant had offended against section 122 of the RTA - that he reasonably believed that the Toyota was equipped with a dipping device which the appellant had failed to operate. 13. Whilst recognising that Tappin did not carry out a specific examination of the Toyota in that regard the learned magistrate pointed out that the police officer was entitled to bear in mind the regulations then in force which required all new vehicles registered after 31 December 1940 to be equipped with dipping device. 14. It seems to me that such a line of reasoning was a patent counsel of common sense. In any event it is not now disputed. 15. It was further held by the learned magistrate that Tappin, in speaking with the appellant, as above recited, had sufficiently satisfied the requirements of subsection (2a) of section 47g of the RTA, as explained by King CJ in French v Scarman (1979) 20 SASR 333 at 337. He ruled that, the appellant having withdrawn his request for a blood test, the requirements of subsection (2) of section 47f, to facilitate the taking of a blood sample, were no longer applicable. He also specifically concluded that Tappin had not, at any point, improperly or unfairly deterred or discouraged the appellant from persisting with a request to have a blood sample taken. In this regard he pointed out that, on the appellant's own evidence, Tappin had actually afforded the appellant an opportunity of speaking by telephone to a Dr Griffin. 16. The learned magistrate went on to say this:-
    "The defendant said that the factor which operated on his
    mind and caused him to withdraw his request was the anticipated
    period of licence disqualification in the event of his conviction
    for the drink driving offence. Although this is an area in which
    the evidence of Senior Constable Tappin and the defendant differs
    they agree that their conversation on that topic ended when
    Senior Constable Tappin said 'I'm not sure. It's up there
    somewhere.' in reference to the words '12 months' used by the
    defendant. In cross-examination on that topic the defendant was
    asked (at page 117):
    'Q. How do you say those words discouraged you from availing
    your rights to have a blood test?
    A. At the time I'm not - it was just that 12 months didn't
    seem a real lot, too bad, because I was planning on going away,
    like on a working trip and I didn't really need my licence anyhow
    so I thought, well, to save the hassle of everything else, just
    with everything.'
    On the whole of the evidence, I am satisfied beyond reasonable
    doubt and I find that because of the withdrawal of the request,
    Senior Constable Tappin was not in breach of the requirements of
sub-section (2) of Section 47f of the Act and that he did not, by
    his words or conduct, improperly or unfairly deter or discourage
    the defendant from exercising his right to have a blood sample
    taken." 17. He went on to conclude that, on the basis of his findings:-
     - there was no justification for excluding the evidence of
     the breath analysis;
     - the statutory presumption created by subsection (1) of
     section 47g of the RTA arose;
     - the evidence established, beyond reasonable doubt, that,
     at the time of analysis, the appellant's blood alcohol
     concentration was 0.131 grams per hundred millilitres of
blood. 18. On that basis he found that a charge against the appellant under section 47b of the RTA had been proved and convicted him of it. He also convicted him of a breach of section 122 of the statute. 19. By his notice of appeal the appellant specified the following grounds of challenge of the findings of the learned magistrate:-
    "1. The learned Special Magistrate erred in finding the
    charge proven in that there was no sufficient evidence of the
    concentration of alcohol in the appellant's blood at the relevant
    time since the preconditions to the operation of the presumption
in 8 Section 47g relied upon by the prosecution had not been
    complied with.
    2. The learned Special Magistrate erred in failing to exclude
    the evidence of the alleged result of the breath analysis test on
    the basis that:-
    (a) the appellant was not correctly informed of his right
    pursuant to Road Traffic Act, Section 47f and was misled by the
    police as to the true extent and nature of that right;
    (b) the preconditions to the reception of such evidence were
    not established.
    3. The learned Special Magistrate erred in finding a case to
    answer." 20. Those assertions and the submissions of Mr Edwardson, of counsel for the appellant, must be considered in the context of the relevant statutory provisions. 21. Section 47e of the RTA, inter alia, provides that:-
    "47e. (1) Where a member of the police force believes on
    reasonable grounds that a person, while driving a motor vehicle
    or attempting to put a motor vehicle in motion -
    (a) has committed an offence against any provision of Part III
    of which the driving of a motor vehicle is an element;
    (b) has committed an offence against section 20, 111 or 122;
    (c) has behaved in a manner that indicates that his or her
    ability to drive the motor vehicle is impaired; or
    (d) has been involved in an accident, that member of the police
    force may, subject to subsection (2), require that person to
    submit to an alcotest or breath analysis, or both.
    (2) An alcotest or breath analysis must be performed within two
    hours after the occurrence of the event giving rise to the
believe referred to in subsection (1)." 22. Provisions which complement those of that section are to be found in section 47f which, inter alia, stipulates that:-
    "47f. (1) A person required in accordance with this Act to
    submit to a breath analysis may request of a member of the police
    force that a sample of his or her blood be taken by a medical
    practitioner.
    (2) Where a request is made by a person under subsection (1), a
    member of the police force must do all things reasonably
    necessary to facilitate the taking of a sample of the person's
    blood -
    (a) by a medical practitioner nominated by the person; or
    (b) if -
    (i) it becomes apparent to the member of the police force that
    there is no reasonable likelihood that a medical practitioner
    nominated by the person will be available to take the sample
    within one hour of the time of the request at some place not more
    than ten kilometres distant from the place of the request; or
    (ii) the person does not nominate a particular medical
    practitioner, by any medical practitioner who is available to
    take the sample.
    (2a) The taking of a sample of blood pursuant to this section -
    (a) must be carried out by the medical practitioner in the
    presence of a member of the police force;
    and
    (b) must be at the expense of the person from whom the sample is
    taken." 23. Section 47g of the RTA contains somewhat draconian provisions for facilitation of proof by the police in relation to prosecutions based upon the results of breath analyses conducted in accordance with section 47f. So far as material it enacts that:-
    "47g. (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 against
    this Act, of the concentration of alcohol indicated as being
    present in the blood of the defendant by a breath analysing
    instrument operated by a person authorized 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 and throughout the
    period of two hours immediately preceding the analysis.
    (1a) In any proceedings for an offence against this Act, no
    evidence can be adduced in rebuttal of the presumption created by
    subsection (1) except 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 47f or
    47i.
    (1b) ...
    (2) As soon as practicable after a person has submitted to an
    analysis of breath by means of a breath analysing instrument, the
    person operating the instrument must deliver to the person whose
    breath has been analysed a statement in writing specifying -
    (a) the concentration of alcohol indicated by the analysis to be
    present in the blood expressed in grams in 100 millilitres of
    blood; and
    (b) the date and time of the analysis.
    (2a) Where a person has submitted to an analysis of breath by
    means of a breath analysing instrument and the concentration of
    alcohol indicated as being present in the blood of that person by
    the breath analysing instrument is the prescribed concentration
    of alcohol, the person operating the instrument must forthwith -
(a) inform that person of the right pursuant to section 47f to
    have a sample of blood taken by a medical practitioner; and
    (b) warn that person that, if he or she does not exercise that
    right, it may be conclusively presumed for the purposes of
    proceedings for an offence against this Act that the
    concentration of alcohol in the blood during the period of two
    hours preceding the analysis was the concentration as indicated
by the breath analysing instrument." 24. It is stating the obvious to say that the reports of decisions of this Court are littered with judgments bearing on the proper construction and practical operation of the foregoing statutory provisions. 25. As King CJ said in Taylor v Daire (1982) 30 SASR 453 at 463:-
    "... What is clear is that the operation of the statutory
    presumption as to the correspondence of the breath analysis
    reading with the concentration of alcohol actually present in the
    blood at the relevant time, depends upon compliance with the
    prescribed procedures including the procedures as to blood tests
prescribed in ss.47f and 47g(2)." 26. The learned Chief Justice went on to make the point:-
    "Police officers are not required to give legal advice and
    should avoid doing so. They should give no information as to the
    consequences of requesting or not requesting a blood test beyond
    what is required of them by the Act. The necessary information
    as to the expense of obtaining a blood test should be imparted
    objectively and not in a way which might tend to discourage the
    citizen from availing himself of his rights. If a person is
    dissuaded from asserting his rights by incorrect information as
to the cost, apparent compliance with ss.47f and 47g may be
    vitiated. For instance persons requesting a blood test should
    not be given the impression that it is necessary to have ready
    cash to meet the expenses or that expenses that cannot properly

    be claimed, will be claimed." 27. Having regard to the issues which have arisen in this case it should be recorded that, in Taylor v Daire, Wells J also commented:-
    "The proposition was canvassed during argument that a request
    once made is irrevocable, and must be carried out to the very
    end; but I am of the opinion that, unless the contrary intention
    clearly appears, a privilege and safeguard given by statute which
    a designated person may elect to claim or not to claim as he sees
    fit, may be renounced also at his election, provided the
    procedures 12 prescribed in order to implement the privilege have
    not been concluded.
    I should, therefore, affirm that, in future, the police
    authorities would be wise, by general instruction, to provide for
    their officers some safe procedure according to which, in cases
    of this kind, a withdrawal by the suspect of his request for a
    blood alcohol test by a medical practitioner should be duly
    noted, and that the police officer or officers who hears or hear
    what appears to be a withdrawal should satisfy himself or
    themselves that the suspect has deliberately and unconditionally
    withdrawn the request he previously made. In stating this I do
    not purport to lay down a rule of law. It would always be open
    to the prosecution to prove a withdrawal by any relevant evidence
that may be available." 28. At the conclusion of the prosecution case counsel for the appellant made a submission of no case to answer. This was advanced on two separate bases, one of which is not now relevant to the issues arising on this appeal. 29. Inter alia, he contended that, to employ the language of Bollen J in Eubel v Martin (1992) 57 SASR 290 at 298-9, Tappin had not correctly and thoroughly informed the appellant of his rights pursuant to section 47f (as required by section 47g(2a)). 30. The learned magistrate quite erroneously held that an onus lay on the appellant to prove the alleged non compliance. He went on to reject the application on the footing that, although the appellant had initially requested a blood test he had subsequently withdrawn that request, so that the issue did not arise. He held that the appellant had therefore not discharged his onus. The appellant thereupon gave evidence on oath. In so doing he gave evidence which, in part, supplemented that of Tappin and, in part, disclosed the existence of a conflict with Tappin as to precisely what conversations had taken place. 31. As is obvious from my recital of the core facts found by the learned magistrate the evidence given by Tappin begged some obvious questions. Certain of the statements said to have been made, on the face of them, presuppose the existence of other dialogue not recorded by Tappin and which he said did not take place. 32. In his ultimate reasons for decision published at the end of the case the learned magistrate acknowledged the existence of that conflict but said that it was unnecessary to resolve it because, even on the appellant's version, there was no evidence of improper police conduct. This non resolution of the conflict was, to say the least, unfortunate because it necessarily bore, in a potentially important manner, on the context of which and how certain critical dialogue arose and the practical significance to be attached to it. 33. In those reasons the learned magistrate corrected his former erroneous view of where the onus lay concerning the vexed section 47g issue and held that, on the whole of the evidence, he was satisfied beyond reasonable doubt that Tappin did comply with the requirements of subsection (2a) of that section. However, he concluded that the prima facie obligation of Tappin to comply with subsection (2) of section 47f was overtaken by the decision of the appellant to withdraw his request for a blood test. He found that, even on the appellant's version of events there was no evidence of any improper or unfair conduct on the part of Tappin "calculated to deter or discourage the defendant from pursuing his request for a blood sample to be taken". 34. On the appeal Mr Edwardson strongly challenged the lastmentioned approach because, he submitted, it disclosed a subjective test related to Tappin's motive, rather than the objective test as to whether or not his conduct had, as a matter of fact, deterred or discouraged the appellant in an impermissible manner (see King CJ in Ujvary v Medwell (1985) 39 SASR 418 at 419). Mr Edwardson contended that the failure of the learned magistrate to resolve disputed facts which bore directly on that issue disclosed patent error on his part and that, in absence of such resolution, the only reasonable interpretation of the evidence was that the discussion by Tappin of the likely outcome of a conviction as to disqualification was that what was said by Tappin clearly led to the ultimate withdrawal by the appellant of his request. 35. It was the appellant's evidence that he was influenced to withdraw his request by Tappin's statement concerning any probable period of disqualification in the event of a conviction - that this caused him to withdraw his initial request to "save the hassle of everything else". Mr Edwardson pointed out that, although Tappin denied any relevant conversation concerning this topic, beyond that set out in my above summary - a denial which rings somewhat hollow on the very face of the sequence of conversation deposed to by him - the appellant's evidence as to what motivated his decision was not challenged at trial. Furthermore, he argued that the significance of what was said after the breath analysis fell to be considered in the context of an earlier conversation in the police vehicle the detail of which Tappin cannot now recollect. 36. It was further contended that, having regard to what had transpired since Tappin's initial statements to the appellant concerning the effect of not having a blood test it was encumbent upon him to reiterate the section 47g(2a) warning upon the indication that the initial request was being withdrawn. 37. In my view the failure of the learned magistrate to resolve the important disputed facts concerning the exchanges between Tappin and the accused at relevant times constituted an error of law which prevents this Court from examining the impact of the full facts and necessarily vitiates his critical finding, particularly when coupled with his incorrect application of a subjective, rather than an objective, test. True it was that the appellant did withdraw his request, but he obviously did so after the discussion with Tappin as to the likely outcome. In absence of appropriate findings of fact as to precisely what discussions did take place the natural inference is that what was said and done at the time brought about the appellant's change of mind and was contrary to what was said in Taylor v Daire (supra). Having regard to what had transpired, common fairness also prima facie dictated that the appellant ought again to have been reminded of the actual practical, statutory consequences of his withdrawal. 38. There is also force in Mr Edwardson's contention that, if it be accepted that the flow of conversation was as deposed to by Tappin, the requirements of section 47f(2) had not been complied with because he had allowed himself to be distracted from a full compliance with the requirement to facilitate the taking of a blood test by explaining the terms of subsection (2), as envisaged by the Chief Justice in French v Scarman (1979) 20 SASR 333 at 337 - an obligation which arose forthwith upon the appellant intimating that he did require a blood test. Unfortunately this whole topic is also obscured to some extent by the failure of the learned magistrate to make specific findings of fact as to what did take place, given the disputed evidence concerning the alleged actual contact with Dr Griffin by telephone, how that came about and what actually transpired in relation to it. 39. To say, as the learned magistrate did, that this issue really became academic upon the withdrawal of the request for a blood test begs the question of what it was that caused the withdrawal. 40. All in all I consider that the trial before the learned magistrate miscarried, first when he applied a manifestly incorrect onus test on the no case to answer application; secondly, when he failed, in his findings of fact, to resolve potentially critical disputes of fact which bore upon the key issues arising in this matter; and, finally, when he addressed the question of Tappin's intention - rather than the objective impact of his actions - in relation to what he told the appellant and thereby caused him to change his mind. 41. In the circumstances I would normally feel compelled to the conclusion that the only proper course was to allow the appeal, set aside the conviction, and orders complained of and remit the matter for retrial before a different magistrate. However, in the instant case, the adoption of such a course is fraught with the potential for substantial injustice to the appellant. 42. When the appellant was convicted on 20 April 1993 the learned magistrate, on an erroneous understanding of the facts, imposed a period of six months' disqualification. This error having come to his attention he called the matter on for rehearing on 11 June 1993 and set aside his former order. He then imposed the correct statutory minimum period of twelve months. As this could not be backdated this meant that the appellant had already spent approximately two months without a licence, for which he could not receive credit. 43. The plain fact of the matter is that, if I remit this case for retrial, it would mean that the appellant, having spent a further two months without a licence stands in jeopardy, if he is convicted on a retrial, of having a further ab initio disqualification of twelve months imposed, despite the periods for which he has already suffered disqualification. This situation would entirely stem from situations for which he is not to blame. 44. The position in which I find myself is most unsatisfactory from all points of view. It seems to me that I ought to lean in that direction which avoids clear injustice, the more so as the present dilemma is the product of the trial having miscarried. In the peculiar situation of this case I will not remit the case for retrial. The less of two evils is to allow the matter to remain where it lies. 45. My formal order will simply be that the appeal be allowed and that the conviction and orders complained of be set aside.