Roberts v Police - [2017] SASC 22

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
ROBERTS v POLICE
[2017] SASC 22
Judgment of The Honourable Justice Vanstone
23 February 2017
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IDENTITY OF PROHIBITED SUBSTANCE
Application for extension of time within which to appeal against conviction.
Where applicant convicted of driving a motor vehicle whilst there was present in his oral fluid a prescribed drug. Where applicant complained of inadequate disclosure regarding the drug analysis device, deficiencies in the conduct of roadside testing, and the misidentification of the drug detected.
Held: Application for extension of time granted but appeal dismissed.

ROBERTS v POLICE
[2017] SASC 22
Magistrates Appeal – Criminal
VANSTONE J.

Timothy James Roberts applies for an extension of time within which to appeal against his conviction in the Magistrates Court for driving a motor vehicle whilst there was present in his oral fluid a prescribed drug, namely methylamphetamine. The sole ground of appeal is that the Magistrate erred in “receiving the evidence of the roadside drug test conducted on 12 January 2015.”
During the hearing in this Court the applicant raised three topics. First he complained that his requests of police since the trial for further disclosure had gone unanswered. Next, he argued that the oral fluid test should have been conducted in the controlled environment of a police station, or mobile testing station rather than at the roadside, and thirdly he put that the substance detected might have been phentermine, the active ingredient of the prescription drug Metermine, rather than methylamphetamine.
Background
Both in this Court and in the Magistrates Court the applicant represented himself.
The trial in the Magistrates Court commenced on 3 March 2016. On that day the assistant police prosecutor presented the prosecution case. First he led evidence from Senior Constable Highcock, who at the relevant time was stationed at the Heavy Vehicles Enforcement Section of South Australia Police. Highcock described the circumstances in which he pulled over the defendant, who was driving a prime mover. He required him to undergo an alcohol test (which was negative) and a drug screening test. The latter test being positive, the officer required the applicant to undergo an oral fluid analysis. That was done by means of the use of a portable kit which Highcock had with him. He explained the steps taken in using that kit.
Next, Ms Joanna Rositano, a forensic scientist of Forensic Science SA, gave evidence of the procedures used in that laboratory relating to analysis of samples of oral fluid received from police. She referred to the relevant certificate, P10, which indicated that the sample bearing identification number P136923 tested positive for methylamphetamine. She said that the substance phentermine had a similar chemical structure to methylamphetamine; however the methods used in the laboratory, being chromatography and mass spectrometry, identify individual drugs. There was no scope for error. Further, some exhibits were tendered, including certificates admissible pursuant to provisions of the Road Traffic Act 1961 (SA).
The exhibits proved the authorisations of Highcock to conduct the relevant tests, that he had approvals relating to the devices he used, the proper working order and use of the devices, the identification of the sample of oral fluid (P136923), the provision to the applicant of the required Notice in Writing and the results of all three tests.
The Magistrate, Mr Millard SM, heard the evidence and admitted the exhibits. His Honour found a case to answer and adjourned the trial so that the applicant could obtain legal advice.
When the trial resumed on 24 August 2016 the applicant – still unrepresented – gave evidence. He denied having told Senior Constable Highcock that he had taken methylamphetamine and said he had told him he was taken the weight loss preparation Metermine. He said that prior to submitting to the oral fluid test the officer took him to the police vehicle and “grabbed the machine out of the boot of the vehicle, blew the dust of it and told [him] that he was going to pretty much do the secondary test on the side of the road.” He raised the issue of contamination.
The applicant suggested that both the Legal Services Commission and Motor Accident Commission websites asserted that persons testing positive to drug screening tests are required to attend at a police station for provision of an oral fluid sample.
The applicant tendered documents to show that he had been prescribed and had used Metermine.
Consideration
As can be seen, much the same arguments presented to the Magistrate were raised in this Court.
Nothing turns on the suggested lack of disclosure. There is no obligation to provide materials to a convicted person after a trial. I was told from the bar table by Ms Ferris, for the police, that appropriate disclosure was made before the trial.
The exhibit P10, a certificate of oral fluid analysis for drugs, showed that methylamphetamine was present in the applicant’s oral fluids sample. That amounted to proof of that fact, subject to proof to the contrary. There was no proof to the contrary. Furthermore, Ms Rositano’s evidence specifically countered the applicant’s suggestion that the presence of phentermine could give a false positive.
There was no evidence to cast doubt on the integrity of the oral fluid testing. Senior Constable Highcock described the nature of the single use kit utilised. It is provided in a sealed plastic bag and contains various sealed items, its presentation plainly designed to prevent contamination or deterioration. He said he had such a kit with him because of his work in the Heavy Vehicles and Enforcement Section. Often a person would be required to go to a police station after a positive drug screening test, so that a kit might be obtained. The internet material referred to by the applicant appears to be aimed at advising readers that such a requirement might be made. Here it was not necessary.
The applicant also referred to a difference between Highcock’s account of the conversation between them and his own account. He denied admitting to having taken methylamphetamine. That challenge made no difference to the Magistrate’s evaluation of the prosecution or defence cases. The prosecution did not need to rely on that admission.
Conclusion
I can see no deficiency in the prosecution case. The material tendered and the evidence led before the Magistrate proved the prosecution case, in the absence of proof to the contrary. The matters raised by the applicant in his evidence did not amount to proof to the contrary.
Since the notice of appeal was filed only one month or so after the elapse of the appeal period, I think it appropriate to extend the time with in which to appeal to that day. However, the appeal must be dismissed.
I make the following orders:
1.The time within which to appeal is extended to 22 December 2016;
2.The appeal is dismissed.