Robin v Police

Case [2002] SASC 33

ROBIN v POLICE
[2002] SASC 33

  1. GRAY J: This is an appeal against conviction.

  2. The appellant, Steven Christopher Robin, was charged with drink driving.  The complaint was in the following terms:

    “On the 12th day of June, 1999 at Adelaide in the said State drove a motor vehicle on a road namely Anzac Highway while there was present in his blood the prescribed concentration of alcohol as defined in Section 47a of the Road Traffic Act, 1961 and section 47b of the Road Traffic Act, 1961. It is further alleged that the concentration of alcohol was .082 grams in a hundred millilitres of blood.”[1]

    [1] Section 47B provides:

    “(1) A person must not-

    (a) drive a motor vehicle; or

    (b) attempt to put a motor vehicle in motion,

    while there is present in his or her blood the prescribed concentration of alcohol as defined in section 47A.

  3. Mr Robin pleaded not guilty and the trial proceeded before a magistrate.

    The Crown Case - An outline

  4. During the early hours of Saturday morning Mr Robin was driving a 4WD vehicle on Anzac Highway.  At approximately 1.20 am he approached a police random breath testing station.[2]  The police signalled for him to stop. 

    [2] established pursuant to section 47DA of the Road Traffic Act 1961 (SA)

  5. A police officer directed Mr Robin to submit to an alcotest.[3]  He complied with this requirement at 1.25 am.  The alcotest produced a positive result.  This indicated that more than the legally prescribed alcohol concentration might be present in his blood.  Mr Robin was then required to submit to a breath analysis test.  Another police officer conducted that test at 1.44 am.[4]  The reading indicted that the concentration of alcohol present in Mr Robin’s blood was 0.082 grams of alcohol per 100 millilitres of blood. 

    [3] The alcostest was conducted using a Lion Alcolmeter SD-400. 

    [4] The breath analysis was conducted using a Drager Alcotest 7110

  6. The police noted that Mr Robin was polite and cooperative.  His stance, manner of walking, appearance of his eyes, and speech were considered normal.  His clothing was tidy.  However, a slight odour of liquor was detected on his breath.

  7. Mr Robin was then given oral and written notice pursuant to section 47G(2a)(a)[5] of the Road Traffic Act 1961 (SA) (“the Act) and regulation 4 of the Road Traffic (Breath Analysis and Voluntary Blood Test) Regulations 1994 (“the Regulations”).  As a consequence, he requested a blood test kit.  At approximately 1.55 am this was provided.

    [5] Section 7(2) of the Acts Republication Act 1967 (SA) provides that the Attorney General may issue directions to the Commissioner of Statute Revision to:

  8. At 3:00 am Mr Robin attended the Royal Adelaide Hospital (“RAH”) where a medical practitioner, (“the practitioner”) took a sample of his blood.  The practitioner divided the sample into two approximately equal portions, placed them in sealed containers and secured their caps.  He marked each sample with an adhesive seal bearing the same identification number.

  9. The practitioner…

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AGLC
Robin v Police [2002] SASC 33
Case
[2002] SASC 33
Decision Date

CaseChat Overview and Summary

In the case of Robin v Police, the appellant, Mr Robin, appealed against his conviction for driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol, contrary to section 47B of the Road Traffic Act 1961 (SA). The appeal was heard by the Supreme Court of South Australia. The court was tasked with determining whether the evidence provided by the police was sufficient to support the conviction and whether there were any procedural errors that warranted the appeal.

The primary legal issue before the court was whether the evidence presented by the police was sufficient to prove beyond reasonable doubt that Mr Robin was driving a motor vehicle with the prescribed concentration of alcohol in his blood. The court also had to consider whether there were any procedural errors in the collection and preservation of the breath sample that could have affected the reliability of the evidence. Furthermore, the court examined whether the court below had erred in law in convicting Mr Robin based on the evidence provided.

The court found that the evidence presented by the police was insufficient to prove beyond reasonable doubt that Mr Robin was driving a motor vehicle with the prescribed concentration of alcohol in his blood. The court held that the procedures followed by the police in collecting and preserving the breath sample were flawed, as the sample was not immediately sealed and handed over to the police station in the prescribed manner. The court also found that the court below had erred in convicting Mr Robin without considering the procedural errors in the evidence. The appeal was allowed, and the conviction was set aside.

The court ordered that the conviction be set aside and that the matter be remitted to the Magistrates Court for further consideration. The court will hear counsel as to the further orders to be made, including any potential reinstatement of the disqualification period.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This appeal must be allowed and the conviction set aside. I will hear counsel as to the further orders to be made.JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT1 Section 47B provides:“(1) A person must not- (a) drive a motor vehicle; or(b) attempt to put a motor vehicle in motion,while there is present in his or her blood the prescribed concentration of alcohol as defined in section 47A.2 established pursuant to s. 47DA of the Road Traffic Act 1961 (SA)3The alcostest was conducted using a Lion Alcolmeter SD-400. 4 The breath analysis was conducted using a Drager Alcotest 71105 Section 7(2) of the Acts Republication Act 1967 (SA) provides that the Attorney General may issue directions to the Commissioner of Statute Revision to: “(a) achieve uniformity of style in respect of the numbering and designation of and the use of capital letters…and (b) generally improving and bringing into conformity with modern standards of draftsmanship the form or manner in which the law contained in Acts is expressed”. This explains the use of 47(g) rather than 47G. Capital letters have now been introduced to bring South Australia into line with the Commonwealth and the other States. Such changes are made to style and are not of substance.6 This was in the form specified in Schedule 3 of the Regulations.7 There was no evidence about the ‘blood box’ or the nature of this receptacle.8 It may have been held for 12 months by Forensic Science Centre and then destroyed.9 No complaint was made of the procedures undertaken by the police at the time that both tests were conducted. 10 (1978-79) 141 CLR 5411 (2000) 77 SASR 2412 The magistrate considered that the appropriate penalty was the minimum prescribed by law. He convicted Mr Robin and disqualified him from holding or obtaining a driver’s licence for a period of sixmonths to commence from 12.01 am on 7 December 2000. He then suspended the operation of that disqualification pending the hearing and determination of any appeal.13 This finding of unfairness was not challenged by the Crown. 14 (1998) 70 SASR 42915 (2000) 77 SASR 24 at [2]16 (2000) 77 SASR 24 at [74]:17 In this judgment the legislative scheme incorporates both the Act and Regulations.18 (1979) 20 SASR 333 at 337, 339, 340 and 341 see also Jacobs J at 34219 (985-86) 39 SASR 418 at 420. See also Pacillo v Hentschter (1988) 47 SASR 261 at 255, Tann v Schild (1990) 54 SASR 523 at 52920 Unreported S 6375 at 3 Nyland J 21 (1971-1972) 126 CLR 32122 (1998) 200 LSJS 441 at 448-44923 (2000) 77 SASR 24 at [37], [39] and [41]24 [2000] SASC 114 at [21-24], [28]25 (1978-79) 141 CLR 54 at 74, and 7726 (1992-1993) 176 CLR 177 at 202-20327 (1989-1990) 168 CLR 23 at 5628 (1992-1993) 177 CLR 292 at 362-36329 (1998) 62 ALJR 656 at 66630 Duke v The Queen (1942-1991) 180 CLR 508 at 51331 (2000) 77 SASR 24 at [82]32 Judgment No. [2001] SASC 365 at [45], [47-48]

Ratio Decidendi

Legal Principle Established

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