ROWNTREE v Police

[2006] SASC 51

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

ROWNTREE v POLICE

Judgment of The Honourable Justice Bleby (ex tempore)

17 February 2006

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES

Appellant convicted of refusing to comply with reasonable directions of a member of the police force to submit to a breath analysis contrary to s 47E(3) of the Road Traffic Act 1961 (SA) - Whether s 47E(2b) of the Road Traffic Act requires a police officer to inform a person of result of alcotest prior to requiring that person to submit to a breath analysis - whether Magistrate erred in finding that police officer complied with requirements of s 47E(2b) - No requirement under s 47E(2b) to inform persons of the result of alcotest - Police officer complied with requirements of s 47E(2b) - Appeal dismissed.

Road Traffic Act 1961 (SA) s 47E(2ab), s 47E(2b), s 47E(3), s 47G, referred to.
Police v Harvey (1999) 73 SASR 534; Police v Wilkey (2004) 89 SASR 460, applied.
Sparrow v Police [2005] SASC 390, considered.

ROWNTREE v POLICE
[2006] SASC 51

Magistrates Appeal: Criminal

1. BLEBY J (ex tempore) This is an appeal against conviction. The appellant was convicted on 29 November 2005 after a trial before a magistrate in the Mount Gambier Magistrates Court of the offence of refusing to comply with all reasonable directions of a member of the police force to submit to a breath analysis, contrary to s 47E(3) of the Road Traffic Act1961 (“the Act”).

2. The charge arose after the appellant was stopped by Police Constable Parsons whilst driving along a road in Naracoorte during the early hours of 10 July 2004. The appellant was asked to blow into an alcotest instrument. He complied with this request. Constable Parsons informed the appellant that the alcotest was “positive” and that as such he was required to accompany her to a police station to participate in a breath analysis test.

3. The following conversation then took place. The appellant said: “What’s the result?”. Constable Parsons said: “It’s only a guide. It’s a positive result”.  The defendant said: “Well, I will not be doing the test at the police station if you don’t tell me what the result is”.  Constable Parsons said: “I’m not required to tell you. It is a positive result”.

4. The appellant then accompanied Constable Parsons to the Naracoorte Police Station. Once at the police station the appellant was requested to submit to a breath analysis test by Constable Curtis, the operator of the breath analysis machine. During the course of conversation with the appellant Constable Curtis said: “You have submitted to an alcotest which has indicated that there may be present in your blood the prescribed concentration of alcohol. You are required to supply two samples of breath for analysis in accordance with my directions”.  The appellant again indicated that he would not participate in the breath analysis test unless he was told the reading from the alcotest instrument. Constable Curtis repeated that the result was “positive” and warned the appellant as to the consequences of failing to participate in the breath analysis test.

5. The appellant refused to comply and was arrested for failing to comply with the requirement to undertake a breath analysis test. These facts were agreed at the trial. The only witnesses who gave evidence at the trial were Constables Parsons and Curtis. The appellant did not give evidence.

6. It was established in cross-examination of the police officers that both were aware that the appellant would not submit to the breath analysis test unless he was told the reading from the alcotest and that both declined to inform him of the reading. Both officers also stated that it was their view that they were not required to so inform him.

7. Constable Parsons gave evidence at the trial that the reading on the alcotest instrument indicated a concentration of .124 ml of alcohol in 100 ml of blood. That was a figure well over the prescribed concentration of alcohol in the blood for a person in the position of the appellant.

8. The only issue at trial was whether the requirements of s 47E(2b) of the Act, as it was at the time, were complied with. That sub-section prescribed:

   Where an alcotest conducted under subsection (2a) indicates that the prescribed concentration of alcohol may be present in the blood of any person, a member of the police force may require that person to submit to a breath analysis.

9. The Magistrate in his reasons relied on the provisions of subsection (2ab) as they presently stand. That subsection was in quite different terms at the relevant time. That constituted an error on the part of the magistrate, but it is an error of no consequence. For present purposes the provisions of the present subsection (2ab) do not differ materially from the provisions of subsection (2b) as they were at the time of the alleged offence.

10. The argument advanced by counsel for the appellant was that under the sub-section Constable Parsons was required to inform the appellant of the actual reading produced by the appellant blowing into the alcotest instrument. It was argued that the requirements of the subsection were not met merely by informing the person being tested that the result is “positive”.

11. That argument was rejected by the Magistrate, who found the appellant guilty and imposed a penalty of a fine of $700 and ordered the payment of court fees and levy totalling $143 and prosecution costs of $250. The appellant was disqualified from holding or obtaining a driver’s licence for a period of 12 months. The fine and disqualification are the minimum required by s 47E(3) of the Act.

12. The appellant appeals against the conviction on the following grounds.

    1.That police officer Parsons in informing the appellant that he had a positive reading after submitting to an alcotest failed to comply with the provisions of s 47E(2b) of the Road Traffic Act1961 (as amended).

    2.That the learned Magistrate’s finding that the police officer was not required to inform the appellant of the reading recorded by the alcotest was wrong as a matter of law.

    3.That Police Officer Parsons had failed to comply with all requirements to direct that the appellant submit to a breath analysis test.

    4.That the learned Magistrate erred as a matter of law in finding that the appellant had committed the offence of failing to submit to a breath analysis test.

13. In my opinion the appeal must be dismissed. There is no requirement in s 47E that a police officer inform a person in a specified manner that an alcotest has indicated that there may be present in their blood the prescribed concentration of alcohol. The power in s 47E(2b) to require a person to submit to a breath analysis is predicated on the alcotest indicating that there may be present in the blood of the person the prescribed concentration of alcohol. There is no requirement that the person be informed in any particular way, or indeed, at all.

14. It was not inappropriate that the appellant be told that the test was positive. It might have been more informative if he had been told that the test indicated that the prescribed concentration of alcohol may be present in his blood, but that was not necessary. There is no unfairness to a person in the appellant’s position by failing to inform the person of the alcotest reading, such as to justify exclusion of the evidence. Nothing the police officer says about the result of the alcotest can affect the conduct of the driver to his detriment.

15. Evidence of the result of an alcotest instrument is not conclusive evidence of a breach of s 47B of the Act. Evidence of the result of a properly conducted breath test is.[1]  The result of an alcotest, being a less reliable instrument, can only be a guide which in this case justified the requirement for a breath test.  Disclosure of the reading was not necessary and could generate in the mind of the person tested uncertainty or confusion if it did not match the result of the breath analysis, which must be disclosed or if it was in fact below the prescribed concentration. It may be that a reading close to but just below the prescribed concentration would indicate that the prescribed concentration may be present.  If the alcotest instrument in fact indicated a concentration above that prescribed, the requirement of subsection (2b) was satisfied.

    [1] See s 47G of the Road Traffic Act 1961.

16. On the evidence in this case the alcotest clearly indicated the possible presence of the prescribed concentration of alcohol in the appellant’s blood. It could do so in any number of ways.[2] In this case the unit displayed a reading in terms of a number of grams of alcohol in 210 L of the person’s breath. However, it could have indicated the required information by, for example, displaying a red or some other coloured light. There is no requirement that the alcotest indicate the information by displaying a reading in the form grams of alcohol per 210 L of breath. There is no doubt that strict compliance by police officers with the requirements of s 47E is necessary. However, they are not required to go beyond what the section requires.

    [2] Sparrow v Police [2005] SASC 390.

17. In Police v Harvey[3] in commenting on the statutory scheme the court said at

    540:

    Care should be taken not to read additional requirements into the legislation lest it defeat the Parliamentary intention.

    [3] (1999) 73 SASR 534.

18. I therefore hold that there was compliance with s 47E(2b) in the action taken by Constable Parsons. The appellant was thereafter obliged to comply with the reasonable directions of Constable Parsons and Constable Curtis. There was no suggestion that those directions were otherwise unlawful or unreasonable.

19. I merely add that before he was required to undertake a breath test the appellant was in fact told all that he could possibly be required to be told, if anything, under subsection (2b) by what Constable Curtis said to the appellant at the Naracoorte Police Station when he indicated to the appellant the effect of the alcotest in the terms stated in s 47E(2b).

20. The appellant bears the onus of proving on the balance of probabilities that in the circumstances of the case there is good cause for his refusal to comply with the directions of the police: Police v Wilkey.[4]

    [4] (2004) 89 SASR 460.

21. The magistrate was correct to find that the appellant had not established good cause for his refusal. The finding of guilt by the magistrate was therefore correct. The appeal is dismissed.