SA Police v Jacqueline Ann Erwin No. Scgrg-96-2333 Judgment No. 6375 Number of Pages 7 Evidence

[1997] SASC 6375

IN THE SUPREME COURT OF SOUTH AUSTRALIA

NYLAND, J

CATCHWORDS:

Evidence -Bunning v Cross discretion - evidence of blood alcohol level - appeal against order of a magistrate dismissing charge against the respondent under s47B of the Road Traffic Act - Road Traffic Act Regulations regarding procedure for taking of and dealing with blood sample after breath testing not complied with - Bunning v Cross discretion available notwithstanding absence of illegal or improper conduct on the part of the police - regulations governing blood sample important safeguard of the rights of the accused person - failure to comply with regulations can in the circumstances be categorised as unfair - appropriate circumstances for the exercise of a Bunning v Cross discretion to exclude the evidence of the breath analysis - no appealable error demonstrated. Road Traffic Act 1961ss47B, 47A, 47E, 47G, 47I, referred to. Bunning v Cross (1977-1988) 141 CLR 54; The Queen v Ireland (1971-1972) 126 CLR 321; Brain v Froude (1992) 61 SASR 65, applied. R v Ostojik (1978) 18 SASR 188; Jones v Morley (1981) 29 SASR 57; Uznanski v Searle (1981) 26 SASR
388, discussed.

HEARING:

ADELAIDE, 18 February 1997 (hearing), 2 October 1997 (decision)

#DATE 2:10:1997

#ADD 7:10:1997

Appearances:

Appellant:

Counsel: Ms A Mclean

Solicitors: Crown Solicitors Office (SA)

Respondent:

Counsel: Mr D Peek

Solicitors: Elston & Gilchrist

Order: appeal dismissed.

NYLAND J

This appeal is against an order of a magistrate dismissing a charge against the respondent that she was in breach of s47B of the Road Traffic Act 1961 (the Act). The respondent was charged on complaint that on 28 June 1996 at Mile End in the State of South Australia, she drove a motor vehicle on a road, namely Henley Beach Road, while there was present in her blood the prescribed concentration of alcohol as defined in s47A of the Act, contrary to s47B of the Act. It was further alleged in the complaint that the concentration of alcohol was .109 grams in100 millilitres of blood. The respondent appeared before a stipendiary magistrate in the Magistrates Court at Adelaide and pleaded not guilty.

The essential facts relating to the charge against the respondent were not in dispute. At about 10.12 pm on 28 June 1996, the respondent, while driving her motor vehicle on Henley Beach Road, was pulled over at a breath testing station situated at Henley Beach Road, Mile End. The magistrate found that the station was lawfully established and that the appellant was lawfully required to submit to a breath analysis. The respondent submitted to the breath analysis at 10.38 pm. The magistrate found that it was an analysis conducted by an authorised person using an approved instrument that was in proper order and was properly operated. The respondent's alcotest showed a concentration of alcohol in her blood at a level of .109. The police at the testing station advised the respondent of her right to have a blood test taken. She was informed that she would be issued with a blood test kit, which she should take promptly to a hospital or medical practitioner. She was told that pursuant to the blood test procedure, a sample of blood would be divided and sealed into two containers, that she would have to sign a form that would be given to her by the medical practitioner and that one of the sealed containers would be given to her to enable her to make her own arrangements to have the blood analysed and the blood in the other container would be analysed by the State Forensic Science Centre.

The respondent went with a friend in a taxi to the Royal Adelaide Hospital. She arrived there at approximately 11.30 pm. She subsequently saw a doctor to whom she handed the blood test kit. The doctor took a sample of her blood. He then returned and had her sign a form. The respondent said in evidence that the time recorded on the form of 4.40 am on 29 June 1996 accorded with her memory as to when the blood was taken from her. She said that the document was completed in her presence and then handed to her. The form was eventually admitted into evidence as Exhibit D1.

The respondent told the court that she was not given nor offered a sample of blood by anyone at the hospital that night. The respondent subsequently received a notice from the State Forensic Science Centre advising that the result of the analysis was that the sample contained not less than .070 grams of alcohol per 100 millilitres of blood.

It is clear from Exhibit D1 that the respondent was not provided with a container of her blood as required by the Act. Part A of the form (the certificate completed by the medical practitioner) deletes the statement "I personally gave one container to the patient". Part C of that form (which relates to the patient's sample) is marked with a cross. Written adjacent thereto in the doctor's handwriting is the comment "Police Box 5". The only rational inference to be drawn from those matters is that the medical practitioner erroneously forwarded the respondent's sample to the police, rather than providing it to the respondent.

The learned magistrate found that the police at the testing station had complied with all the requirements and procedures relating to breath analysing instruments. He was also satisfied that the police were not required to supervise the taking, handling or distribution of the blood sample taken by the medical practitioner. He found, however, that the respondent had not received the container of blood which should have been delivered to her in accordance with the Regulations.

In reliance on Bunning v Cross the magistrate exercised his discretion in favour of the respondent and excluded the evidence relating to the result of the breath analysis. As a result thereof the charge was not proved to the requisite degree and the complaint was dismissed.

The appellant has appealed against that decision on the ground that the learned magistrate erred in excluding the result of the breath analysis to which the respondent submitted on 28 June 1996.

Ms McLean, who appeared for the appellant on the hearing of the appeal, submitted that the magistrate was in error in purporting to use the Bunning v Cross discretion to exclude the breath analysis results. She argued that the discretion only arose where evidence was unlawfully or improperly obtained. This required the court to balance the competing requirements of public policy on the one hand, of bringing to conviction a wrongdoer, and the undesirable effect of approval or encouragement given to unlawful conduct of those whose task it is to enforce the law. She submitted that in this case there was no evidence of unlawfully or improperly obtained evidence presented by the prosecution with respect to the breath analysis. Any unlawfulness related only to the fact that the medical practitioner did not provide the respondent with a sample of her blood as required by Regulation 6 of the Regulations.

Mr Peek who appeared for the respondent in the proceedings before the magistrate and on this appeal initially submitted that the question of the existence of the discretion did not arise for my consideration as the prosecution had not denied the existence of the discretion in the proceedings before the magistrate. The submission had simply been that the discretion should not be exercised in favour of the respondent, particularly in view of the contention that the problem had not been caused by the police.

In the course of argument, I was provided with a copy of an affidavit of Robert Marsh, the police prosecutor who prosecuted this complaint. He denied making the concession asserted by Mr Peek. I consider, however, that it is unnecessary for me to resolve this particular conflict. There appears to have been some confusion relating to this matter and therefore, as I indicated to counsel in the course of hearing the appeal, I propose to determine this appeal on the grounds sought by the appellant, namely, to determine firstly whether there was a discretion to be exercised, and secondly, if a discretion existed, whether the magistrate had erred in exercising it in favour of the respondent.

The appropriate starting point for a consideration of the issue of the existence of the discretion is The Queen v Ireland . In that case, the High Court considered the admissibility of evidence illegally obtained, and in particular evidence of police interrogation after a refusal by a suspected person to answer further questions and of photographs and a medical examination made unlawfully. Barwick CJ said (at p335):

"Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."

In Bunning v Cross the High Court discussed and applied Ireland (supra). Bunning v Cross was concerned with a breathalyser test. In the first instance, the magistrate found that the patrolman, who had required the defendant to undergo the test, had not had a reasonable suspicion that the driver was under the influence of alcohol and that the breathalyser evidence had therefore been obtained unlawfully and was inadmissible. The matter eventually went on appeal to a single judge and then the Full Court. The Full Court held that the magistrate had misdirected himself upon the criteria by which admissibility should be determined, and that he had wrongly excluded the evidence. The Court then remitted the case back to the magistrate. The driver appealed to the High Court. The High Court held that the evidence of the breathalyser test was admissible on the ground that the considerations affecting the reception of evidence obtained in contravention of the requirements of law, were not offended by admitting the evidence: the unlawful conduct of the patrolman had resulted from a mistake, not from a deliberate or reckless disregard of the law. Further, the nature of the illegality had not affected the cogency of the evidence, cogency being a factor in determining the admissibility of evidence obtained illegally, where the illegality arises only from mistake.

Barwick CJ said at p64:

"The question is whether the public interest in the enforcement of the law as to safety in the driving of vehicles on the roads and in obtaining evidence in aid of that enforcement is so outweighed by unfairness to the applicant in the manner in which the evidence came into existence or into the hands of the Crown that, notwithstanding its admissibility and cogency, it should be rejected."

In this case as Ms McLean correctly pointed out, there was no suggestion of illegal or improper conduct on the part of the police as to the taking of the sample at the breath testing station. The impropriety, if it existed, occurred at the hospital when the doctor failed to comply with the regulations relating to the provision to the respondent of the blood sample. In that situation, does the Bunning v Cross discretion arise? In the circumstances of this case, did the discretion arise in order to exclude on the grounds of unfairness. In Bunning v Cross the breach of legislation related to the initial requirement to provide a sample. In the course of their joint judgment, Stephen and Aickin JJ made it clear that their remarks were made on the basis that the safeguards provided by the legislation to protect the defendant had been complied with. They said at p77:

"If a 'breathalyzer' test, properly performed and with all attendant safeguards observed, discloses an excessive level of alcohol in a motorist's blood it is in no sense 'unfair' to use it in the conviction of the motorist, just as it is surely not 'unfair' to use, against a person accused of having in his possession weapons or explosives, evidence obtained by means of an unlawful body search so long, once again, as that search is so conducted as to provide all proper safeguards against weapons or explosives being 'planted' on the accused in the course of the search."

Further, at p80, they said:

"Finally it is no doubt a consideration that an examination of the legislation suggests that there was a quite deliberate intent on the part of the legislature narrowly to restrict the police in their power to require a motorist to attend a police station and there undergo a 'breathalyzer' test. This last factor is, of course, one favouring rejection of the evidence. However it is to be noted that by the terms of s66(1) the legislation places relatively little restraint upon 'on the spot' breath testing of motorists by means of an 'alcotest' machine. It is essentially the interference with personal liberty involved in being required to attend a police station for breath testing, rather than the breath testing itself (albeit by means of a more sophisticated appliance), that must here enter into the discretionary scales."

The legislation requiring a person to submit to a breath analysis is mandatory. Section 47E(3) provides for penalties with respect to a failure by a defendant to comply with all reasonable directions of a member of the police force in relation thereto. The requirement as to the provision of a blood sample is a statutory requirement designed for the protection of the person concerned. Section 47G of the Act provides that where the requirements and procedures in relation to breath analysing instruments and breath analysis under the Act 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.

Section 47G(1a) provides that no evidence can be adduced in rebuttal of the presumption created by sub-section (1) except - "(a) 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 47I or in accordance with the procedures prescribed by regulation; and

(b) evidence as to whether the results of the analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant."

In those circumstances I consider that the failure to comply with such an important statutory requirement can be categorised as being unfair and therefore does give rise to the discretion to exclude on the grounds of unfairness. I also agree with the submission made by Mr Peek that whether one is considering the exercise of a "fairness" discretion or a discretion more concerned with breach or non-performance of a statutory requirement, it is not necessary to establish that the police themselves were responsible for the breach or the non-performance. In Bunning v Cross, Stephen and Aickin JJ referred to conduct by "the authorities" not just by the police. In some cases the unfairness may arise from the objective impact of the state of affairs of an accused person, quite apart from any causal behaviour or failure by the police. An example of that sort of situation is the mental state of self-induced intoxication of the accused: R v Ostojik . I do not accept Ms McLean's submission that in this case the medical practitioner was an agent of the respondent as she had been at liberty to choose the medical practitioner who conducted the blood test. Parliament has prescribed that medical practitioners are to be entrusted with the obligation of carrying out certain duties under the Act and has imposed upon them strict duties of compliance in such matters as the manner in which the sample of blood is taken and how the sample should be dealt with. For example, s47I(15) of the Act provides that a medical practitioner who fails, without reasonable excuse, to comply with the provision of or to perform any duty arising under that section is guilty of an offence. Although there does not appear to be any comparable section making failure to comply with the Regulations an offence, the clear intent of the legislation is for practitioners to strictly adhere to the provisions of the legislation which must include the Regulations. The Regulations include mandatory duties on the part of the medical practitioner which require the delivery of the blood samples to the person from whom the sample was taken as well as the member of the police force. The person from whom the sample is taken has no say in the matter. The factual situation which occurred in this case is unusual but as Cox J said in Brain v Froude at p74:

"There can be nothing mechanical about this sort of decision. It must be made according to the particular merits or the case in hand."

I am therefore satisfied that the circumstances in this case gave rise to a Bunning v Cross discretion to exclude the evidence of the breath analysis.

Ms McLean further argued, however, that if the magistrate had been incorrect in assuming that the discretion was applicable, he had erred in failing to have appropriate regard to the considerations which govern the exercise of the discretion and the facts relating to those considerations. She submitted: (a) that the onus was on the defendant to establish a state of facts on which the discretion was to be exercised on the balance of probability;

(b) that there was no evidence of overt disregard of the statutory safeguards (either by the police or the doctor) in respect of the blood sample;

(c) the evidence of the breath analysis itself was untainted by any illegality;

(d) the offence was a serious offence, particularly because it was aimed at reducing road accidents;

(e) there was or would be available evidence of blood alcohol analysis in relation to one blood sample taken;

(f) there was no evidence that the other sample was sought by the defendant when she became aware of her rights;

(g) the magistrate did not consider and balance the competing public policy considerations.

In House v The King , the Court said:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellant court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

See also Jones v Morley and Uznanski v Searle (1981) 26 SASR 388.

The magistrate's remarks in this case are relatively brief. They were, however, ex tempore remarks delivered by a very experienced magistrate at the conclusion of detailed argument as to these various issues. It is to be presumed, therefore, that he took into account the totality of the circumstances, including all of the material placed before him, even though he did not specifically refer to all of them.

In my opinion, the matters to which the magistrate referred in the course of his remarks were amply sufficient to justify the exercise of the discretion in this particular case. I therefore consider that appealable error has not been demonstrated and the appeal should be dismissed. In view of the dismissal of the appeal it is unnecessary for me to consider matters raised by the respondent in the notice of alternative contentions.