SA Police v Philip Michael Astley No. Scgrg-97-530 Judgment No. 6268 Number of Pages 13 Criminal Law and Procedure (1997) 69 Sasr 319

[1997] SASC 6268

IN THE SUPREME COURT OF SOUTH AUSTRALIA

PERRY, J

Criminal law and procedure - evidence - driving with prescribed concentration of blood alcohol - attempted use by the prosecution of certificates furnished under s47G of the Road Traffic Act 1961 as to the administration of an alcotest and as to proof that the apparatus used was of a kind approved by the Governor under the Act - held that an officer giving a certificate under s47G(3a) does not need to have personal knowledge of the matters certified - the fact that he did not have such knowledge was not "proof to the contrary" within the meaning of the subsection - dismissal of complaint reversed on appeal. Road Traffic Act 1961s47G(3a), referred to. Dann v Stirzaker (1988) 48 SASR 418; SA Police v Oakes Perry J, 19 February 1996, unreported, judgment No 5464, available in SCALEplus; Matthews v SA Police Nyland J, 29 February 1996, unreported, judgment No 5470, considered.

Criminal law and procedure - evidence - discretion to exclude evidence unlawfully or improperly obtained - assuming that the prosecution failed to prove that a certificate that an alcotest used in investigating an alleged offence of driving with the prescribed concentration of blood alcohol was of a kind approved by the Governor under the Act and accordingly was admissible under s47G(3a) of the Road Traffic Act, the learned Magistrate failed to give proper weight to the cogency of the evidence of the subsequent breath analysis and other circumstances which should have led to the refusal of any application to exclude the result of the breath analysis in the exercise of his discretion - observations as to the factors relevant to the exercise of the exclusionary discretion in such circumstances. Lee (1950) 82 CLR 133; Brain v Froude (1993) 61 SASR 65; Bunning v Cross (1978) 141 CLR 54, considered.

ADELAIDE, 21 May 1997 (hearing), 23 July 1997 (decision)

#DATE 23:7:1997

#ADD 28:7:1997

Appearances:

Appellant:

Counsel: Ms K Hodder

Solicitors: Crown Solicitor (SA)

Respondent:

Counsel: Mr D Edwardson

Solicitors: M Dadds

Order: appeal allowed.

PERRY, J:

This is an appeal by the police against the dismissal of a complaint against the respondent that on 11 August 1996 at Kent Town he drove a motor vehicle on Dequetteville Terrace, while there was present in his blood the prescribed concentration of alcohol as defined in s47a of the Road Traffic Act1961 ("the Act"). It was alleged that the concentration of alcohol was .087 grams in 100 millilitres of blood.

The complaint was heard in the Magistrates Court sitting at Adelaide. The learned Chief Magistrate, who dealt with the matter, founded his dismissal of the complaint upon a ruling against the admissibility in evidence of a certificate which the complainant sought to tender. The certificate purported to certify that an instrument known as an Alcotest, which was used during the investigation of the alleged offence, was of a kind approved under the RoadTraffic Act 1961 ("the Act"). The principal question on the appeal is as to the correctness of the learned Chief Magistrate's ruling.

The learned Chief Magistrate heard evidence from three police officers called on behalf of the complainant, Sergeant Dennis, Constable May and Senior Constable Tuckey. The respondent did not give or call evidence.

After the close of the prosecution case the learned Chief Magistrate ruled the certificate in question to be inadmissible and thereupon dismissed the complaint.

Sergeant Dennis gave evidence of the setting up of the random breath test station on the east side of Dequetteville Terrace near Prince Alfred College at about 8.15 pm on the night in question.

Soon after the establishment of the station, namely, at about 8.24 pm, Constable May stopped the respondent, who was riding a motor cycle south on Dequetteville Terrace. The respondent was asked to blow into the apparatus known as an Alcotest. According to the evidence of Constable May, it recorded a positive reading. He then had the following conversation with the respondent: "Q. Have you had a few drinks, mate?

A. Yeah, about four schooners.

Q. How long ago?

A. About 20 minutes ago.

Q. I have recorded a positive reading. Just turn the bike off and hop off, thanks.

A. Okay.

Q. I must remind you that you cannot take anything by way of mouth until the completion of the breath analysis test. Do you understand?

A. Yeah, sure.

Q. Do you have your licence on you?

...........

Q. Can you recall exactly when you had your last drink?

A. Yep. 8.05 is when I finished off my last drink.

Q. Were you drinking full strength beer?

A. Yes.

Q. When did you have your first (sic) drink?

A. Would have been about 6.30.

................

Q. Where were you drinking?

A. At the Maid and Magpie.

Q. Were you drinking with anyone at all?

A. A couple of friends."

The respondent went on to confirm that he was not taking medication and said that he had had his last meal at about one o'clock. He said that after leaving the hotel he called at a friend's house at Hackney and had then driven along Hackney Road.

After that conversation, the respondent was asked to sit in a bus shelter immediately alongside the breath testing station. He remained there until the breath analysis unit arrived. It seems likely that this was at about 8.50 pm.

At 8.53 pm Constable May then lead the respondent from the bus shelter to the van in which the breath analysis station was established. It was operated by Senior Constable Tuckey. After giving some details to Senior Constable Tuckey, Constable May remained in the van while the breath analysis was administered. The precise time it was administered was 9.07 pm. The breath analysis instrument recorded a reading of .087 grams per 100 millilitres of blood.

According to the evidence of Senior Constable Tuckey, after advising the respondent of the result of the test, he said:

"Q. Do you want a blood test kit."

To which the respondent answered:

"No, no, it's a fair cop."

At this stage I will refer to various sections of the Act which it is necessary to have regard to in order to understand the question raised by the appeal.

S47DA sets out procedures by which breath testing stations may be established for the purposes of the Act. The respondent does not contend that the breath testing station in question was not set up in accordance with the section.

S47A defines "Alcotest" to mean a test "by means of an apparatus of a kind approved by the Governor by which the presence of alcohol in the blood of a person who exhales into the apparatus is indicated ....".

S47E provides in part: "47E(1) ...........

(2) ...........

(2a) A member of the police force may require the driver of a motor vehicle that approaches a breath testing station established pursuant to s47DA to submit to an alcotest.

(2b) 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."

(3) .........."

The respondent concedes that he was the driver of the motor vehicle "that approaches a breath testing station" within the meaning of s47E(2a).

S47G establishes a number of evidentiary aids. One of them is intended to be a provision in aid of proof that the apparatus referred to in the certificate is of a kind approved by the Governor, so as to satisfy that element in the definition of an "Alcotest". The subsection which deals with that is s47G(3a), which provides:

"A certificate purporting to be signed by a member of the police force and to certify that an apparatus referred to in the certificate is or was of a kind approved under this Act for the purpose of performing alcotests is, in the absence of proof to the contrary, proof of the matter so certified."

There is a similar provision, s47G(3)(b), which operates in aid of proof that the breathalyser administered (in this case by Senior Constable Tuckey) following the alcotest was a breath analysing instrument within the meaning of the Act, and that it was properly functioning. Such a certificate was signed by Senior Constable Tuckey (P6). That certificate was tendered in evidence, and no question arises either as to the propriety of the receipt into evidence of that certificate, or as to its efficacy.

S47G(3b) provides for another form of certificate relating to an alcotest. It reads:

"A certificate purporting to be signed by a member of the police force and to certify that a person named in the certificate submitted to an alcotest on a specific day and at a specific time and that the alcotest indicated that the prescribed concentration of alcohol may then have been present in the blood of that person is, in the absence of proof to the contrary, proof of the matters so certified."

Constable May purported to give a certificate pursuant to s47G(3a) relating to the apparatus used by him when he first apprehended the respondent. It is as to that certificate that the argument on the appeal centres.

In fact, there were two certificates purporting to have been given by Constable May, both of which were tendered and received de bene esse. Eventually, both were rejected by the learned Chief Magistrate.

The first was P3. In fact, this is one document comprising two certificates. The first certificate purported to have been given under s47G(3b), wrongly referred to in the heading to the certificate as 47G(3B). That certificate reads: "PD279 NORWOOD PATROLS Random Breath Test PRO FORMA

CERTIFICATE OF SUBMISSION OF A PERSON TO AN ALCOTEST

(Section 47G(3B) Road Traffic Act)

I, Simon Adrian May, a member of the Police Force in and for the State of South Australia, certify that Philip Michael Astley 32 years DOB 5/8/64 Computer Programmer 58 Lorne Ave MAGILL submitted to an alcotest this 11th day of August 1996 about 8.24 pm and that the alcotest indicated that the prescribed concentration of alcohol may then have been present in the blood of that person.

Unit No 29599. Const 3715/4 Signature Rank ID No (a member of the police force)"

The bottom portion of the same document, that is, P3 is headed "Certificate pursuant to Section 47D(3A)". Again, the heading is wrong. It should have referred to s47G(3a). That portion reads: "CERTIFICATE PURSUANT TO 47D (3A) OF THE ROAD TRAFFIC ACT, 1961 - 1981

"I, Simon Adrian May, a member of the Police Force in and for the State of South Australia, hereby certify that the apparatus,

LION ALCOMETER S-DS

being unit number 29599

was of a kind approved under the Road Traffic Act 1961-1981, for the purpose of performing alcotests.

Const 3715/4 Signature Rank ID No (a member of the police force)"

Evidence was given in the Magistrates Court by Constable May that after filling out the bottom portion of P3, and before giving evidence, his attention was drawn to the fact that it was incorrect. He was advised by Sergeant Freckleton from the Prosecution Unit that the form referred to an alcometer, when the approved apparatus was an alcolmeter. More importantly, the correct description was Lion Alcolmeter S-D2, not S-DS.

"Lion Alcolmeter S-D2" is an apparatus approved by the Governor pursuant to s47A of the Act, as appears from the Gazette dated 12 April 1990, which was tendered before the learned Chief Magistrate and marked P9.

On the morning before the hearing commenced, Constable May was asked by Sergeant Hills, the Assistant Police Prosecutor conducting the hearing of the complaint, to sign another certificate, designed to overcome the perceived deficiencies in P3. The new certificate was duly completed by him. During the course of the hearing it was admitted de bene and marked P4. It reads: "CERTIFICATE PURSUANT TO 47g(3a) OF THE ROAD TRAFFIC ACT, 1961-1981

"I, Simon Adrian May, a member of the Police Force for the State of (name) South Australia, hereby certify that the apparatus

* A. Known as the "Alcotest" which comprises an indicating tube (having thereon the word "alcotest"), a mouth piece and measuring bag and usually supplied in a container having thereon the words * 'ALCOTEST R 80" or "ALCOTEST R 80/A'

* B. 'DRAGER ALCOTEST 7310'

* C. 'LION ALCOLMETER S-D2'

* D.

being unit No 29599 was of a kind approved under the Road Traffic Act, 1961, for the purpose of performing alcotests.

Signature Const 3715/4

* Delete or insert as required G.G. refs. 918/73 p851; 20/11/75 p2803; 14/1/82 p85 12/4/90 p1091 Revised 21/11/94"

On exhibit P4, Constable May drew a ring around "*C. LION ALCOLMETER S-D2" when he signed the certificate, thereby designating that apparatus as the instrument to which the certificate was intended to relate.

Constable May was cross-examined as to the circumstances in which exhibits P3 and P4 came into existence. He admitted that both were pre-printed pro-forma documents, in which he simply inserted the variable particulars such as his name, before signing.

Part of the cross-examination was as follows: "Q. When you filled in this form, you didn't have to, nor did you, address in your own mind whether there was any problem with the form itself.

A. No.

Q. You simply assumed the form was accurate, filled in what you were asked to fill in or the blank spaces, and that's what you have done on this occasion.

A. That's correct."

As to P4, his evidence was in part: "Q. The evidence you have given in relation to the first form, I take it equally applies to the second.

A. Yes.

Q. You were asked earlier and you had a form produced to you, namely exhibit P4. Who presented you that certificate.

A. The prosecutor.

Q. Which prosecutor.

A. Mr Hills.

Q. Before you had spoken to Mr Hills this morning, were you contacted by Sergeant Freckleton from the prosecution section.

A. Yes, I was.

Q. Did he point out to you what he perceived to be problems, inaccuracies if you like, with the form that you completed back on 11 August.

A. Yes, he did.

Q. Did he ask you whether you could complete another form, that is the form that was presented to you by Sergeant Hills this morning.

A. I wasn't asked at the time to complete another form.

Q. But Sergeant Freckleton identified in the form what he thought were errors.

A. I was advised that there was an error there.

.................

A. I believe he said there was an error with the section of the Act on the form.

Q. What about the type of apparatus.

A. I believe he also said there was a problem that on the form it was listed as an alcometer, where in fact it was an alcolmeter.

Q. You were unaware of any problem with the form.

A. At the time I was unaware, yes, I was just using a pro forma form.

Q. You were unaware of any difficulty until Sergeant Freckleton told you about the problem.

A. Yes.

Q. In other words, you then have another prosecutor, Senior Sergeant Hills who comes along, and he presents a form to you and says 'Will you complete this form for me?'

A. That's correct.

Q. Based on what you had been told by Sergeant Freckleton in that conversation, you then recomplete the form.

A. A new form, yes.

Q. You do that because of what you have been told by Sergeant Freckleton.

A. That's correct.

Q. In this case who was present when you completed the form.

A. Senior Sergeant Hills.

Q. Did he identify any problem with that form that was put in front of you, or did he tell you which parts to fill in, which parts to circle and so on.

A. I wasn't advised which parts to fill in the circle. I did that, the same as I had done the other form.

Q. You circled it presuming, given the conversation you had had, that this form would correct the error that apparently existed in the first form.

A. That's correct.

Q. What I'm getting at is you, yourself, when you completed this form, didn't have any specific knowledge of any error.

A. No.

Q. You didn't make any note, did you, in your notes of precisely what unit you were using that day, apart from the unit number.

A. No, I didn't.

Q. So you can't go back to your notes and look at a particular endorsement you might have made as to the type of unit used.

A. No, I couldn't.

Q. Really, all you did was simply complete this form and sign, again as a certification, because of conversation you had had with Sergeant Freckleton and because Senior Constable Hills asked you to complete this form.

A. That's correct."

The gist of the argument presented to the learned Chief Magistrate, and repeated on appeal by Mr Edwards of counsel for the respondent, is that the learned Chief Magistrate properly excluded exhibit P3 from evidence as the details in it were not correct, and that he correctly exercised his discretion to exclude P4 as Constable May was not, having regard to his cross-examination, personally aware of some of the matters certified in the form.

In his reasons for ruling delivered ex tempore on 13 March 1997, after dealing with the history of the preparation of both certificates, the learned Chief Magistrate dealt with the two exhibits in this way: "The deficiencies in P3 I've referred to, in particular to the instrument that was being used was, in that certificate, being described as a 'Lion alcometer S-DS'. In cross-examination, witness May conceded that he had not turned his mind to the printed pro forma part of that certificate, addressing his mind only to those spaces in which he needed to add information - his name, the serial number of the unit, and, subsequently, his signature. When he completed P4, he relied only either on what he was asked to do by the prosecution or, in the alternative, what was already in P3.

................

At the time that the witness completed P4, he simply had no knowledge at all as to whether the instrument he had used on the night in question was or was not a 'Lion alcolmeter S-D2'. I believe, therefore, that there are serious grounds for questioning that exhibit.

Quite apart from that issue, there is also, however, a question of relevance of the certificate. The question arises as to what use may be made in this trial of a certificate certifying that a Lion alcolmeter S-D2 is an approved apparatus, in the absence of some evidence that on the night in question Constable May was using such an instrument. In my view there is no such evidence.

...............

Reference has been made to the fact that the two certificates, P3 and P4, contain a serial number of the unit being used. In my view, that doesn't advance the cause one way or the other. As far as I can see, nothing contained in s47G(3a) makes that number a part of the certificate but, even if it did, there is no evidence before me that allows me to draw an inference that the number 29599 in some way establishes or assists in establishing that a Lion alcolmeter bears that number.

It seems to me, therefore, that there are two separate bases on which Mr Edwardson's objection to the admission of P4 should be upheld. I rule that the evidence is not admissible.

....................

In my view, now that the tender of exhibit P4 has been rejected, there is no evidence on which the defendant could be convicted. The evidence of the outcome of the breath analysis must be excluded in the exercise of my discretion as that evidence was not lawfully obtained."

In my opinion, the reasoning of the learned Chief Magistrate which finds expression in those passages is flawed in a number of respects.

As to the first of the passages which I have reproduced in italics in the above quoted extract from the learned Chief Magistrate's reasons, there was a chain of evidence which established that the instrument used was a Lion Alcolmeter S-D2. As to this, Constable May said in re-examination: "Q, When you filled in the initial certificate with respect to the instrument that you used, how did you obtain the number.

A. The number is on a sticker on the front of the testing device.

Q. Did you copy that number and put it onto the certificate.

A. Yes, I did.

Q. Is that the same number that you transposed onto the certificate you prepared this morning.

A. That's correct."

It is clear from that passage of evidence, that on the night in question Constable May noted the serial number on what became P3 from the sticker on the front of the instrument and then transposed the same number (29599) onto the certificate which became P4. The latter exhibit, after referring to "*C. LION ALCOLMETER S-D2", continues "being unit No 29599". There is no reason why a certificate under s47G(3a) may not identify a particular apparatus by reference to its "unit" number. The section clearly permits a certificate to be given either as to machines of a certain general description or as to a particular machine within that description. Even though there was no express evidence to that effect, in the absence of evidence to the contrary, the court would be entitled to assume that a "unit" number on a sticker on a machine would be peculiar to that machine. If I am wrong in that, in the absence of proof to the contrary, the certificate would in that case operate as evidence that all apparatus with that unit number was of a kind approved under the Act.

As to the observation by the learned Chief Magistrate that there was no evidence that Constable May was using "such an instrument", the words in the certificate are, in part, "C Lion Alcolmeter S-D2 ... being unit No 29599". When this is coupled with Constable May's evidence that he copied the unit number from the machine he was using that night, the chain of proof as to that aspect of the matter was complete.

Furthermore, s47G(3a) renders admissible as proof of the matters certified, a certificate "purporting to be signed by a member of the police force" which certifies as to the matters set out in the subsection. In my opinion, it is neither essential for the admissibility of the certificate that it be signed by the member of the police force who administered the alcotest, nor is it necessary that the person who signs the certificate is able personally to confirm that the apparatus used answers the description in the certificate. No doubt one of the purposes of the statutory certificate is to obviate the need for a police officer, operating in the field with an instrument labelled a "Lion Alcolmeter S-D2, to undertake an independent inquiry, which would in any event be a difficult exercise, to establish that the machine is true to label.

It is true that on one construction of his evidence, Constable May did not say in as many words that he not only read the serial number on the machine, but ascertained that it was described as a "Lion Alcolmeter S-D2". But he put a ring around those words on the certificate. That he did so is evidence of a belief by him that that was a correct designation of the machine. There is no evidence to lend any support to the view that he simply put a ring around whichever of the alternatives on the pro forma took his fancy.

The certificate is admissible if on its face, it complies with the subsection. Once admitted it operates as proof of the matters certified "in the absence of proof to the contrary". The certificate does not have to certify that the person giving it has personal knowledge of its contents. Putting it another way, evidence that the person giving the certificate did not have such knowledge is not "proof to the contrary" of the facts asserted in the certificate.

A somewhat similar question was addressed by me in a different statutory context in Dann v Stirzaker. That case concerned an appeal from the dismissal of a complaint asserting a breach of s147(3) of the Road Traffic Act, the gist of the offence being that a semi-trailer driven by the defendant was said to be carrying a gross combination mass exceeding the limits imposed by that section.

S175(3)(ab) of the Act provides as an aid to proof of requirements as to the determination of mass that a statement, inter alia:

"... produced by the prosecution and purporting to be signed by a person in charge of a weighbridge or other instrument for determining mass and stating that the weighbridge or instrument complies with the requirements ..."

of the Act

"... shall be proof of the fact so stated in the absence of proof to the contrary".

The difficulty which arose in that case was that the person who signed the statement, was not present at the weighbridge when the defendant's vehicle was weighed. Indeed, it was clear that he was not present at Ceduna at the time, which is where the weighing took place.

The statement in question in that case was signed by Mr McDade who identified himself as "senior administrative officer, Traffic Inspectorate, care of Highways Department, Walkerville". In the statement he stated that he was "responsible to the Minister of Transport through the Commissioner of Highways for the maintenance of all Highways Department weighbridges erected by the Minister".

During the course of my judgment in that case I said (424):

"There is nothing irregular in the Highways Department giving over the charge of its various weighbridges located throughout the State to one person. If that person then gives a statement pursuant to s175(3) pars(a), (ab) or (ac) in his capacity as the person in charge of a particular weighbridge, there is no reason to suppose that appropriate departmental procedures will not have been invoked to ensure that the accuracy of the weighbridge or of the process of determining the mass of a particular vehicle has not been determined or carried out properly and reliably by some person or persons responsible to the person in charge."

I went on to hold that the statement signed by Mr McDade had been wrongly rejected and that there should have been a finding that there was "no proof to the contrary" such as to displace its prima facie effect as proof of the matters contained in it.

In my opinion, this case is analogous. I see nothing untoward in a member of the police force signing a certificate under s47G(3a) as to the matters referred to in that subsection on information and belief induced by statements by another member of the police force.

There was no evidence in this case of "proof to the contrary" of the relevant facts certified in the certificate P4. There was only evidence that the officer (Constable May) who signed the certificate did not have personal knowledge of all of the matters set out in it. As I have said, evidence that the author of the certificate does not have personal knowledge of its contents or of some of them is not evidence of "proof to the contrary" of the facts set out in the certificate.

It follows that, in my opinion, the certificate P4 should have been admitted in evidence and accepted as proof of the matters certified.

In case it might be thought that the decisions by me in SA Police v Oakes (19 February 1996, unreported, judgment 5464, available in SCALEplus) and Nyland J in Matthews v SA Police (29 February 1996, unreported, judgment 5470) are inconsistent with the view which I have just expressed, I should say that in my opinion that is not the case. Those two cases turned upon the consequences of a failure by the prosecution strictly to prove the requirements set out in s47G(2a) of the Act. Proof of compliance with the procedures under that subsection is a necessary element to the raising of the presumption set out in s47G(1), and in the absence of such proof, the presumption does not arise. That is an entirely different situation which turns on different considerations from those now in question.

If I was to be wrong in my conclusion as to the admissibility of P4 and its evidentiary effect, in my opinion, the result of the appeal should be the same.

In the passage which I have cited from the learned Chief Magistrate's reasons, having rejected the tender of exhibit P4, he observed:

"There is no evidence on which the defendant could be convicted. The evidence of the outcome of the breath analysis must be excluded in the exercise of my discretion as that evidence was not lawfully obtained."

The first part of that passage is clearly wrong. The evidence leading to the conviction of the defendant was not the evidence contained in exhibit P4, but it was the evidence of the outcome of the breath analysis conducted by Senior Constable Tuckey. There was no challenge either during the hearing of the complaint or on the appeal as to the chain of evidence leading to proof of the result of the breath analysis conducted by him.

In one sense, if the prosecution fails in its attempt to use an evidentiary aid to proof in order to establish that an alcotest was administered in accordance with the statutory requirements, that failure does not amount to positive proof that there was any impropriety attaching to the administration of the alcotest, or in the administration of the subsequent breath analysis. It simply leaves that question up in the air.

The onus was on the respondent, if he sought the exclusion of the results of the breath analysis in the exercise of the court's discretion, to prove that it was not preceded by a validly performed alcotest, or to point to evidence tending to that conclusion.

But if the respondent did not voluntarily undergo the breath analysis, then, having regard to s47E(2a) and (2b), it is at least arguable that it is incumbent upon the prosecution to establish that the preliminary alcotest was validly administered and proved positive. At least that is how the question has been approached in the cases, and I do not pause to examine the correctness of that approach.

But it is another thing to say that if the prosecution does not prove the preceding alcotest to have been administered in accordance with the statutory requirements, the evidence of the subsequent breath analysis is inadmissible. Such a situation simply gives rise to a discretion to exclude the breath analysis evidence.

The learned Chief Magistrate said:

"The evidence of the outcome of the breath analysis must be excluded in the exercise of my discretion as that evidence was not lawfully obtained."

While that passage supports the conclusion that the learned Chief Magistrate recognised the existence of the discretion, his use of the word "must" and his failure to approach the exercise of the discretion in accordance with the principles established by the authorities, in particular Bunning v Cross (infra) and Brain v Froude (supra) is indicative of error.

There is nothing to suggest that the police officers, in particular Constable May, were not acting in good faith. Any exercise of the discretion fell to be determined against the background that the respondent admitted to having been drinking, and after the breath analysis was administered he conceded that it was a "fair cop".

A relevant factor in the exercise of the discretion to exclude evidence unfairly or improperly obtained is the cogency of the evidence sought to be excluded. This has been established by a number of authorities, including Bunning v Cross.

The decision in that case is particularly instructive. There, the driver of a motor car was not required after his apprehension by a police officer to undergo a preliminary breath test, which might have been administered under the relevant statutory provisions then applicable in Western Australia. He was, however, asked to provide a breath sample for breath analysis. A necessary pre-condition to the administration of a breath analysis was either a preliminary test (which appears to have been a procedure similar to the alcotest provisions in the South Australian Act) or the formation of a belief by the police officer on reasonable grounds that the defendant has been guilty of driving under the influence. There was held to be no reasonable ground for such a belief. So that the question which arose was as to whether, in those circumstances, given that no preliminary test was administered, evidence of the breath analysis was properly admitted.

During the course of his judgment Barwick CJ observed (645): "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. There are other conditions in which admissible evidence may be excluded by an exercise of judicial discretion: for example, where a comparison of the smallness of the probative value of the evidence with its considerable prejudice to the fair trial of the matter justifies its exclusion. But no such considerations arise in this case. Undoubtedly, the result of the test was relevant to the charge brought under s63(1) or under s64(1). It establishes the latter and is cogent in relation to guilt under the former.

This question of the competition of the public interest in conviction with the unfairness to the applicant in connexion with the taking of the test, the magistrate did not consider. If he had, the only conclusion to which, in my opinion, he could properly have come, was that there was no unfairness to the applicant in the circumstances and manner of the obtaining of the evidence as to the alcoholic content of his blood. There was nothing whatever to out-balance the public interest in the enforcement of the law."

I refer also to the joint judgment of Stephen and Aickin JJ, who stressed that where illegality is neither "deliberate nor reckless, cogency is one of the factors to which regard should be had" (op cit at 79). They further observed:

"A third consideration may in some cases arise, namely the ease with which the law might have been complied with in procuring the evidence in question. A deliberate 'cutting of corners' would tend against the admissibility of evidence illegally obtained. However, in the circumstances of the present case, the fact that the appellant was unlawfully required to do what the police could easily have lawfully required him to do, had they troubled to administer an "alcotest" at the roadside, has little significance. There seems no doubt that such a test would have proved positive, thus entitling them to take the appellant to a police station and there undergo a "breathalyzer" test."

In this case, even if one assumes everything in favour of the respondent, including his contentions as to the s47G certificates, consistently with the various factors identified by the High Court in Bunning v Cross, I cannot accept that this was a case in which the exercise of the discretion could properly lead to the exclusion of the result of the breath analysis.

The conclusion which I have reached appears to me to be fully supported both as to the existence of the discretion and the manner in which it ought properly to have been exercised by the decision of the Full Court in Brain v Froude (supra).

I would allow the appeal, quash the order of dismissal made by the learned Chief Magistrate and substitute a conviction on the offence as charged in the complaint.

I will hear counsel as to whether or not I should proceed to sentence the respondent, or whether I should refer the matter to the learned Chief Magistrate for the purpose of sentencing.