Saade v Police - [2005] SASC 437

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
SAADE v POLICE
Judgment of The Honourable Justice Debelle (ex tempore)
10 November 2005
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE
Appeal against conviction - appellant convicted of driving with a blood alcohol content in excess of the prescribed maximum - when stopped by police appellant required to provide breath samples for analysis - whether compliance with statutory requirement to deliver a written statement specifying the result and date and time of the analysis - whether breath analysing instrument operated by authorised operator - whether breath analysing instrument in proper order - appeal dismissed.
Road Traffic Act 1961 s 47A, s 47B, s 47E, s 47G; Road Traffic (Miscellaneous) Regulations 1999 reg 8, referred to.
Mercorella v Police (2004) 88 SASR 575; Police v Harvey (1999) 73 SASR 534; Sparrow v Police [2005] SASC 390; Taylor v Daire (1982) 30 SASR 453, considered.

SAADE v POLICE
[2005] SASC 437
Magistrates Appeal: Criminal

DEBELLE J. This is an appeal against conviction.
The appellant is charged on complaint that, on 31 August 2003 at St Marys, he drove a motor vehicle on the South Road whilst there was present in his blood a concentration of alcohol in excess of the prescribed maximum, contrary to s 47B of the Road Traffic Act1961 (“the Act”). It is alleged that the concentration of alcohol was 0.085 grams in 100 ml of blood.
The appellant pleaded not guilty. After a hearing in the Adelaide Magistrates Court, he was convicted. He appeals that conviction.
At about 8.47 am on Sunday, 31 August 2003, Constable Johnson was performing random breath testing duties on South Road at St Marys. The appellant was required to pull into the random breath testing station and was directed by Constable Johnson to provide a sample of his breath. The test proved positive. The appellant was then directed to Senior Constable Lisman who was, on this occasion, the operator of the breath analysis instrument. Senior Constable Lisman was conducting breath analysis tests using a Drager Alcotest 7110 Mk V.
Senior Constable Lisman required the appellant to provide two samples of breath. The first was provided at 9.07 am and that resulted in a reading of 0.093 grams of alcohol in 210 litres of breath. At 9.10 am a second test resulted in a reading of 0.085 grams of alcohol in 210 litres of breath.
The prosecution relied on the evidentiary aids contained in s 47G of the Act to prove the concentration of alcohol in the appellant’s blood. The appellant contends that the prosecution failed to establish three issues beyond reasonable doubt so that it is not entitled to rely on the presumption in s 47G(1). I deal with each in turn.
A Document Complying with s 47G(2)?
The appellant first contends that the prosecution failed to establish beyond reasonable doubt that Senior Constable Lisman had complied with the procedures prescribed in the Act relating to breath analysing instruments and breath analysis. It is contended that he had failed to deliver the appellant a statement in writing specifying the reading produced by the breath analysing instrument and the date and time of the analysis as prescribed by s 47G(2).
Strict compliance with the requirements of s 47G(2) is a necessary pre‑condition to the operation of the presumption provided in s 47G(1): Taylor v Daire (1982) 30 SASR 453 and Police v Harvey (1999) 73 SASR 534 at 539. At the same time, the court should not read additional requirements into the legislation that defeat the intention of Parliament: Police v Harvey (supra) at 540.
The prosecution tendered a document (Exhibit P6) which, it contended, was a statement in writing which complied with s 47G(2). This was the print of the results of the breath analysis produced by the breath analysing instrument after the second reading had been produced. The document was handed to the appellant in order to comply with s 47G(2).
Three times are listed on the document. They are 09.05 CST, 09.07 CST and 09.10 CST. The lower half of the document lists the results of the breath analysis. There are two readings. The document then concludes with the statement “Subject’s Analysis Result: 0.085 grams of alcohol in 210 litres of breath”. The document ends with the expression “Self Test Correct”, which assertion was signed and dated by Senior Constable Lisman.
The appellant contends that the document does not specify either the time of each breath analysis or whether the times recorded relate to the time when the sample of breath was provided or the time that the sample was analysed. When the document is examined, it is apparent that the appellant’s argument misconceives the purpose of the document and the requirements of the legislative scheme.
The obligation of the driver of a motor vehicle to comply with directions to submit to a breath analysis is prescribed by s 47E(2) and s 47E(2)(a) of the Act. Section 47E(2e) provides that regulations may prescribe the manner in which an alcotest or breath analysis is to be conducted. Regulations have been made under s 47E(2e). They are the Road Traffic (Miscellaneous) Regulations1999 (“the Regulations”).
Section 47G(2)(e) must be considered within the Regulations. The meaning of s 47G(2) and the Regulations has been examined in Mercorella v Police (2004) 88 SASR 575 and in Sparrow v Police [2005] SASC 390.
Although s 47G(2) requires a statement in writing specifying the reading produced by the breath analysing instrument, it does not provide what constitutes the reading. That is, in fact, provided by Regulation 8(a)(3) of the Regulations which provide:
(3)Where a person submits to a breath analysis, the results of the breath analysis will, for the purpose of the Road Traffic Act 1961 and any other Act, be taken to be the reading produced by the breath analysing instrument, on analysis of the samples of breath provided by the person in accordance with this regulation, that indicates the lower concentration of alcohol in the person’s breath (not taking into account any samples that, in accordance with this regulation, are to be disregarded).
The reading is, therefore, the lower of the results of the breath analysis. On this occasion, there were two analyses of breath. The lower was 0.085 grams per 210 litres of breath. That is what Regulation 8(a)(3) prescribes to be the reading for the purposes of s 47G(2) and is, in fact, what the document produced by the breath analysing instrument described as “Subject’s Analysis Result”.
I return to the issues as to the three times shown on the document. The first time 09.05 CST appears at the top of the document. It is in a section of the document which contains the date and what is called “Start Time”. The time 09.05 appears opposite the expression “Start Time”. It is readily apparent that it is a record of the date of the breath analysis and the time when the test began. The document then records the name of the appellant, the reporting member of the police, and the name of Senior Constable Lisman as the operator. When read in context, it is abundantly clear that the time of 09.05 is the time when the procedures began and the information was being keyed into the instrument.
After further information is stated on the document, the document then records two times, one underneath the other in this form:
Time Sample 1: 09.07 CST
Time Sample 2: 09.10 CST
The document then records the results as 0.093 grams per 210 litres of breath and 0.085 grams per 210 litres of breath. It is abundantly clear from the document that the two samples were provided and thereafter analysed at 09.07 and 09.10 respectively.
The document then records the result of the breath analysis as being 0.085 grams of alcohol per 210 litres of breath. Thus, the document specified the reading as well as the date and the time of the analysis. There is no substance in the first ground relied upon by the appellant.
Mr Gluche, who appeared for the appellant, contended that, in order to reach that conclusion, it is necessary to make assumptions that the document records sample 1 and sample 2 in the order as noted on the document and, because assumptions must be made, there is insufficient compliance with s 47G(2). He also contended that it requires an assumption that the analysis of the breath occurs shortly after the time the sample is provided. He contends that the need to make such an assumption is non-compliance with the terms of s 47G(2). In that respect, he relies on the evidence that the breath analysing instrument goes through a procedure described as a “purging procedure” between each breath analysis. He relies also on the fact the result of the analysis is not produced until after the second sample has been provided. None of these contentions, in any respect, can alter what is the plain meaning and intent of the document.
It is appropriate to proceed on the basis that the breath analysing instrument is a piece of apparatus which produces these results. It is unnecessary to inquire into the precise manner in which the breath is analysed. It is sufficient to note the requirements of the legislation have been satisfied in that the document produced by the breath analysing instrument records the result in the manner I have stated and it records the date and the time of the analysis.
Mr Gluche further contended that the evidence disclosed a difference in the times being recorded by Senior Constable Lisman’s watch and the breath analysing instrument. It seems that the breath analysing instrument was recording times four minutes later than Senior Constable Lisman’s watch. That is to say, if Senior Constable Lisman’s watch recorded a time of 09.10, the instrument was recording a time of 09.06. That evidence establishes no more than that the instrument was operating on times which may or may not have been four minutes later than the correct time. It is not an uncommon experience for an apparatus of this kind to be operated on times different from times being recorded by other means. In my view, the difference of four minutes is, in all the circumstances, of no consequence.
An Authorised Operator?
The second ground on which the appellant relies is that there was no evidence that Senior Constable Lisman was authorised to operate the breath analysing instrument. That contention is founded on the terms of s 47G(3)(a), which provides:
(3)     A certificate
(a)     purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments;
(b)     …
is, in the absence or proof to the contrary, proof of the matters so certified.
The prosecution had tendered a certificate pursuant to s 47G(3)(a). It was Exhibit P4. It was a certificate signed by the Commissioner of Police on 29 June 1998 certifying that Senior Constable Lisman “is authorised to operate breath analysing instruments pursuant to s 47G of the Road Traffic Act1961 as from the 26th day of June 1998”.
A breath analysing instrument is defined by s 47A to mean:
An apparatus of a kind approved as a breath analysing instrument by the Governor.
The breath analysing instrument being used on this occasion was a Drager Alcotest 7110 Mark V. The prosecution tendered a notice published in the Government Gazette on 23 May 2002 approving the Drager Alcotest 7110 Mark V. The notice took effect from 27 May 2002.
The appellant contends that, as the Drager Alcotest 7110 Mark V was not an apparatus approved as a breath analysing instrument on 29 June 1998, the date of the authority to Senior Constable Lisman to operate breath analysing instruments, Senior Constable Lisman had no authority to operate that piece of apparatus.
The argument is misconceived. The terms of s 47G(3)(a) require no more than that the person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments. It is a general authorisation. It does not require the Commissioner to authorise the person named in the certificate to operate a particular kind of breath analysing instrument.
Similarly, there is nothing in s 47G(3)(a) or elsewhere in Part 3 Division 5 of the Act, which requires that a fresh certificate be issued in respect of each breath analysing instrument that might be used by police. Implicit in the scheme is that police officers will be trained to operate each new kind of breath analysing instrument to be used for detecting offences against s 47. In fact, the evidence disclosed that Senior Constable Lisman had undergone a training course before the Drager Alcotest 7110 Mark V had been approved.
In my view, Mr Gluche is seeking to read into s 47G(3)(a) a requirement which is not there, that is to say, he seeks to read into the terms of that section the requirement that a certificate must be issued by the Commissioner of Police to authorise the person named therein to operate each new kind of breath analysing instrument as is adopted for detecting offences against s 47. There is nothing in the terms of s 47G(3)(a) or elsewhere in the Act which justifies that contention.
Mr Gluche also called in aid the terms of s 47G(1) and, in particular, this part of the section:
… evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police …(Emphasis added)
Mr Gluche pointed to the fact that s 47G(1) does not state that the instrument must be operated by a person authorised to operate breath analysing instruments, but, rather, that it must be operated by a person authorised to operate “the instrument”. This argument, too, must fail. The reference in s 47G(1) to “the instrument” is a reference to the instrument by which the concentration of alcohol was measured in the blood of the alleged offender on the occasion in question. Senior Constable Lisman was authorised to operate breath analysing instruments. He, therefore, had authority to operate the Drager Alcotest 7110 Mark V used on this occasion. For these reasons, the second ground is without foundation.
Was the Instrument in Proper Order?
The final ground on which the appellant relies is that the prosecution failed to prove that the breath analysing instrument was in proper order and was properly operated on this occasion. Section 47G(3) provides:
(3)     A certificate –
(a)     …
(b)     purporting to be signed by a person authorised under subsection (1) and to certify that –
(i)the apparatus used by the authorised person was a breath analysing instrument within the meaning of this Act; and
(ii)the breath analysing instrument was in proper order and was properly operated; and
(iii)the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with,
is, in the absence of proof to the contrary, proof of the matters so certified.
The prosecution tendered a certificate in reliance on that provision. The relevant part of the certificate stated:
1.that on the 31^st day of August (year) 2003 at 0907 hours a sample of breath was furnished for analysis by Paul Deeb Saade of 9 Shelley Avenue Happy Valley into a breath analysing instrument – Drager Alcotest 7110 Mk V and,
2.that the apparatus used by me was a breath analysing instrument within the meaning of the Act; and
3.that the said breath analysing instrument was in proper working order and was properly operated; and
4.the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with.
The certificate is signed by Senior Constable Lisman. Mr Gluche’s contention that there was no evidence which proved that the Drager Alcotest was in proper order and was properly operating was advanced on two grounds.
The first is that the certificate refers to one sample of breath obtained at 09.07 hours. He contended that, although the appellant had to provide two samples of breath for analysis, it was the second analysis which constituted the result, and that was taken at 9.10 am. In the absence of a certificate as to the test at 9.10 am, Mr Gluche contended there was no evidence that the breath analysing instrument was in proper order or that it had been properly operated.
This argument also misconceives the effect of s 47G(3)(b). A careful reading of that provision discloses that there is no requirement that the certificate state the precise time when the breath analysing instrument was in proper order and was properly operated. It is implicit in s 47G(3) that the certificate specify the date on which it was in proper order and that it was properly operated.
On one view, that might be a sufficient compliance with the provision. However, it is plainly necessary for the certificate to relate to the apparatus used on the occasion when the breath sample was provided and the analysis of that sample which founds the occasion for the prosecution. However, there is nothing in the section which requires that it be stated with a complete precision as to time. Even assuming, for the purpose of this argument, that the time must be stated, it is sufficient for compliance with this provision to state the time of the first test. The intent of s 47G(3)(b) is to ensure that the breath analysing instrument was in proper working order and was being properly operated on the day in question and in respect of the result of the analysis relied on. It is sufficient if that time is approximately stated in the certificate. That conclusion is reinforced by the fact that the document which must be handed to the driver in accordance with s 47G(2) requires the date and time of the analysis to be recorded. All of these documents must be read together.
Mr Gluche also relied on the discrepancy between the time on Senior Constable Lisman’s watch and the Drager Alcotest. That discrepancy was confirmed by the time being recorded on the watch of Constable Johnson. In this respect I adopt what I have said earlier. The evidence establishes no more than that the discrepancy did exist. It does not affect the validity of the certificate nor does it establish that the breath analysing instrument was not in proper working order and was being properly operated.
The appellant has failed to establish that the magistrate erred in concluding the appellant was guilty of the offence with which he had been charged. The appeal must, therefore, be dismissed.
The orders will be:
1.Appeal dismissed.
2.The appellant will pay the respondent’s costs fixed in the sum of $150.