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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Saade v Police

Details

AGLC: Saade v Police [2005] SASC 437
Case: [2005] SASC 437
Decision Date: 10 November 2005

CaseChat Overview and Summary

In the case of Saade v Police, the appellant contested their conviction for driving with a blood alcohol content above the prescribed limit. The appellant was stopped by police and required to provide breath samples for analysis. The key issues before the court were whether the statutory requirements for providing a written statement of the analysis results and the proper operation of the breath analysing instrument were met. Additionally, the court needed to determine whether the instrument was in proper order at the time of the analysis.

The court considered the statutory provisions and held that the appellant's conviction should stand. The written statement provided by the police was deemed sufficient to meet the statutory requirement. Furthermore, the court found that the breath analysing instrument was operated by an authorised operator and was in proper order, as per the statutory requirements. The court held that the statutory requirements had been satisfied, and therefore the conviction was upheld.

Consequently, the appeal was dismissed. The court confirmed that the statutory procedures for breath analysis were followed, and the conviction for driving with a blood alcohol content above the prescribed limit was valid. The court's decision emphasised the importance of compliance with statutory requirements in such proceedings.

Orders