Sambastian v Police - [2024] SASC 26

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
SAMBASTIAN v POLICE
[2024] SASC 26
Judgment of the Honourable Justice Kimber
6 March 2024
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - MISCELLANEOUS ROAD RULES - FAILURE TO OBEY DIRECTIONS
This is an appeal against a finding of guilt by a Magistrate of failing to comply with a requirement to submit to drug screening contrary to s 47EAA(9) of the Road Traffic Act 1961 (the Act). The appellant sought to impose a condition that he be able to keep the drug screening test if it returned a negative result. The appellant’s primary position is that the condition did not amount to a refusal. At trial and on the appeal, the appellant put an alternative position that if the condition did amount to refusal, he had established the defence of good cause in s 47EAA(1)(c) of the Act.
Before the appeal was heard, the appellant filed an interlocutory application seeking that this Court should not hear the appeal on the ground of bias or a reasonable apprehension of bias.
As for the appeal against conviction, at the hearing of the appeal, the substantive effect grounds of appeal maintained by the appellant were as follows:
1. There is a reasonable apprehension that the Magistrate was biased.
2.The Magistrate should not have accepted the evidence of a police officer called by the prosecution that the drug screening was not for the purpose of obtaining the appellant’s DNA profile.
3.The trial should not have occurred because it was the second trial of this offence and breached the double jeopardy principle.
4.The Magistrate erred in finding the offence proved as the appellant had not refused the drug screening test. In the alternative, the Magistrate should have found the appellant had established good cause.

Held:
1.The appellant has not established that a fair-minded lay observer might reasonably apprehend that this Court might not bring an impartial and unprejudiced mind to the appeal. The interlocutory application is dismissed.

In dismissing the appeal:
2.The evidence does not establish a reasonable apprehension of bias on behalf of the Magistrate.

3.      It was open for the Magistrate to accept the relevant aspect of the police officer’s evidence.
4.      There was no breach of the principle of double jeopardy.
5.      The Magistrate was correct to find that the applicant had refused the drug swipe.
6.While the Magistrate erred in an aspect of her approach to whether the appellant had established good cause, the evidence at trial did not establish that defence. Irrespective of the error, the offence was clearly proven.

Road Traffic Act 1961 (SA) s 47EAA(1), (9)–(11); s 47E(4); Magistrates Court Act 1991 (SA) s 42, referred to.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; R v Watson; Ex parte Armstrong (1976) 136 CLR 248; CNY17 v Minister for Immigration (2019) 268 CLR 76; Johnson v Johnson (2000) 201 CLR 488; Martin v Department of Transport, Energy & Infrastructure [2010] SASC 141; Police v Kriticos [2016] SASC 28; R v Daley [2001] NSWSC 1211; Czerwinski v Hayes (1987) 47 SASR 44; Police v Ghuede (2007) 99 SASR 28; Borman v Coldwell (1986) 43 SASR 297; Boyle v The King [2022] SASCA 50; Police v Rosales [2017] SASC 118, applied.

SAMBASTIAN v POLICE
[2024] SASC 26
Magistrates Appeal: Criminal
KIMBER J:

This is an appeal against conviction. Following a trial before a Magistrate, the appellant was found guilty of failing to comply with a requirement to submit to a drug screening test contrary to s 47EAA(9) of the Road Traffic Act 1961 (the Act).
On 3 January 2022, the appellant fell from his motorcycle or scooter and was injured. The police attended and the appellant submitted to a breath analysis which gave a negative result. On the prosecution case, the police officer, Senior Constable Lumsden, then exercised the power in s 47EAA(1) of the Act and required the appellant to submit to a drug screening test. On the prosecution case, the appellant refused to do so and in so doing committed the offence of which he was found guilty.
Before the appeal was heard, the appellant filed an interlocutory application seeking that I should not hear the appeal on the ground of bias or a reasonable apprehension of bias. For the reasons which follow, I dismiss that application.
As to the appeal against conviction, the primary position of the appellant at trial and on appeal is that he did not refuse to submit but sought to impose a condition which was not agreed to by the police officer. The condition was that the appellant be able to keep the drug screening test if the result was negative. The appellant put an alternative position at trial and on appeal. Namely, that if he did refuse, he had established a defence.
For the reasons which follow, I dismiss the appeal.
The appeal grounds
I mean no disrespect to the appellant by observing that the grounds of appeal reflect that he was unrepresented at trial and on appeal. During the hearing of the appeal, the appellant abandoned some of the grounds which were set out in the Notice of Appeal. I set out the grounds which were pressed:
1.That the Magistrate was biased.
3.That the police officer was unreliable.
5.That the prosecution involved a breach of the principle with respect to double jeopardy.
6.The direction of the police officer was unreasonable.
7.The drug swipe was for the purpose of the unlawful collection of DNA.
10.Any failure to comply with the request of the police officer was reasonable.
11.The drug swipe direction was a violation of human rights and/or privacy.
The interlocutory application
In the interests of efficiency, the interlocutory application and the appeal were heard at the same time. It was not submitted that approach was not appropriate in the circumstances.
In submitting that I should not hear the appeal on the grounds of bias or a reasonable apprehension of bias, I understood the appellant to rely on the following matters viewed in combination. First, the approach taken by me to some of his requests to appear at hearings by telephone. Second, my refusal to grant leave to issue a subpoena to the Commissioner of Police. Third, a contention that I had pre‑judged an aspect of the alleged conduct of the Magistrate relied upon by the appellant in advancing Ground 1 of his appeal. Fourth, a comment attributed to me made before I was appointed to the Court.
Principles
It is appropriate to treat the interlocutory application of the appellant as being one of a reasonable apprehension of bias as that is the most favourable approach for the appellant. The relevant legal principles are not in dispute.
The test for determining whether a judicial officer is reasonably suspected of apprehended bias is set out in Ebner v Official Trustee in Bankruptcy.[1] The relevant question is whether a fair-minded observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the matter.[2] The appellant must show that there is some circumstance which is said to amount to the bias, and that there is a logical connection between that circumstance and the feared deviation from decision making.[3] This test is one of possibility (real and not remote), not probability.[4]
[1] (2000) 205 CLR 337.
[2] R v Watson; Ex parte Armstrong (1976) 136 CLR 248, 264 (Barwick CJ, Gibbs, Stephen and Mason JJ); Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[3] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345 (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[4]Ibid.
A finding of apprehended bias is not to be reached lightly.[5] Where the relevant decision maker is a judge, a fair-minded lay observer is taken to be reasonable and to have an understanding that a judicial officer’s training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.[6]
[5] CNY17 v Minister for Immigration (2019) 268 CLR 76, 98 (Nettle and Gordon JJ) citing Re JRL; Ex Parte CJL (1986) 161 CLR 342, 371 (Dawson J).
[6] Johnson v Johnson (2000) 201 CLR 488, 493 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) citing Vakauta v Kelly (1989) 167 CLR 568.
Discussion
The hearing of this appeal was at one point listed before me on 24 October 2023. On 19 October 2023, the appellant communicated by email and requested that the hearing of the appeal be adjourned. The appellant set out that he had some contact with JusticeNet and wished further time to explore whether legal representation might be available to him. The appellant requested that he be able to make the application to adjourn the appeal by telephone. On 20 October 2023, the appellant was advised by my chambers that, in the absence of a medical certificate, he would need to attend in person. The application to adjourn the appeal was listed on 23 October 2023 at 2.15pm. At 12.14pm on 23 October 2023, the appellant forwarded a medical certificate to my chambers by email. That medical certificate stated that the appellant had a medical condition requiring the use of crutches and recommended that unnecessary mobilisation be limited due to the risk of falls and further injury. The medical certificate did not expressly state that the appellant was unable to attend court. By email about twenty minutes later, my chambers advised that the appellant would need to attend. At 12.49pm, the appellant advised by email that he could not do that.
The matter was called on at 2.15pm as listed. The appellant did not appear, and the matter was adjourned for a short period in order that my associate could attempt to contact the appellant by telephone. That attempt was made, but the appellant did not answer. Those efforts having been made, I returned to the bench. I did not dismiss the application but adjourned it as the appellant was not present and had not been able to be contacted.
The application to adjourn the hearing of the appeal was ultimately heard on 24 October 2023. On that day, the appellant attended. The application was granted and the appeal listed for hearing on 27 November 2023.
I reject that my approach to the appellant appearing by telephone on 23 October 2023 establishes that a fair‑minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the appeal. The application that the appeal be adjourned was an important one. It was appropriate that he attend unless there was good reason for a different approach. No medical certificate was supplied until very shortly before the time fixed for the hearing and the certificate that was provided did not address all that it might have done. More significantly, when the appellant did not attend, the application was not dismissed but efforts were made to contact the appellant and the application was adjourned despite the failure of the appellant to appear and to answer the telephone. Further, once the appellant attended, the application was granted.
As to the subpoena to the Commissioner of Police, the appellant contends that the refusal to grant the subpoena amounted to an unfair restriction on the evidence permitted on the appeal. The appellant also contends that at some point I observed that documents sought were ‘not the main issue in the appeal’ and perhaps cast doubt on the existence of the documents sought by observing ‘if [the documents] even exist’.
The subpoena sought was in the following terms: ‘for the technical and how to use the Drugswipe 2 and also the official police procedure on how to use Drugswipe 2’.
The hearing with respect to leave to issue the above subpoena occurred on 15 December 2023. In advance of that date, the appellant had set out his position with respect to why the subpoena was appropriate in emails dated 6 December 2023 and 8 December 2023 respectively. On 15 December 2023, the appellant appeared by telephone and made further oral submissions. After those oral submissions were made, I refused the application on the basis that I was not satisfied there was legitimate forensic purpose for the subpoena.
As I have understood a submission of the appellant, he contends that my approach demonstrates apprehended bias as I did not give him the opportunity to provide all his reasons for the subpoena being appropriate and that I failed to ask if he had anything more to say.
The foundations of the contention cannot be reconciled with what occurred when the application was heard by me. The transcript of that hearing establishes that I commenced the hearing by advising the appellant that I had listed his application for submissions as I was not satisfied that what he had provided in writing established that what he was seeking was of sufficient relevance to the appeal. I advised the appellant that I had listed the matter for submissions as ‘I want to give you the opportunity to say anything more about that so that I can make a final decision about the subpoena’. The appellant then made oral submissions in support of the subpoena being appropriate. It may be accepted that at the end of those oral submissions I did not ask the appellant whether he wished to add to what he had submitted but, in the circumstances, I reject that I was obliged to do so or that a failure to do so establishes that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the appeal. The appellant made submissions in writing and orally.
As to the two comments I am alleged to have made which are said to be suggestive of a reasonable apprehension of bias, having perused the transcripts of the hearings with respect to leave being sought with respect to subpoenas to the Commissioner of Police, I have been unable to identify the comments in the precise terms asserted by the appellant.
With respect to the alleged comment about whether documents existed, I proceed on the basis that the appellant has in mind either a comment made by me on 10 November 2023 about the appellant seeking records of police procedures about collecting records of blood samples or on 15 December 2023 suggesting that it be assumed that documents being sought existed and, on that assumption, inviting submissions from the appellant as to what the documents might reveal.
On the first date, I was attempting to explore why the records might be relevant to the appeal. On the second date, the comment I made was also intended to give the appellant the opportunity to explain the potential significance of the documents being sought to the issues in the appeal. I reject that either comment establishes that a fair‑minded lay observer might reasonably apprehend that I might not being an impartial and unprejudiced mind to the appeal. With respect to the alleged comment about the ‘main issue in the appeal’, I have been unable to identify that comment having been made. It follows that the foundation for the submission is not made out. Nevertheless, I observe that the appellant was given opportunity to make submissions orally and in writing about why there was a legitimate forensic purpose with respect to documents believed to be in the possession of the Commissioner of Police. I reject that any aspect of my handling of that issue establishes that a fair‑minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the appeal.
The third matter relates to a contention that during a hearing prior to the appeal, I made a comment which might suggest prejudgment of Ground 1 which relates to an allegation that the Magistrate spoke to the prosecutor in the absence of the appellant. The relevant hearing before me was on 28 September 2023 and was for the purpose of clarifying a request of the appellant and to ensure the matter was ready to proceed to the hearing of the appeal. During that hearing, the incident the subject of Ground 1 was raised in the context of a suggestion by the appellant that parts of the trial transcript were missing. I said:
… there have been many times when I’ve come onto the bench with only one party at the bar table. Exclusively, I’ve done it when a party is late. That does not in and of itself mean that there’s something improper that’s happened.
This comment does not suggest prejudgment of Ground 1. I merely pointed out that the fact the Magistrate was speaking in the courtroom in the absence of the appellant was not of itself improper nor uncommon. This is not a matter which establishes that a fair‑minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the appeal.
The fourth matter relied upon by the appellant relates to a comment attributed to me before I was appointed to the Court. The appellant submits that in May 2012, and in the apparent context of legislative reforms being considered by the then South Australian Government with respect to criminal organisations, I made a comment to a journalist about the need to consider ‘new ways to try and penetrate or get evidence about criminal organisations’. In May 2012, I was the Director of Public Prosecutions and although I do not recall making the relevant comment, I recall being interviewed by the relevant journalist at about that time. In the circumstances, it is appropriate to proceed on the basis that I made the comment attributed to me.
I reject that the comment supports that a fair‑minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the issues in the appeal. The comment attributed to me was not about any issue which is relevant in the appeal.
For the above reasons, I dismiss the interlocutory application of the appellant. Having done so, I turn to the issues in the appeal.
The trial
Before turning to the grounds of appeal, I will set out some of what occurred at trial.
The only witness called by the prosecution was Senior Constable Lumsden. In addition, and without objection, the prosecution tendered exhibits. Those exhibits were: P1, Document PD301; P2, Body worn footage of Senior Constable Lumsden; and P3, an aide memoire transcript of the body worn footage in P2.
Senior Constable Lumsden gave evidence that he had been a police officer for almost 20 years. Senior Constable Lumsden said after conducting an alcotest which gave a negative result, he asked the appellant to submit to a drug screening test. Senior Constable Lumsden described that as being done by providing the person with a small blue plastic collector and having the person rub that over their tongue and cheeks to gather saliva. He said that the collector is then broken and that it gives a positive or negative result. Senior Constable Lumsden said that the appellant said that if the result was negative, he wanted to retain the kit. Senior Constable Lumsden said:
I explained to him that we couldn’t do that and he would have to comply with my instructions. He declined, stating that he wasn’t refusing but, his condition was, that if the test was negative, he would retain the kit. I continued to try and explain to him, and then at that point, he replied that he didn’t want his DNA taken. I formed the understanding that he may have confused a drug test with a DNA test. I explained to him that we weren’t attempting to take his DNA, just testing for the prescribed drugs that the kit tested for.

Senior Constable Lumsden said that he gave the appellant another opportunity to submit but the appellant again refused.
In cross‑examination, Senior Constable Lumsden was asked if there was a reason why he could not allow the appellant to keep the kit if the result was negative. He said:
AYes, those testing kits are issued to us and as an issued piece of equipment, I am not in a position to give them away or to —
QWhat happens to the testing kit after you have used it.
AThat’s one of the reasons we can’t give it away, they are considered hazardous waste because they have body fluids on them, and they’re placed into a separate hazards container and then disposed of.
QWho disposes of them.
AThe South Australia Police do it through various contractors.
QYou bring it back to the station and hand it over to the police.
ANo, we bring it back to the station and we put it into a specialist hazardous waste bin and then, ultimately those samples are destroyed as per the contracted requirements.
Senior Constable Lumsden said that the most common way to take DNA was using a buccal swab. When it was put to him that the drug screening test could be used to collect DNA, Senior Constable Lumsden said:
QI am suggesting that the drug swipe can be used to collect DNA.
AI will never, I would say no, it’s —
QWell you wouldn’t know cause you just hand it in to the police station.
HER HONOUR:
QYou have asked the question, so you have to allow him an opportunity to answer. First you started saying, no an (sic) then you said about your experience.
AYes, your Honour. There would be no lawful authority to take the DNA in the first place and if there was an authority, then we use the appropriate kit. Using a drug wipe to take DNA a. is illegal, and b. would be pointless, you would have not way (sic) of uploading it to the Forensic Science Centre.
QIn your experience, have you —
ANever seen it your Honour, not once.
QWhat about you, have you ever done it.
ANever you Honour, not once.
The appellant gave evidence at trial. In examination‑in‑chief, the appellant said that he wanted to do the drug screening test but conditioned doing so on being able to keep it were it negative. The appellant said that it was his position as it would contain his ‘private data’ and his DNA. If the condition the appellant sought to impose amounted to a refusal to submit, the appellant said that it amounted to a ‘good cause’.
An aspect of the cross‑examination of the appellant was the following:
QOfficer Lumsden, he directed you to submit to an alco-test. Is that correct.
AYes.
QHe was quite reasonable with his directions.
AYes
QHe was friendly.
AYes.
QYou were able to comply with that alco-test.
AAbsolutely, yes.
QYou understood every direction he had given you as to the alco-test.
AAbsolutely, yes.
QStraight after the alco-test essentially spoke to you about doing a drug screening device.
AYes.
QAgain, he directed you to submit to that.
AYes.
QYou refused to.
ANo, I didn’t refuse to. I said I would do it but if it’s negative I –
Q– Did you submit to that drug test.
ANo I did not.
QYou refused to submit to that drug test.
AYes, I had a good cause not to submit to that drug test.
QYour good cause, you say, because you believed was going to collect your DNA.
AMy DNA was on that stick and the only way to prevent the police taking my DNA is to not let them have the stick.
QThat’s your only (sic) views. You’ve got no evidence the police collect DNA.
AI just gave that evidence in D1.
QWhat evidence before the court have you shown that SAPol is there to take DNA from the drug swipe.
AI know as a – I think there’s plenty evidence of that. I think police have taken DNA illegal on multiple occasions.
QI put it to you that’s simply not true, police don’t take DNA from a drug swipe.
AI disagree with that.
QSimply, you refused their direction to comply.
ANo, I complied with the requirements of the drug test. I complied with the procedures of the drug test. That I was going to do the drug test, according to the procedure no problem, then the police would have had a sample, a negative sample of my drug test.
QYou agree police gave you plenty of opportunities to comply with that drug test.
AYes.
Having seen the recording made of his interactions with Senior Constable Lumsden, the appellant agreed that he had been given advice about getting blood taken but maintained he was not aware of that at the time.
The appellant said that he had blood taken at the hospital. An aspect of the evidence of the appellant was:
QFrom the advice Mr Lumsden gave you when you refused, do you agree that that advice told you you had a defence if there was a medical reason.
AI can’t say for sure because I wasn’t really there.
QYou seen the footage today.
AYes and I was clearly in shock. I had white lips. I was suffering concussion and I was heavily medicated with the green stick.
QBut do you agree he gave you that advice.
AAccording to the video, yes. I don’t remember at the time.
QYou’ve provided no medical reason for not being able to comply with the drug wipe, have you.
AMedical reason, I think I said I had a broken leg.
QYou clearly understood when Mr Lumsden gave you an alco-test and directions at the time.
ANot really. I’ve seen on TV multiple times, so I know what’s coming.
QBut you were able to comply with his directions because the first time you didn’t do it correctly, did you.
AI got no problems with the alcohol test.
QNo but you have a problem with the drug screening test. Is that correct.
AYes.
QThat simply because your belief is that DNA is going to be taken.
AI know for a fact that my DNA is on that stick and the only way to prevent police my DNA is to not let them have the stick.
QDo you agree that’s not a legal defence to not comply with directions of a police officer.
AI think it’s a legal defence because I think it’s a reasonable concern.
On the hearing of the appeal, the appellant abandoned any contention that he might have failed to comply by reason of some physical or mental condition. Any such contention would have been difficult to reconcile with the position of the appellant as to why he sought to impose the condition or had good cause for not complying. That is, that he was thinking clearly enough to consider the police might collect his DNA and to seek to impose a condition which would prevent that.
The legislative scheme
Section 47EAA relevantly provides:
47EAA—Police may require drug screening test, oral fluid analysis and blood test
(1)Subject to this Act, if a person has submitted to an alcotest or breath analysis as a result of a requirement under section 47E, a police officer may require the person to submit to a drug screening test.
…
(9)A person required under this section to submit to a drug screening test, oral fluid analysis or blood test must not refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to allow a sample of oral fluid or blood to be taken in accordance with the directions of a police officer.
…
(10)It is a defence to a prosecution under subsection (9) or (9a) that—
(a)     the requirement or direction to which the prosecution relates was not lawfully made; or
(b)     the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to—
(i)the consequences of refusing or failing to comply with the requirement or direction; and
(ii)in the case of—
(A)a drug screening test or an oral fluid analysis—the person's right to request the taking of a blood sample under subsection (11); or
(B)a blood test—the person's right to request an oral fluid analysis under subsection (12); or
(c)     there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction.
(11)If a person of whom a requirement is made or to whom a direction is given under this section relating to a drug screening test or oral fluid analysis refuses or fails to comply with the requirement or direction by reason of some physical or medical condition of the person and forthwith makes a request of a police officer that a sample of the person's blood be taken by a medical practitioner or registered nurse, a police officer must do all things reasonably necessary to facilitate the taking of a sample of the person's blood—
(a)     by a medical practitioner or registered nurse nominated by the person; or
(b)     if—
(i)it becomes apparent to the police officer that there is no reasonable likelihood that a medical practitioner or registered nurse nominated by the person will be available to take the sample within 1 hour of the time of the request at some place not more than 10 kilometres distant from the place of the request; or
(ii)the person does not nominate a particular medical practitioner or registered nurse,
by any medical practitioner or registered nurse who is available to take the sample.
The key findings of the Magistrate
The Magistrate found the appellant had been subject to a lawful request to submit to an alcotest with which he complied and that the result was negative. The Magistrate also found the appellant was directed to submit to a drug screening test and that the request was reasonable.
The Magistrate found beyond a reasonable doubt the appellant had refused the drug screening test. The Magistrate held:
The defendant’s repeated statements that he was not refusing the direction and quarrel about the invasion of his privacy cannot conceal the plain fact – that it was indeed refusing to comply with the direction and indeed did fail to comply.
Having made the above finding, in an approach that is not challenged in the appeal, the Magistrate found that the appellant had not sought to establish the defences in sub-s 10(a) or (b). The Magistrate found that the appellant had conditioned submitting to the drug screening test on the return of the test if it gave a negative result. The Magistrate found that did not amount to ‘good cause’. The Magistrate said:
An examination of the condition he attached to his refusal leads me to the view that it was not a good cause to justify his refusal. It was not life threatening or something similar that might cause a court to view it as a valid condition. For example, it was not something that actually impacted his ability to undertake the test nor would have an impact on the outcome of the test. Further, there was no evidence that the drug screen test would have collected his DNA for storage and use by police. His heightened focus on his privacy rights were misguided in this circumstance. With no results of any blood testing, despite his repeated claims of not taking drugs, bolstered in his view by his lack of convictions for such, it cannot be excluded that his request for the kit was one knowing it not to be successful and, was done to avoid completing the test. As such, I find that it was not, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply.
(emphasis added)
As to sub-s 11, and in an approach which was not subject of criticism in the appeal, the Magistrate said:
There is no evidence before me of any blood sample being requested, taken nor the results of any testing. Subs(11) is as such not available to the defendant. I find that all times the defendant understood and was able to undertake the test and was not impaired by any medical condition. It is clear that the defendant was injured and in pain. Caution must be taken by officers on arrival at such scenes and when interacting with injured persons. Regardless, I acknowledge the delicate balance of such a circumstance and the need for police to undertake particular obligations. I find that such care was taken by SC Lumsden and I note in the presence of an ambulance officer. I make no criticism of his interactions with the defendant whilst he was injured.
Consistent with the evidence of SC Lumsden, the defendant was able to provide his details, photograph the police report number, undertake the alcotest and interact in manner that revealed his consciousness and awareness of conversation and his surroundings. He did not require the officer to provide him with the address where he had fallen. He made it clear that he knew where he was.
It was only when the officer did not accept his refusal through his request for the kit upon a negative result, did the defendant raise his lack of understanding and medical condition, as an impediment. It cannot be overlooked that there were times during his claims to not understand, that he interacted clearly and sensibly with the officer. His exchanges at the scene and evidence on this topic as to not being able to understand what was being said and that he was impaired to respond due to his injury, were not believable and I reject them.
The nature of the appeal
This is an appeal pursuant to s 42 of the Magistrates Court Act 1991. Section 42 provides:
42—Appeals
(1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from committal proceedings).
The appeal is by way of rehearing. The Court is required to undertake an independent review of the evidence and form its own view as to the appropriate outcome.[7] However, the Court should not substitute its own view for that of the Magistrate unless satisfied the decision of the Magistrate is attended by error.[8]
[7]Martin v Department of Transport, Energy & Infrastructure [2010] SASC 141 [36]–[38].
[8] Police v Kriticos [2016] SASC 28, [27] (Doyle J) citing Wade v Australian Railway Historical Society (2000) 77 SASR 221, [38]–[40].
With these principles in mind, I turn to consider the grounds of appeal.
Ground 1
The appellant submits I should find that there is a reasonable apprehension that the Magistrate was biased. I have set out the principles earlier and will not repeat them.
The appellant relies upon three matters. First, a contention the Magistrate spoke to the prosecutor in his absence (the first matter). Second, certain aspects of the reasoning process of the Magistrate (the second matter). Third, that on the day fixed for judgment, the Magistrate issued a warrant when the appellant failed to attend (the third matter).
The first matter
On the hearing of the appeal, I permitted the appellant to call evidence as to the first matter. That evidence was given by the appellant and Mr Denis Pupovac. There were differences in the evidence of the appellant and Mr Pupovac, but what was common to both was that during an adjournment of the trial, likely the morning adjournment during the evidence of Senior Constable Lumsden, both witnesses were outside of the courtroom and had cause to look into the courtroom through the door. Senior Constable Lumsden was also outside the courtroom. Upon looking into the courtroom, both witnesses said that they saw the Magistrate on the bench and speaking in the direction of the prosecutor who was in the courtroom. The evidence of both witnesses was that they believe the Magistrate was speaking to the prosecutor. On the evidence, the prosecutor appears to have been standing and facing, at least in part, away from the door. On the evidence, there was another, or others, in the courtroom. On the evidence, that person, or persons, were another police officer, or officers, and/or a court staff member. Given their position, neither witness heard anything which might have been said. Shortly after this, the appellant and Senior Constable Lumsden returned to the Court and the trial continued. There is no dispute that, notwithstanding what he claims to have seen, the appellant did not raise the matter with the Magistrate. When reviewing the audio recording of the trial, the appellant noted that nothing had been recorded. Nothing of what is alleged to have been seen is recorded in the transcript but I do not regard that as inconsistent with the evidence.
As I have already said, there are some differences in the evidence of the appellant and Mr Pupovac as to what they claim to have seen. Nevertheless, I am not satisfied that those differences are indicative of either witness not being credible nor at least substantially reliable. Despite the differences in the evidence, I am satisfied the Magistrate was on the bench and in the presence of the prosecutor when the appellant and his witness were outside the courtroom. I cannot say for how long. I am satisfied that it is more likely than not that the Magistrate spoke when the prosecutor was in the courtroom and the appellant was outside. On the balance of probabilities, I am not able to conclude that whatever occurred can be characterised as a conversation with the prosecutor. First, on the evidence, it is likely that at least one other person was in the courtroom at the time. I cannot exclude that one person was a member of the court staff (i.e. – a Sherriff’s Officer). On the balance of probabilities, I cannot exclude that the Magistrate was speaking to a Sherriff’s Officer, for example to request that he/she have the appellant and Senior Constable Lumsden return to the courtroom in order that the trial could continue. On the evidence, both the appellant and Senior Constable Lumsden were outside of the courtroom.
Second, even if the Magistrate did speak to the prosecutor, on the balance of probabilities, I am not satisfied that what was said related to a relevant aspect of the trial. Assuming the Magistrate did speak to the prosecutor, it may have been simply to ask him where Senior Constable Lumsden and/or the appellant was, or were, in the order that the trial could continue. A request of that nature would not be uncommon in the Magistrates Court. Further, there may have been a need for the Magistrate to speak about a matter other than the trial being conducted. It is to be observed that the Magistrate was on the bench which, while not conclusive, gives rise to the possibility that she may have dealt with another matter during the adjournment. Putting that aside entirely, on the evidence, others were also present in the Court. It is not unusual that a Magistrate might speak to someone in the Court about a topic unrelated to the matter being heard. On the evidence, there is more than one reason that the Magistrate may have spoken to, or in the presence of, the prosecutor. What is clear, is that the evidence does not establish that anything occurred which warrants a finding of a reasonable apprehension of bias.
The second matter
There were two aspects of the Magistrate’s reasoning which the appellant contended were indicative of bias. The first was a contention that the Magistrate did not consider his submissions at trial regarding his belief that the police were using the drug wipe to collect his DNA amounting to a good cause for refusal. The Magistrate clearly took these submissions into account and rejected his belief as good cause. When pressed on appeal, the appellant agreed that simply because Magistrate found against him with respect to that matter did not, of itself, establish a reasonable apprehension of bias.

The second contention was that the Magistrate’s preference for Senior Constable Lumsden’s evidence over the appellant’s regarding the giving of a sample of blood at the hospital showed bias. That preference was open to the Magistrate and nothing in her reasons with respect to that preference is indicative of bias. Further, on appeal, the appellant did not seek to challenge the finding of the Magistrate that he did not submit to, nor did he request, a blood test pursuant to the Act. This is not to overlook that I have no doubt that blood was taken at the hospital. Nevertheless, given that there was no request made pursuant to s 47(11) of the Act, the taking of that blood was not pursuant to the Act.
The third matter
As to the third matter, at the end of the evidence and submissions at trial and in the presence of the appellant, the Magistrate adjourned the matter for verdict to 16 June 2023. The appellant did not appear on 16 June 2023. The appellant says he had made an error with respect to that date. The Magistrate issued a warrant because of the appellant not appearing. However, that warrant was later recalled on 19 June 2023. This appears to have been after the Magistrate was made aware of the explanation of the appellant.
The decision of the Magistrate to issue a warrant does not establish a reasonable apprehension of bias. As set out above, the appellant was present when the date was set, but did not attend. At the time the Magistrate issued the warrant, there was no explanation for the failure to appear. In the circumstances, it was not unreasonable for the Magistrate to assume the appellant had decided not to attend and did not have an excuse. Once an explanation was given, the warrant was recalled.
A further observation may be made. The Magistrate gave her verdict on 16 June 2023 and the reasons are dated that day. It can be assumed that the Magistrate came into court on 16 June 2023 having reached a verdict and ready to publish her reasons. It follows that the absence of the appellant cannot have been known to the Magistrate when her verdict was arrived at and when the reasons for that verdict were settled.
Ground 3 — Senior Constable Lumsden was an unreliable witness
As set out earlier, the appellant said that he had took the position he did with respect to the drug swipe because he believed it would be used to obtain his DNA profile. The appellant submits the Magistrate should not have accepted the evidence of Senior Constable Lumsden that the test was not being done for that purpose as he was unreliable on that topic.
After the incident that caused Senior Constable Lumsden to attend the scene, the appellant was taken to the hospital and treated for his injuries. At times in his submissions, the appellant appeared to submit that Senior Constable Lumsden might have been unreliable because he gave evidence a blood test had not been performed at the hospital when, on the evidence of the appellant, a blood test had been performed at the hospital. As set out above, I do not doubt that blood was taken. Although not explored at trial as clearly as it might have been, in giving that evidence, it appears that Senior Constable Lumsden was referring to a blood test pursuant to s 47EAA(11) of the Act rather than a blood test performed for any other purpose. However, on the hearing of the appeal the appellant accepted Senior Constable Lumsden may not have known about the taking of blood at the hospital and ultimately did not seek to rely upon Senior Constable Lumsden’s evidence about a blood test in submitting he was unreliable about the drug swipe being used to collect DNA.
On the hearing of the appeal, the appellant relied upon the following matters which he said should have led to a finding that Senior Constable Lumsden was unreliable about the drug screening test being used to obtain DNA. First, that while speaking on the day of the accident, the appellant contends Senior Constable Lumsden was recorded as saying the following: ‘I’m very curious to see what it’s going to upload’. The appellant submits that being said by Senior Constable Lumsden is consistent with him expecting the drug swipe to be used to obtain a DNA profile from the appellant. Second, that the refusal of Senior Constable Lumsden to give the appellant the test if it was negative gives rise to an inference that it was to be kept for the purpose of DNA. Third, that the appellant believes that collecting DNA is a reason for police retaining the drug swipe even in the event of it returning a negative result. Fourth, a matter in New South Wales in which police used a ‘random’ breath test to obtain a DNA profile.
The evidence of Senior Constable Lumsden
Already set out above are some of the relevant parts of the evidence of Senior Constable Lumsden. As already set out, he said that the drug swipe was considered hazardous waste and that the practice of police was to place the used swipe into a hazardous waste bin once back at the police station. Senior Constable Lumsden said the most common method for taking DNA was using a buccal swab and he described the appearance of that swab and his understanding of how it would be handled if submitting to the Forensic Science Centre (SA) where there was a desire to obtain a DNA profile from a person. An aspect of the evidence of Senior Constable Lumsden was:
QHave you administered any buccal swabs.
AYes.
QWhat’s the process in that, what’s the procedure.
AYour Honour, if a person has committed a, suspected of committing a prescribed offence —
QCan I ask what a prescribed offence is.
AThere are offences under regulation that require a person’s DNA to be taken. If a police officer has reasonable cause to suspect that an offence has been committed, they’re then required to take a sample of the person’s DNA. It can be done by different methods, but the most common method that is used is a buccal swab and the buccal swab is then used to obtain the person’s DNA.
QWhat do you do with the buccal swab once you’ve wiped the mouth of the accused.
AThe buccal swab is put into a specially sealed bag.
QA hazmat bag like the drug kit.
ANo. There are two smaller bags as part of the buccal swab kit. To describe the actual item, it takes a bit. If you can imagine a lollypop-shaped dome with a sponge at the end that takes the sample. That is then placed into a bag, that bag is then taken to the Forensic Science Centre and the DNA is then removed from that swab and then the physical swab itself is destroyed and the DNA is uploaded on the Forensic Database.
QCan you legally take DNA without suspicion of a crime.
AThere are a variety of different reasons to take DNA, but, like I said, the most common one is that there is reasonable cause to suspect a crime has been committed under Act, you are then required to take a sample of that DNA. There are other categories though.
QBut if a person refuses a DNA swab, you can only take it if there’s a reasonable suspicion a crime has been committed.
ANo, there are other reasons to take DNA, a wide variety, an example of which would be, if you are in prison, for example, for offences and your DNA for some reason hasn’t been taken, then a buccal swab will be taken at that point. It can also be taken to remove people as suspects as well as using it as evidence. There’s a variety of reasons.
HER HONOUR:   Mr Sambastian, there’s been long answers about that, what is the relevance of that line of question.
DEFENDANT:     I am suggesting that the —
HER HONOUR: Suggest it then.
QI am suggesting that the drug swipe can be used to collect DNA.
AI will never, I would say no, it’s —
DEFENDANT:     Well, you wouldn’t know cause you just hand it in to the police station.
HER HONOUR:
QYou have asked the question, so you have to allow him an opportunity to answer. First you started saying, no an (sic) then you said about your experience.
AYes, your Honour. There would be no lawful authority to take the DNA in the first place and if there was an authority, then we use the appropriate kit. Using a drug wipe to take DNA, a. is illegal, and b. would be pointless, you would have not way of uploading it to the Forensic Science Centre.
QIn your experience, have you —
ANever seen it your Honour, not once.
QWhat about you, have you ever done it.
ANever your Honour, not once.
The findings of the Magistrate about Senior Constable Lumsden
As to the evidence of Senior Constable Lumsden, the Magistrate found:
I formed a favourable view of the witness SC Lumsden. His evidence was clear and consistent. I found him to be an honest and open witness, who had the benefit of long years of experience as a traffic police officer. He endeavoured to assist the court and the defendant’s questioning under cross-examination. He was unshaken and there was nothing that caused me to doubt his credibility nor reliability. I accept his evidence beyond reasonable doubt.
Discussion
I turn to each of the matters relied upon by the appellant to establish that Senior Constable Lumsden was unreliable on the relevant issue.
The body worn footage was tendered at trial, as was a transcript of that recording but only as an aid to following the video. I have listened to that part of the recording at which the appellant submits Senior Constable Lumsden said ‘I’m curious to see what it’s going to upload’. Having listened to the relevant part of the recording, I reject those words were said. I am satisfied the words used were ‘I’m very curious to see whether it’s been uploaded’. The entirety of the comment is:
Yeah, we don’t know if, it’s just bizarre, you only, I think he’s got concerns about his DNA, I’m very curious to see whether it’s been uploaded.
I reject that what Senior Constable Lumsden said is consistent with him expecting the drug swipe would be used to generate a DNA profile. The far more likely reason for the comment made by Senior Constable Lumsden is that, given the refusal of the appellant to submit to the drug swipe absent the condition, Senior Constable Lumsden was speculating that the appellant feared his DNA might be matched to a profile already uploaded into a database available to the police.
The refusal of Senior Constable Lumsden to agree to the condition sought to be imposed by the appellant does not establish he was unreliable. For the purposes of this appeal, it may be assumed, without deciding, that if the test was negative, little, if anything, was achieved by not allowing the appellant to keep the test as any biological material which might have been hazardous was the appellant’s own. That said, there is nothing in the evidence of Senior Constable Lumsden about his reasons for not agreeing to the condition which strikes me as unlikely. Further, that aspect of the evidence of Senior Constable Lumsden cannot be divorced from his evidence about the approach taken when a DNA profile is sought. That evidence is also not unlikely. There is no reason to reject it.
For the purposes of the appeal, it may be accepted that the appellant believed at the time, and continues to believe, that police intended to use the drug swipe to obtain his DNA profile. Nevertheless, no matter how genuine and strongly held that belief, it does not establish that Senior Constable Lumsden’s evidence to the contrary was unreliable.
The appellant was unable to provide the reference to the case in New South Wales, but it appears to be R v Daley.[9] An aspect of R v Daley involved a question of the admissibility of DNA evidence. Police had been investigating a series of sexual assaults against six complainants. A matching profile of DNA had been obtained from two of the complainants. The accused was named as the sole suspect in the investigation with a primary objective to covertly obtain a sample of his DNA. Knowing the vehicle the accused drove, a police officer was directed to pull that vehicle over to conduct a random breath test and retain the used test tube in a sealed container for the purposes of DNA analysis. The analysis returned a positive result within a high probability range. In circumstances where the police were concerned the accused was preparing to attack his next victim, the evidence was not excluded on the basis it was an improper use of police power. However, in declining to exclude the evidence on this basis, Simpson J stated:[10]
In my opinion, the fears police held of another attack, and the reasons for those fears, constituted an important extenuating circumstance affecting whether the behaviour should be classed as an impropriety, and if it should, the level of the impropriety, and the consequences that should attach to any such impropriety. I would be much less inclined to take a benign view of what police did and to admit the evidence, if they were not under pressure, not only to identify and apprehend a man guilty of these serious offences, but to ensure that the pattern of offences did not continue and involve additional victims.
[9]R v Daley [2001] NSWSC 1211.
[10]Ibid [124].
I will turn later to whether what occurred in R v Daley is relevant to the defence of ‘good cause’. For the moment, I observe that it is not necessary to rely upon R v Daley to establish that a DNA profile might be obtained from an object which bears the saliva of a person. That saliva contains skin cells which can be a source of DNA is well known. It is the reason that a buccal swab is commonly used to obtain a DNA profile of a person. It is also not necessary to rely upon R v Daley to establish that police might engage in subterfuge during an investigation. Nevertheless, what occurred in R v Daley is not in any way analogous to what occurred in this case. Senior Constable Lumsden was not undertaking an investigation the furtherance of which might have been aided by obtaining the DNA profile of the appellant. The issue before Senior Constable Lumsden was whether the appellant, whom it is not disputed had fallen from his scooter or motorcycle, may have been affected by a drug. There is no suggestion that the collection of DNA might have assisted Senior Constable Lumsden in discharging his responsibilities nor that, unlike in R v Daley, police suspected that the DNA of the appellant might have assisted in the investigation of some other offence. What occurred in that case does not establish Senior Constable Lumsden’s evidence was unreliable, nor that the Magistrate should have concluded that a purpose for taking the drug swipe was to generate a DNA profile.
In the circumstances, the acceptance by the Magistrate of the evidence of Senior Constable Lumsden cannot be criticised. It was open to her to accept the relevant aspects of his evidence.
Ground 5 — double jeopardy
The appellant submits that the trial should not have occurred because it was the second trial of this offence.
At the first trial, the appellant had also been found guilty, but he appealed. On appeal, the conviction of the offence was quashed and the matter sent back to the Magistrate to be retried.[11]
[11]Respondent’s Written Submissions [4].
The submission of the appellant is that because he had had a previous trial, it was not open to try him again for the offence. This ground is without merit. The original conviction being overturned on appeal should not be confused with an order for acquittal. The order of the Court was to remit the matter for retrial. The effect of that order being that the matter remained undetermined, there was therefore no breach of the principle of double jeopardy.
Grounds 6, 7, 10 and 11
These grounds can be dealt with together as all concern the approach of the Magistrate to the position of the appellant at trial as to whether he had committed the offence. As set out above, the primary position of the appellant was that he did not refuse and his alternative position was that the reasons for his refusal established ‘good cause’ in the circumstances to refuse under s 47EAA(10)(c) of the Act.
The appellant refused
The Magistrate was correct to find that the appellant had refused the drug swipe. The failure of Senior Constable Lumsden to agree to the condition sought to be imposed by the appellant did not mean that the appellant did not refuse the direction given. The direction of Senior Constable Lumsden had to be reasonable, but I do not read into that requirement that a person can impose a condition which if not met means there has not been a refusal.
Good cause
On appeal, the appellant did not challenge the approach of the Magistrate that he did not seek to establish any defence under sub‑s 10(a) or (b) so it is not necessary to say anything more about those aspects of sub-s (10). If the condition sought to be imposed by the appellant was relevant, it had to be something which established the ‘good cause’ defence under sub‑s 10(c). The appellant bore the onus on the balance of probabilities.
The phrase ‘good cause’ is of wide import[12] and has been considered in several cases with respect to s 47E(4) of the Act and earlier versions of that section. In Police v Ghuede, Vanstone J summarised some of those cases in the following way:[13]
[13]In Bottomley v Symons (1982) 31 SASR 18 the Full Court considered the meaning of good cause as used in an earlier version of this subs of 47(e) of the RTA. There the appellant had refused to submit to an alcotest and contended that good cause for that refusal was found in his belief that the insulin in his system by reason of his being a diabetic would produce a falsely positive result and lead to a charge of an offence involving alcohol. Both King CJ and Wells J, Jacobs J agreeing, held that the expression “good cause” connoted something more than a belief entertained without any reasonable basis. In Daire v Rollins (1982) 30 SASR 156 Mitchell J, with whom King CJ and White J agreed, upheld a magistrate’s finding that good cause was constituted by the defendant quite reasonably suspecting on the basis of things said that the police were deliberately denying him his right to a blood test. In Bormann v Coldwell (1986) 43 SASR 297; 4 MVR 447 the appellant justified his refusal to submit to a breath analysis test by reason of his wish to obtain legal advice as to his obligations. Von Doussa J found that such a reason for refusing was not “good cause”.
[14]In Czerwinski v Hayes (1987) 47 SASR 44; 5 MVR 131 the Full Court held that a reasonable belief that consumption of liquor after driving might increase a blood alcohol concentration to the prescribed concentration is capable in law of amounting to good cause for refusing to submit. King CJ made the following observations (at SASR 45; MVR 132):
The phrase “good cause” is one of wide import. I see no reason to circumscribe its meaning as has been done with the phrase “without reasonable excuse” under the corresponding English provision: R v Lennard [1973] 1 WLR 483; 2 All ER 831. R v John [1974] 1 WLR 624; 2 All ER 561. The phrase is wide enough to comprehend any fact or combination of facts which reasonably commend themselves to the court, subject only to any limitation arising necessarily from the language or evident purpose of the section, as good cause for a person to refuse to comply with the requirement or direction.
[12]Czerwinski v Hayes (1987) 47 SASR 44, 45.
[13](2007) 99 SASR 280, 284–285 [13]–[14].
A genuine belief is not enough. It must be a belief that is reasonably held. In Bottomley v Symons, King CJ held that:[14]
[I]t must be a belief which is reasonably held. It is not the reasonableness of what is believed, considered objectively which is in question, but the reasonableness of the defendant’s conduct in holding the belief.
[14](1982) 31 SASR 18, 19.

In the same case, Wells J held:[15]
A man’s belief may be the cause of his refusal, if the belief is genuine, that is, really and truly held.
But men may hold all manner of beliefs, every one of which may be the cause of a refusal, without any one of them amounting to ‘good cause’. The belief is subjective, but the attribute ‘good’ is objective, and must be related to actual facts in the existence of which there were good grounds to believe.
[15] Ibid 23.
In the context of an earlier version of s 47E, but still of relevance in the application of s 47EAA(10)(c), King CJ observed in Czerwinski v Hayes[16] that ‘laxity in applying the exculpatory provision might easily have the effect of frustrating the purpose of the legislation’. In discussing the purpose of the legislation in Borman v Coldwell, von Doussa J noted that the ‘legislation obviously intends to invade private rights’ and ‘that the need to maintain the safe and efficient regulation of traffic and to ascertain whether an offence against the Act has been or is being committed, justifies the giving of directions which require immediate compliance’.[17]
[16](1987) 47 SASR 44, 46.
[17](1986) 43 SASR 297, 305–306.
Discussion
Earlier I have set out the reasons of the Magistrate for finding that the defence had not been established. Although not an aspect of the reasons criticised by the appellant in submissions, as the appellant is unrepresented, I have considered carefully the part of her Honour’s reasons which I have emphasised in the passage earlier extracted. On my reading of the part of the reasons emphasised, in finding that the appellant had not met his burden, the Magistrate inferred the appellant had failed to exclude that he had refused by imposing a condition he knew would not be acceded to because he believed the test may produce a positive result. While that may have been an inference open to the Magistrate, with respect to her, in drawing that inference, I am not satisfied that she considered the particular condition the appellant sought to impose. That is, that he be able to retain the drug swipe only if it returned a negative result. That specific condition weighed against the inference drawn by the Magistrate and, with respect to the Magistrate, that required specific consideration before the relevant inference could be drawn. For that reason, I am satisfied that the reasoning of the Magistrate was attended by error.
Whether the appeal should be allowed
I turn to whether the appeal should be allowed.
In Boyle v The King,[18] the Court of Appeal considered the effect of an error established on appeal under s 42 of the Magistrates Court Act 1991 and referred to, without criticism, the test stated by Peek J in Police v Rosales:[19]
… a court may determine, with appropriate caution, that although an error is otherwise made out, the charge was so clearly proven that it is inevitable that the Magistrate would have found it proven irrespective of the error.
[18][2022] SASCA 50.
[19][2017] SASC 118 [95].
The Court of Appeal went on to observe:[20]
In practical terms, there is probably little difference between the tests under the common form proviso and that suggested in Le Cornu. However, the question to be answered, on an appeal from the Magistrates Court, is whether the charge is so clearly proven that it is inevitable that the Magistrate would have found it proven irrespective of the error.
[20]Boyle v The King [2022] SASCA 50 [135].
An error existing in the Magistrate’s reasoning with respect to the appellant’s defence of good cause, the issue is whether the appellant established on the evidence at trial, on the balance of probabilities, that there was, in the circumstances of the case, good cause for the refusal.
Without deciding, I will assume that the appellant genuinely believed that the drug swipe might be used to unlawfully obtain his DNA. Consistent with that assumption, unlike the Magistrate, I will not infer that the refusal might have been influenced by a concern that the drug swipe might return a result consistent with a drug having been consumed.
The issue is whether the genuine belief of the appellant amounted to good cause to refuse the test. An aspect of this inquiry is whether the belief was reasonably held. In my view, given I will assume the evidence of the basis for the belief was genuine, the Magistrate was in no better position to make that judgment than me.
The evidence of Senior Constable Lumsden is not consistent with the belief being reasonably held. It follows that if the defence is established, it must be based upon the evidence led by the appellant at trial.
The evidence of the appellant at trial as to why he held the belief he did was limited to the following:
QYou refused to submit to that drug test.
AYes, I had a good cause not to submit to the drug test.
QYour good cause, you say, because you believed was going to collect your DNA.
AMy DNA was on that stick and the only way to prevent the police taking my DNA is to not let them have the stick.
QThat’s only your views. You’ve got no evidence the police collect DNA.
AI just gave that evidence in D1.
QWhat evidence before the court have you shown that SAPOL is there to take DNA from the drug wipe.
AI know as a — I think there’s plenty of evidence of that. I think police have taken DNA illegal on multiple occasions.
QI put it to you that’s simply not true, police don’t take DNA from a drug wipe.
AI disagree with that.
The reference to D1 is a reference to a document that is no more than a document setting out diagrammatically the process by which a drug swipe is performed and a drug test result obtained. Even assuming D1 informed the reason the appellant refused, a doubtful proposition as that was not the evidence at trial, D1 does not assist the appellant. D1 sets nothing more than what I have just described.
At trial, the appellant relied upon no more than D1 and an assertion of his belief that police would use the drug swipe test to obtain his DNA. The evidence does not establish a basis upon which this belief was held.
I make some additional observations out of respect for what I have assumed to be the appellant’s genuine belief, the determined nature of his submissions on the appeal, and as a matter of completeness.
On the appeal, the appellant relied upon three particular submissions in support of the basis for his belief.
First, an earlier incident in which he contends police attempted to unlawfully obtain his DNA. It would seem that this incident involved the appellant being charged with a Damage Property offence and being directed to provide a sample of his DNA to police. The appellant submits that after several refusals, the charge was dropped and he was awarded court costs. Even if there was evidence of what the appellant submitted, I would not regard that as supporting the belief was reasonably held. What occurred did not involve a drug swipe. Further, there is no evidence as to the basis for the relevant direction nor why the appellant concluded that that direction was without lawful foundation.
Second, that R v Daley, already discussed above, supported his belief. For the reasons already given, it does not. The circumstances of that case are very different to the circumstances of the appellant. That police in New South Wales used an alcotest to obtain a sample of DNA from a suspect on an occasion does not logically support a belief that an established practice of the South Australian Police is to administer drug wipe tests under s 47EAA of the Act for the purpose of obtaining samples of DNA. In any event, there was no evidence given at trial, or provided on appeal, that the defendant was aware of what occurred in R v Daley at the time of the refusal.
Third, the comment the appellant contends was made by Senior Constable Lumsden which I have set out earlier. I have found that the comment was not in the terms submitted by the appellant. However, I note for completion, that even had the comment been made in those terms, it was not open for the appellant to rely upon it as grounding his belief at the time of the offence because his refusal preceded that comment.
The evidence does not support that the appellant’s belief at the time of refusal was based on objectively reasonable grounds. In this case, the appellant’s belief that the police were using the drug swipe test to obtain a sample of his DNA does not amount to a good cause for refusal. I am therefore satisfied, irrespective of the error identified above in the Magistrate’s reasoning, the charge is so clearly proven that the Magistrate would have inevitably found the appellant guilty of the offence.
Conclusion
I dismiss the appeal.