Semmens v Police No. Scgrg-98-1506 Judgment No. S176

SEMMENS v POLICE
[1998] SASC 176

Magistrates Appeal: Criminal

MULLIGHAN J The appellant was charged with driving a motor vehicle on 17th August 1998 on the Main North Road at North Adelaide while there was present in his blood the prescribed concentration of alcohol as defined in s47A of the Road Traffic Act 1961 contrary to s47B of that Act. It was alleged that this blood alcohol level as determined by breath analysis was .147 grams in a hundred millilitres of blood.
The appellant pleaded not guilty and the matter proceeded to trial. The facts were agreed. The learned Magistrate found the appellant guilty of the charge. He was convicted and fined and disqualified from holding or obtaining a licence to drive a motor vehicle for a period of six months. The appeal is against the finding of guilt and the consequential conviction.
A motor vehicle driven by the appellant was stopped at a random breath testing station set up by police on the Main North Road at North Adelaide at about 5.05 am. The station had been validly established pursuant to s47DA of the Act. When the appellant was tested on an alcometer the test was positive and he was required to undertake breath analysis by a police officer at 5.36 am. He took nothing into his mouth between the alcotest and the breath analysis. The result of the breath analysis was as mentioned.
Pursuant to s47G(1) of the Act, if the requirements and procedures laid down in the Act in relation to breath analysing instruments and breath analysis have been complied with, including s(2) and s(2a), it must be presumed, in the absence of evidence to the contrary, that the concentration of alcohol indicated by a breath analysing instrument, operated by a duly authorised person, was present in the blood of the driver at the time of the analysis. S47G(1a) provides that no evidence can be adduced in rebuttal of this presumption except in specified circumstances relating to the concentration of alcohol revealed in a sample of blood which is of no application in the present case. S47G(1ab) provides that the blood alcohol level so proved must be conclusively presumed to have been present in the blood of the driver throughout the two hours immediately preceding the analysis.
It was contended before the learned Magistrate that the requirements and procedures of s47G(2) were not complied with and consequently the presumptions in s47G(1) and s47G(1)(ab) have no application. If that contention is correct, the agreed facts would be insufficient to prove the charge against the appellant.
S47G(2) provides:
“As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying -
(a).... the concentration of alcohol indicated by the analysis to be present in the blood expressed in grams in 100 millilitres of blood; and
(b)the date and time of the analysis.”
There is no suggestion that the requirements and procedures laid down in s47G(2a) were not complied with. They are procedures with respect to blood tests. S47G(5) provides that a certificate signed by the police officer operating the breath analysis instrument certifying various matters, including that the blood alcohol level, as indicated by the breath analysing instrument, as being present in the blood of the person is, in the absence of proof to the contrary, proof of the matters so certified on the day and at the time stated in the certificate.
After the appellant had submitted to the breath analysis, the police officer conducting the analysis discharged all of his obligations under s47G, however the statement in writing required by s47G(2) and the certificate given pursuant to s47G(5), contained the wrong date. The police officer had mistakenly written in the 16th August 1998 instead of 17th August 1998. Otherwise the details were correct. The statement contained the correct blood alcohol level and the correct time. A short time later the police officer realised that he had recorded the incorrect dates on the statement and the certificate and at about 6.20 am he issued a new statement pursuant to s47G(2) and a new certificate pursuant to s47G(5) with the correct date and handed them to the appellant, who was still present at the random breath testing station, at about 6.20 am.
At the trial, the learned Magistrate admitted into evidence the statement in writing and the certificate over the objection of Mr Edwardson, who appeared for the appellant at the trial and on the hearing of this appeal.
It was submitted that neither of the initial documents could be admitted into evidence pursuant to s47G(1) because they did not comply with s47G(2) and s(5) respectively given the incorrect date of the breath analysis in each of them. On this appeal, it was conceded by the respondent, correctly in my view, that the subsequent statement in writing could not be admitted into evidence because it was not delivered to the appellant “as soon as practicable” after the breath analysis: see s47G(2). Also, the certificate could not be amended because pursuant to s47G(5)(c) it had also to certify that the statement in writing required by s47G(2) was delivered in accordance with that subsection and it was not.
The learned Magistrate rejected the submission and admitted both documents. He referred to the various cases to which he had been referred and it appears that he followed the decision of Mohr J in Nottle v Chaplin; McDonald v Shepherd (1988) 8 MVR 268. I return to that decision shortly. Having admitted the documents, there was no defence to the charge. The learned Magistrate found the appellant guilty as charged and he was convicted.
The only issue raised on this appeal is that the learned Magistrate erred in admitting the statement in writing and the certificate into evidence by concluding that they fulfilled the requirements of s47G(2) of the Act and by then applying the presumption in s47G(1).
A convenient starting point is the decision of the Full Court in Taylor v Daire (1982) 30 SASR 453.
In that case the Court was concerned with the failure by police officers to comply with all of the requirements of s47g(2a), now s47G(2a), with respect to providing information about the right to a blood test and the consequence of failing to exercise that right. King CJ said at p463:
“... Parliament has amended s47g to provide certain consequences which are to follow non-compliance with s47f. Those consequences do not affect the admissibility of evidence of the breath analysis instrument’s reading nor do they affect the judicial discretion to exclude such evidence. They are confined to the operation of the statutory presumption that the concentration of alcohol indicated by the instrument was in fact present at the relevant time. It is to be remembered, however, that what is rendered admissible by s47g is merely the reading on the breath analysis instrument. The probative effect of that reading in relation to the concentration of alcohol in the blood depends upon other factors. If the statutory presumption operates, the reading is evidence of the concentration of alcohol actually present in the blood by virtue of the statutory presumption. If the presumption does not operate, the probative effect of the reading on the instrument depends upon the legal rules relating to the proof of facts by means of scientific and technical instruments. Whether the prosecution can make any practical use of the breath analysis reading without the aid of the statutory presumption does not fall to be considered in the present case. What is clear is that the operation of the statutory presumption as to the correspondence of the breath analysis reading with the concentration of alcohol actually present in the blood at the relevant time, depends upon compliance with the prescribed procedures including the procedures as to blood tests prescribed in ss 47f and 47g(2a).”

Wells J said at p473:

“In short, whether or not the prosecution will be able to rely on the presumption will depend exclusively upon whether it can be proved that the police officers concerned obeyed the injunction laid on them by sub-s(1) of s47g to comply with the requirements and procedures in relation to breath analysing instruments and breath analysis under the Act - in particular, sub-ss (2) and (2a) (supra). In my opinion, no question of judicial discretion arises when a court is determining whether the presumption is to be applied; if the foregoing conditions precedent to its successful invocation have been proved, the presumption ipso facto applies; if that proof fails, the presumption is lost.”

Jacobs J agreed with both of these observations. For present purposes s47G is in essentially the same terms as the former s47g.

The same view was expressed by Bollen J in Eubel v Martin (1992) 57 SASR 290 at p295. He accepted the argument that the application of the presumption is to apply only upon the condition that the prosecution has proved that there had been compliance with the necessary requirements and procedures, including those set out in s47g(2) (now s47G(2)).
It may be seen that if there is not compliance with ss47G(2) and (5), the presumption does not apply. The evidence is admissible but the probative effect, if any, of the breath analysis will depend upon other factors. It is not a matter of the exercise of discretion to admit or exclude evidence.
The learned Magistrate was referred to a number of cases where the same, or a similar, error was made by the relevant police officer. I have mentioned Nottle v Chaplin; McDonald v Shepherd. In that case Mohr J was concerned with a factual situation similar to the present circumstances. The relevant legislative provision was virtually the same and the police officer made an error in the statement. He wrote 7th February 1987 instead of 9th January 1988. Mohr J concluded that innocent and non-prejudicial error could be corrected by oral evidence. He said he would have reached a different conclusion if the error had been prejudicial to the driver, such as delivering a statement that the blood alcohol reading was below the legal limit. He held that oral evidence to correct the error was permissible where the error arose from inadvertence. It seems that by mentioning prejudice, Mohr J was introducing the concept of a Bunning v Cross type of discretion. In my view, no such discretion arises. As may be seen from Taylor v Daire, s47G(1) is also concerned with a presumption not merely with admissibility. Mohr J does not mention any other justification for admitting oral evidence to correct an error in the statement.
I now turn to the other cases referred to in argument which are said to bear upon the issue in this appeal, many of which were considered by the learned Magistrate.
In Police v Rowland (unreported, 11th December 1995, Jd No S5414) the statement issued pursuant to the former s47g(2) mistakenly omitted the breath analysis reading which, incidentally, was 0.155. The reading was later written into the statement. It was contended that the statement should be admitted into evidence as there was no prejudice to the driver. Bollen J held that the omission in the statement could not be cured by the giving of another statement and it was defective and inadmissible because it did not comply with s47g(2). His reasons for judgment do not reveal if he was referred to Nottle v Chaplin; McDonald v Shepherd.
Although the point was not specifically decided, it seems to have been accepted by the Full Court in Richards v Schutt (1978) 18 SASR 421 that failure to comply with obligation in s47g(2), as it then was, to deliver the statement to the driver as soon as practicable would render the statement inadmissible pursuant to s47g.
However, there are cases interstate where a different approach was taken.
In Houston v Harwood [1975] VR 698, the driver of a motor vehicle was charged with driving a motor vehicle with a blood alcohol level in excess of 0.05. She underwent breath analysis and the operator signed and delivered to her a certificate indicating her blood alcohol level and the date and time when the analysis was made. However, the certificate contained, by mistake, an incorrect surname for the driver, namely Howard instead of Harwood. The statutory regime in Victoria at the time differs from our legislation. S80F(1) of the Motor Car Act 1958 (Vic) provides for the admissibility of such a certificate and that subject to compliance with s80F(2) the percentage of alcohol indicated in the certificate is evidence of that matter at the time of the analysis. S80F(2) is in similar terms to our s47G(2) except that it provides that the certificate is to be “in or to the effect of Schedule Seven” of that Act. However, s80F(1) does not provide for the presumption as in our s47G(1). It is only concerned with admissibility. Gowans J held that the departure in the certificate from the established name of the person whose breath was tested did not mean that there had not been compliance with s80F(2) as it was “in or to the effect of” the Schedule. He concluded that there was no requirement in the subsection or elsewhere that the name attributed to the person, the subject of the analysis, had to coincide with the correct name of that person. The obligation was to deliver the certificate to the person whose breath had been analysed containing the relevant information. In my view this decision is of no assistance in resolving the issue on this appeal. However, what is of assistance is the acceptance by Gowans J at p702 of the correctness of the observation of Pape J in Clements v Bretlove (Supreme Court of Victoria, unreported, 22nd February 1972) that the indication of the percentage of alcohol in the analysis, and the date and time at which the analysis is made, are “matters essential to the validity of the certificate” (my emphasis). In that respect the decision is of assistance for present purposes.
An imprecise time of breath analysis was stated in a certificate in Henning v Lynch (1974) 2 NSWLR 254. The driver was tested at 11.47 pm. S4E(12)(a) of the Motor Traffic Act 1909 (NSW) provided, inter alia, that in proceedings for an offence of driving a motor vehicle with a prescribed concentration of alcohol in the blood, a certificate signed by a member of the police force setting out various matters including the day and time of the breath analysis and the concentration of alcohol in the blood determined by the breath analysis shall be prima facie evidence of the particulars contained in the certificate. A police officer completed the certificate on a printed form and delivered it to the driver. He correctly filled in the date but failed to cross out one of the two printed alternatives next to the space for the time at which the analysis was completed with the result that the certificate showed 11.47 am/pm. Jeffrey J held that the matters contained in the certificate were prima facie evidence pursuant to the subsection provided that all of the matters stipulated by the subsection were contained in the certificate. He concluded that 11.47 is a time and not the less so because it leaves unspecified whether the time is am or pm. It is unnecessary for present purposes to set out his reasoning in detail. It is sufficient to note that he concluded that the information as to time in the certificate was prima facie evidence in accordance with the subsection even if it was obviously wrong. If so, that evidence as to time would be disregarded. It was held that there was other evidence in the case which established whether the time was am or pm. However, Jeffrey J went on to say at p261:
“To the question whether this certificate certifies that the analysis was completed at a stated time I return an affirmative answer, even though one has to go elsewhere than to the certificate to find whether the time stated is a.m. or p.m. If the certificate had not been supplemented by other evidence as to when the analysis in the present case was made, the other facts proved by it could not in combination with s4E(11) have caused the offence to be proved, because it would not have appeared that the breath analysis was made within two ours of the s4E(2) event: but there was other evidence that the analysis was in fact completed at 11.47 p.m.”
It may be seen that the statutory provisions considered in this case deal with admissibility and prime facie proof unlike our section which also contains a presumption. I think this decision assists in the resolution of the issue on this appeal as it tends to support the proposition that an omission in the certificate could not be made good by other evidence for that purpose.
The remaining case is Crawford v Cooley (1985) 3 MVR 219. That report is brief and it is necessary to consider the full text of the judgment of Cox J of the Supreme Court of Tasmania (unreported, 8th October 1985). S11(1) of the Road Safety (Alcohol and Drugs) Act 1970 (Tas) provided that, in cases of this nature, as soon as practicable after the driver had submitted to breath analysis, the operator had to read over, and hand, to him a written statement in a prescribed form indicating the concentration of alcohol in the blood determined by the analysis. S24(1)(a) of the Act provided that evidence of the concentration of alcohol in the blood as determined by a breath analysing instrument is not admissible in evidence unless there was compliance with s11(1). A statement was completed by the operator and read over and handed to the driver. The breath analysis had occurred at 7.56 am. In the written statement the time at which the statement was read over was recorded correctly at 7.57 am but the time at which the analysis was completed was incorrectly recorded as 9.56 am. It may be seen that s11(1) did not require the time of either event to be included in the statement only the concentration of alcohol in the blood as determined by the breath analysis. Parliament had left it to regulations as to what else was to be included in the notice. The regulations provided for the time and place of the breath analysis to be included in the statement by reason of having prescribed a form of the notice which required that information to be included. Cox J held that the requirement that the time be included in the statement in the terms of the statute and the regulations was directory and not mandatory. He acknowledged that if mandatory it is the general rule “that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially”: per Lord Coleridge CJ in Woodward v Sarsons LR 10 CP 746 and Pope v Clarke (1953) 2 All ER 704 at pp705-6. He concluded that the requirement of including the time was directory and in that respect the form of the statement conformed substantially with the legislative requirements despite the mistake. As has been mentioned, the requirement of s11(1) was that the blood alcohol level be included in the statement not the date or the time of the breath analysis which is to be contrasted with our s47G(2). I think s47G(2) is expressed in mandatory terms and the obligation to provide the statement containing the date and time of the analysis, as well as the result of the analysis, must be discharged. Also, as with other interstate legislation, the Tasmanian legislation is not concerned with a presumption which could only be rebutted in limited circumstances. I do not think the decision in Crawford v Cooley is of much assistance for present purposes.
The purpose of s47G(2), in context, is to ensure that a driver who has failed a breath analysis test is given accurate and timely information in a permanent form. Given the limited circumstances in which a driver may contest the allegation as to the concentration of alcohol in the blood, this information assumes great importance. Parliament has acknowledged that the date and time of the breath analysis as well as the result of the breath analysis must be recorded in this way accurately and provided to the driver promptly. Also, Parliament has acknowledged that each of these matters is of equal importance. The driver must have accurate information about all of these matters in order to test the result of the breath analysis in the only permissible manner by means of analysis of a sample of blood. It cannot be expected that the driver will necessarily know or remember any of these pieces of information if the required statement is not given to him. Consequently, the presumption is only to apply if there is compliance with s47G(2). The onus is cast upon the relevant police officer to provide accurate information. If not, the presumption does not apply, whatever the reason for the inaccuracy.

The learned Magistrate may have felt obliged to follow the decision of Mohr J in Nottle v Chaplin; McDonald v Shepherd. In my view that decision is wrong and should not be followed. The statement was not in accordance with s47G(2) and consequently the certificate given under s47G(5) was incorrect. Neither the statement nor the certificate should have been admitted into evidence and the learned Magistrate erred in doing so. Consequently there was insufficient evidence upon which to find the charge proved upon the basis of the agreed facts.
I allow the appeal and set aside the conviction. I shall hear the parties as to what further order should be made.

[1999] SASC 176

6 May 1999