Singh v Police

[2000] SASC 114

SINGH V POLICE
[2000] SASC 114

Magistrate’s Appeal

1. MARTIN J. The appellant appeals against his conviction for driving a motor vehicle on a road while there was present in his blood the prescribed concentration of alcohol as defined by s 47A of the Road Traffic Act, 1961 (“the Act”) contrary to s 47B of the Act.  It was alleged that the concentration of alcohol was .119 gms in 100 ml of blood. 

2. The trial proceeded before the learned Special Magistrate on the basis of a short statement of agreed facts.  Shortly before 4.30 pm on Sunday 25 April 1999, the appellant was driving a motor vehicle on The Parade at Norwood.  He was required to stop at a breath-testing station and complied with the direction to submit to a screening test commonly known as an alcotest.  The alcotest was positive.  The appellant was then required to submit to a breath analysis which resulted in a reading of .119 gms of alcohol in 100 ml of blood.

3. It was agreed before the Magistrate that the alcotest and subsequent breath analysis were lawfully conducted pursuant to the Act.  It was also agreed that the police complied with all the requirements of s 47G of the Act.  In particular, the appellant was given an approved blood test kit as required by s 47G(2a)(b). 

4. The appellant delivered the approved blood test kit to a medical practitioner at the Royal Adelaide Hospital at about 6.40 pm on the same day.  The medical practitioner took a sample of blood from the appellant, but did not use the kit delivered to her by the appellant.  She used a blood test kit issued  pursuant to s 47I of the Act intended for use in taking blood from persons involved in motor vehicle accidents who attend at, or are admitted to hospital for the purpose of receiving treatment for injury sustained in the accidents.  The medical practitioner did not use the kit provided by the police to the appellant because she was not aware of her obligation to do so and because she was more familiar with the other kit.

5. It was agreed that the sample taken by the medical practitioner was dealt with in accordance with s 47I of the Act.  It was divided into approximately equal proportions and placed into two separate containers.  Both containers were forwarded to State Forensic Science (“Forensic Science”).  The appellant’s portion of that sample of blood was still available at Forensic Science for collection by the respondent at the time of the trial before the Magistrate.  It was agreed that the sample had been refrigerated since receipt and had remained unopened and untested at Forensic Science.  The transcript records an agreement that the “viability” of the sample could not be “conclusively determined”, but that “in all likelihood the sample is viable”. 

6. In proof of the offence the prosecution tendered a number of documents pursuant to ss 47G and 47I of the Act.  The documents included the appropriate certificate of breath analysis.…