Singh v Police

Case [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.…

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AGLC
Singh v Police [2000] SASC 114
Case
[2000] SASC 114
Decision Date

CaseChat Overview and Summary

Singh was charged with driving with a blood alcohol concentration above the legal limit. The case was heard in the Supreme Court of Victoria. The central issue before the court was whether the failure to deliver a properly approved blood test kit to the defendant constituted a deficiency that could undermine the presumption of the blood alcohol concentration as indicated by the breath analysing instrument.

The court considered the statutory provisions and determined that the absence of a properly approved blood test kit did not necessarily undermine the presumption established by the legislation. The court emphasised that the presumption of the blood alcohol concentration as indicated by the breath analysing instrument was conclusive unless there was evidence to the contrary. The court further found that the prosecution did not need to prove the accuracy of the blood test kit provided to the defendant to uphold the presumption. The court concluded that the failure to provide a properly approved kit did not affect the presumption under s 47G(1) unless it was shown that the defendant was unable to comply with the prescribed procedures for taking a blood sample due to the deficiency.

The court ruled in favour of the prosecution, finding that the failure to deliver a properly approved blood test kit did not negate the presumption of the blood alcohol concentration as indicated by the breath analysing instrument. The conviction was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant provisions of s 47G of the Act are as follows:“Evidence, etc. 47G. (1) Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis. (1a) No evidence can be adduced in rebuttal of the presumption created by subsection (1) except- (a).... evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I or in accordance with the procedures prescribed by regulation; and (b)evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant. (1ab) If it is proved in proceedings that a concentration of alcohol was present in the defendant's blood at the time of a breath analysis, it must be conclusively presumed that that concentration of alcohol was present in the defendant's blood throughout the period of two hours immediately preceding the analysis. ...(2) 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. (2a) Where a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith- (a).... give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person's blood; and (b)at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person. ...(4) Subject to subsection (6) a certificate purporting to be signed by an analyst, certifying as to the concentration of alcohol, or any drug, found in a specimen of blood identified in the certificate expressed in grams in 100 millilitres of blood is, in the absence of proof to the contrary, proof of the matters so certified. ...(8) A prosecution for an offence will not fail because of a deficiency of a kit delivered to the defendant in purported compliance with subsection (2a)(b) and the presumption under subsection (1) will apply despite such a deficiency unless it is proved- (a).... that the defendant delivered the kit unopened to a medical practitioner for use in taking a sample of the defendant's blood; and (b)by evidence of the medical practitioner, that the medical practitioner was, because of a deficiency of the kit, unable to comply with the prescribed procedures governing the manner in which a sample of a person's blood must be taken and dealt with for the purposes of subsection (1a).”

Decision

Reasons for decision

MARTIN J

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Ratio Decidendi

Legal Principle Established

Established by: MARTIN J

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