Singh v Police

SINGH V POLICE
[2000] SASC 114

Magistrate’s Appeal

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.
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.
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).
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.
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”.
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. The prosecution then sought to rely upon the presumption contained in s 47G(1) in order to prove the concentration of alcohol in the appellant’s blood at the time of the breath analysis. The presumption found in s 47G(1ab) that the concentration at the time of the analysis was the concentration over the preceding two hours completed proof of the offence.
The appellant challenged the admissibility of the evidence as to the result of the breath analysis. First it was said that the prosecution was not entitled to rely upon the presumption contained in s 47G(1) of the Act because a pre-condition for the availability of the presumption had not been met in that there had been a failure to comply with “the requirements and procedures in relation to breath analysing instruments and breath analysis” under the Act. Secondly, it was argued that the use by the medical practitioner of the incorrect blood test kit caused unfairness to the appellant which enlivened the discretion to exclude the results of the breath analysis. The unfairness arose because, as a consequence of the use of the incorrect kit, evidence of the result of the analysis of the blood sample could not be admitted in rebuttal of the presumption contained in s 47G(1) and upon which the prosecution relied. The third proposition which followed the enlivening of the discretion was that the Magistrate erred in not exercising his discretion to exclude the evidence of the result of the breath analysis.
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).”
The admissibility of evidence in rebuttal of the presumption created by s 47G(1) is governed by s 47G(1a). In particular, evidence of the concentration of alcohol in the blood indicated by analysis of a sample of blood is only admissible if the sample is “taken and dealt with in accordance with s 47I or in accordance with the procedures prescribed by regulation.” In the circumstances under consideration, the procedures for the taking of the blood sample from the appellant and for subsequent dealing with the sample were governed by reg 6 of the Road Traffic (Breath Analysis and Blood Test) Regulations 1994 (SA) (“the Regulations”). As mentioned, however, the medical practitioner used the incorrect blood test kit and, as a consequence, she did not follow the procedures set out in reg 6. She followed a different procedure laid down by s 47I of the Act.
In order to understand the effect of the medical practitioner’s error, it is necessary to compare the procedure set out in reg 6 with that required by s 47I. Regulation 6 is in the following terms:
“6.    The following are the prescribed procedures in accordance with which a sample of a person’s blood must be taken and dealt with for the purposes of section 47G(1a) of the Act:
(a).... the person must cause the sample to be taken by a medical practitioner of the person’s choice and must deliver the blood test kit supplied to the person under section 47G(2a)(b) to the medical practitioner for use for that purpose;
(b)the medical practitioner by whom the sample of the person’s blood is taken must place the sample, in approximately equal proportions, in two containers (being the containers provided as part of the blood test kit);
(c).... each container must contain a sufficient quantity of blood to enable an accurate evaluation to be made of any concentration of alcohol present in the blood and the sample of blood taken by the medical practitioner must be such as to furnish two such quantities of blood;
(d)the medical practitioner must seal each container by application of the adhesive seal (bearing an identifying number) provided as part of the blood test kit;
(e).... it is the duty of the medical practitioner to take such measures as are reasonably practicable in the circumstances to ensure that the blood is not adulterated and does not deteriorate so as to prevent a proper assessment of the concentration of alcohol present in the blood of the person from whom the sample was taken;
(f)the medical practitioner must then complete a certificate in the form set out in schedule 3 (being a form provided as part of the blood test kit) by inserting the particulars required by the form;
(g).... the certificate must be signed by the medical practitioner certifying as to the matters set out in the form;
(h)the certificate must also bear the signature of the person from whom the blood sample was taken, attested to by the signature of the medical practitioner;
(i).... the original of the signed certificate must then be delivered to the person from whom the blood sample was taken together with one of the sealed containers containing part of the blood sample;
(j)a copy of the signed certificate must be delivered by the medical practitioner together with the other sealed container containing part of the blood sample to a member of the police force who must, in turn, deliver that copy of the certificate and the blood sample container to State Forensic Science;
(k)... the blood sample container and copy of the certificate referred to in paragraph (j) must not be delivered into the possession of the person from whom the sample was taken;
(l)on receipt of the blood sample container and certificate at State Forensic Science, the blood in the container must be analysed as soon as reasonably practicable by or under the supervision of an analyst to determine the concentration of alcohol present in the blood expressed in grams in 100 millilitres of blood;
(m).. the analyst must then complete and sign a certificate as to the following matters:
(i).... the date of receipt at State Forensic Science of the blood sample container and the certificate accompanying the blood sample container;
(ii)    the identifying number appearing on the adhesive seal used to seal the blood sample container;
(iii).. the name and professional qualifications of the analyst;
(iv)   the concentration of alcohol found to be present in the blood expressed in grams in 100 millilitres of blood;
(v)... any factors relating to the blood sample or the analysis that might, in the opinion of the analyst, adversely affect the accuracy or validity of the analysis;
(vi)   any other information relating to the blood sample or analysis or both that the analyst thinks fit to include;
(n)... the analyst’s certificate must be sent by post to the person from whom the blood sample was taken at the address shown as the person’s address on the certificate accompanying the blood sample container;
(o)a copy of the analyst’s certificate must be sent to or retained on behalf of the Minister;
(p)... a copy of the analyst’s certificate must also be sent to the Commissioner of Police;
(q)the person from whom the blood sample was taken may cause the sample of blood as contained in the blood sample container delivered to that person to be analysed to determine the concentration of alcohol present in the blood.”
The police complied with all the statutory requirements applicable to them. The medical practitioner failed to comply with reg 6. In summary, if the practitioner had used the kit supplied pursuant to s 47G(2a)(b) and complied with reg 6, the sample of blood would have been divided into approximately equal proportions and placed in two containers being containers provided as part of the blood test kit. Each container would have been sealed and a certificate completed by the practitioner. The original of the certificate and one of the sealed containers would have then been delivered to the appellant. A copy of the certificate and the other container would have been delivered to a member of the police force who would have delivered those items to Forensic Science. Pursuant to reg 6(l), the sample delivered to Forensic Science would have been analysed. The appellant could have caused the sample delivered to him to be analysed.
As mentioned, the medical practitioner used a blood test kit provided for use in connection with s 47I, a section which is concerned with the taking of blood from persons involved in motor vehicle accidents. The procedure to be followed when a sample is taken pursuant to s 47I is set out in s 47I. The sample must be divided into approximately equal proportions and those proportions placed in two separate containers. The containers must be sealed. The medical practitioner is required to give to the patient or leave with the patient’s personal effects at the hospital, a notice in writing advising that a sample of blood has been taken and that a container containing part of the sample will be available for collection by or on behalf of the patient at a specified place. In addition, the medical practitioner must complete a certificate containing information relevant to the sample and to the identity of the patient. Unlike the reg 6 procedure pursuant to which the driver is given one of the containers, s 47I requires the delivery of both containers containing the blood sample and of the certificate to a member of the police force. One of the containers must be delivered by the police to the place specified in the notice given to the patient where the patient may take possession of the sample. After analysis by Forensic Science of the sample retained by the police, a certificate is sent to the patient identifying the concentration of alcohol found to be present in the blood.
It was agreed before the Magistrate that the medical practitioner complied with the requirements of s 47I. The appellant received a notice as to the whereabouts of his portion of the sample. He knew he could collect the sample and have it analysed. The appellant’s portion of the sample remained available for collection from Forensic Science at the time of the hearing before the Magistrate. The appellant chose not to collect the sample or to have it analysed. The clear implication in the evidence and in the manner in which the proceedings were conducted is that Forensic Science analysed the other half of the sample and sent a certificate to the appellant identifying the result of that analysis. The appellant’s choice not to collect his portion of the sample or to have it analysed must be viewed in that context.
Notwithstanding the error by the medical practitioner, prior to the hearing before the Magistrate the prosecution advised the appellant that it would not oppose the appellant leading evidence of the analysis of the sample of blood in an attempt to rebut the presumption pursuant to s 47G(1a). The Magistrate intimated that he would receive the evidence. However, the appellant chose not to place such evidence before the Magistrate. He elected to argue that evidence of the result of the analysis would be inadmissible because of non-compliance with reg 6 and, therefore, in the exercise of the discretion the Magistrate should decline to admit the prosecution evidence concerning the result of the breath analysis. The Magistrate expressed the view that the evidence would have been admissible and that, if he was wrong about admissibility, he would have declined to exercise his discretion to exclude the prosecution evidence.
As to the appellant’s first proposition, s 47G(1) refers to compliance with “the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act”. There is no dispute that the police complied with those requirements and procedures. It was the medical practitioner who did not comply with reg 6. The critical question is whether, for the purposes of s 47G(1), the failure of the medical practitioner to comply with reg 6 means that there was a failure to comply with the requirements and procedures in relation to breath analysing instruments and breath analysis under the Act.
In Police v Jervis (1998) 70 SASR 429 the Full Court was confronted with a similar situation. The police had complied with all the statutory requirements and the medical practitioner complied with most of the requirements set out in reg 6. However, the medical practitioner failed to comply with reg 6(i) by not delivering the original signed certificate to the defendant and by not delivering to the defendant one of the sealed containers containing part of the blood sample. The Court held that the procedures prescribed by reg 6 for the taking and analysis of a sample of blood are not the requirements and procedures referred to in s 47G(1). The irregularity did not prevent the prosecution from relying on the presumption. In my opinion, therefore, the failure of the medical practitioner to proceed in accordance with reg 6 does not have the consequence that there has been failure to comply with the requirements and procedures pursuant to s 47G(1). In those circumstances, the statutory presumption was available to the prosecution.
I turn to the appellant’s alternative submission that if the statutory presumption was available to the prosecution, the admission of evidence of the results of the breath analysis would be unfair to the appellant and a discretion to exclude the evidence was enlivened. As mentioned, counsel argued that the unfairness arose because, by reason of the failure of the medical practitioner to comply with reg 6, the appellant was deprived of the ability to lead evidence pursuant to s 47G(1a) in rebuttal of the presumption. Counsel contended that s 47G(1a)(a) required that the sample be taken and dealt with in accordance with the procedures prescribed by reg 6 as a condition precedent to the admissibility of the result of the analysis. As the sample of blood taken from the appellant was not dealt with in accordance with reg 6, the condition precedent to the admissibility of the result of an analysis of that sample had not been met.

The occasion for the adducing of evidence pursuant to s 47G(1a) only arises when a breath analysis has been conducted and the prosecution seeks to rely upon the presumption contained in s 47G(1). Section 47G(1a)(a) contemplates admitting evidence of the analysis of a blood sample taken from a defendant who, having been subjected to a breath analysis, requests a blood kit at that time which is subsequently used in accordance with reg 6. However, it also contemplates that, after a breath analysis reading has been obtained, regardless of whether a defendant requests a blood kit, having been injured in the accident a defendant might attend at or be admitted to hospital for the purpose of receiving treatment for the injury. In that event, s 47I would come into operation and a blood sample would be taken. Section 47G(1a)(a) contemplates that blood taken in those circumstances and dealt with in accordance with s 47I can be analysed and the results admitted in rebuttal of the presumption.
It is apparent that the purposes and effects of reg 6 and s 47I are substantially the same. Both are designed to ensure the integrity of samples of blood taken pursuant to the Act. Under each regime, approximately one half of the sample is made available to the State for analysis, while the other half is made available to the person from whom the sample was taken. In this way the person from whom the blood is taken has the opportunity of having part of the blood sample analysed. The person from whom the blood was taken is also advised of the results of analysis obtained by Forensic Science.
In both situations, Parliament sought to ensure that the sample of blood taken from a defendant would be taken and dealt with under controlled conditions that both ensure the integrity of the sample and protect the rights of the defendant. There are obvious reasons why Parliament would want to control the circumstances in which the sample was taken and dealt with before the results of the analysis of the sample could be adduced in evidence in rebuttal of the presumption. In order to achieve these purposes, in one situation the procedures are specified by regulation whereas in the other they are contained within the statute. For all practical purposes, and from the perspective of the protection of the individual, it matters not which test kit is used or which procedure is followed.
Section 47G(1a) must be considered in the context of the overall scheme of the drink-driving provisions in the Act. Parliament has taken the view that strict measures of control and ease of proof for the prosecution are required because of the prevalence of drinking and driving and the disastrous consequences that ensue. For the purposes of the drink-driving provisions, Parliament has required the courts to attribute an artificial accuracy to the readings given by breath analysing instruments. The artificial nature of the scheme is well demonstrated by the presumption that, for up to two hours preceding the analysis, the concentration of alcohol indicated by the breath analysing instrument was present in the blood throughout that period.
In the context of that scheme, Parliament has sought to ameliorate the strict operation of the provisions and to ensure that a defendant has the capacity to rebut the artificial presumption in specified circumstances. As an ameliorating provision, in my opinion it should not be subjected to an unduly restrictive interpretation adverse to a defendant in respect of the issue now under consideration. Parliament was not concerned with whether the sample of blood upon which a defendant might seek to rely in rebutting the presumption was taken compulsorily or voluntarily. The fact that the blood was taken voluntarily does not mean that it was not “taken and dealt with in accordance with s 47I”. The purposes of the legislature are achieved if either procedure is followed.
In my opinion, evidence of the result of the analysis of the sample of blood taken from the appellant would have been admissible in rebuttal of the presumption if the appellant had sought to lead that evidence. Evidence of the result of the analysis by Forensic Science could have been led. Alternatively, the appellant could have collected his half of the sample and had it analysed. The result of that analysis would have been admissible.
In these circumstances, no unfairness arose as a consequence of the actions of the medical practitioner. There was no basis upon which the Magistrate could properly have rejected the prosecution evidence.
Counsel for the appellant urged that if I was to reach the view that the evidence would have been admissible, I should nevertheless consider whether, if I am wrong in that conclusion, a discretion to exclude the evidence of the breath analysis would have been enlivened. At the request of counsel for the appellant I adjourned the appeal until the Court of Criminal Appeal had delivered its decision in R v Lobban [2000] SASC 48. Following the delivery of that decision on 2 June 2000, I heard further submissions from the parties. Although it is unnecessary to canvass the issue of discretionary exclusion, in deference to the submissions I will comment briefly on that aspect.
On the assumption that, contrary to my view, evidence of the analysis of the blood would have been inadmissible by reason of the error of the medical practitioner, in my opinion those circumstances would not enliven the public policy discretion enunciated in Bunning v Cross (1978) 141 CLR 54 and discussed in The Queen v Swaffield (1998) 192 CLR 159. In Jervis, the Full Court held that a medical practitioner should not be regarded as a law enforcement authority for the purposes of the public policy discretion. I agree. Although it might be said that the medical practitioner is part of the bureaucratic structure through which the State operates the drink-driving provisions, in my opinion it is not appropriate to extend the consequences of a failure by law enforcement authorities to observe proper procedures in the obtaining of evidence to a failure by medical practitioners to comply with the duties which are imposed upon them by the Act. In my opinion, therefore, the failure of the medical practitioner to comply with reg 6 did not enliven the public policy discretion. If, contrary to my view, that discretion was enlivened, in my opinion the circumstances did not justify the exercise of the discretion to exclude the prosecution evidence.
Although the public policy discretion is inapplicable to the assumed circumstances, in my opinion the general unfairness discretion discussed in Lobban to exclude non-confessional evidence on the ground that to receive it would be unfair to an accused in the sense that the trial would be unfair is enlivened in those assumed circumstances. However, something more than a mere failure to comply with a statutory requirement is required before the discretion should be exercised. In Lobban, Doyle CJ said:
“Mere failure to comply with or to satisfy a statutory requirement connected with the obtaining of evidence, to be used by the prosecution, does not of itself amount to unfairness. The existence of the unfairness discretion requires a more careful consideration of the circumstances. The scope for the exercise of the general unfairness discretion, in cases like Jervis, will be limited when the matters relied upon by the defendant do not affect the reliability of the evidence tendered by the prosecution, and involved no impropriety or misconduct by the police or law enforcement authorities or generally.”
A defendant who is deprived of the opportunity of having a sample of blood taken is in a different position from the appellant. As previously discussed, one half of the appellant’s sample had been analysed by Forensic Science and the appellant knew the result of that analysis. The appellant could have led evidence before the Magistrate of the result of that analysis for the purpose of demonstrating that, if admissible, that result would have assisted a challenge to the presumption. The appellant could also have led the results of that analysis before this Court if he had wished to do so. In addition, the appellant had the opportunity of taking simple and inexpensive steps to have his share of the sample independently analysed with a view to demonstrating that, if the result had been admissible, there was a reasonable prospect that the result of the analysis would have assisted a challenge to the presumption. During the course of submissions I intimated that I would receive favourably an application to call evidence concerning analysis of the blood sample, but the appellant elected not to pursue that opportunity. It is obvious that no unfairness would have been caused by the inability of the appellant to lead evidence of an analysis of the blood if the result of the analysis would not have assisted in challenging the presumption.
Generally speaking, a burden rests upon the person seeking the exercise of a discretion to exclude evidence to persuade the court that the discretion should be exercised. What is required of the person affected in that regard will vary with the circumstances, but where the person affected has the opportunity to positively demonstrate the existence of unfairness or the realistic possibility that unfairness exists without incurring undue inconvenience or cost, it is not unreasonable to expect that some attempt will be made to do so. The appellant has chosen not to pursue that course. In the particular circumstances, in my view the relevant unfairness should not be assumed.
On the assumption that the evidence was inadmissible, in my opinion the appellant failed to demonstrate before the Magistrate and this Court that any relevant unfairness occurred. A proper exercise of the discretion required the admission of the evidence. No adequate basis existed for a conclusion by this Court that, if the appellant was unable to lead the evidence, such inability would have resulted in an unfair trial or a miscarriage of justice.
For the reasons I have given, in my opinion evidence of the results of the analysis of the blood whether by Forensic Science or other analyst would have been admissible if the appellant had sought to lead the evidence before the Magistrate. The appellant made a tactical decision to follow the particular course I have described. In these circumstances, in my opinion it is not appropriate to refer the matter back to the Magistrate for further hearing.
The appeal is dismissed.

[2000] SASC 114

14 June 2000