Siviour-Ashman v Police

SIVIOUR-ASHMAN v POLICE
[2003] SASC 29
Full Court: Doyle CJ, Mullighan and Besanko JJ

DOYLE CJ: This is an appeal against an order of a single Judge of this Court dismissing the appellant’s appeal against a sentence imposed by a Magistrate.
The Prosecution
The appellant pleaded guilty to a charge of driving while there was present in her blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961 (SA) (“the Act”). The prescribed concentration is 0.05 grams or more of alcohol in 100 millilitres of blood.
The appellant and prosecution provided to the Magistrate a Statement of Agreed Facts. It was agreed that the appellant recorded a blood-alcohol reading of 0.120 grams of alcohol in 100 millilitres of blood when tested by police at about 4:50am, having been stopped at a Random Breath Testing station (“RBT”) on Anzac Highway. The appellant had that evening consumed three standard drinks of Southern Comfort and Coke, interspersed with glasses of water, over a period of about three and a half hours, from about 11:00pm to about 3:30am. The appellant left the bar where she had been drinking at about 3:40am. She went to her car, which was some distance away, and began to drive home at about 4am. She was stopped by police at the RBT at about 4:10am, and the test that recorded her blood-alcohol level at 0.120 was administered at about 4:50am.
A short time before she left the bar, the appellant asked the barman for a glass of water. The barman offered her, and she consumed, a fruit drink. The drink contained alcohol, but the appellant did not know that. She would not have accepted the drink had she known it contained alcohol. She was taking care not to consume an amount of alcohol that would create a risk of her having an amount of alcohol in her blood in excess of the prescribed quantity. It was agreed that but for the consumption of the fruit drink the appellant would not have had the prescribed concentration of alcohol in her blood. In fact, it was agreed that but for the consumption of the fruit drink, the appellant’s blood-alcohol content would have been less than 0.05 at the time of driving. It was also agreed that the appellant could not have known that the fruit drink contained alcohol, and that there was “no evidence to suggest the [appellant] felt the effects of the alcohol or her ability to drive a motor vehicle were impaired”. It was agreed that the appellant did not appear to be affected by the alcohol she had consumed.
The appellant applied to the Magistrate to have the offence treated as “trifling” for the purposes of s 47B(3)(b) of the Act. The section provides that:
“the disqualification [from holding or obtaining a driver’s licence] prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month”.
In other words, when the offence is “trifling” the court can impose a period of licence disqualification that is less than the minimum period that must otherwise be imposed.
The Act does not define “trifling”.
This was the appellant’s first offence, so it was open to the Magistrate to apply s 47B(3)(b).
The prosecution did not oppose the appellant’s application to have the offence treated as “trifling”.
The Magistrate did not consider that the offence was trifling. He said that the appellant was “foolish” to accept the fruit drink without at least enquiring as to whether it contained alcohol, contrary to the caution she had exercised throughout the evening. He recorded a conviction and imposed the minimum penalty, being a fine of $500 with costs and a disqualification from holding or obtaining a driver’s licence for a period of six months.
The Appeal
The appellant appealed against that sentence to a single Judge of this Court. The Judge was not satisfied that the offence was trifling. He considered that in the period of approximately 30 minutes between leaving the hotel and being apprehended by police at the RBT, the appellant would have become aware of a rise in her blood-alcohol level “caused by the heavily laced drink”. The Judge took into consideration the fact that the appellant’s blood-alcohol level was well in excess of 0.05, and the fact that she was driving on Anzac Highway resulting in a danger to the public. The Judge dismissed the appeal.
Appeal to the Full Court
By leave, the appellant appeals to the Full Court against the Judge’s dismissal of her appeal.
There are three grounds of appeal. First, the appellant submits that the Judge applied an incorrect test to determine whether the offence was “trifling” within the meaning of s 47B(3)(b). Second, the appellant submits that the Judge erred in failing to have adequate regard to the uncontested evidence that the appellant had unknowingly consumed alcohol. Third, the appellant submits that the Judge erred in finding that the appellant would have been aware of a rise in her blood-alcohol level.
Findings of fact
I do not agree with the Magistrate’s finding that the appellant was foolish to accept the fruit drink without question. She asked for a glass of water. In those circumstances the offer of what appeared to be a fruit drink would reasonably be regarded as a substitute for a non-alcoholic drink. When the appellant gave evidence it was not put to her that there were any circumstances that would have made it prudent to ask the barman what was in the drink. In those circumstances, the Magistrate’s finding was erroneous.
Nor do I agree with the Judge’s finding that the appellant would have become aware of her rising blood alcohol level before the police stopped her. There is nothing in the agreed facts to support this inference. The agreed facts include the statement that there is no evidence to suggest that the appellant felt the effects of the alcohol. Nothing to this effect was put to the appellant when she gave evidence. In the circumstances, this finding was erroneous.
The appellant’s offence is a category 2 offence, because the concentration of alcohol in the blood was between 0.08 grams and 0.15 grams in 100 millilitres of blood. It is at the second level of seriousness. This does not mean that the offence cannot be categorised as trifling, but the level of seriousness of the offence is a relevant matter.
The application to the Magistrate had to be considered on the basis that the appellant reasonably believed that she had consumed three drinks containing alcohol, over the period described; on the basis that she reasonably and correctly believed that the drinks she thought she had consumed would have resulted in a concentration of alcohol less than the prescribed concentration of 0.05 grams of alcohol in 100 millilitres of blood when she began driving; on the basis that the appellant did not know, and had no reason to suspect, that she had consumed additional alcohol in the fruit drink, and on the further basis that it was that alcohol which caused her to have the prescribed concentration of alcohol in her blood when tested by the police.
The case is not one in which the appellant miscalculated or wrongly estimated the effect on her blood alcohol level of the alcohol she knew she had consumed. Nor is it a case in which the appellant had failed in a culpable manner to keep track of the amount of alcohol she had consumed.
On the other hand the appellant knew that she had consumed some alcohol. She drove her car for some distance on a main road while the prescribed concentration of alcohol was present in her blood. The very sort of danger to road users that Parliament seeks to prevent through s 47B(1) was in fact present.
Trifling offences
A number of statutes have given and still give the courts power to impose a lesser penalty than would otherwise be required, if the court finds an offence to be trifling. Sometimes such provisions relate to offences generally: see sections 15, 16 and 17 of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”). Sometimes the provision relates only to a particular offence, as in the case of s 47B(3)(b). Other examples of this kind are found in the Act. Sometimes the trifling nature of the offence is one of a number of bases for imposing a lesser penalty: see ss 16 and 17 of the Sentencing Act. Sometimes the trifling nature of the offence is the only basis for reducing the minimum penalty, as in s 47B(3)(b) and in s 15(1) of the Sentencing Act.
My view is that the same meaning is to be given to “trifling” in each circumstance.
It is the offending conduct that must be trifling. The offence in question is driving a motor vehicle when the prescribed concentration of alcohol is present in the driver’s blood. It is not necessary to decide whether it is a defence to this charge for a defendant to establish that the defendant honestly believed on reasonable grounds in facts that, if they existed, would mean that no offence was committed. It may be that liability for this offence is absolute.
It is important to bear in mind that in the case of a provision like s 47B(3)(b), the courts are not given a general power or discretion to depart from the minimum penalty. There is no power to take into account extenuating circumstances generally, or anything like that. Parliament has deliberately limited the power or discretion to cases in which the offence is trifling. No matter how powerful the mitigating circumstances may be, if the offence is not trifling the minimum penalty must be imposed.
What is a trifling offence?
As Parliament has conferred the relevant power in relation to all three categories of offence under s 47B, one cannot say that simply because the offence is a category 2 offence it cannot be trifling. In Walden v Hensler (1987) 163 CLR 561 Brennan J said at 577:
“Triviality must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed. It was erroneous to ascertain the triviality of the offence by reference simply to the statutory provision which prescribes the maximum penalty.”
Dawson J expressed a similar view at 595.
I agree with the Judge that one should begin by bearing in mind the ordinary meaning of “trifling”. That meaning in this context is trifling in the sense of being of slight importance, insignificant or of little moment.
A point made in many of the cases is that an offence which is a normal or typical example of its type will not be trifling. The reason is that Parliament could not have intended that the normal or typical offence would be treated in an exceptional manner. Nor could Parliament have intended that something which it has treated as an offence should routinely be regarded as of trifling significance. The intention behind a provision like s 47B(3)(b) must be to deal with unusual or exceptional cases, the circumstances of which call for the usual minimum to be put to one side: see Verran v Roberts [1938] SASR 256 at 259-260: Mancini v Vallelonga (1981) 28 SASR 236 at 239. The offence might be unusual or exceptional in this sense, if it is “a trivial example of the forbidden act”: Brebner v Hersey [1963] SASR 1 at 11.
If attention is confined in the present case to the conduct constituting the offence, it is a typical offence of its type. The appellant drove her car for some distance on a main road while the prescribed concentration of alcohol was present in her blood. The fact that the appellant’s driving was not apparently adversely affected by the alcohol is of no great significance. The offence in question is not concerned with the actual standard of the driving in question. It is concerned, as much as anything, with preventing the danger that can arise when motor vehicles are driven by persons with the prescribed concentration of alcohol in their blood.
The present case is not like Campbell v Fuss (1991) 55 SASR 355. In that case the offender moved a parked motor car over what appears to have been a very short distance, to avoid the possibility of danger arising from the manner in which the motor car had been parked. My impression of the facts is that the offender moved the motor car, and intended to move it, only a few feet. On the other hand, the offender had a reading of 0.20 grams of alcohol in 100 millilitres of blood, a very high reading. In that case the Judge held on appeal that the offence was trifling. He emphasised that all that was involved was “a minor adjustment of the parking position of the relevant vehicle adjacent to the kerb at a time and place where no danger was likely to or did arise:” at 358. I agree that the driving in that case was not typical and accordingly, while the high reading might make the case borderline, there was a basis for the conclusion that the offence was trifling.
The appellant’s submissions can succeed only if the circumstances in which the offence occurred are relevant. I mean here the circumstances extending beyond the offending conduct itself, and explaining how it was that the appellant came to offend.
In a number of cases the courts have treated the circumstances of the offence in this sense as relevant. I consider that this is correct. In the application of remedial legislation like this, it would be too narrow an approach to confine attention exclusively to the offending conduct. In Walden v Hensler Brennan J referred to the circumstances of the offence (at 577). That case is a good example of the point. There, an Aboriginal was convicted of an offence of keeping prescribed protected fauna contrary to Queensland legislation. He believed, in accordance with Aboriginal custom and his own practice, that he was entitled to take the animals, bush turkeys, as “bush tucker”. All members of the Court seem to have proceeded on the basis that this was a sufficient basis to treat the offence as trifling. In Verran v Roberts the offence was burning stubble contrary to the provisions of the then Bushfires Act. The offender had taken all of the required precautions, except that he had failed to notify an adjoining owner of his intention to burn off. Napier J took into account the fact that there was in fact no danger of the fire getting away, and of the probability that the adjoining owner would have ignored the notice if he had received it. It is not necessary to multiply examples. Others will be found in cases referred to later.
The question then becomes whether the fact that the appellant correctly believed that the amount of alcohol she thought she had consumed was such that she would not have the prescribed concentration of alcohol in her blood, and the fact that her belief was falsified by events for which she was not responsible and in respect of which she could not be criticised, together make the offence trifling.
In other words, is the offence trifling because the appellant cannot be criticised for not knowing or suspecting that she had or might have the prescribed concentration of alcohol in her blood? To this factor must be added the factor that she believed correctly, in the circumstances as she believed them to be, that the quantity of alcohol in her blood was less than the prescribed concentration. Do these circumstances mean that although the offending conduct itself might be regarded as a normal or typical instance of the offence in question, when the circumstances are viewed as a whole the offence is to be regarded as trifling?
In Crafter v Schubert [1934] SASR 84 Napier J was considering an offence under the Licensing Act 1932, of selling liquor after hours. He said (at 86):
“The typical instance of a trivial offence is where the contravention is unintentional or due to inadvertence, but it may happen that liquor is supplied in circumstances altogether distinct from those that Parliament must be considered to have foreseen and prohibited. For example, if anyone is hurt or ill the supply may be a mere act of common humanity, and it might be difficult to believe that Parliament could have intended a forfeiture to follow upon a contravention of that kind.”
In Edington v Smith [1938] SASR 390 two members of the Full Court appear to have had reservations about the generality of the reference to an act that was unintentional or inadvertent: see Murray CJ at 392-393 and Angas Parsons J at 396. I consider that Forster CJ was correct when he made this comment in Bailey v Laczko (1978) 20 ALR 658 at 662 about the observation by Napier J:
“In my view he was referring to unintentional or inadvertent physical acts which are breaches of the law and was not saying that inadvertence or lack of intention based upon ignorance of the law would, taken alone, render the offence trifling or trivial.”
In the present case the driving was deliberate. However, it can be said that driving with the prescribed concentration of alcohol in the appellant’s blood was unintentional and inadvertent.
However, as Debelle J said in Police v Hughes (1996) 188 LSJS 367 at 368, with reference to the remarks of Napier J:
“That observation was made in the context of an offence for selling liquor out of hours. Care must be taken when applying observations made in respect of other legislation which has another purpose and where different considerations might obtain. Thus, notions of inadvertence and lack of attention do not always sit easily in the context of the Road Traffic Act which has, as one of its purposes, the establishment of safe driving conditions.”
A provision such as s 47B(1) is intended to deter persons from driving when there is a risk of them having the prescribed concentration of alcohol in their blood. A number of cases have made it plain that not only is it not a defence, but it is not a significant mitigating factor, that the offender did not realise that he or she had or might have the prescribed concentration of alcohol in his or her blood. The provision is intended to set a standard which must be observed at the offender’s peril, subject to the possibility of a so-called Proudman v Dayman defence.
This explains the numerous cases in which a miscalculation as to the effect of alcohol consumed, or a failure to keep track of the amount of alcohol consumed, has been rejected as a basis for treating an offence as trifling: see, for example, Hills v Warner (1990) 155 LSJS 397; Police v Davidson (1997) 70 SASR 460. I agree with the observations of Bleby J in Przybytniak v Police (1998) 100 A Crim R 196 at 201, where he said:
“Questions of intention and inadvertence will therefore assume a far less significant role for this type of offence than they might for some other types of offence when considering whether that offence is trifling.”
That is why I have previously emphasised that this is not a case of miscalculation or misestimation. The appeal can succeed only on the basis that there was something more than that, namely, a soundly based belief by the appellant that she had less than the prescribed concentration of alcohol in her blood, that belief being falsified by events over which she had no control and in respect of which she cannot be criticised.
As will have been noticed, in Crafter v Schubert (above) Napier J contemplated that the fact that something was done as an act of “common humanity” might render an offence trifling. This is another way in which the offender’s belief might be made relevant. A belief that there are circumstances that justify the conduct engaged in might make an offence trifling, and in the present case the justification could be said to lie in the affirmative belief on reasonable grounds that the appellant’s concentration of alcohol was less than the prescribed concentration. This comment by Napier J was alluded to by Mitchell J in Mancini v Vallelonga at 239. After referring to what Napier J said, Mitchell J said:
“So it seems to me that the deliberate driving of an overloaded vehicle may constitute a trifling offence if there be a danger to person or property inherent in leaving the vehicle on the side of the road.”
That observation was not necessary to the decision in the case.

In Police v Hodge (1996) 188 LSJS 367 the offence was driving with the prescribed concentration of alcohol in the offender’s blood. The reading was quite high, being 0.156 grams of alcohol in 100 millilitres of blood. The offender’s explanation was that she had eaten a meal and consumed alcohol at a North Adelaide hotel, and as she left with her companion he suffered some kind of fainting fit. She made a snap decision to drive him in his car to the Royal Adelaide Hospital. The wisdom and possibility of using other forms of transport had not been properly explored before the Magistrate. It appears that the Magistrate accepted that the offender was telling the truth, and was satisfied that under the circumstances her response to the situation was reasonable. On the other hand she knew that she was affected by alcohol. Debelle J regarded the case as a borderline one, but did not interfere with the Magistrate’s decision that the offence was trifling. I agree that the case was borderline. To my mind, with respect, it was on the wrong side of the line, but this is an area in which views can differ. The fact is that in that case the driver was significantly affected by alcohol, she drove several kilometres on main roads, and there were other means of transport that could have been used. The offending conduct could not itself be regarded as out of the ordinary. My view is that the justification advanced for the offending was not such as to make the offending, seen in context, trifling.
The contrast that I would draw in this context is between a driver who drives with the prescribed concentration of alcohol in his or her blood, but drives a short distance to move a vehicle that is otherwise a danger, or to take an injured person to hospital, and a driver who drives an equally short distance but for no good reason, or who drives a substantial distance for the reasons suggested. In the first instance, the driving involved is not typical, and the explanation offered removes any element of intention or defiance of the law. The offence might be regarded as trifling. In the second instance, while the offending conduct is not itself typical, there being no satisfactory explanation for it, I would not regard the offence as trifling. In the third example, the offending conduct is typical, the danger which Parliament seeks to avoid is present, and (absent further persuasive circumstances) the justification for the breach of the law cannot cause one to characterise the offending conduct as trivial, however powerful the justification might be if viewed as a mitigating circumstance.
However, having said all that I recognise that in every case it is a matter of considering the offending conduct and the justification. This is an area in which minds can differ.
I note that in Police v Davidson at 461, Nyland J referred to factors of the kind now under consideration, but in the end did not have to base a decision on these matters.
A view consistent with that which I have expressed was adopted by Perry J in Merrill v Police (unreported, Supreme Court, 5 September 1996, judgment No. S5796). The offence in that case was driving at a speed dangerous to the public. The appellant’s explanation was that he had been telephoned by his wife to say that she had severe head pain, and thought she might have meningitis. The appellant was hurrying home. He was travelling at 171 kph in a zone in which the maximum permissible speed was 110 kph. Perry J expressed doubt about whether “humanitarian” reasons could support the characterisation of such an offence as trifling. He said:
“It is the act of driving which must be capable of being properly characterised as trifling. The act of driving does not assume a different character by reference to the explanation for it.
Be that as it may, in my opinion, however the matter is approached in this case, the offending driving could not be regarded as ‘trifling’. This was not a mere technical or inadvertent breach. This was a deliberate act of driving substantially in excess of the speed limit and at a speed which unquestionably was dangerous to the public within the meaning of the section.”
Of course, that was a very different case from the present one. There the offender knew that he was offending. The excuse offered could fairly be treated as inadequate for the conduct involved. I also make the point that while I agree that the focus must be on the offending conduct, it might be misleading to ask whether the offending conduct can be characterised as trifling, and if the answer is in the negative, then to ask whether it assumes a different character by reference to the explanation for it. In the end, the offending conduct and the circumstances must be viewed as a whole.
This last group of cases establishes that the offender’s reasons for acting, or motive or belief can be relevant in deciding if an offence is trifling. But, I would add, this sort of factor has to be weighed along with the offending conduct.
Conclusions
The offending conduct in the present case is an ordinary or typical instance of its kind. The appellant drove for some distance on a main road. The concentration of alcohol in her blood was well in excess of the minimum amount that falls within the prescribed concentration. The fact that the appellant did not realise that she was committing an offence, or might be committing an offence, is not of any great significance in relation to an offence of the kind in question. A failure to realise that an offence is being committed or might be committed is of limited relevance in deciding whether an offence of this kind is trifling. In the appellant’s case, however, there is more than that. It can be said affirmatively that she reasonably believed that she was not offending, and that her belief was correct and was falsified in circumstances beyond her control, and in respect of which she was not at fault. To that extent, the offending is not typical of its kind. In the case of an offence in relation to which knowledge of the presence of alcohol in the blood, or advertence to that fact, is significant in assessing the seriousness of the offence, this aspect of the facts on which the appellant relies would probably be enough for one to conclude that the offence was trifling. But in the case of s 47B(1), I consider that the offending conduct is to be given more weight than the explanation for it, and in particular, more weight than the offender’s awareness of the fact that an offence might be committed. To my mind, the offending conduct cannot be regarded as a trifling offence simply because of the appellant’s state of mind and belief, because of the very limited significance of advertence and state of mind when making a qualitative assessment of an offence like the one in question.
For those reasons, I am not satisfied that the offence is trifling. I recognise that this is a hard case, and that there are strong mitigating circumstances. However, the Court is not able to act on the basis of mitigating circumstances.
For those reasons I would dismiss the appeal.
MULLIGHAN J: The issues raised on this appeal and the relevant factual circumstances are set out in the reasons for judgment of the Chief Justice. Also, he has discussed the relevant case law and I respectfully agree with his conclusions that both the offending conduct and the circumstances must be viewed as a whole. I also agree with his criticisms of findings and observations made by the learned Magistrate and the learned Judge. There is no need for me to repeat any of these matters.
I find myself in disagreement with the Chief Justice as to the outcome of the appeal but I can express my reasons briefly.
There is nothing atypical about the offending conduct. The appellant drove her motor vehicle for a considerable distance with an excessive blood alcohol level plainly in contravention of the Road Traffic Act 1961 (SA).
This is not a case where a driver has made a miscalculation about the likely blood alcohol level or was careless or indifferent to that matter. The evidence and the agreed facts establish beyond question that the appellant carefully and accurately monitored her drinking over a considerable period of time so that her blood alcohol level would not be excessive when she drove her motor vehicle. When she was ready to leave the nightclub, she asked for a glass of water which demonstrates that she did not want any further alcohol. Her expectation was that she would drive home in compliance with the law and she had taken appropriate care throughout the evening to ensure that such was the case. I do not think there can be any basis for criticism of her consuming the fruit drink. She had asked for a non-alcohol drink and believed she had received such a drink. She left the nightclub in the justifiable belief that her blood alcohol limit was under .05 grams in 100 millilitres of blood.
The law does not prohibit driving a motor vehicle having consumed alcohol. The policy of the law is to fix an arbitrary limit of alcohol in the blood below which driving is within the law. That is precisely what the appellant genuinely believed on reasonable grounds she was doing. Unlike the drivers in Campbell v Fuss (1991) 55 SASR 355 and Police v Hodge (1996) 188 LSJS 367, the appellant did not know that she was driving with a blood alcohol level in excess of the limit. It was only because of the callous trick played upon her that she committed the offence.
It is not necessary for present purposes to express a view about the correctness of the decisions in Campbell v Fuss and Police v Hodge but these decisions are relevant to the outcome of this appeal because, along with the other cases referred to, they show that the meaning of “trifling” in the context of s 47B(3)(b) of the Road Traffic Act is different from its ordinary English meaning which, I think, relevantly is “insignificant”.
As the offending conduct and the circumstances must be viewed as a whole, the reason for the driving can be relevant. There are two main elements of the offence, the driving and the required presence of alcohol in the blood. If there is unawareness as to the second of those elements, through no fault of the driver, I think the offence can be trifling and is more likely to be so, than when the offence was committed deliberately for a particular reason, even a humanitarian reason. It was an unintended or inadvertent breach of the law by a person who had taken sensible and responsible precautions to ensure that the offence would not be committed. In appropriate circumstances, inadvertence may render an offence trifling: Crafter v Schubert [1934] SASR 84 and Verran v Roberts [1938] SASR 256. I agree with the observation of the Chief Justice about the significance of Edington v Smith [1938] SASR 390 and the correctness of the observation of Forster CJ in Bailey v Laczko (1978) 20 ALR 658 at 662. At all events Murray CJ made it plain in Edington v Smith that he expressed no opinion as to the correctness of the observation of Napier J in Crafter v Schubert that unintended or inadvertent offences could be trifling: see 393.
I do not think it could be a correct interpretation of the meaning of trifling in this context if it excludes a case where a person, such as a public figure, consciously abstained from any alcohol for the sole purpose of complying with the law and drove a motor vehicle only to find that what was believed to be non-alcoholic drinks had been spiked with strong alcohol sufficient to cause an excessive blood alcohol level. It is unnecessary to consider whether a defence to a charge made in those circumstances exists. That is a question to be decided when it arises.
I give another example. A person is found driving with an excessive blood alcohol level. That person is a teetotaller and had been in a delicatessen consuming a non-alcoholic milk drink. Whilst distracted, that drink was spiked with strong alcohol without taste or odour. He drove almost immediately after consuming the drink when there had not been sufficient time for the alcohol to have had an effect upon him. He was stopped soon after he commenced to drive but not tested until well after the alcohol had become fully absorbed with the consequence that the blood alcohol level was excessive. Leaving aside the question of whether that person has a defence to the charge, I would regard the offence committed in those circumstances as trifling.
In the present case, I have used the expression unintentional or inadvertent in the restricted sense as explained in Bailey v Laczko. Miscalculation of the number of drinks consumed on the strength of the alcohol content of each drink would not be unintentional or inadvertent in the relevant sense.
I can see no basis to differentiate between any of these two examples and the offending of the appellant. In Crafter v Schubert, Napier J was concerned with an offence under the Licensing Act 1932 involving the supply of liquor. He said at 86:
“The typical instance of a trivial offence is where the contravention is unintentional or due to inadvertence, but it may happen that liquor is supplied in circumstances altogether distinct from those that Parliament must be considered to have foreseen and prohibited.”
I do not think Parliament could have intended to exclude the drivers in the two examples I have given or the appellant for their offences being regarded as trifling.
In view of the way in which the cases have developed the meaning of trifling, I think the circumstances of the appellant’s offence enable it to be regarded as trifling.
I would allow the appeal and set aside the order for disqualification from holding or obtaining a licence to drive a motor vehicle and hear the parties as to the period of disqualification which should be imposed.
BESANKO J: The facts are set out in the reasons for judgment of the Chief Justice, and I will not repeat them. I agree with the Chief Justice for the reasons he gives, that the Magistrate erred in finding that the offence was not trifling because the appellant was foolish to accept the fruit drink without enquiry. I also agree with the Chief Justice that the Judge of this Court erred in finding that the offence was not trifling because before being apprehended by the police she would have become aware of a considerable rise in her blood alcohol. In my respectful opinion, the evidence does not support the finding of the Judge that in the interval between leaving the Mars Bar and the time the appellant was apprehended by the police on Anzac Highway, the appellant would have become aware of a considerable rise in her blood alcohol caused by the heavily laced drink.
Approaching the matter having regard only to the words of the section and unassisted by any authority, I would have been disposed to conclude that in considering whether an offence was trifling under s 47B(3)(b) of the Road Traffic Act 1961, the Court should consider only the conduct which constitutes the offence, and not in addition to that conduct, the circumstances which explain how the offence came to be committed. Such an approach would involve a relatively straightforward test, and one relatively easy to apply. The relevant matters would be the circumstances surrounding the driving, for example, the distance driven, the road and traffic conditions, and the extent to which the defendant’s blood alcohol reading exceeded the prescribed limit. On the other hand, there are numerous decisions of single Judges of this Court to the effect that the circumstances which explain how the offence came to be committed should also be considered (see, for example, Crafter v Schubert [1934] SASR 84 per Napier J at 86; Mancini v Vallelonga (1981) 28 SASR 236 per Mitchell J at 239; Hills v Warner (1990) 155 LSJS 397; Police v Hughes;Police v Hodge (1996) 89 A Crim R 290). The decision of the High Court in Walden v Hensler (1987) 163 CLR 561 also supports such an approach.
I think that this approach should be followed. It is desirable that a degree of flexibility in the application of the section be maintained. As long ago as 1908 Hood J made the point that it was probably impossible and certainly unwise for the Court to lay down any hard and fast rule as to what is meant by an offence of a trifling nature (Williams v May [1908] VLR 605). I respectfully agree. Having said that, I think that there are offences which by their very nature are such that in determining if the offence is trifling the focus will be on the conduct which constitutes the offence. In fact, I think that this is such an offence. Furthermore, the nature of this offence is such that the circumstances in which humanitarian reasons will lead to a conclusion that the offence is trifling will be limited. In this regard I agree with what the Chief Justice says about the conclusion in Police v Hodge.
In this case, the appellant was in many respects quite blameless and there are powerful mitigating circumstances in her favour. It was not an offence for the appellant to drive a motor vehicle with a concentration of alcohol in her blood. It was an offence to drive a motor vehicle with the prescribed concentration of alcohol in her blood. The appellant was careful in her approach to drinking alcohol on the night in question, and but for the consumption of what she thought was a non-alcoholic fruit drink, she would not have committed an offence. The appellant was in no way careless in accepting the fruit drink instead of a glass of water, and there was no fault on her part in failing to detect the fact that the drink contained alcohol. She was not driving in a careless manner and she presented to the police as a sober person who was genuinely shocked when told of her blood alcohol reading. In fact, there are powerful reasons for thinking that in the circumstances of this case (ie where the offending conduct was in essence caused by the intervention of a third party) a defence to the charge should be available. However, whether such a defence can be accommodated within the statutory scheme is not an issue before the Court and I express no view on it.
The conduct which constitutes the offence in this case is in no way atypical. The appellant was driving on a main road with greater than the prescribed concentration of alcohol in her blood. In fact, her blood alcohol reading was well over twice the prescribed limit. The circumstances which explain how that came about are relevant, but I think the focus in considering the application of s 47B(3)(b) must be on the conduct which constitutes the offence. I say that because an important purpose, if not the most important purpose, behind the legislative provisions which create the offence is, to use the words of Debelle J in Police v Hughes; Police v Hodge “the establishment of safe driving conditions”.
In my opinion, despite the powerful mitigating circumstances in this case, in determining whether the offence is trifling the focus must be on the conduct which constitutes the offence. Such an approach leads to the conclusion that the offence is not trifling within s 47B(3)(b) of the Road Traffic Act.
I would dismiss the appeal.

[2003] SASC 29

13 February 2003