Smith v Police - [2010] SASC 280

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SMITH v POLICE
[2010] SASC 280
Judgment of The Honourable Justice White
1 October 2010
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - GENERAL MATTERS - MATTERS OF PROCEDURAL FAIRNESS AND PROPRIETY
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - PROOF OF PARTICULAR MATTERS AND RELATIONSHIPS - BREATH ANALYSIS TESTS
Appellant found guilty of failing to comply with reasonable directions of a police officer concerning breath analysis, contrary to s 47E(3) of the Road Traffic Act 1961 (SA) - appellant contended that the Magistrate erred in failing to grant him an adjournment of the trial, as he had misunderstood when the matter would be heard - appellant further submitted that Magistrate erred in finding that the breath analysis instrument was in good order and condition, and in his construction of the Regulations relating to the conduct of the breath analysis.
Held: appeal dismissed - refusal of adjournment did not amount to a denial of procedural fairness - breath analysis was conducted in compliance with Regulations - it was highly improbable that the breath analysis system was not of good order and condition.
Road Traffic Act 1961 (SA) s 47E, s 47IAA; Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A, referred to.
Evans v Benson (1986) 46 SASR 317, applied.
Jasinski v Police (2004) 234 LSJS 262; Stead v State Government Insurance Commission (1986) 161 CLR 141; Ehmann v Police [2006] SASC 235; Smith v Police [2007] SASC 271, considered.

SMITH v POLICE
[2010] SASC 280
Magistrates Appeal

WHITE J: The appellant was found guilty of the offence of failing to comply with the reasonable directions of a police officer in relation to breath analysis, contrary to s 47E(3) of the Road Traffic Act 1961 (SA) (RTA). The Magistrate imposed a fine of $700 and a licence disqualification of 11 months and three weeks (taking account of one week’s disqualification imposed under s 47IAA of the RTA).
The appellant appeals against the conviction. He was unrepresented on the appeal, as he had been in the prosecution before the Magistrate.
The appellant contends that the Magistrate erred by not granting him an adjournment of the hearing, and, in any event, erred in finding that the breath analysis instrument was in good order and condition and in his construction of the regulation relating to the conduct of the breath analysis. Initially, the appellant also wished to appeal against the sentence, but ultimately did not press that contention.
Background Circumstances
The appellant is a 53 year old property manager. At about 10.20 pm on Thursday, 9 July 2009 he was stopped by a police officer (Constable Gunn) while driving on Yorketown Road at Craigmore and was required to submit to an alcotest. This returned a positive result. Constable Gunn then required the appellant to go with him to the Elizabeth Police Station. At that station, Snr Constable Hain, acting under s 47E…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v Police

Details

AGLC: Smith v Police [2010] SASC 280
Case: [2010] SASC 280
Decision Date: 1 October 2010

CaseChat Overview and Summary

The appellant, a 53-year-old property manager, was charged with failing to comply with reasonable directions of a police officer concerning breath analysis, contrary to s 47E(3) of the Road Traffic Act 1961 (SA). The incident occurred on 9 July 2009, when the appellant was stopped by Constable Gunn while driving on Yorketown Road at Craigmore. The appellant was required to submit to an alcotest, which returned a positive result. He was then required to submit to breath analysis at the Elizabeth Police Station. The appellant challenged his conviction, claiming procedural errors by the Magistrate, including the denial of an adjournment and the finding that the breath analysis instrument was in good order and condition.

The legal issues before the court included whether the refusal of an adjournment denied the appellant procedural fairness, the proper construction of the regulation relating to the conduct of the breath analysis, and the sufficiency of the evidence to prove the breath analysis instrument was in good working order. The court had to consider whether the Magistrate's findings on these issues were correct and whether the breath analysis was conducted in compliance with the relevant regulations.

The court found that the refusal of an adjournment did not amount to a denial of procedural fairness, as the appellant had not demonstrated how the adjournment would have been beneficial. Regarding the breath analysis instrument, the court accepted the evidence of Sgt Broadbent, who confirmed that the Drager Alcotest 7110 MK V model was functioning correctly based on the data from the printouts and regular calibration and checks. The court held that it was highly improbable that the breath analysis system was not in good order and condition. The appeal was dismissed.

The court's decision was based on the evidence presented, the proper operation of the breath analysis instrument, and the absence of any procedural errors by the Magistrate. The court confirmed the conviction of the appellant and upheld the findings that the breath analysis was conducted in compliance with the relevant regulations.

Orders

Orders of the court

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Background

Background to the litigation

The appellant contends that the Magistrate erred by not granting him an adjournment of the hearing, and, in any event, erred in finding that the breath analysis instrument was in good order and condition and in his construction of the regulation relating to the conduct of the breath analysis. Initially, the appellant also wished to appeal against the sentence, but ultimately did not press that contention.Background Circumstances The appellant is a 53 year old property manager. At about 10.20 pm on Thursday, 9 July 2009 he was stopped by a police officer (Constable Gunn) while driving on Yorketown Road at Craigmore and was required to submit to an alcotest. This returned a positive result. Constable Gunn then required the appellant to go with him to the Elizabeth Police Station. At that station, Snr Constable Hain, acting under s 47E of the RTA, required the appellant to submit to breath analysis. In doing so, Snr Constable Hain was acting under s 47E(1) which provides:(1)Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person—(a) is driving, or has driven, a motor vehicle; or(b) is attempting, or has attempted, to put a motor vehicle in motion; or(c) is acting, or has acted, as a qualified supervising driver for the holder of a permit or licence,the police officer may require the person to submit to an alcotest or a breath analysis, or both.It was not suggested that Snr Constable Hain did not have reasonable grounds, as required by s 47E(1) upon which to require the appellant to submit to breath analysis. The remaining provisions of s 47E which are particularly relevant on this appeal are sub-ss (2e), (3) and (4). They provide:(2e)The regulations may prescribe the manner in which an alcotest or breath analysis is to be conducted and may, for example, require that more than one sample of breath is to be provided for testing or analysis and, in such a case, specify which reading of the apparatus or instrument will be taken to be the result of the alcotest or breath analysis for the purposes of this and any other Act.(3)A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a police officer.Penalty: For a first offence—a fine of not less than $700 and not more than $1 200.For a subsequent offence—a fine of not less than $1 500 and not more than $2 500.(4) It is a defence to a prosecution under subsection (3) that—(a) the requirement or direction to which the prosecution relates was not lawfully made; or(ab) the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to—(i)the consequences of refusing or failing to comply with the requirement or direction; and(ii)the person's right to request the taking of a blood sample under subsection (4a); or(b) there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant was then reported for a contravention of s 47E(3). At his request he was taken to the Lyell McEwin Hospital where a blood sample was taken. Later analysis of that sample revealed a blood alcohol content of 0.84 grams of alcohol per 100 millilitres of blood. The Magistrate’s Decision At the hearing before the Magistrate, the appellant maintained that he had complied fully with Snr Constable Hain’s directions and that the failure of the breath analyser to record a sample may have been attributable to a malfunction in the breath analysis instrument. In the alternative, he submitted that Snr Constable Hain had not waited the requisite minimum time of two minutes before requiring him to blow at the second and third attempts. The Magistrate rejected each of those contentions. He was satisfied that the breath analysis instrument was operating correctly and that the requirement for a two minute minimum interval applied only when a subject had given a complete sample of breath, which the appellant had not.Breath Analyser Operated Correctly The breath analyser used by Snr Constable Hain was a Drager Alcotest 7110 MK V model (the Drager). It was an approved breath analysing instrument. At the completion of the appellant’s three tests, the Drager produced a printout of details concerning the appellant’s test. This showed that the test commenced at 22:37 hrs and that the appellant had made his first attempt at 22:39 hrs. The printout indicated that the appellant had produced insufficient breath for a volume measurement. The printout showed that the second test commenced at 22:41 hrs; that the appellant produced 0.3 litres of breath; that the third test commenced at 22:43 hrs; and that on that occasion the appellant had produced 0.6 litres of breath. The printout also recorded that the “self tests” performed by the Drager prior to each attempt by the appellant had all been performed satisfactorily. It was of course necessary for the prosecution to establish that the Drager was in good working order and that it was properly operated, so as to exclude the possibility that the displayed result of each test was the result of a malfunction.[2][2] Evans v Benson (1986) 46 SASR 317 at 323. Sgt Broadbent, who has an Associate Diploma in Electronic Engineering and who is the general manager of the Radio and Technology Support Service Unit within the South Australian Police, gave evidence about the operation of the Drager. He is well familiar with the instrument and there was no reason to doubt his technical expertise. Sgt Broadbent described the manner of operation of the Drager when correctly functioning. On the basis of the data contained on the printout, he considered that the instrument was functioning correctly during the testing of the appellant. Sgt Broadbent also explained that the Drager underwent a full calibration every 12 months. This involved a complete check that the instrument was in proper working order and a routine replacement of those parts subject to wear. The Drager had last undergone such a complete calibration on 3 February 2009 (just over five months before it was used in relation to the testing of the appellant). In addition, the Drager underwent a routine check of its proper operation on 3 August 2009, ie, just on one month after it was used in relation to the test of the appellant. This check did not reveal any shortcoming in its manner of operation.

Ratio Decidendi

Legal Principle Established

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