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 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.
It can be seen that sub-s (3) obliges a person required to submit to breath analysis to comply with the reasonable directions of a police officer. In particular, the person must not refuse or fail to exhale into the breath analyser in accordance with the directions of a police officer. It has been held that the expression “fail to exhale” means “does not exhale” as directed by the police officer.[1]
[1] Jasinski v Police [2004] SASC 183; (2004) 234 LSJS 262.
It is a defence to a charge under sub-s (3) that the direction of the police officer was unlawful, or that the defendant was not given the appropriate opportunity to comply with the direction, or that there was otherwise good cause for the defendant’s refusal or failure to comply with the direction (sub-s (4)).
Subsection (2e) authorised the making of regulations prescribing the manner in which a breath analysis should be conducted. Regulation 8A of the Road Traffic (Miscellaneous) Regulations 1999 is the relevant regulation. Regulation 8A(1) provides:
(1)Pursuant to section 47E(2e) of the Act (Police may require alcotest or breath analysis), where a person submits to a breath analysis, the breath analysis must be conducted in the following manner:
(a)     the person must provide two separate samples of breath for analysis; and
(b)     each sample must be provided in accordance with the directions of the operator of the breath analysing instrument and must consist of not less than one litre of breath; and
(c)     there must be an interval of not less than two minutes and not more than 10 minutes between the provision of the samples.
In summary, a person must provide two separate samples of breath, each of at least one litre, in accordance with the directions of the operator of the breath analyser. There must be an interval of at least two minutes and not more than 10 minutes between the provision of the two samples.
Snr Constable Hain explained to the appellant that he was required to supply two samples of breath for analysis in accordance with his (Hain’s) direction, and that the lower of the two results would be taken to be his blood alcohol concentration. He then directed the appellant to take a deep breath, exhale steadily into the mouth piece with one continuous breath until he was told to stop. The appellant blew for a short time, but the instrument displayed “blowing not allowed”, indicating that the requirements for a sample of breath had not been satisfied.
Snr Constable Hain then warned the appellant about his obligations, repeated his direction and the appellant attempted to give another sample. Again the instrument displayed “blowing not allowed”. Snr Constable Hain then gave a more specific warning and repeated his direction. The appellant’s third attempt also produced the display “blowing not allowed”. On each occasion it appeared that the appellant had ceased exhaling before directed to do so, and before one litre of breath had been supplied.
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.
Snr Constable Hain is an experienced breath analysis instrument operator. His evidence was to the effect that the Drager operated in a routine manner during the testing of the appellant, and without any indication of apparent malfunction.
There was no evidence at all before the Magistrate to the effect that the Drager was not in good working order and not operating correctly. Snr Constable Hain said that he observed the appellant on each test cease exhaling in one continuous breath, before he had been directed to stop. This provides a ready explanation for the results recorded by the Drager.
In all these circumstances, the finding of the Magistrate that the Drager was in good working order was a proper finding on the evidence, and should not be disturbed on appeal.
The Minimum Time Interval
The appellant contended that the directions of Snr Constable Hain with respect to the second and third attempts were unlawful because the operator had not waited the minimum period of two minutes between the provision of samples required by reg 8A(1)(c). In support of this submission, the appellant referred to the printout which showed that the three samples commenced at 22:39, 22:41; and 22:43 hrs respectively. This showed, he submitted, that there could not have been a minimum period of two minutes between the first and second attempts, and between the second and third attempts.
This submission can relate only to the second and third attempts. Even if upheld, it would not provide a defence in relation to the appellant’s failure to comply with the directions concerning the first attempt.
The times recorded on the printout are the minutes only, and not seconds. The recorded times are not necessarily inconsistent with an elapse of a minimum period of two minutes between each of the attempts. However, it is not necessary to decide the appeal on that basis.
In Ehmann v Police,[3] Perry J held that reg 8A(1)(c) requires a minimum interval of two minutes between the provision of complete samples, ie, samples which consist of not less than one litre of breath. That construction of the regulation was followed by Kelly J in Smith v Police.[4] In my respectful opinion, this is the correct construction of reg 8A(1)(c). The word “samples” in reg 8A(1) should be taken to be used with a consistent meaning. The requirement in reg 8A(1)(a) that the person provide two separate samples of breath for analysis must be a reference to complete samples, ie, of not less than one litre of breath. That being so, the samples to which reg 8A(1)(c) refer should also be understood as complete samples.
[3] [2006] SASC 235.
[4] [2007] SASC 271 at [41].
Further, the requirement in reg 8A(1)(c) that there be an interval of not more than 10 minutes between the provision of the samples is pertinent. Such a requirement makes sense if the samples referred to are complete samples. There would be no point to such a requirement if the first sample was not a complete sample which could be used for the purposes of analysis.
Accordingly, as the appellant did not provide a complete sample on either the first or second attempts, the requirement in reg 8A(1)(c) for a minimum interval of two minutes had no application. This ground of appeal fails.
Refusal of Adjournment
The charge against the appellant was listed for trial on 12 April 2010. On that day, the prosecution provided to the appellant two affidavits: one from Snr Constable Hain, and one from Sgt Broadbent. These affidavits contained the substance of the evidence-in-chief proposed to be led from those two witnesses.
Because the appellant was unrepresented, the Court adjourned the hearing to 21 April, so as to give him an opportunity to consider the two affidavits. Before the matter adjourned, the appellant rejected an offer from the prosecution that, in the event that he pleaded guilty to the offence of driving with the prescribed concentration of alcohol in his blood, it would withdraw the charge of the s 47E(3) offence.
Both the Magistrate and the prosecution understood that the hearing would commence on 21 April 2010. However, the appellant misunderstood the position. He thought that the matter was listed for directions only. When he realised on 21 April 2010 that the trial was to take place, he sought an adjournment but this was refused by the Magistrate.
The appellant said that he sought an adjournment in order to “look into the operating procedures for the Drager Alcotesting machine”. In his submissions on the appeal, the appellant said that he sought the adjournment because he had not had sufficient time to absorb the content of Sgt Broadbent’s affidavit. In particular, he wished to consider the significance of the requirement in reg 8A(1)(c) that there be a minimum two minute period between the provision of samples.
The appellant complained on the appeal of the denial of the adjournment.
I am not satisfied that the Magistrate’s refusal of the adjournment has amounted to a denial of procedural fairness to the appellant. The appellant well knew that the matter was listed for trial on 12 April 2010 and is to be taken to have been ready for trial at that time. The provision of the affidavits of Sgt Broadbent and Snr Constable Hain to him on that day, although late, was advantageous to him as it gave him notice of the evidence-in-chief to be led from those witnesses. It would be a curious result if the provision of additional material, coupled with an adjournment, had the effect of producing a denial of procedural fairness.
It seems clear enough that the matter was adjourned for trial on 21 April 2010 although I accept that the appellant had a misunderstanding about that. However, it does not seem that he was not ready to proceed on 21 April.
Further, it is not every departure from the rules of procedure fairness which will entitle an aggrieved party to a new trial. As the High Court pointed out in Stead v State Government Insurance Commission,[5] if the party was denied the opportunity of making submissions on a question of law on which the party must inevitably have failed, it would be futile to order a new trial.[6] That is the position with respect to the appellant’s submissions concerning the construction of reg 8A(1)(c).
[5] (1986) 161 CLR 141.
[6] Ibid at 145.
In relation to his contention concerning the proper operation of the breath analyser, the appellant had to show that the refusal of the adjournment deprived him of the possibility of a successful outcome.[7] Although proof of such a possibility may be relatively undemanding, the material before the Court in this case does not support such a conclusion. The evidence indicating that the Drager was in proper operating order at the time of the appellant’s submission to the test was all one way. It is highly improbable that the Drager operated correctly when used by Snr Constable Hain before, and after, the test to which the appellant submitted, but malfunctioned during his test. The appellant did not point to any further evidence which could have been led, or any further submission which could have been made on the topic. Other than in a purely theoretical sense, there is no basis in the evidence before the Court upon which it could conclude that the appellant was denied the possibility of a successful outcome.
[7] Ibid at 147.
Accordingly, the refusal of the adjournment was of no practical effect.
This means that the appeal against conviction fails.
The Appeal Against the Sentence
The Magistrate rejected a submission from the appellant that his offending should be characterised as trifling.

At the hearing of the appeal, the appellant conceded, quite fairly and properly, that his offending could not really be characterised as trifling and he did not press this ground of appeal.
Conclusion
For the reasons given above, I dismiss the appeal.