Smith v Police - [2007] SASC 271

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SMITH v POLICE
[2007] SASC 271
Judgment of The Honourable Justice Kelly
23 July 2007
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES
Appeal against conviction – appellant convicted of offence of failing to comply with reasonable directions of a member of the police force to submit to breath analysis as required by s47E(3) of Road Traffic Act 1961 (SA) – basis of allegation that appellant on three occasions failed to comply with a direction to provide sufficient sample of breath for analysis – whether Magistrate ought to have found no case to answer as defence to the charge provided by s47E(4)(ab) of the Act was established by prosecution evidence – whether Magistrate ought to have excluded evidence of appellant’s failure to comply with directions because of police failure to comply with provisions of s47(E)(4a) of the Act.
Appellant did not put forward evidence to rebut the prosecution case at trial before Magistrate – Magistrate ruled that there was a case to answer and found the charge proved – conviction recorded – whether Magistrate failed to reconsider the prosecution evidence in light of requirement of proof beyond reasonable doubt of the elements of the offence before convicting the appellant – no reasons given for conviction.
Held: Magistrate was correct to find there was a case to answer - failure to provide any reasons for convicting the appellant was an error of law –appeal allowed on this ground.
Road Traffic Act 1961 (SA) s47E(3), s47E(4)(ab), s47E(4a), s47K(3), s47K(18)(b); Road Traffic (Miscellaneous) Regulations 1999 Reg 8A, 8B, Sch1AA, referred to.
Rowland v Police (2001) 79 SASR 569, applied.
Ehmann v Police [2006] SASC 235, considered.

SMITH v POLICE
[2007] SASC 271
Magistrates Appeal

KELLY J: This is an appeal against conviction.
On 2 August 2006, Mark Thomas Smith, the appellant, was charged with failing to comply with all reasonable directions of a member of the police force to submit to breath analysis as required by section 47E(3) of the Road Traffic Act1961 (SA) (the Act). The appellant pleaded not guilty and the trial proceeded before a magistrate. He did not put forward any evidence to rebut the prosecution case. Having ruled that there was a case to answer the Magistrate found the charge proved. The appellant was convicted, fined and disqualified from holding or obtaining a drivers licence for a period of 2 years, 7 months and 17 days.
Circumstances
At about 8.00pm on 2 August 2006, two police officers on uniform patrol, Constable Trenaman and Constable Firth, observed a Holden utility driven by the appellant leaving the Sundowner Hotel, Whyalla. They stopped the vehicle. Following a short conversation, the appellant was taken by the officers to the police station so that a breath analysis could be carried out.
The basis of the allegation against the appellant is that on three separate occasions he failed to comply with a direction to provide a sufficient sample of breath for analysis.
Constable Trenaman, an authorised breath analysis operator, gave evidence at the trial that he carried out a self-check of the breath analysis instrument prior to the breath analysis being carried out. The self-check indicated that the instrument was working correctly. The breath analysis and all that happened in the breath analysis room at the police station was recorded on audio tape (Exhibit P6).
The breath analysis instrument records a reading of sixteen asterisk to indicate that a sufficient sample of breath has been provided.
The first breath analysis took place at 8.24pm. When this test was conducted, the breath analysis instrument recorded a reading of zero asterisk. After the appellant’s first attempt, Constable Trenaman gave evidence that he said to the appellant ‘you blew and then you stopped’. He also gave evidence that the appellant had his tongue over the mouthpiece.
The second breath analysis took place at 8.25pm. When this test was conducted, the breath analysis instrument again recorded a reading of zero. Constable Trenaman gave evidence that on the first two attempts to provide a sample of breath the appellant’s cheeks did not inflate.
After the second attempt at providing a sample, the appellant was asked if he wanted a blood test. This request was made as part of the prescribed oral advice set out in Schedule 1AA of the Road Traffic (Miscellaneous) Regulations1999 (the Regulations). This advice is only given after a defendant has failed to provide two adequate samples of breath. The effect of this advice is that breath analysis operators inform a defendant of the opportunity at the stage that has been reached to request the taking of a blood sample. On being given the prescribed advice the appellant replied, ‘Take me down to the fucken hospital, this is not working, my back is fucked’.
The appellant’s request was not facilitated. Instead he was directed to provide a third sample of breath. The third breath analysis took place at 8.28pm. When this test was conducted, the breath analysis machine recorded a reading of fifteen asterisk. Following the third attempt, the appellant was again given the opportunity to request a blood test. He refused to make this request.
The Legislative Scheme
Section 47E of the Act provides:
47E—Police may require alcotest or breath analysis
(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.
(2)A police officer may direct a person driving a motor vehicle to stop the vehicle and may give other reasonable directions for the purpose of making a requirement under this section that a person submit to an alcotest or a breath analysis.
(2a)    A person must forthwith comply with a direction under subsection (2).
(2ab)A person must not, in the exercise of random testing powers, be required to submit to a breath analysis unless an alcotest conducted under subsection (1) indicates that the prescribed concentration of alcohol may be present in the blood of the person.
(2b)Without derogating from section 47DA or 47EA, an alcotest or breath analysis to which a person has been required to submit under subsection (1) may not be commenced more than 8 hours after the conduct of the person giving rise to the requirement.
(2d)The performance of an alcotest or breath analysis commences when a direction is first given by a police officer that the person concerned exhale into the alcotest apparatus or breath analysing instrument to be used for the alcotest or breath analysis.
(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.
(4a)If a person refuses or fails to comply with the requirement or direction under this section by reason of some physical or medical condition of the person and forthwith makes a request of a police officer that a sample of his or her blood be taken by a medical practitioner, a police officer must do all things reasonably necessary to facilitate the taking of a sample of the person's blood—
(a)     by a medical practitioner nominated by the person; or
(b)     if—
(i)it becomes apparent to the police officer that there is no reasonable likelihood that a medical practitioner nominated by the person will be available to take the sample within 1 hour of the time of the request at some place not more than 10 kilometres distant from the place of the request; or
(ii)the person does not nominate a particular medical practitioner, by any medical practitioner who is available to take the sample.
(5)No person is entitled to refuse or fail to comply with a requirement or direction under this section on the ground that—
(a)     the person would, or might, by complying with that requirement or direction, furnish evidence that could be used against himself or herself; or
(b)     the person consumed alcohol after the person last drove a motor vehicle or attempted to put a motor vehicle in motion and before the requirement was made or the direction given.
Grounds of Appeal
The amended grounds of appeal contain three grounds.
First, that the Magistrate ought to have ruled that there was no case for the appellant to answer, in that the defence to the charge provided by s47E(4)(ab) of the Act was established by the prosecution evidence.
Second, that the Magistrate ought to have, in the exercise of his discretion, excluded evidence of the appellant’s failure to comply with directions to supply a sample of breath for analysis, because police failed to comply with the provisions of s47E(4a) of the Act.
Finally, having concluded that the appellant had a case to answer, the Magistrate failed to reconsider the prosecution evidence in the light of the requirement of proof beyond reasonable doubt of the elements of the offence, (in particular in relation to whether the breath analysis machine was functioning properly and operated correctly) before convicting the appellant.
Ground 3
I will deal firstly with the third ground of appeal. For the reasons that follow, the appeal is allowed on this ground. At the outset I note that both counsel for the appellant and the respondent accepted that the Magistrate did not provide reasons for finding the offence proved beyond reasonable doubt.
The conviction was recorded immediately following the ruling that there was a case to answer. No further evidence was adduced by the appellant after the close of the prosecution case. Therefore it could be said that the Magistrate was satisfied beyond reasonable doubt of the elements of the offence. However, in light of the issues at the trial, it was the appellant’s submission that the Magistrate had to direct his mind to the issue of whether the breath analysis instrument operated correctly at the time the samples were being given.
Operation of the breath analysis instrument was a topic explored in cross-examination of the police at the trial. It was therefore a live issue for the Magistrate to resolve. Before the appellant could be found guilty of the charge, the prosecution needed to exclude as a reasonable possibility that the failure to obtain a satisfactory reading on any of his three attempts was caused by a malfunctioning of the machine.
According to the respondent there was sufficient evidence before the Magistrate to prove that the machine was operating correctly. It was submitted that the appellant’s own actions in failing to blow correctly into the machine on three occasions caused the failure to obtain a sufficient sample of breath. The respondent pointed to the evidence of Constable Trenaman that the instrument went through a self-check, which indicated that it was working correctly. The respondent argued that evidence of Constable Trenaman, along with evidence about the actions of the appellant, was sufficient for the Magistrate to conclude beyond reasonable doubt that the appellant had wilfully and deliberately refused to comply with the police officer’s directions and that the failure of the machine to read a sufficient sample of breath was not due to any malfunction in the breath analysis instrument.
At the hearing of this appeal, I was informed that the prosecutor desisted from presenting any further evidence to the Court as to the accuracy and correct operation of the breath analysis instrument following an exchange which occurred between counsel for the appellant and the prosecutor. This exchange took place at the very time when the prosecutor was endeavouring to tender a certificate, providing that the breath analysis instrument was a machine approved for the purpose of the Act.[1]
QDoes your note from your proforma tell you an accurate description of the particular machine that you were using.
Mr Sampson        :       There is no issue with any of this.
His Honour:       Thank you.
APP Coombe:     With my friend’s consent I will tender the Government Gazette Notice in relation to the Drager 7410 Alcotest…
[1]    Transcript of proceedings before Mr C W Kitchin SM, 25 January 2007, page 5.
The appellant’s counsel submitted that the only concession made was in relation to the proof of the breath analysis instrument as an approved machine for the purpose of the Act. If that is so, there appears to have been a misunderstanding between the prosecutor and the defence counsel as to the extent of the concession made.
Section 47K(3) of the Act provides an evidentiary aid to prove that the breath analyser instrument was in proper order and was properly operated. That aid is not available to the police in a prosecution for an offence under s47E(3) by virtue of the exclusion in s47K(18)(b). Here the correct operation of the breath analysis instrument was raised by the appellant at the time and was later raised in cross-examination by his counsel.
In order for the Magistrate to be satisfied beyond reasonable doubt of the appellant’s guilt on the charge, he needed to be satisfied that:
·there was a refusal or failure to comply
·with a reasonable direction
·which direction was lawfully made and
·the appellant had been given the opportunity in accordance with s47(E)(4)(ab) to comply with the direction and
·there was no good cause in all of the circumstances for the refusal or failure to comply.
There would have been good cause for the appellant’s failure to supply a sample of breath if there was some malfunction in the machine preventing that from occurring. The appellant complained as much after being given the prescribed oral advice and the issue surfaced in cross-examination of the police at the trial. Before reaching the required state of satisfaction, the Magistrate therefore needed to exclude as a reasonable possibility that the failure to obtain a sufficient sample of the appellant’s breath was caused by some malfunction of the machine or its operation.
The evidence before the Magistrate as to the appellant’s behaviour during the three attempts to obtain a sample may have been sufficient to satisfy him beyond reasonable doubt that there was a conscious and deliberate failure to provide a sample on three occasions and that the machine’s operation had nothing to do with the failure to supply the sample. However, there were no reasons given by the Magistrate explaining the reasoning process that led him to the decision to convict the appellant.
The ruling on the case to answer was concerned with an argument as to whether the police had complied with their obligations under 47E(4a) and regulations 8A and 8B for the taking of the blood samples. There is no indication that he was asked at that stage to direct his mind to the issue regarding the accuracy and correct operation of the breath analysis instrument.
In his ruling delivered on 9 May 2007 at the close of the Crown case the Magistrate concluded:
That does not mean that there are no other issues that the defendant may seek to address but I am satisfied that there is a case to answer on the evidence and submissions before me.
It is clear the Magistrate was doing no more than answering the question posed at that stage of the trial as to whether there was in law a case to answer. There is no suggestion that the Magistrate was endeavouring to or did reach a conclusion on the whole of the evidence as it then stood as to whether the prosecution had in fact proved each and every element of the offence beyond reasonable doubt.
Should the Magistrate have given reasons?
It is not necessary for a magistrate to produce long and elaborate reasons. As Perry J noted in Rowland v Police,[2] this Court should be reluctant to pitch any definitive statement of the obligations of magistrates to give reasons for their decisions at an unrealistically demanding level, given the daily workload of a magistrate. A short, succinct statement of the essential process by which a decision is reached is sufficient.
[2] (2001) 79 SASR 569 at 573.
In this case the proper operation of the breath analysis instrument was not admitted by the appellant. The resolution of that issue was central to the proper consideration of the charge, in particular whether any malfunction had been excluded as a reasonable possibility for the appellant’s failure to supply a sufficient sample of his breath.
In failing to give any reasons for convicting the appellant the Magistrate appears, with respect, to have conflated the question as to whether there was a case to answer with the question as to whether he was, on the whole of the evidence before him, satisfied beyond reasonable doubt of the elements of the offence. Irrespective of whether the appellant chose to give evidence, the Magistrate was still required to consider all of the relevant evidence and reach a conclusion as to whether the prosecution had discharged the onus of proof. That remained so, even though there was no evidence to the contrary.
At the hearing of this appeal neither party sought to put anything before the Court which shed any light on what transpired after the ruling on the case to answer. The appellant did not give any evidence and all the Court record reveals is that later on 9 May 2007 the Magistrate recorded a conviction and imposed penalty on the appellant.
In all of the circumstances I consider that the failure to provide any reasons at all for convicting the appellant amounts to an error of law. As I remarked earlier, all that was necessary in a case like this was for the Magistrate to provide a short, succinct statement of the essential process by which he reached his decision. In the absence of reasons it is not clear on what basis the appellant was convicted. For these reasons I consider that the appellant is entitled to succeed on this ground of the appeal.

As there needs to be a fresh trial, I say something about the first and second grounds of the appeal. The following may have some bearing on the conduct of any later trial.
The first ground of appeal complains that the Magistrate should have ruled that there was no case to answer on the basis that there was not a lawful request made of the appellant following his second attempt to provide a breath sample, as the police failed to comply with Regulation 8A of the Regulations.
Regulation 8A stipulates:
(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.
Where a person fails to furnish a sample of breath, the police are required to deliver the prescribed oral advice contained in Schedule 1AA of the Regulations in accordance with Regulation 8B.
As the second test was initiated by the police officer at 8.25pm, less than two minutes after the first test, the appellant argued the second test did not count. The police had failed to comply with Regulation 8A because at the point he was given the prescribed oral advice there had not yet been two relevant attempts to furnish a breath sample. In my view this argument must fail.
Regulation 8A regulates the circumstances in which police are required to conduct breath analysis tests by means of the provision of two separate samples. The regulation mandates that there must be an interval of not less than two minutes but no greater than ten minutes between the provision of the samples. If two samples are provided in accordance with the regulation, then the result of the breath analysis is deemed to be the lower of the two readings produced.
Regulation 8A(1)(a) to (c) governs the situation where there is the provision of two samples of breath for comparative purposes which consist of one litre or more.
The respondent argued that the regulation does not seek to govern the space in time between two attempts where samples of less than one litre are furnished. In my view the respondent’s argument is correct. As the appellant did not supply two samples of breath in accordance with the regulation, regulation 8A does not apply on the facts if this case.[3]
[3] See, eg, Ehmann v Police [2006] SASC 235
The right to request that a blood sample be taken arises after all opportunities to furnish a sample of breath have occurred and following delivery of the prescribed oral advice. In this case that situation did not arise until after the police made the third request and after he had delivered the prescribed oral advice to the appellant. At that stage, the appellant clearly declined to make any request that a blood sample be taken from him. Furthermore, at no stage did the appellant proffer any information to the police about any medical condition which may have contributed to his failure to furnish a sample of his breath.
The ambiguous statements on the audio tape relating to his back condition were not sufficient in my opinion to raise the defence under s47(E)(4)(ab). In any event, the appellant’s refusal to ask for a blood sample was unequivocal.
For these reasons, I consider the Magistrate was correct in finding there was a case to answer.
The second ground of appeal is a complaint that the Magistrate ought, in the exercise of his discretion, to have excluded evidence of the appellant’s refusal to comply with directions to supply a sample of his breath for analysis because of the police failure to comply with the provisions of s47(E)(4a) of the Act.
On the evidence there was no coercion of the appellant or any misconduct by the police which contributed to the appellant’s decision to not request that a blood sample be taken. In my view, the actions taken by the police officer were in accordance with his obligations under the Act. Indeed if he had failed to give the appellant a third opportunity to comply with the direction to blow into the machine, there might well have been a legitimate complaint that the police did not provide the appellant with the opportunity granted by the section to submit to a further test after the delivery of the prescribed oral advice. In these circumstances, the basis for the exercise of any discretion to exclude that evidence never arose.
For these reasons, the complaints in both grounds 1 and 2 must fail. However, in light of my conclusion on ground 3, I would allow the appeal and remit the matter for future retrial before a different magistrate.