South Australia Police v Briggs No. SCGRG 93 54 Judgment No. 3839 Number of Pages 8 Appeal and New Trial

[1993] SASC 3839

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA APPEAL FROM A COURT OF SUMMARY JURISDICTION AT CHRISTIES BEACH BOLLEN J

CWDS
Appeal and new trial - appeal - general principles - interference with discretion of court below - Driving with level of alcohol above prescribed limit - magistrate in his discretion excluded breath analysis result because police officer refused respondent opportunity to have blood sample taken at a later time - respondent initially refused to have blood sample taken at time of breath analysis - change of mind on part of respondent on returning home - discussion of obligation of police to inform driver of right to have blood sample taken - discussion of obligation to ensure contemporaneity between breath analysis and taking of blood sample - request for blood sample sufficiently proximate to breath analysis - appeal dismissed
Road Traffic Act, 1961 (SA) s47b, s47f, s47g. Tann v Schild (1990) 54 SASR
523, applied. French v Scarman (1979) 20 SASR 333; Harrison v Wojtasik (1988) 8 MVR 377; Bunning v Cross (1978) 141 CLR 54 and Ujvary v Medwell (1985) 39 SASR 418, discussed.

HRNG ADELAIDE, 16 February 1993 #DATE 10:3:1993
Counsel for appellant:         Mr A D Wainwright
Solicitors for appellant:        Crown Solicitor
Counsel for respondent:         Mr M J Dadds
Solicitors for respondent:     Sykes Bidstrup

ORDER
Appeal dismissed.

JUDGE1
At about 9 pm on 5th August 1992 at Hackham West the respondent was driving a motor car on South Road. He was involved in an accident. It may be that he was free from fault. But when the police officers came they noticed a smell of alcohol on the respondent's breath. He "returned" a positive result by alcotest. He was lawfully required to submit to a breath analysis. He did. That test showed that the concentration of alcohol was .086 grams in a 100 millilitres of blood. 2. The police charged the respondent on complaint with "driving with the prescribed concentration of alcohol in his blood" (s47b of the Road TrafficAct). 3. The respondent contested the charge. The result of the breath analysis was, of course, an obstacle to the defence of the respondent. As it stood that result demonstrated that there was the prescribed concentration of alcohol in the blood of the respondent. 4. The respondent sought to have the result excluded from evidence. He appealed to the magistrate to exercise a discretion to exclude that result. On what did he base that application? The answer is - on the absence of the taking of a sample of blood. 5. Section 47f of the Road Traffic Act is:-
    "47f. (1) A person required in accordance with this Act to
    submit to a breath analysis may request of a member of the
    police force that a sample of his or her blood be taken by a
    medical practitioner.
    (2) Where a request is made by a person under subsection (1), a
    member of the police force 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 member of the police force that
    there is no reasonable likelihood that a medical practitioner
    nominated by the person will be available to take the sample
    within one hour of the time of the request at some place not
    more than ten kilometres distant from the place of the request;
    (ii) the person does not nominate a particular medical
    practitioner, by any medical practitioner who is available to
    take the sample.
    (2a) The taking of a sample of blood pursuant to this section--
    (a) must be carried out by the medical practitioner in the
    presence of a member of the police force;
    (b) must be at the expense of the person from whom the sample is
    taken.
    (3) A sample of blood taken by a medical practitioner in
    accordance with a request under subsection (1) must be divided
    by that practitioner into two approximately equal parts and
    placed in sealed containers of which--
    (a) one must be handed to the member of the police force present
    at the taking of the sample;
    and
    (b) one must be retained by the medical practitioner and dealt
    with in accordance with the directions of the person from whom
    it was taken." 6. Section 47g(2a) is:-
    "(2a) Where a person has submitted to an analysis of breath by
    means of a breath analysing instrument and the concentration of
    alcohol indicated as being present in the blood of that person
    by the breath analysing instrument is the prescribed
    concentration of alcohol, the person operating the instrument
    must forthwith--
(a) inform that person of the right pursuant to section 47f to
    have a sample of blood taken by a medical practitioner;
    and
    (b) warn that person that, if he or she does not exercise that
    right, it may be con- clusively presumed for the purposes of
    proceedings for an offence against this Act that the
    concentration of alcohol in the blood during the period of two
    hours preceding the analysis was the concentration as indicated
    by the breath analysing instrument." 7. Let the magistrate now speak. He said:-
    "The breath analysis test was done at 9.52 pm. The defendant
    was told by the breath analyser operator of his right to have a
    blood sample taken for analysis and he was told of the
    significance of that right. There is no complaint about any
    failure by the operator of the breathalyzer to appraise Mr
    Briggs of his right to have a sample taken and indeed he was
    reminded of that right by Constable Carey. When speaking to the
    operator he declined to exercise that right. He confirmed that
    decision when spoken to by Constable Carey. He was shaken by
    the accident but on the evidence not badly injured and not
    damaged to the extent that he could not understand or
    intelligently consider his right to have a sample taken. The
    decision not to was an informed, if wrong, decision. Even
    though he may to some extent live in his father's shadow the
    defendant is an intelligent adult man able to make his own
    decisions and that at the scene was his own decision. The
    defendant's father picked him up from the scene and Mr Briggs
    senior decided, peremptorily I think, that his son should have
    had and was to have a blood sample taken for analysis. That
    decision was the decision of the father and to use the father's
    own words his son 'wasn't opposed to it'. Constable Carey had
    left the scene at about 10.15 and about half an hour later,
    those times seem to be agreed, a telephone call came from Mr
    Briggs senior. The exact words have faded from memories,
    although I find (it would be unfair to Carey to do otherwise)
    that in the course of his conversation with Mr Briggs senior
    Carey did not say that it would be a waste of time to have a
    sample taken and analysed or that the result of such an analysis
    would be inadmissible. In one way or another Mr Briggs senior
    sought the co-operation in and participation of Constable Carey
    in the taking of a blood sample. Ostensibly at least a request
    made not by the defendant personally but on his behalf pursuant
    to 47f(1) of the Road Traffic Act." 8. Thus far we can see that up to the time when the father of the respondent drove him away from the scene all relevant provisions of the Road Traffic Act had been followed thoroughly. The respondent, knowing the consequences, declined to exercise a right to have a sample of blood taken. 9. Later, on his father's advice, the respondent decided that he wanted a sample of blood taken. His father rang and told this to Constable Carey. Constable Carey was the right officer to tell. I think that nothing turns on the fact that Mr Briggs senior and not the respondent himself told Carey that the respondent now wanted the sample taken. Carey refused. He was moved to refuse because some time had passed since the respondent had declined to have a sample taken and that all persons concerned had separated, he to the police station at Christies Beach and the Briggs to their home at McLaren Vale. Mr Briggs senior rang Carey at no later than 10.45 pm. It was probably a little earlier because the evidence of the respondent, which need not be doubted was that he went to the surgery of "his" doctor at 10.45 or very close thereto. 10. Mr Briggs senior told Carey that he would help in any way in having the test done. In fact after the refusal by Carey the respondent was taken by his father to the surgery of his doctor, a doctor in private general practice. 11. I think that there is no doubt that the taking of the sample could have been arranged. If all parties had co-operated they (especially the respondent and Carey) could have met at the surgery of that doctor or, for example, at the Flinders Medical Centre. All that could have been quickly done especially as Mr Briggs senior stood ready to drive the respondent to a "sample taking" place. 12. I must confess that prior to the decision of Mullighan J in Tann v Schild
(1990) 54 SASR 523 I would have thought that it was all over, that the respondent having said that he would not have a sample taken and having left the scene could not change his mind. The reasoning of Mullighan J satisfies me that that proposition, so baldly stated, would have been wrong. That reasoning and the decision in Tann v Schild establishes that a man may in some circumstances change his mind and, having earlier decided not to have blood sample taken, later require a taking of a sample. In those circumstances he would be entitled to have a member of the police force to whom he made the request "do all things reasonable necessary to facilitate the taking of a sample of (his) blood" (s47f(2) of the Road Traffic Act). 13. In Tann v Schild the motorist said that he would not have a sample taken. He changed his mind. He had left the scene. The officers had not. He came back thirteen minutes later. He spoke to the officers. He said he had changed his mind and now wanted a sample taken. The officers refused to do anything about having a sample taken. Objection was taken at the trial before the magistrate to the admission of the result of the breath analysis because the officer who had been told of the appellant's change of mind had not done "all things reasonable to facilitate the taking of the sample". He had done nothing. He had denied the right of the appellant to change his mind. The headnote in Tann v Schild accurately summarises the findings of Mullighan J. It is:-
    "At the conclusion of the breath analysis and having declined to
    have a sample of blood taken, the appellant left the presence
    of police officer. Thirteen minutes later he returned and
    requested that a sample of his blood be taken. The police
    officer refused." (The headnote goes on to speak of the
    objection taken at trial.) "Held: (2) The obligation of a police
    officer to facilitate the taking of a blood sample arises when:
    (a) there is a degree of contemporaneity between the breath
    analysis and the taking of blood sample; and the integrity of
    the blood sample has not been compromised. So long as these
    conditions are satisfied the earlier decline to have a sample of
    blood taken does not remove the obligation imposed upon the
police officer by s47f of the Road Traffic Act. (3) Without
    defining 'reasonable contemporaneity', the appellant's request
    was made at a time sufficiently proximate to the breath analysis
    to satisfy the requirement of contemporaneity. Further, there
    was no evidence to suggest the integrity of a blood sample would
    be compromised. Accordingly the police officer in refusing to
    facilitate the taking of the blood sample was in breach of the
    obligation case by the legislative scheme. (4) The evidence of
    the breath analysis ought to have been excluded in the exercise
    of judicial discretion." 14. In the course of his reasoning Mullighan J said:-
    "I turn to the second ground. It was common ground that when
    the appellant returned to the police vehicle he requested a
    blood test and Constable Wilson refused. Section 47f(2) of the
    Act provides that where a request for a blood test is made by a
    person required to submit to a breath analysis, a member of the
    police force 'must do all things reasonably necessary to
    facilitate the taking of a sample of the person's blood'. There
    was a medical practitioner available at Keith, some fifteen
    minutes away, and so, it may be supposed, a blood sample could
    have been taken, perhaps within about half an hour of the breath
    analysis test. The obligation is, in a sense, absolute. The
    section does not import any discretion to the police officer.
    That he may be busy at a random breath testing station is not to
    the point. His obligation is to do all things necessary to
    facilitate the blood test. If he is unable to make the
    arrangements himself he may entrust that task to another police
    officer, which, I expect, frequently occurs. The importance of
    carrying out the obligation was stressed by King CJ in French v
Scarman (1979) 20 SASR 333 at p337:- 'Section 47e places an
    obligation upon a citizen, in certain circumstances, to submit
    to an alcotest or breath analysis or both. The legislature has
    recognised that by requiring the citizen to submit to those
    tests, it places him in a position in which his fate will be
    determined by the accuracy of the instrument and the honesty and
    reliability of the police evidence as to its results. It
    further recognises that the citizen has no control over either
    of these factors. This recognition finds expression in the
provisions of s47f which provides a safeguard. This safeguard
    takes the form of an obligation on police officers to facilitate
    the taking of a blood test if the citizen requests it,' and
    later:- 'It seems to me that where a person, who is requested to
    undergo an alcotest or a breath analysis, indicates a desire for
    a blood test, it is incumbent upon the police officer, not only
    to inform him that he may have a blood test taken by a doctor
    named by him and at his own expense, but also to indicate that
    if he desires the blood test to be taken upon that basis,
    arrangements will be made for that to be done'.
    Those observations still apply even though there have been
amendments to s47f since that case was decided. The importance
    of carrying out the obligation is due to the legal significance
    of a breath analysis reading. In proceedings for an offence
    against the Act, it must be presumed, in established
    circumstances and in the absence of evidence to the contrary,
    that the concentration of alcohol, as indicated by the reading,
    was present in the blood at the time of the analysis and
    throughout the previous two hours (s47g(1)) and no evidence can
    be adduced in rebuttal of that presumption except by evidence of
    the concentration of alcohol in the blood as indicated by
    analysis of a sample of blood taken and dealt with in accordance
with s47f or s47i of the Act (s47g(1a)). Section 47f provides,
    inter alia, that the taking of the sample must be carried out by
    a medical practitioner in the presence of a member of the police
    force. Section 47i is concerned with compulsory blood tests and
    is of no application in this matter.
    The issue is whether Constable Wilson was in breach of an
    obligation when the appellant requested a blood test after
    having earlier declined. So far as I am aware, the point has
    not previously arisen. The nature of the obligation and the
    consequences of failure to comply with it have been discussed in
    a number of cases which White J conveniently summarized in
Harrison v Wojtasik (1988) 8 MVR 377. To that summary must now
be added Pacillo v Hentschke (1988) 47 SASR 261 and Shearer v
Hills (1989) 51 SASR 243. However, in none of these cases was
    the court concerned with the refusal of a blood test in the
    circumstances here present. The obligation of a police officer
    to facilitate the taking of a blood test arises when a breath
    analysis reading indicates the prescribed concentration of
    alcohol and when a blood test is requested. Section 47f
    contains no provision that the request for a blood test must be
    made at a particular time, before the expiration of a period of
    the time or before the conclusion of an event, such as the
    conclusion of the breath analysis test and the subsequent
    formalities. It merely provides for the obligation of a police
    officer upon a request being made.
    It is not difficult to envisage circumstances where a driver may
    have a change of mind and I think the circumstances here present
    illustrate that a genuine change of mind may occur. There is no
    warrant in the section for a driver being foreclosed from a
    blood test when there has been a change of mind. That may occur
    because a driver has not fully appreciated the warning until
    after he has reflected upon what he has been told. He may
    initially have refused, for what seemed to him to be good
    reason, but after taking advice he has been persuaded
    otherwise. So, it seems to me, that a request may be made,
    after a change of mind, which imposes the obligation upon the
    police officer.
    However, that is not to say that the obligation arises
    whenever the request is made and regardless of the
    circumstances. In my view the legislative scheme requires the
    existence of two matters. First there must be some degree of
    contemporaneity between the breath analysis and the taking of a
    blood sample as evidence of blood alcohol level established by
    the former may only be rebutted by the level established by the
    latter. Obviously there must therefore be some degree of
    contemporaneity between the breath analysis and the request.
    Secondly, the integrity of the blood test must not be
    compromised." 15. And -
    "However, it does not follow that a request may not be made
    after a driver has left the presence of the operator of the
    breath analysis operator or other police. A driver may well
    have a change of mind as he walks away from the place where the
    breath analysis test was administered and then return almost
    immediately and make the request. The requirement of reasonable
    contemporaneity would there be present as I expect very few
    blood samples can be taken within half an hour or so of the
    breath analysis even in Adelaide or the metropolitan area. Here
    the appellant returned to Constable Wilson thirteen minutes
    after the breath analysis and a blood sample could have been
    taken at Keith about fifteen minutes or so later. The request
    was therefore made sufficiently proximate in time to the breath
analysis." 16. I follow Tann v Schild. I respectfully and enthusiastically adopt the reasoning of Mullighan J. I dispose of one matter in a word or two. There is no evidence here to suggest that there would have been any compromise of the integrity of the blood sample. 17. What of contemporaneity between the breath analysis and the taking of a blood sample? The analysis was at 9.52 pm. The evidence of "times" suggest that the sample could have been taken with co-operation from all parties sometime not long after 11 pm and certainly before 11.30 pm. The fact is that the respondent went to "his doctor" at about 10.45. The uncontradicted evidence of the respondent is that the doctor, the respondent's home and Christies Beach police station were all in close proximity. The surgery was about 20-25 minutes drive from the Christies Beach police station. I may be taken to recognise that the Flinders Medical Centre was not far away from any relevant place. 18. "Contemporaneity" is a question of degree. Put in very rough language Mullighan J was holding in Tann v Schild that it was in order for a man to change his mind so long as he did not allow too long a time to elapse before announced his change of mind. I think that there was here sufficient contemporaneity between breath analysis and request for the taking of a sample to render the request reasonable. That means that Carey should have done all the things necessary to facilitate the taking of a sample. He did nothing. I think that the request of the respondent was made sufficiently proximate to the breath analysis to satisfy the requirement of "contemporaneity". 19. The two conditions mentioned by Mullighan J of "contemporaneity" and "lack of danger to the integrity of the blood sample" were satisfied here. 20. The failure by Carey to act raised a discretion (a Bunning v Cross (1978) 141 CLR 54 type of discretion) to exclude the breath analysis. The magistrate exercised that discretion. He refused to admit the result of the breath test. I do not join in the whole of the reasoning of the magistrate touching the exercise of his discretion. I do not read the evidence as suggesting that Carey had brushed off the respondent and the request by the respondent's father. On the score of lapse of time, separation of persons concerned and distance of each from the other, Carey had refused to take steps to have the blood sample taken. I think that he came to the wrong decision. However, a reading of the evidence does not lead me to think that his refusal should be condemned other than by a finding that it was wrong. I read his evidence to suggest that he listened to the request and offered reasons for refusing it. It is his failure to take steps to facilitate the taking of a blood sample, whatever his manner, which causes the discretion to arise. 21. The failure of Carey to take all reasonable steps to facilitate the taking of a blood sample was capable of preventing the respondent from taking his one chance of defeating the charge. 22. In Tann v Schild (supra) Mullighan J said:-

    "The circumstances established by the evidence justify the
    exclusion of the evidence of the breath analysis in the exercise
    of discretion. Generally speaking the discretion will be
    exercised in favour of the driver where a police officer has not
fulfilled his obligations under s47g(2a): see Ujvary v Medwell
(1985) 39 SASR 418 per King CJ at p420:- 'Generally speaking,
    police conduct which deters a suspect from requesting a blood
    test will render it unfair to admit the evidence of a breath
    test. The blood test is the only means by which a citizen can
    question the correctness of the result of the breath analysis.
    It must be the paramount concern of the Courts to ensure that
    the citizen has ready access to that check. If obstacles are
    placed in the way of the citizen, the evidence of the breath
    analysis should be excluded unless there is some cogent reason
to admit it. When applying Bunning v Cross (1978) 141 CLR 54
    principles, the public interest in securing a conviction for an
    individual drink-driving offence will rarely outweigh the public
    interest in protecting the citizen's right to have the results
    of the breath analysis checked by means of a blood test'. Here
    Constable Wilson was aware of the emotional state of the
    appellant when the breath analysis occurred. The appellant
    returned and made the request a short time later. His request
    was dismissed by Constable Wilson without any enquiry as to
    whether the appellant had done anything which could have
    compromised the integrity of a blood analysis. The end result
    was unfairness to the appellant and warranted the exercise of
    the discretion in his favour. It appears from the reasons for
    judgment of the learned Special Magistrate that he did not
    consider the exercise of the discretion because he concluded,
    and wrongly in my view, that there was no basis for the exercise
    of discretion. Ground five has been established." 23. Let me repeat a sentence in the passage from the reasons of King CJ in Ujvary v Medwell quoted by Mullighan J. King CJ said: "A blood test is the only means by which a citizen can question the correctness of the breath analysis". 24. I think that in the result the magistrate was right to exclude the evidence of the result of the breath analysis. Weighing up all competing interests I think the interests of the defendant prevail. I think that, using the words of King CJ (supra), "this police conduct which deterred a suspect from requesting a blood test renders it unfair to admit the evidence of a breath test". 25. I dismiss the appeal.