South Australian Police v Bronte Frederick Mincham No. SCGRG 95/2367 Judgment No. 5838 Number of Pages 13 Traffic Law (1996) 67 Sasr 254

[1996] SASC 5838

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COX(1), PERRY(2) AND LANDER(3) JJ

CWDS
Traffic law - driving with prescribed concentration of alcohol - vehicle approaching breath testing station - a charge that the respondent was driving with the prescribed concentration of blood alcohol was dismissed after the magistrate held that his vehicle was not a vehicle approaching a breath testing station within the meaning of s47E of the Road Traffic Act 1961, and the subsequent administration of an alcotest and breathalyser were accordingly not authorised by the statute and the evidence thereby obtained was inadmissible - the respondent was approaching a breath testing station set up on a country road - the respondent stopped and changed position with a passenger about 190 metres from the station - held, reversing the determination of the magistrate and of a single judge on appeal from the magistrate, that the vehicle was approaching the station at the relevant time - observations as to the test to be applied in determining whether a vehicle is approaching a breath testing station. Road Traffic Act 1961ss 47B, 47DA(1)(2) and 47E(sa), referred to. R v Prasad (1979) 23 SASR 161; Burgess v Hall (1988) 48 SASR 394; Bunning v Cross 141 CLR 54; Police v Oakes Perry J, 19 February 1996, judgment No 5464 (unreported, available on SCALE); Matthews v Police (1996) 185 LSJS 193; Residues Treatment and Trading Co Ltd and Anor v Southern Resources and Ors Perry J, 6 April 1989, unreported, judgment No 1397, considered. On appeal from judgment of Williams J, 20 December 1995, judgment No 5392 (unreported, available on SCALE).

HRNG ADELAIDE, 4 September 1996 #DATE 4:10:1996

Counsel for appellant:        Mr M Grant

Solicitors for appellant:    Crown Solicitor

Counsel for respondent:     Mr D Edwardson

Solicitors for respondent: Mangan Ey And Associates

ORDER
Appeal allowed.

JUDGE1 COX J
1. In my opinion this appeal should be allowed and the orders of Williams J set aside. I would allow the appeal to this Court from the decision of the Special Magistrate, set aside the dismissal of the complaint and remit the matter to the Special Magistrate so that the hearing of the charge may be continued in accordance with the judgment of this Court. I agree with the reasons of Perry J and Lander J.

JUDGE2 PERRY J
2. The respondent was charged on the complaint of the appellant that on 26 January 1994 he drove a motor vehicle on Adelaide Road at Mannum while there was present in his blood the prescribed concentration of alcohol, namely, .110 grams per 100 millilitres of blood, contrary to s47B of the Road Traffic Act 1961 ("the Act"). He pleaded not guilty. At the conclusion of the hearing, the learned trial Magistrate dismissed the charge. An appeal to a single Judge of this Court by the appellant was in turn dismissed (See unreported reasons for judgment Williams J, 20 December 1995, judgment No 5392 (unreported, available on SCALE)). By leave, the appellant appeals to this Court.

3. On the day in question, pursuant to the powers conferred by s47DA(1) of the Act, the appellant established a breath testing station on the Old Adelaide Road on the outskirts of Mannum. The road comprises a bitumen carriageway with a single lane on either side of a broken white centre line. It runs approximately east-west. There are wide verges on either side of the roadway, planted out with trees and bushes.

4. The road is relatively straight between the point where the breath testing station was set up for about 300 metres east where there is a bend in the road. The breath testing station was positioned on the south side of the road near a junction with a street which leads to the Mannum police station which was not far behind the area in which the breath testing station was established. The station was separated from the side of the police station by a large, open, bituminised area. Several other roads adjoin or intersect Old Adelaide Road between the place where the station was established and the bend in the road. On the north side towards the bend was the Mannum Community Centre and on the south side, about half way along, was a road leading to a council depot.

5. The evidence established that the respondent was driving what was described as a small white vehicle west in Old Adelaide Road at about 7.15 pm. It was still daylight. Constable Merkx observed the vehicle as it rounded the bend. It proceeded on a little way and then drew off the road onto the verge on the south side of the carriageway at a distance which Constable Merkx then estimated as 150 metres east of the breath testing station. A later measurement indicated that the distance was about 190 metres.

6. After the car stopped in that position, Constable Merkx observed the driverÕs door open. A person subsequently identified as the respondent got out of the driverÕs door and changed places with a woman who had been a passenger. After she got behind the wheel, the vehicle drove on to the breath testing station where Constable Merkx and the other officer present, Senior Constable Creed, stopped the vehicle.

7. Constable Merkx subjected the driver to an alcotest. The result was negative. He then approached the passenger side of the vehicle and spoke to the respondent, with whom he had a conversation as to which his evidence was:
    "Q. This is a random breath test station, as you were the driver
    of this car about 150 metres east of this location on the approach
    to this location I require you to submit to an alcotest.

A. But I wasnÕt the driver.

Q. You were the driver about 150 metres back and approaching this
    random breath test station, if you do not comply with my
    directions you will be reported for failing to do so."

8. He then administered the alcotest, which proved positive. The conversation continued.
    "Q. You have recorded a positive result. I now direct you to take
    nil by way of mouth and to remain in this vicinity until you an
    undergo a breath analysis by means of breathalyser.

A. I wasnÕt the driver when you stopped me.

Q. Why did you change driving positions with the passenger.

A. The sun was in my eyes, I felt tired.

Q. The reason you changed drivers is irrelevant. Courts hold that
    once you approach an RBT, you may be stopped at the RBT and
    treated as a driver.

A. How was I to know that?

Q. I wouldnÕt expect you to."

9. The respondent was then subjected to a breath analysis test which indicated the percentage of blood alcohol to which I have referred.

10. At the trial Constable Merkx, Senior Constable Creed and another police officer, Senior Constable Pledge, who operated the breath analysis instrument, gave evidence on behalf of the appellant.

11. At the conclusion of the complainantÕs case, counsel appearing for the respondent submitted that the charge should be dismissed without the learned trial Magistrate hearing any further evidence. For some reason which is not clear to me, the learned trial Magistrate said in her reasons for judgment that she treated the application by defence counsel to dismiss the charge as being a "Prasad" (R v Prasad (1979) 23 SASR 161) application.

12. Prasad confirms the discretion of a trial judge to inform a jury of their right at any stage after the conclusion of the case for the prosecution to bring in a verdict of not guilty. It has been held that the discretion may be exercised by "a tribunal which is the judge at both law and fact" in that it may dismiss a charge at any time after the close of the prosecution case if the tribunal "considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it" (Prasad (supra) 23 SASR per King CJ at 163.) In fact, for reasons which I will come to, the learned trial Magistrate proceeded to rule that the evidence of the breath analysis should be excluded, following which she went on to conclude: "I exercise my right as a trier of fact to bring in a verdict of not guilty at any time after the close of the prosecution case in accordance with Prasad, and the charges (sic) against the defendant are dismissed." The reference to and reliance upon Prasad was clearly in error. Once the evidence of the breath analysis was excluded, the evidence could not sustain a conviction and the charge should have been dismissed on that account. The same result would have followed if counsel for the defendant had submitted no case to answer.

13. Be that as it may, the appeal questions the soundness of the ruling by the learned trial Magistrate pursuant to which she excluded the evidence of the breath analysis. To understand the ruling it is necessary to refer a little more closely to the relevant statutory provisions.

14. S47E(1) authorises a member of the police force who believes on reasonable grounds that the driver of a motor vehicle has committed certain identified offences, or has been involved in an accident or has behaved in a manner which indicates that his or her ability to drive is impaired, to require the driver to submit to an alcotest or breath analysis or both. In those circumstances, the alcotest or breath analysis must be performed within two hours after the event giving rise to the relevant belief (subs(2)). The section proceeds:
    "47E ...
    (2a) A member of the police force may require the driver of a
    motor vehicle that approaches a breath testing station established
pursuant to section 47DA to submit to an alcotest.
    (2b) Where an alcotest conducted under subsection (2a) indicates
    that the prescribed concentration of alcohol may be present in the
    blood of any person, a member of the police force may require that
    person to submit to a breath analysis.
    (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 member of the police force 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 member of the
    police force ..."

15. Put shortly, the reasoning underlying the ruling of the learned trial Magistrate was that in the circumstances, the respondentÕs vehicle was not a vehicle "that approaches a breath testing station" within the meaning of s47E(2a).

16. After stating that it was a question of "fact and degree whether or not a driver of a motor vehicle ÔapproachesÕ a station or not and that will vary from one case to another", the learned trial Magistrate went on to say:
    "In my view, a driver of a motor vehicle ÔapproachesÕ as soon as
    the vehicle under his control comes within a range of distances
    where it is both
    (a) reasonable to expect a police officer at the station to be
    aware of the presence of the motor vehicle; and
    (b) reasonable to expect a driver to be aware of the presence of
    the breath testing station."

17. She went on to say that whether or not the respondent or his passenger saw the breath testing station was irrelevant. She proceeded:
    "The question is whether, at any time when the vehicle was under
    his control, a reasonable person driving a motor vehicle with
    reasonable care and keeping a proper lookout ought to be aware of
    the presence of a random breath testing station on the road
    ahead.In this case there is no reason to find that such a driver
    should have been aware that a car on the roadside, almost two
    hundred metres ahead, with a sign (with three letters on it)
    leaning against the boot, was the physical manifestation of a
    breath testing station..I am satisfied that although it was
    reasonable to expect the police officers to be aware of the car
    the defendant was driving when the defendant was driving, it is
    not reasonable, on the facts in this case, to find that the
    defendant should have been aware of the breath testing station."

18. She went on to conclude that the respondentÕs vehicle was not a motor vehicle "that approaches a breath testing station" within the meaning of those words in s47E(2a), and in the result the taking of breath samples both by the alcotest and the breath analysis were unlawful. Insofar as she had a discretion whether or not to exclude the evidence (Bunning v Cross 141 CLR 54.) she ruled that the discretion should be exercised against admission.

19. In my opinion, the learned trial MagistrateÕs approach was flawed in a number of respects.

20. In Burgess v Hall (1988) 48 SASR 394 the Full Court held that the word "approaches" in s47E(2a) means "draw near" (see per Matheson J at 399 and Bollen J at 406, OÕLoughlin J concurring with both.). The Court held further held that the question whether the test was satisfied was a "matter of fact and degree" (see per Matheson J at 399 and per Bollen J at 406). In the same case, Bollen J further observed:
    "The mere fact that a driver is driving towards a station is not
    enough to make him one "that approaches" a station. There must be
    some proximity between car and station. I am not approaching a
    station in the relevant sense if I am halted when a mile or so
    from it." (At page 406).

21. Those observations sufficiently identify the approach to be adopted in determining whether a vehicle "approaches" a breath testing station for the purposes of the subsection. No hard and fast rule can be adopted. It is all a question of fact and degree. There must be some proximity that enables one to say that the vehicle "draws near".

22. In determining whether the test if satisfied one must have regard to the nature of the locality, the direction of travel of the motor vehicle, and in a broad general sense the distance between the motor vehicle and the breath testing station. It would, however, be quite wrong to adopt any arbitrarily stated distance as determinative of the question. The fact that a driver can (or a reasonable driver if looking could) see a breath testing station, or that the police officers manning the breath testing station can see the motor vehicle, is a relevant consideration. But that is so only in the sense that there would then be a line of sight between the two objects which in turn may be indicative of a sufficient degree of proximity, in combination with other relevant circumstances, to satisfy the test. But neither that nor any other single factor can be conclusive.

23. Awareness on the part of the driver of the presence of the breath testing station or the officers manning it is irrelevant, except as I have said, if that results from the driver seeing the breath testing station, which would then be indicative of a line of sight. But, for example, the test may be satisfied if a vehicle was approaching a bend on the other side of which and completely out of sight a breath testing station had been positioned.

24. In my view, the learned trial Magistrate erred in laying stress on the question of whether it was reasonable to expect a police officer at a breath testing station to be aware of the motor vehicle and the driver of the motor vehicle to be aware of the breath testing station.

25. It is true that under s47DA(2) "A breath testing station must be established in such a way, and consist of such facilities and warning and other devices, as the Commissioner of Police considers necessary in order to enable vehicles to be stopped in a safe and orderly manner and the alcotests to be made in quick succession". (emphasis added)But the reference in that subsection to warning and other devices does not mean that their presence, or if present, the fact that they had been observed by an approaching driver, has anything to do with the question whether, within the meaning of s47E(2a) the vehicle "approaches" the station.

26. In the course of his reasons given on the first appeal, the learned Judge in this Court spoke of a "relevant affinity". He observed:
    "The distance of eyeshot is obviously a circumstance giving rise
    to a relevant affinity - particularly when related to the ability
    of one to give a signal and for the other to recognise that signal
    and the authority of the police uniform. However, I am not
    prepared to express myself in terms which will define limits.
    Topographical considerations and the layout of the road system
    itself in some circumstances may have relevance; actual driver
    awareness of the testing station may also be a factor which may
    influence a determination of the extent of the statutory zone of
    propinquity. If a driver turns down a side street by reason of
    awareness of the testing station, that manoeuvre in itself may
    evidence the relevant propinquity in all the circumstances.
    However, if affinity by reason of immediate proximity (between
    driver and testing station) does exist, then the knowledge of the
    driver (in terms of lack of awareness of the testing station) will
    not destroy the status of a vehicle and its driver in terms of
    s47E(2a). Actual distances between the driver and the testing
    station will always be important and in some cases may be
    conclusive.In my opinion the test used by the Learned Special
    Magistrate (as summarised in the grounds of appeal) was not
    correct. The circumstances which she has mentioned may be
    relevant as a matter of evidence in establishing propinquity.
    However the Learned Special Magistrate has expressed herself in a
    way which purports to set out a comprehensive principle even
    although in other references Her Honour has recognised that
resolution of the question of proximity demanded by s47E(2a) will
    be a matter of fact and degree in each case.I have the photographs
    of the scene and a plan available to me together with the other
    evidence and the MagistrateÕs findings of fact. I am able in this
    case upon appeal to substitute my own view of the evidence for
    that of the Learned Special Magistrate. I do this by applying my
interpretation of s47E(2a) to the facts as found by the Magistrate
    and reinforced by my reading of the evidence and exhibits. Having
    regard to the physical features of the area, the distance of some
    one hundred and ninety metres mentioned in evidence and the
    imperfect observation which the police were able to make at this
    distance, I conclude that the vehicle at the relevant time was not
    properly in eyeshot and was not (in absolute terms of actual
    distance) sufficiently near to satisfy the relevant test; relevant
    propinquity was not otherwise demonstrated."

27. He went on to conclude that the learned trial Magistrate had reached the correct conclusion, but by applying a test which was flawed for the reasons identified in that passage.

28. In my opinion, with great respect to the learned appeal Judge, he erred in placing too much emphasis upon the question of whether or not the vehicle was in eyeshot. His expression "properly in eyeshot" I find puzzling. I would have thought that the vehicle is either in eyeshot or not. He concludes that the vehicle was not sufficiently near to satisfy the relevant test, and that "relevant propinquity was not otherwise demonstrated". He there appears to be referring to the earlier passage where he notes that if a driver turns down a side street by reasonable awareness of a testing station, "that manoeuvre in itself may evidence the relevant propinquity in all the circumstances".

29. In my opinion, the action of a driver in turning down a side street, considered in isolation, is irrelevant. It may be, for example, as a result of the receipt of a CB radio message while the vehicle was a long distance away, clearly too far away to satisfy the test. If the awareness results from the driver catching sight of the breath testing station, that circumstance rather than any subsequent action of turning down a side street may be a relevant but not determinative factor.

30. In the circumstances of this case, the evidence adduced by the appellant satisfied the test. A distance of 190 metres is not a long distance. The vehicle was driving towards the breath testing station and was seen by at least one of the police officers manning it. In my opinion, at least from the time when the vehicle came around the bend and possibly from a point before then, it was, within the meaning of the section, a vehicle approaching the breath testing station.

31. Before parting with the matter, I should say that it is by no means obvious to me that even on the assumption (contrary to the view which I have expressed) that the learned trial Magistrate was correct in ruling that the evidence had been obtained unlawfully, it is at least arguable that it should nonetheless have been admitted, and that the learned trial Magistrate wrongly exercised her discretion against admission. The point, however, was not argued on the appeal before this Court, and I do not pursue the question further.

32. A question arises as to the proper order to be made, and in particular whether the matter should be remitted to the learned trial Magistrate, and if so, upon what basis.

33. The complainantÕs case was closed. But it is not entirely clear to me from the record whether or not the submission put by counsel for the respondent was a submission that there was no case to answer (without being put to an election as to whether or not he proposed to call evidence), or whether there was an election and counsel made what, in effect, were final submissions.

34. The situation becomes more confused when one has regard to the passages in the early part of the reasons given by the learned trial Magistrate where she refers to "mixing a hearing of trial and voir dire issues", and the reference to which I have already referred to the application of counsel for the respondent, as a "Prasad" application.

35. Mr Edwardson of counsel for the respondent before this Court submitted that if the appeal was otherwise successful, the decision should be quashed and the matter left there. Alternatively, he submitted that the matter should be remitted to another Magistrate for the hearing to start again de novo.

36. He put the latter submission on the basis that there had been decisions of this Court (Police v Oakes, Perry J, 19 February 1996, unreported, judgment No 5464 (unreported, available on SCALE) and Matthews v Police (1996) 185 LSJS 193 (Nyland J)) in other cases given after the hearing before the learned trial Magistrate which might have availed the respondent with respect to the tender of certain certificates which were tendered as part of the complainantÕs case, without objection by the respondent.

37. I do not think that it would be right to order a re-trial on that score. The respondent took his chances with the course which he followed before the learned trial Magistrate.

38. On the other hand, in view of the uncertainty as to the basis upon which the Magistrate was asked to rule at the conclusion of the complainantÕs case, in fairness to the respondent, the appropriate order should be that without this Court entering a conviction, the matter should be remitted to the learned trial Magistrate to rule as to the admissibility of the evidence which she excluded, consistently with these reasons, and give to the respondent the opportunity of electing whether or not to call evidence. I realise that if the respondentÕs submissions through counsel at the conclusion of the complainantÕs case should properly be regarded as a submission that there was no case to answer on questions of fact, the respondent might have been put to this election. But a ruling that the evidence in question should be excluded, which seems to have been the main focus of the argument at that stage, resulted in a situation where there was no evidence upon which a conviction could be recorded. Argument in support of such a ruling, even if made in the context of no case to answer, would not ordinarily have required that the respondent be put to an election (Residues Treatment and Trading Co Ltd and Anor v Southern Resources and Ors, Perry J, 6 April 1989, unreported, judgment No S1397).

39. At one stage the learned trial Magistrate referred to the fact that following the taking of the objection she had heard the evidence de bene. If evidence is received during the course of the prosecution case de bene, the ruling as to its admissibility should be made before the defendant is called upon to indicate whether he or she intends to call evidence.

40. I would allow the appeal, quash the ruling excluding the evidence in question, and remit the matter to the learned trial magistrate to complete the hearing in accordance with these reasons.

JUDGE3 LANDER J
41. The respondent was charged with an offence under section 47B of the Road Traffic Act 1961 (SA) in that, on 26 January 1994, at Mannum in the State of South Australia he drove a motor vehicle on a road, namely Adelaide Road, while there was present in his blood the prescribed concentration of alcohol, namely .110 grams in 100 millilitres of blood.

42. He pleaded not guilty to that charge, and at the conclusion of the case for the appellant an application was made to have the learned Magistrate exclude the evidence of the breath analysis record of the concentration of alcohol present in the respondent's blood. The learned Magistrate said she treated the application as "a Prasad application" (R v Prasad (1979) 23 SASR 161), but in truth she was being called upon to rule on the admissibility of evidence critical to the appellant's case and to determine, if she excluded that evidence, whether there was a case to answer. She excluded the evidence and dismissed the charge.

43. The appellant established a breath testing station pursuant to Section 47DA of the Road Traffic Act outside the Mannum Police Station, on the verge of the Old Adelaide Road. The Old Adelaide Road runs approximately east - west. It is a single lane carriageway divided by a white painted line which carries traffic in opposite directions. The Mannum Police Station is situated on the southern side of the roadway. East of that, two roads join from the south, the first east of the police station, a Council Depot road which forms a junction, and the second Berryman Avenue which forms an intersection. Immediately east of the Council Depot Road is an area on the southern side of the roadway to allow vehicles to stop (a vehicle bay). Further east is the intersection of Berryman Avenue. Just east of Berryman Avenue the roadway curves to the north. From that curve to the Police Station the roadway is straight and flat. A police officer, Constable Merkx, standing at the breath testing station said he could clearly observe traffic from the curve in the roadway to the point at which he was standing, a distance of about 300 metres. Indeed he said the vehicle was never out of his observation after he first saw it enter Adelaide Road until he had a conversation with the driver at the breath testing station.

44. The breath testing station was established for the purpose of testing, by alcotests, persons driving motor vehicles on the road (s47DA(i)). A member of the police force is entitled, pursuant to s47E(2a) of the Road Traffic Act, to require a driver of a motor vehicle to submit to an alcotest in the circumstances provided in the sub section.

45. Section 47E(2a) provides:
     "A member of the police force may require the driver of a motor
     vehicle that approaches a breath testing station established
pursuant to section 47DA to submit to an alcotest".

46. If that aloctest indicates that the prescribed concentration of blood may be present in the blood of the person then the person may be required by a police officer to submit to breath analysis (s47E(2b)).

47. At about 7.00 pm on 26 January 1994 the respondent was driving a small white motor vehicle in a westerly direction along the Old Adelaide Road near Mannum. There was a woman passenger in his motor vehicle. About 190 metres south of the breath testing station, the respondent stopped his vehicle in the vehicle bay. He got out of his vehicle, walked around the back of his car, whilst simultaneously the passenger got out of the front left passenger seat and walked around to the drivers side of the vehicle. The respondent took up a position in the front passenger seat and the woman, who had previously been a passenger, took up a position in the driver's seat. All of that was observed by Constable Merkx, the police officer on duty at the breath testing station. He brought that to the attention of Senior Constable Creed for the purpose of ensuring the small white motor vehicle, in which he had seen the exchange of positions by driver and passenger, would be stopped. The vehicle was stopped and the woman driver was required to submit to an alcotest, which was negative. The respondent was then asked to submit to an alcotest which gave a positive result.

48. Before submitting to the alcotest the respondent protested that he was not the driver but he was told:
     "You were the driver about 150 metres back and approaching this
     Random Breath Test station. If you do not comply with my
     directions you will be reported for failing to do so."

49. After having submitted to an alcotest there was another short conversation in which the respondent was told that he would have to submit to a breath analysis. Again he protested that he was not the driver. Constable Merkx said to him: "Why did you change driving positions with the passenger?" The respondent replied: "The sun was in my eyes, I felt tired." The Police Officer then said: "The reason you changed drivers is irrelevant, courts hold that once you approach the Random Breath Test, you may be stopped at the RBT and treated as a driver."

50. The breath analysis test proved positive, and the instrument indicated that the concentration of alcohol present in the blood of the respondent, whose breath was analysed, was .110 grams in 100 millilitres of blood. Such a reading of course gives rise to a contravention of Section 47B of the Road Traffic Act.

51. It is clear enough that the respondent was the driver of the motor vehicle at least at the distance 190 metres south of the breath testing station, as already indicated. It is also clear enough that he and his female companion exchanged positions, one with the other, so that he surrendered his position as driver. It is also clear enough, because the conversation makes it so, that when he did that his actions were quite easily able to be observed by Constable Merkx. The very conversation had between the police officer and the respondent establishes that.

52. Of course, if the respondent's car, and his activities, were observable from the breath testing station so also was the breath testing station observable from the position where at least the motor vehicle stopped and presumably also immediately before it stopped.

53. The question in issue before the learned Magistrate was whether or not Constable Merkx was entitled to require the respondent, as the driver of a motor vehicle that approaches a breath testing station established pursuant to s47DA, to submit to an alcotest. If he was so required then the evidence of the breath analysis was admissible against him in the trial. If he was not so required then, as the learned Magistrate found, the evidence would not be admissible against him and the case would fail for lack of evidence.

54. The learned Magistrate determined that she was satisfied on the balance of probabilities that the occupants of the motor vehicle had no idea that a random breath testing station had been set up ahead at the time when the passenger and the driver exchanged positions. Therefore it may be inferred that she was satisfied that the respondent and the woman passenger did not see the breath testing station ahead of them.

55. I must say, on the evidence, I am not entirely satisfied that that finding is correct, particularly so because at the point when the learned Magistrate made her ruling neither the respondent nor the woman passenger had given evidence. However, the finding is not a matter of any great consequence in the determination of the issue in this matter. I do not think it is to the point whether the driver of the vehicle approaching the breath testing station is aware of the presence of that station or not. The question is an objective one and simply is whether the driver of the motor vehicle is approaching a breath testing station (Burgess v Hall (1988) 48 SASR 394 at 405).

56. Approach is defined in the Shorter Oxford English Dictionary (3rd Edition) as "to come nearer, or draw near, in space". It seems to me that approach needs to be given its ordinary English meaning which is to draw near. In those circumstances, a police officer is entitled, in my opinion, to require the driver of a motor vehicle which draws near to a breath testing station to submit to an alcotest.

57. Whether a person has approached a breath testing station is a matter of fact which will be determined, in every case, by having regard to the topography, the situation of the breath testing station, the highways or roadways leading to the position where the breath testing station is situated, the direction and indeed any change of direction of travel of the motor vehicle, and perhaps the speed of travel of the motor vehicle and the nearest point to the breath testing station that the motor vehicle reaches. It will be a matter of fact to be determined in every case, and a reference to at least those factors and possibly others will be appropriate to determine whether the driver of a motor vehicle has approached the breath testing station.

58. Whilst it is not relevant to determine whether the driver was aware of the existence of the breath testing station, it might be relevant to establish that the breath testing station was able to be viewed by the driver because that will be a factor, not necessarily determinative, but relevant to the determination of, whether the driver of the motor vehicle approached a breath testing station. If the breath testing station was available to be seen then it may be more easily able to be said that the driver of the motor vehicle was approaching the breath testing station, if for no other reason that a line of sight is relevant in the assessment of the topography.

59. It seems to me that no elaborate test has to be determined for the purpose of the application of section 47E(2a), but it is enough for the practical application of the section to simply have regard to the facts on a case by case basis.

60. It follows, from what I have said, that I agree with the decision of this Court in Burgess v Hall.

61. In the circumstances of this case, in my opinion, the driver was approaching the breath testing station. A distance of 190 metres, in a country area where the vehicle was visible to an operator at the breath testing station, and the breath testing station ought to have been visible to the driver and, where there was only one road leading to the breath testing station and, where both the driver and the passenger intended to drive to the breath testing station are all circumstances which lead to the inevitable conclusion, in my opinion, that the driver of this motor vehicle was a driver approaching the breath testing station and was therefore liable to be required to submit to an alcotest under s47E(2a) of the Road Traffic Act.

62. In my opinion therefore, the learned Magistrate was in error in the conclusion to which she came, and so also was the learned Judge on appeal in error, in failing to determine that the requirement to submit to the alcotest and the requirement to submit to the breath analysis test was permissible in the circumstances, and that the evidence of the results of both was admissible in the trial of the respondent. In my opinion the appeal ought to be allowed and the matter remitted the learned magistrate for further consideration.

63. It was put by Mr Edwardson, who appeared for the respondent, that if this Court was to allow the appeal, the Court ought not remit the matter but send the matter to another magistrate for a new trial. I cannot agree that that would be an appropriate course. I think the matter ought to be remitted to the learned Magistrate for further hearing. Because the learned Magistrate treated the application in the way that she did, the respondent was not called upon to elect as to whether or not he would give evidence. In those circumstances, he would be still entitled to call evidence, if he was so advised.

64. I would allow the appeal and remit the matter to the learned magistrate.