South Australian Police v Bronte Mincham No. SCGRG 95/2367 Judgment No. 5392 Number of Pages 6 Vehicles and Traffic

[1995] SASC 5392

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA WILLIAMS J

CWDS
Vehicles and traffic - offences - Driving under the influence of alcohol - driver changing before reaching alcotesting station - previous driver tests positive to alcotest - s47E(2a) Road Traffic Act 1961 - "Approaches" - whether driver is approaching an alcotesting station will depend on a nexus existing between the driver and the alcotesting station. Road Traffic Act 1961 s47E(2a); s47E(2b), referred to. Bunning v Cross (1977-1978) 141 CLR 54, applied. Burgess v Hall (1980) 48 SASR 394; Priest v Drinkwater Mohr J, 31 August 1990, unreported. Judgment No.2461, discussed.

HRNG ADELAIDE, 13 December 1995 #DATE 20:12:1995 #ADD 15:1:1996

Counsel for appellant:     Ms J Rugless

Solicitors for appellant:    Crown Solicitor

Counsel for respondent:     Mr J Mangan

Solicitors for respondent: Mangan Ey and Associates Pty Ltd

ORDER
Appeal dismissed

JUDGE1 WILLIAMS J This is an appeal from a decision on 6 October 1995 of a Special Magistrate sitting in the Criminal Jurisdiction of the Magistrates Court at Murray Bridge.

2. The defendant was charged with a breach of s47b of the Road Traffic Act. At the conclusion of the case for the prosecution, the Learned Special Magistrate (after hearing submissions) excluded certain evidence which was crucial to the prosecution case and then dismissed the charge for lack of evidence.

3. Particulars of the offence alleged against the defendant were that:
    "On the 26th day of 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 as defined in Section 47a
    of the Road Traffic Act, 1961, contrary to s. 47b of the Road
    Traffic Act, 1961.

It was further alleged that the concentration of alcohol was
    0.110 grams in a hundred millilitres of blood."

4. It is common ground between the parties that the Police established a breath testing station outside the Mannum Police Station on the verge of the Old Adelaide Road and then, purporting to act in accordance with s47E(2a) of the Road Traffic Act, required the defendant to submit to an alcotest. On the basis of that test, the Police then required the defendant to submit to a breath analysis in accordance with s47E(2b) of the Act. The relevant test established an excess of alcohol in the defendant's blood and the case for the prosecution depends upon that evidence. The defendant complied under protest with the police requests to submit to the relevant tests and the Learned Special Magistrate excluded evidence as to the test results upon the principle of Bunning v Cross(1977-1978) 141 CLR 54 after characterising the Police conduct as "coercive". The parties are in agreement that the Learned Special Magistrate was entitled to exercise her discretion as she did if the police were not entitled in law to require the defendant to participate in the tests abovementioned.

5. The issue in the case is in narrow compass. The question at issue is whether the defendant was relevantly "the driver of a motor vehicle that approaches a breath testing station" within the meaning of Road Traffic Act s47E(2a) which reads as follows:
    "(2a) A member of the policeforce may require the driver of
    a motor vehicle that approaches a breath testing station
    established pursuant to section 47DA to submit to an alco
    test."

6. This subsection is important because compliance with its terms are necessary in order to bring into effect the operation of s47(2b) which reads as follows:
    "(2b) Where an alco test conducted under sub-section (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."

7. The facts of this matter are quite special and involve a coincidence. Shortly after 7 pm on 26 January 1994 the defendant was driving a motor car in a westerly direction along the Old Adelaide Road near Mannum towards the breath testing station with a woman as his passenger in a motor car. About one hundred and ninety metres before reaching the breath testing station the defendant pulled over to his left into a vehicle bay and changed places with his passenger so that she then proceeded as the driver to the breath testing station with the defendant as the passenger. There were intersections with side streets between the Police roadside sign marking the testing station and the vehicle bay where the change of drivers occurred. The vehicle was about 50 metres from the testing station when police officers signalled to the driver to pull over.

8. It was pure chance (in relation to the presence of the police) that the occupants of the vehicle changed places at the particular location described. The defendant was tired and was ready to be relieved at the wheel. The defendant was unaware of the presence of the police and the police freely acknowledged to the defendant that he could not have been aware of their presence. This is not a case where the defendant took action to abandon his role as driver by reason of an observed or suspected police presence. The finding of the Learned Special Magistrate was that she was satisfied on the balance of probabilities that the occupants of the car had no idea that the breath testing station was in the vicinity when the defendant and the woman exchanged positions. The Learned Special Magistrate considered the layout of the breath testing station and found that at the distance of one hundred and ninety metres in the conditions which existed there was nothing which would have alerted the defendant as to what lay ahead. As far as the police were concerned, from the vicinity of the breath testing station, they were able to see the defendant's car pull off the carriageway. The Magistrate's finding is that "it is clear the police officers were able to see motion but little detail of the people who were moving". It is in the context of the driver walking to the passenger's side and the passenger moving to the driver's side that the Magistrate makes this finding. (see transcript of evidence at pages 29-30).

9. The subsequent conversations between the police Constable Merkx and the defendant appears as follows from the constable's evidence:
    "I said, 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.

He said, But I wasn't the driver

I said, 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." (Transcript page 11).

10. The defendant, then submitted to an Alcotest and returned a positive result. Constable Merkx's evidence of his further conversation with the defendant is as follows:
    I said, "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 can undergo a Breath Analysis by means of
    a Breathalyser.

He said, I wasn't the driver when you stopped me.

I said, Why did you change driving positions with the
    passenger?

He said, The sun was in my eyes. I felt tired.

I said, The reason you changed driver's is irrelevant,
    courts hold that once you approach the Random Breath Test,
    you may be stopped at the RBT and treated as a driver.

He said, How was I to know that?

I said, I wouldn't expect you to." (Transcript pages 11-12).

11. (I note that the distance of one hundred and fifty metres mentioned by Mr Merkx was in fact an underestimate by about 40 metres.)

12. The grounds of appeal in this matter are that:
    "1. The Learned Magistrate erred in Law by stating:
    "In my view, the driver of a motor vehicle "approaches" 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."

2. The Learned Magistrate erred in Law by stating:
    "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."

13. In my opinion the interpretation of s47E(2a) takes its flavour from its context. It is a section which cannot be considered in isolation and will operate in conjunction with powers such as those contained in s41 and s42. Section 42(1) entitles a member of the police force to request the driver of a vehicle on a road to stop. Section 41(1)(a) likewise authorises a member of the police force to give reasonable directions to the driver of a vehicle on a road for the purpose of ascertaining whether an offence against this Act has been or is being committed. Against this background I consider that a vehicle approaches a breath testing station in terms of the Act when the vehicle moves towards the station in circumstances where a relevant affinity (in terms of proximity) exists between the vehicle and the station. Lawyers are familiar with the concept of nexus and the techniques used by the courts to identify a nexus; the exercise required in the present instance is but an application of this process. The circumstances in which there is an affinity sufficient to satisfy the requirement of the statute will be worked out on a case by case basis. Whilst I have used the term "affinity" for the purposes of placing emphasis on the concept of nexus, an affinity based on proximity in terms of time or space is, of course properly called "propinquity".

14. In Burgess v Hall (1980) 48 SASR 394 at 399, Matheson J said that "approaches" means "draws near". In the same case at 406 Bollen J referred to a driver coming "within eyeshot" of the testing station. In so doing he referred to the practice of police signalling to drivers - a reference no doubt to the provisions of s41 and 42 to which I have already referred.

15. In Priest v Drinkwater (Mohr J - 31 August 1990) - to which the Learned Special Magistrate referred, the defendant never actually entered the street where the breath testing station was situated and never came closer than three hundred metres to the station. She turned away for a legitimate reason in order to retrace her earlier course to her point of departure. In circumstances where the defendant never entered the road on which the breath test station was placed and was unaware of the presence of the testing station, Mohr J held on the facts that the driver was not one who had satisfied the subsection.

16. In my opinion the circumstances in which the relevant affinity will be established are wider than those mentioned by the Learned Special Magistrate.

17. Depending upon the facts of the case a vehicle which is pulled up just short of the brow of a hill or before rounding the road curve hiding the testing station may be approaching a breath testing station situated immediately beyond the brow or curve despite the fact that the vehicle and the station have not yet come into view of each other - assuming, that the actual proximity of driver to testing station is then judged to be sufficiently close. In my opinion Ms Rugless, counsel for the appellant was correct when she submitted in argument that the test propounded by the Learned Special Magistrate did not accommodate a situation such as I have just described.

18. 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.

19. 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.

20. I have the photographs of the scene and a plan available to me together with the other evidence and the Magistrate's 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.

21. I therefore consider that the Learned Special Magistrate reached the correct conclusion as to the status of the vehicle with regard to its approach (or lack thereof). However, I cannot accept the reasoning mentioned in the grounds of appeal. The relevant propinquity does not depend upon mutual observance of the police and the random subject although the existence of such a condition may assist in establishing an affinity based on eyeshot. I observe that, based on the police case the defendant has only avoided by the skin of his teeth being classified as a driver who was "approaching"; the factual situation is marginal. However, ultimately it is a question of fact and degree.

22. The Magistrate correctly exercised the Bunning v Cross discretion so that in the result the decision of the Magistrate was correct.

23. Ms Rugless for the prosecution was anxious to correct the error which she has identified and I consider that it is in the public interest that this be done.

24. In my opinion this appeal should be dismissed.