Sparrow v Police - [2005] SASC 390

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SPARROW v POLICE
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Debelle and The Honourable Justice Besanko)
7 October 2005
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE
Driving with prescribed concentration of alcohol in blood – driver provides two samples of breath – police request two further samples – whether second request made in accordance with prescribed procedure – held, prescribed procedure was followed – appeal dismissed.
Road Traffic Act 1961 s 47B, s 47E, s 47EB, s 47G; Road Traffic (Miscellaneous) Regulations 1999 reg 8A, referred to.
Fingleton v Richardson (1980) 23 SASR 297, applied.
Mercorella v Police (2004) 88 SASR 575, distinguished.
Deputy Commissioner of Taxation (SA) v Ellis & Clarke Ltd (1934) 52 CLR 85; Richardson v Fingleton (1980) 24 SASR 511; Webster & Daff v McIntosh (1980) 32 ALR 603; Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1985) 156 CLR 651; Hunter Resources Ltd v Melville (1988) 164 CLR 234, considered.

SPARROW v POLICE
[2005] SASC 390
Full Court: Duggan, Debelle and Besanko JJ

DUGGAN J. In my view, the appeal should be dismissed for the reasons given by Debelle J.
I wish to add some comments of my own on the decision in Mercorella v Police (2004) 88 SASR 575 which was referred to in the course of Ms Fuller’s submissions.
In that case only two samples of breath were provided. The readings differed and, in accordance with reg 8A(3), the reading which indicated the lower concentration of alcohol in the person’s breath was taken as the result of the breath analysis.
One of the arguments advanced by the appellant in that case was that the print-out provided to the appellant did not “specify” the reading produced by the breath analysing instrument because details of both readings were provided in the print-out.
This argument was rejected by the court. The obiter dicta in my judgment, which was relied upon by the appellant’s counsel in the present case, is set out in the judgment of Debelle J. I accept that those remarks are not applicable to samples which must be disregarded pursuant to the regulations.
Although I referred in those remarks to the situation where, under reg 8A(2)(c), the second reading is more than 15 per cent higher or lower than the reading from the first sample, it is apparent from the evidence in the present case that this circumstance is indicated by the message “DIFFERENT ALC.‑RESULTS”. This is sufficient to inform the operator of the difference of 15 per cent in the readings which must lead to the results thus far being disregarded. I agree that, as the results are disregarded and the procedure recommenced, there is no requirement for them to be included in the information provided to the person who has submitted to the breath analysis.
DEBELLE J. This is an appeal from a decision of a judge of this Court dismissing an appeal against a conviction for driving with a blood alcohol content in excess of the prescribed maximum concentration, contrary to s 47B of the Road Traffic Act 1961 (“the Act”). The appellant was detected driving with a blood alcohol content of 0.166 grams of alcohol per 100 millilitres of blood.
After a positive alcotest, the appellant had provided two samples of breath for analysis. He was provided with a written statement of the results of the analysis of those first two samples. He was then required to produce two more samples of breath for analysis. The issues in this appeal concern the circumstances in which a driver can be required to provide further samples of breath for analysis and the adequacy of a written statement as to the results of the analysis of the first two samples.
The appellant had pleaded not guilty. At the trial in the Magistrates Court, the police relied on the evidentiary aids in s 47G of the Act. As the judge below noted, it was proved that the police officer who operated the breath analysing instrument was authorised to do so, that the instrument used was a breath analysing instrument as defined in the Act, that the instrument was in proper working order and that, subject to one exception which constituted the issue on this appeal, the various certificates in aid of proof complied with the procedural requirements prescribed by s 47G.
The exception concerned the admissibility of Exhibit P6, which was a statement in writing produced by the breath analysing instrument stating the result of the analysis of the second two samples. The prosecution relied on Exhibit P6 pursuant to s 47G of the Act to establish the blood alcohol content of 0.166 grams of alcohol per 100 millilitres of blood. Exhibit P6 was not admissible as evidence of the blood alcohol content of the appellant unless there had been compliance with all of the requirements and procedures in relation to breath analysing instruments and breath analysis under the Act: s 47G(1) of the Act. The appellant objected to the admissibility of Exhibit P6 on the ground that the operator of the breath analysing instrument had not complied with reg 8A(2)(c) of the Road Traffic (Miscellaneous) Regulations 1999 (“the Regulations”). Shortly stated, the contention of the appellant is that there had been a failure to comply with reg 8A(2)(c) so that the prosecution was not able to rely on Exhibit P6.
Before noting the facts it is convenient to set out the relevant parts of the legislative scheme.
The Legislative Scheme
Section 47E of the Act enables a member of the police force to require a person to submit to a breath analysis in certain circumstances and prescribes the time within which the analysis must be performed. It is common ground that the appellant was properly required to submit to the first breath analysis, that that analysis was conducted within the prescribed time, and that the appellant complied with all directions necessary to enable that analysis to occur. The issues in this appeal concern admissibility of evidence in respect of the second set of two samples of breath provided by the appellant.
The procedures to be adopted when a person is required to submit to an alcotest or breath analysis are set out in detail in reg 8A of the Regulations. Those regulations are made pursuant to s 47E(2e) which provides:
(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.
For present purposes it is necessary to note only reg 8A which provides
8A(1) Pursuant to section 47E(2e), 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.
(2)Despite subregulation (1) –
(a)if, on analysing a sample of breath, the breath analysing instrument indicates an error in the analysis of the sample –
(i)that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis using a different instrument (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(b)if, on analysing a sample of breath, the breath analysing instrument indicates the presence of alcohol in the mouth of the person –
(i)that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(c)if, on analysing two samples of breath, the breath analysing instrument indicates that the reading obtained on analysis of the second sample was more than 15% higher or lower than the reading obtained on analysis of the first sample -
(i) those samples must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(d)if, for any reason, a second sample of breath is not provided within 10 minutes of the provision of the first sample –
(i) the first sample is to be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)).
(3)Where a person submits to a breath analysis, the result of the breath analysis will, for the purposes of the Road Traffic Act 1961 and any other Act, be taken to be the reading produced by the breath analysing instrument, on analysis of the samples of breath provided by the person in accordance with this regulation, that indicates the lower concentration of alcohol in the person’s breath (not taking into account any samples that, in accordance with this regulation, are to be disregarded).
When the police officer operating the breath analysing instrument had required the appellant to provide two further samples of breath for analysis, he did so relying on reg 8A(2)(c). The circumstances leading to that request are as follows.
The Results of the Breath Analysis
When first asked to submit to a breath analysis, the appellant had provided two samples of breath. The first sample produced a reading of 0.180 grams of alcohol per 210 litres of breath which, by virtue of s 47EB of the Act, is equivalent to 0.180 milligrams per 100 litres of blood. The second sample did not produce an analysis of the quantity of alcohol in the appellant’s breath. Instead, the breath analysing instrument recorded the result by displaying a reading “DIFFERENT ALC.-RESULTS”. The result was also recorded by a statement in writing. That statement recorded the first reading of the quantity of alcohol in the appellant’s breath, the reading “DIFFERENT ALC.-RESULTS”, and a final statement “DIFFERENT ALCOHOL‑RESULT” as well as other information. It was signed by the police officer operating the instrument. It was admitted as Exhibit P5.
The police officer proceeded on the footing that the reading obtained on the second sample was more than 15 per cent higher or lower than the reading obtained on the analysis of the first sample. He, therefore, required the appellant to provide two more samples of breath. In this respect he was purporting to act pursuant to reg 8A(2)(c). On analysis, the two further samples produced readings of 0.186 grams and 0.166 grams per 210 litres of breath, which equate to a blood alcohol content of 0.186 and 0.166 respectively. Those results were recorded on Exhibit P6 and were handed to the appellant.
The prosecution led evidence from Mr Fonseka, a technical officer employed by the South Australian Police. He is a qualified electronics technician. His duties include checking the reliability and accuracy of breath analysing instruments. His expertise was unchallenged. He gave evidence concerning the effect of Exhibit P5. He had been involved in developing the software for breath analysing instruments so that they would comply with the amended legislation. He had not been informed of the terms of reg 8A. His task had been to design software to record a result when the two readings have a variation of more than 15 per cent. Mr Fonseka proved that the breath analysing instrument had been programmed to record a result when the readings were more than 15 per cent apart by stating “DIFFERENT ALC.‑RESULTS”. His evidence was that this result was produced only when the readings varied by more than 15 per cent. There was no other meaning or result indicated by those words.
What Was Indicated?
Ms Fuller, who appeared for the appellant, contended there had been a failure to comply with reg 8A(2)(c) in that the recording of the result “DIFFERENT ALC.-RESULTS” did not indicate the reading obtained on the analysis of the second sample of breath. She also relied on s 47G(2) of the Act which imposes a duty on the operator of the breath analysing instrument to deliver to the person whose breath is being tested a statement in writing specifying the reading. Section 47G(2) provides:
(2)As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying –
(a)the reading produced by the breath analysing instrument; and
(b)the date and time of the analysis.
Ms Fuller submitted that s 47G(2) provided that the person whose breath had been tested was entitled to a statement in writing specifying the reading produced by the breath analysing instrument and that Exhibit P5 did not satisfy that requirement.
These arguments misconceive the effect of reg 8A(2)(c). A person may be required by reg 8A(2)(c) to submit more samples of breath only if
… the breath analysing instrument indicates that the reading obtained on analysis of the second sample was more than 15% higher or lower than the reading obtained on the analysis of the first sample …
All that is required is that the breath analysing instrument indicates the result of the comparison of the two samples: it does not require that the breath analysing instrument indicate the reading obtained on the analysis of the second sample. Expressed another way, the regulation only requires the result of the comparison to be shown. It does not require each reading to be shown.
Furthermore, reg 8A(2)(c) does not specify how the reading that the second sample is more than 15 per cent higher or lower than the first should be shown. The word “indicate” in reg 8A(2)(c) does not require a specific method to be followed. The verb “indicate” means to point out, to point to, to make known: see the Oxford English Dictionary and the Macquarie Dictionary. Plainly, there can be more than one means of pointing out something or making something known. The use of the word “indicates” does not import any requirement to the manner in which the variation of 15 per cent should be indicated. Indeed, reg 8A is entirely silent on that question. All that is required is that the variation in the reading is indicated by some kind of display on the breath analysing instrument: Fingleton v Richardson (1980) 23 SASR 297 per Cox J at 302 – 303, approved Richardson v Fingleton (1980) 24 SASR 511 at 517. There are a number of ways in which the result might be indicated. One possible way is to record the result of the second test in the same way as the first so that the operator may calculate whether there is a variation of more than 15 per cent. As the judge below noted, this method has a real potential for mistakes and disputes. Another method is to program the breath analysing instrument to calculate the difference and for the instrument then to state if the reading was more than 15 per cent higher or lower than the first reading and then to state the result. That result is capable of being indicated in a number of ways. It could be indicated by symbols, by a flashing light, or by particular words. The statement “DIFFERENT ALC.-RESULTS” is but one means of indicating. The advantage of written words is that they can be reproduced, as they are, on a written statement.
Ms Fuller sought to reinforce her submission by contending that the breath analysing instrument had to display a result or produce a written statement of the result which spoke for itself. She submitted that the driver whose breath had been analysed should be able to see the display on the breath analysing instrument or read the written statement and understand that the analysis of the second sample had a variation greater than 15 per cent from the first sample. The words “DIFFERENT ALC.-RESULTS” did not convey that meaning to any person other than a trained operator of the machine or a person who had been informed by information of the kind given by Mr Fonseka in his evidence. The legislative scheme, she submitted, was so draconian that there had to be fairness and transparency in its operation and the driver was entitled to be aware of the grounds on which he was required to provide two further samples of breath. This submission must fail because it seeks to introduce implications into the legislation which are not consistent with the legislative scheme. Nowhere in the scheme is there any provision which requires that the driver be informed of the grounds on which the police officer is requiring two further samples of breath for analysis. (Similarly, there is no requirement in the Act or Regulations that the driver is to be given something to prove that the alcotest showed a positive result before a driver can be required to submit to a breath analysis test.) Instead, the driver is required by s 47E to comply with all reasonable directions given by the police officer. Section 47E(2) and (2a) provide:
(2)A member of the police force 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).
When a driver is directed to provide two further samples of breath, the reasonableness of the direction will depend on whether the police officer had proper grounds for giving the direction. In this context, that will depend on proof of compliance with the relevant provisions in reg 8A(2).
The alternatives spelled out in reg 8A(2) are addressed to the police officer who is operating the breath analysing instrument. In the case of any of the four sets of circumstances prescribed in the regulation, the police officer is entitled to require the two further samples of breath. In the case of the circumstances prescribed by reg 8A(2)(c), the police officer will as a result of his training know that the reading “DIFFERENT ALC.-RESULTS” indicates a variation of 15 per cent in the second reading and that he may require the driver to provide two further samples of breath.
What Does Section 47G(2) Require?
There is more than one reason why Ms Fuller’s reliance on s 47G(2) is misconceived. The first lies in the terms of reg 8A(2) and reg 8A(3). Regulation 8A(2) prescribes four sets of circumstances in which the first samples of breath (be it one or two samples) are to be disregarded and the driver may be required to provide two further samples of breath for analysis. Regulation 8A(3) expressly provides that disregarded samples are not to be taken into account for the purpose of determining the breath analysis. Instead, the result will be the lower of the two readings produced by the breath analysing instrument on the driver providing the two further samples of breath in accordance with the relevant provision in reg 8A(2). That result is to be the result of the breath analysis for the purpose of the Road Traffic Act and any other Act: see reg 8A(3). No other result constitutes a reading by a breath analysing instrument. Thus, when s 47G(2) requires that the person operating the breath analysing instrument deliver to the driver a statement in writing specifying the reading produced by the breath analysing instrument, the only statement which must be delivered to the driver is the statement of the result of the analysis of the two further samples of breath.

This conclusion is reinforced when reference is made to paras (a) and (b) of reg 8A(2) which also prescribe when an analysis of a breath sample must be disregarded. For example, if an error is made in the analysis, the reading must be disregarded. Ms Fuller’s contention is that the reading must appear on the statement. Plainly, that cannot occur in the case of an error.
To reach this conclusion is not to allow a regulation to alter the meaning of a provision in the Act. As a general rule, it is not permissible to use subordinate legislation as an aid to the construction of an Act of Parliament: Webster v McIntosh (1980) 32 ALR 603 per Brennan J at 606, with whom Deane and Kelly JJ agreed; Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 244 per Mason CJ and Gaudron J. However, where the regulations and the principal Act together constitute the legislative scheme, it is legitimate to refer to the regulations for the purpose of ascertaining the nature and operation of the scheme: Deputy Commissioner of Taxation for SA v Ellis & Clarke Ltd (1934) 52 CLR 85 per Dixon J at 89 – 95; Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1985) 156 CLR 651 at 652 where Mason J said:
One looks at regulations, not to construe an overall scheme or to throw light on ambiguity in a statutory provision, but to ascertain what the scheme is.
See also Coleman v Gray (1994) 55 FCR 412 at 423 and Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149 at 196 – 197.
The provisions of s 47 to s 47J of the Act and of reg 7 to reg 13A of the Regulations constitute one legislative scheme in relation to the detection and apprehension of persons driving under the influence of liquor or drugs. Any doubt on that issue is resolved by reference to s 47E(2e) which provides that regulations may prescribe the manner in which an alcotest or breath analysis is to be conducted.
Section 47E(2e) expressly provides that regulations may require more than one sample of breath to be provided for analysis and, in that event, to specify which will be taken to be the result of the analysis for the purposes of the Act. The plainest legislative authority for reg 8A(3), therefore, exists. Section 47E(2e) expressly authorises a regulation specifying what constitutes a reading produced by the breath analysing instrument. When the Act and Regulations are read together, it is apparent that the scheme is that the analysis of the first one or two samples (as the case may be) are deemed not to be readings produced by the breath analysing instrument.
This conclusion is not at odds with the terms of s 47G(2) which require delivery to the driver of every reading produced by a breath analysing instrument of samples of breath provided by the driver. What s 47G(2) requires to be delivered to the driver is the reading produced by the breath analysing instrument. The use of the past participle “produced” refers to what has been brought into existence or, to use an older expression, what is brought forth by the instrument. The expression “produced by” can only refer to the output of the machine. It cannot refer to the readings or calculations conducted by the machine which lead to the machine producing a result or bringing forth a result. It refers to that which is generated by the breath analysing instrument. In the case of the first two breath samples provided, there were two readings and both were recorded on a written statement which was handed to the appellant. The statement showed that the reading of the first sample of the appellant’s breath was 0.180 grams per 210 litres of breath. The reading obtained on the analysis of the second sample was “DIFFERENT ALC.‑RESULTS” which indicated that the sample was either 15 per cent higher or lower than the analysis of the first sample of breath. That written statement was Exhibit P5. In addition, the operator handed to the appellant a second statement in relation to the two further samples of breath showing two readings, one of each sample of the appellant’s breath. The first was a reading of 0.166 grams per 210 litres of breath and the second was a reading of 0.186 grams per 210 litres of breath. That written statement was Exhibit P6.
Exhibit P5 was a written statement which satisfied the requirements of s 47G(2). Plainly, the first reading was a reading produced by the breath analysing instrument. The statement “DIFFERENT ALC.-RESULTS” was also a reading produced by the breath analysing instrument. Although it was not a result of the analysis of the breath sample, it was nevertheless the reading by the breath analysing instrument. It was in fact the only reading produced by the breath analysing instrument in respect of the analysis of the second sample of breath.
Ms Fuller then contended that the expression “reading produced by the breath analysing instrument” in s 47G(2) means the result of the analysis of breath, that is to say, the reading obtained on each analysis. That submission must fail for the reasons already given. What Ms Fuller’s submission amounts to is that s 42G(2) requires the operator of the breath analysing instrument to deliver a statement to provide some information that the machine has not produced and is not required by law to produce. Plainly, that cannot be so.
The concept of a reading produced by a breath analysing instrument is to be found in s 47EB, s 47G(2) and in s 47G(5) of the Act. It will be noticed that s 47EB speaks to those occasions when a breath analysing instrument produces a reading in terms of quantity of alcohol in the breath, whereas s 47G(2) and s 47G(5) speak only of the reading produced by the breath analysing instrument. In most cases the reading produced by the breath analysing instrument will be a reading in terms of the quantity of alcohol in breath but it will not always be so.
Ms Fuller also submitted that remarks in Mercorella v Police (2004) 88 SASR 575 at [23] and [24] supported her contention. The remarks form part of the reasons of Duggan J, with whom Besanko and Anderson JJ agreed. The passages relied on by Ms Fuller are emphasised.
[23]The Act envisages that the regulations may require more than one sample of breath to be provided (s 47E(2e)). However, each testing is treated by the legislation as a separate breath analysis and, in my view, the requirement to provide a statement in writing specifying the reading produced by the breath analysing instrument arises after a person has submitted to each analysis of breath. There is no basis for reading into the legislation the qualification that only the reading to be relied upon for a prosecution is to be specified and not the readings from other analyses of the person’s breath carried out in the course of the same procedure. Section 47E(2e) draws a clear distinction between a reading and a result for the purposes of the Act. The requirement imposed by s 47G(2) is to deliver details of the reading which follows an analysis of breath. The section does not refer to the result of the breath analysis for the purposes of the Act.
[24]Apart from the wording of the Act, it might also be said that the argument for restricting the information in the statement to the lower reading takes too narrow a view of the scheme of these provisions. The advantages available to the prosecution in the form of evidentiary presumptions are conditional upon compliance with requirements which place particular emphasis on providing information to the person whose breath has been analysed. The results recorded in relation to all analyses of a person’s breath are relevant. Information in respect of each reading enables the driver to determine whether the lower of the readings has been correctly identified. It also allows a check on the extent to which the readings differ and, in particular, whether the difference in readings is such that samples must be disregarded in accordance with reg 8A(2)(c). The readings from all breath analyses might also be relevant to a driver’s decision as to whether he or she should arrange for a blood test.
The issues in Mercorella v Police concern the question whether the written statement provided by the police showing the two readings complied with the requirements of s 47G(2) and was therefore admissible. The Court upheld the admissibility of the statement. The remarks relied on by Ms Fuller are, strictly speaking, obiter dicta. In any event, they must be read as applying to the situation where the breath analysing instrument produces two readings of a quantity of alcohol in breath which was the issue in that appeal. They should not be taken out of context. It was not necessary for the Court to deal generally with every kind of reading produced by a breath analysing instrument and I do not understand the reasons to do so. When the remarks are read in their full context, it is apparent that Ms Fuller seeks to attribute more to the remarks than is justified. The decision in Mercorella v Police did not go so far as to say that there was an obligation to provide a statement in writing of readings made by the breath analysing instrument but which were not produced by the instrument.
For all of these reasons, the decision of Bleby J was correct. I would dismiss the appeal.
BESANKO J. In my opinion, the appeal should be dismissed. I agree with the reasons for judgment of Debelle J and the additional remarks of Duggan J.