SPARROW v Police
[2005] SASC 32
•28 January 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SPARROW v POLICE
Judgment of The Honourable Justice Bleby
28 January 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SO UNDER INFLUENCE OF LIQUOR OR DRUGS AS TO BE INCAPABLE OF CONTROL - PROOF AND EVIDENCE
Appeal against conviction – driving with prescribed concentration of alcohol in the blood – s 47B Road Traffic Act 1961 – Admissibility of statement in writing produced by breath analysing instrument – Whether procedural requirements met – s 47G Road Traffic Act 1961 – Interpretation of reg 8A Road Traffic (Miscellaneous) Regulations 1999 – Requirement that instrument “indicate” results – Meaning of “indicate” – Whether police officer entitled to require further samples of breath for analysis – reg 8A complied with – Statement based on analysis of further samples admissible – Appeal dismissed.
Road Traffic Act 1961 (SA) s 47B, s 47E, s 47EA, s 47G, s 47H; Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A, referred to.
Richardson v Fingleton (1980) 24 SASR 511, applied.
Mercorella v Police (2004) 88 SASR 575, distinguished.
Evans v Benson (1987) 46 SASR 317, considered.
SPARROW v POLICE
[2005] SASC 32Magistrates Appeal
BLEBY J: The appellant was charged on complaint that on 20 July 2003 he drove a motor vehicle at Glenelg North while there was present in his blood the prescribed concentration of alcohol, contrary to s 47B of the Road Traffic Act 1961 (“the Act”). The concentration of alcohol alleged was .166 grams of alcohol in 100 millilitres of blood. He was charged with two other counts of failing to give sufficient warning when turning left, contrary to Rule 46(2) of the Australian Road Rules.
The appellant pleaded not guilty and the matter was tried before a Magistrate. He was found guilty and convicted of all charges. For the prescribed concentration of alcohol offence he was fined $800 and was disqualified from holding or obtaining a driver’s licence for a period of 14 months. For the other two offences against the Australian Road Rules he was fined the sum of $100.
The appellant appeals against his conviction for the offence against s 47B of the Act. There is no appeal against the conviction for the breaches of the Australian Road Rules.
The success of the appeal turns on the admissibility before the Magistrate of Exhibit P6, being the statement in writing produced by the breath analysing instrument specifying the reading on which the prosecution relied.
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. There is no argument in this case that the appellant was properly required to submit to a breath analysis, that the analysis was conducted within the time required and that the appellant complied with all directions necessary to enable the analysis to occur.
Section 47E(2e) provides:
“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.”
Section 47G of the Act relevantly provides:
“(1)Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis.
(1a)No evidence can be adduced in rebuttal of the presumption created by subsection (1) except –
(a) evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I or in accordance with the procedures prescribed by regulation; and
(b) evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.
(1ab) If it is proved in proceedings that a concentration of alcohol was present in the defendant’s blood at the time of a breath analysis, it must be conclusively presumed that that concentration of alcohol was present in the defendant’s blood throughout the period of two hours immediately preceding the analysis.
(1b)No evidence can be adduced as to a breath or blood alcohol reading obtained from a coin-operated breath testing or breath analysing machine installed in any hotel or other licensed premises.
(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.
…
(3)A certificate –
(a) purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments; or
(b) purporting to be signed by a person authorised under subsection (1) and to certify that –
(i)the apparatus used by the authorised person was a breath analysing instrument within the meaning of this Act; and
(ii)the breath analysing instrument was in proper order and was properly operated; and
(iii)the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with,
is, in the absence of proof to the contrary, proof of the matters so certified.
…
(5)Subject to subsection (6) a certificate purporting to be signed by a person authorised under subsection (1) and to certify that –
(a) a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument on a day and at a time specified in the certificate; and
(b) the breath analysing instrument produced a reading specified in the certificate; and
(c) a statement in writing required by subsection (2) was delivered in accordance with that subsection,
is, in the absence of proof to the contrary, proof of the matters so certified.
(6)A certificate referred to in subsection (4) or (5) cannot be received as evidence in proceedings for an offence –
(a) unless a copy of the certificate to be put in evidence at the trial of a person for the offence has, not less than seven days before the commencement of the trial, been served on that person; or
(b) if the person on whom a copy of the certificate has been served under paragraph (a) has, not less than two days before the commencement of the trial, served written notice on the complainant or informant requiring the attendance at the trial of the person by whom the certificate was signed; or
(c) if the court, in its discretion, requires the person by whom the certificate was signed to attend at the trial.”
Using the evidentiary aids provided by s 47G of the Act, it was satisfactorily proved that the police officer who operated the breath analysis 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 was properly operated and that, subject to one exception the subject of this appeal, the procedural requirements necessary to enable the prosecution to rely on the various certificates in aid of proof referred to in s 47G were complied with.
The question of the admissibility of the reading produced by the breath analysing instrument turns on the operation of regulation 8A of the Road Traffic (Miscellaneous) Regulations 1999 (“the Regulations”), being a regulation made pursuant to s 47E(2e). The Regulation provides as follows:
“8A—Conduct of breath analysis
(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).
The provisions of subregulation (1) were complied with. The first sample of breath produced a reading of 0.180g/210 litres of breath. By virtue of s 47EA of the Act, that was equivalent to 0.180 grams per 100 millilitres of blood. The second sample, taken within the required time, produced the result “DIFFERENT ALC – RESULTS”. The final or concluding result produced by the instrument was “DIFFERENT ALCOHOL - RESULT”. The result of those two tests as printed by the breath analysis instrument became Exhibit P5 in the proceedings.
The police officer interpreted the result as meaning 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. He therefore acted in accordance with regulation 8A(2)(c) and required the appellant to provide two further samples of breath for analysis. That was duly done in accordance with the requirements of subregulation (1). The first sample produced a reading which was equivalent to 0.166g/100 mls of blood and the second a reading equivalent to 0.186g/100 mls of blood. It was the tender of the document containing those results to which the appellant objected. It was admitted by the Magistrate and marked Exhibit P6. In accordance with the requirements of regulation 8A(3), the prosecution relied on the lower of the two readings in the second test in order to prove the breach of s 47B.
All breath tests were carried out using the same instrument. Following the completion of the second series, the appellant was informed by the police officer that the result was in excess of the legal limit. He was asked whether he wished to exercise his right to give a blood sample for analysis and he declined.
It is to the admissibility of Exhibit P6 that the appellant objected before the Magistrate and the admission of it into evidence of which he now complains on appeal. There were two bases of objection. I will deal with each in turn, although the second was but faintly pressed.
The first ground of objection is that the result of the first series of tests – “DIFFERENT ALCOHOL – RESULT” did not comply with regulation 8A(2)(c) in that the instrument did not give the actual reading obtained on analysis of the second sample. Therefore, the discrepancy, if any, could not be calculated. Furthermore, it did not indicate 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. There was therefore no justification for the police officer to require the appellant to provide two further samples of breath, and the result of the analysis of those two further samples should not have been admitted.
There was evidence led from Mr Fonseka, and an electronics technician, who had accepted expertise in the operation and calibration of the breath analysis instrument in question. He gave evidence that where the second result differs by more than 15% from the first, this particular instrument produces the result “DIFFERENT ALCOHOL– RESULT”. He said that such a result only occurs in this instrument when the readings are more than 15% apart. There is no other meaning or result indicated by those words.
The question is whether that complies with the requirement of Regulation 8A(2)(c) that the instrument “indicates that the reading obtained on analysis of the second sample was more than 15% higher or lower than the reading obtained on an analysis of the first sample”, such that those samples must be disregarded and that the appellant could be required to provide two further samples of breath for analysis.
The printout produced by the breath analysing instrument was a statement in writing produced by the instrument itself and signed by the police officer administering the test. It was a statement in writing for the purposes of s 47G(2) of the Act: Mercorella v Police (2004) 88 SASR 575.
In order for the conditions specified by Regulation 8A(2)(c) to arise, it is necessary that the 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. It could do that in a number of ways. Perhaps the most obvious is to specify the result of the two analyses only and to let the police officer do the necessary calculation. However, that calculation, whether done manually or by means of a calculator, allows for the possibility of mistakes and disputes. It is obviously preferable if an instrument of this nature is programmed to do the calculation itself and to indicate a result.
However, the instrument could also comply with the requirement of the paragraph by “indicating” in words or symbols that the result of the second analysis differed by more than 15% from that of the first. If it did so, without indicating the actual result in each case, that would be sufficient for the purpose of paragraph (c). The Regulation does not specify how the instrument is to “indicate” that the readings differ in the manner specified. It could be by means of a red light or a “X” or some other symbol. This instrument did so by indicating on its screen and by printing out “DIFFERENT ALC – RESULTS” instead of providing a reading for the second sample. Then, by way of final result, it printed “DIFFERENT ALCOHOL – RESULT”. The evidence was that the appearance of such words meant and could only mean that the reading obtained on the analysis of the second sample was more than 15% higher or lower than the reading obtained on analysis of the first sample. That was this instrument’s means of indicating that condition. The consequence was that the reading obtained on analysis of the first sample was of no evidentiary value, and the samples were to be disregarded. In my opinion, that was sufficient indication to comply with the requirement of paragraph (c) that the appellant provide two further samples of breath for analysis.
In Richardson v Fingleton (1980) 24 SASR 511 Mitchell J was required to consider the meaning of “indicated” as used in subsections (1) and (1a) of s 47G. On appeal from a decision of Cox J her Honour said, at 517:
“I respectfully agree with Cox J that there is no ambiguity in the word “indicated” as used in sub-ss. (1) and (1a) of s. 47g. Clearly it means indicated on the dial or in what other way it is indicated in the particular breath analysing instrument. In other words it means “shown on the instrument”.
King CJ and Matheson J agreed with Mitchell J. In my opinion, it does not matter how or “in what other way” the instrument gives the required indication.
The appellant sought to draw comfort from certain obiter dicta of Duggan J in Mercorella v Police (supra). The appellant in that case had also argued that, by delivering to the appellant a printout from the instrument which provided two readings there had been a failure to comply with s 47G(2) of the Act because the printout did not “specify” the reading produced by the instrument. It did not, “unambiguously and precisely identify the information which had to be specified”: ibid at [16].
In the course of rejecting that argument Duggan J, with whom Besanko and Anderson JJ agreed, said, at [23] – [24]:
“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.”
It was said that that passage is support for the requirement that the instrument should also show the actual result of the analysis of the second sample.
That passage proceeds on the assumption that in all cases the breath analysing instrument will in fact produce two readings. The obligation under s 47G(2) of the Act is to deliver to the person whose breath has been analysed a statement in writing specifying, among other things, “the reading produced by the breath analysing instrument”. If the breath analysing instrument does not produce a reading, as this one did not in respect of the second sample, a reading cannot be included in the statement to be delivered under s 47G(2).
The instrument in question became a breath analysing instrument for the purposes of the Act by being approved by the Governor under s 47H(1)(a) of the Act. It must be presumed that, in approving the instrument, the Governor and Executive Council took into account the information that the instrument would provide in its operation under certain circumstances, including where the result of the analysis of the second sample was more than 15% above or below the result of the analysis of the first. The Governor approved the instrument notwithstanding that it would not, in these circumstances, indicate the actual result of the analysis of the second sample. This is not surprising, given that the only consequence of the result as printed is to require both samples to be disregarded and to render the first reading of no evidential value in proving a breach of s 47B of the Act.
In this case, the reading produced by the breath analysing instrument was provided to the appellant. As it happened, the only reading produced by the instrument was the result of the analysis of the first sample. There was therefore compliance with s 47G(2). If the instrument did in fact produce the second reading, it would have to have been supplied to the appellant in the statement of writing. However, one cannot infer from the dictum of Duggan J in Mercorella that there is any legislative requirement to disclose to a person something that the instrument itself does not produce, or that there is a legislative requirement that the instrument, in the case where a sample is to be disregarded, should produce a particular reading.
In this case, it is the requirement of Regulation 8A(2)(c) that is in question. Provided that the instrument “indicates” that the result of the two analyses meets the requirements of that paragraph, there is no obligation to disclose a result that the instrument does not produce. In this case, the evidence showed that the words produced by the instrument indicated nothing else but 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. Accordingly, there was justification for the police officer to require the appellant to provide two further samples of breath for analysis, and the result of the analyses of those two further samples was admissible.
The fact that other sections of the Act, eg s 47G(1), may require a breath analysing instrument to “indicate” a particular reading in order that the evidentiary aids and presumptions specified in s 47G may be relied on does not mean that, for the purpose of Regulation 8A(2)(c) the instrument must indicate an actual reading.
The Magistrate held that in this case that there had been what he described as “substantial compliance” with Regulation 8A. I am not quite sure what he meant by that, nor am I convinced that substantial compliance, whatever it may be said to mean, with Regulation 8A is sufficient to require the provision of two further samples of breath for analysis. It will be apparent from what I have said that, in my opinion, there was compliance with Regulation 8A(2)(c) such as to require the provision of two further samples of breath for analysis.
Counsel for the respondent also relied on the dictum of King CJ in Evans v Benson (1987) 46 SASR 317 in support of a submission that, if the required analysis was for any reason unable properly to be completed, there was an obligation on the part of the appellant to continue, within reason, to supply samples of breath for analysis until the analysis required by the Regulations could be completed. The passage relied on appears at 328:
“I would, however, add a word of caution about the case of Flavel v Samuels [1970] SASR 54 and what is said to follow from it. In that case Hogarth J held that the obligation under s 47e was to submit to one breath analysis only and that there is no legal warrant for a requirement to submit to a second analysis. In that case, however, there was no reason to doubt that the first test had produced a proper analysis. The requirement authorised by the section, and the corresponding obligation, is to submit to a breath analysis. If the attempt to submit is abortive in that it does not produce an analysis, the right to require and the corresponding obligation to submit remain until an analysis is achieved. If therefore the operator suspects on reasonable grounds that a correct analysis may not have occurred by reason of radio interference or other cause, I see no reason why he is not entitled to maintain his requirement, or why the driver ceases to be obliged to submit to breath analysis. The driver, in my opinion, is required to provide samples of breath, within sensible and reasonable limits, until an effective analysis is made by the instrument.”
That was said by the former Chief Justice at a time when the result of the analysis of one sample of breath was all that was needed to prove a breach of s 47B. It is not necessary to decide in this case whether that requirement has been displaced by the more detailed provisions of Regulation 8A. It is sufficient for present purposes merely to hold that regulation 8A was complied with.
The second ground of objection, which in the end was put merely in support of the first ground, was that the printout from the instrument was sufficient to invoke paragraph (a) of Regulation 8A(2), namely that it was evidence of error in the analysis of the sample.
That argument cannot be sustained. The provisions of s 47G(3) of the Act, together with the certificates tendered in this case, were sufficient to prove that the instrument was in proper order and was properly operated, in the absence of proof to the contrary. The printout by itself did not suggest error in the analysis. When viewed against the evidence of Mr Fonseka it was confirmation that the instrument was operating correctly. It was not evidence to the contrary. Mr Fonseka's evidence merely indicated that the instrument was working as it was intended to work, and that the display and the printout produced in this case (Exhibit P5) carried a particular and the only meaning, namely 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.
In the circumstances, the finding of guilt by the Magistrate was correct. The appeal must be dismissed.
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