Spiros Chaousis v SA Police No. SCGRG 94/2091 Judgment No. 4933 Number of Pages 4 Vehicles and Traffic Offences Alcohol and Drug Related Offences (1995) 76 a Crim R 257 (1995) 64 Sasr 148

[1995] SASC 4933

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Vehicles and traffic - offences - alcohol and drug related offences - Refusal to submit to breath test - appellant refused due to religious belief - whether religious belief good cause - belief not reasonable in the circumstances - appeal dismissed. Road Traffic Act 1961s47e. Bottomley v Symons (1982) 31 SASR 18 and Cserwinski v Hayes (1987) 47 SASR 44, applied.

HRNG ADELAIDE, 10 January 1995 #DATE 31:1:1995

Appellant:                 In person

Counsel for respondent:     Mr S Gupta

Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal dismissed.

JUDGE1 OLSSON J The appellant, who appeared in person, has appealed against his conviction, by a stipendiary magistrate, of an offence pursuant to section 47e of the Road Traffic Act ("the Act"). After a trial on oral evidence the learned magistrate found that, on 11 June, 1994 at Kings Park, the appellant, being a person who was required under the section to submit to an alcotest, refused to comply with all reasonable directions of a member of the police force in relation to this requirement.

2. Although there was some dispute at trial as to certain detailed narrative events, the learned magistrate correctly assessed that those facts which were critical to the prosecution were not in doubt. They may be summarised as follows:
    - At about 12.42 am on the date in question, police officers
    had established and were operating a random breath testing
    station on Goodwood Road at Kings Park.
    - At that time a motor vehicle, which was in fact being
    driven by the appellant, was seen to be approaching the
    station from the north.
    - When about 100 metres from the station the appellant's
    vehicle was seen to pull over to the kerb and stop. He
    alighted and walked onto the footpath.
    - The appellant was approached by one or more police
    officers and requested, on several occasions, to blow into a
    Lion Alcolmeter S-D2 equipment - being an apparatus
    approved, pursuant to the provisions of the Act, for the
    purpose of conducting alcotests.
    - He steadfastly refused to blow into the apparatus, his
    sole expressed reason being that his sabbath, or holy day,
    in accordance with his religious beliefs, had commenced at
    sunset on the preceding evening, and that it was improper
    for him to perform the task requested.
    - It was accepted by the learned magistrate and is not now
    in issue that what was said by the appellant represented his
    genuinely held religious beliefs at the relevant time.
    Those beliefs were based on the reasoning that the police
    ought not to have been breath testing people on the sabbath
    and that he ought not to be guilty of complicity in such an
    improper undertaking.
    - There is no suggestion that, at such time, the appellant
    exhibited any evidence of having consumed or been affected
    by alcohol.
    - It is beyond question that he was duly warned that a
    persistence in his refusal constituted a serious offence
    under the Act.

3. In the circumstances, as I have summarised them, the appellant argued that he had demonstrated the existence of a "good cause" for his refusal, within the meaning of sub section (4)(b) of section 47e of the Act; and that, accordingly, he had a defence to the charge against him.

4. The provisions of sub sections (3) and (4) of section 47e which are relevant for present purposes are expressed in these terms:
    "(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.
    Penalty: For a first offence - a fine of not less than $700
    and not more than $1 200.
    For a subsequent offence - a fine of not less than $1 500
    and not more than $2 500.
    (4) It is a defence to a prosecution under subsection (3)
    that -
    (a) ...
    (b) there was, in the circumstances of the case, good cause
    for the refusal or failure of the defendant to comply with
    the requirement or direction."

5. The learned magistrate said, in the course of brief reasons expressed by him, that, although he accepted the bona fides of the appellant, the circumstances simply did not amount to "good cause" as summarised by the Act. In so concluding he relied upon the reasoning of Wells J in Bottomley v Symons
(1982) 31 SASR 18. The appellant challenges the propriety of that conclusion.

6. In Bottomley v Symons all members of the Full Court were of the opinion that it was impractical to attempt an all embracing definition of the phrase "good cause". It was for the Court to consider each situation on a case by case basis.

7. The Full Court accepted that certain types of genuine belief might well be sufficient to satisfy the concept. In such instances the evidence would need to indicate the subjective genuineness of the belief and also the objective attribute that it amounted to "good" cause. A defendant bears an evidentiary onus in that regard (Czerwinski v Hayes (1987) 47 SASR 44).

8. In the instant case the question arises as to whether the existence of a demonstrated conscientious objection based on religious grounds satisfies the requisite objective attribute. The Full Court accepted, in Bottomley v Symons, that a genuine belief, based upon proper grounds, that exhaling into an alcotest apparatus would be seriously harmful to health, might well amount to good cause for the purposes of section 47e(4)(b). However, the defendant failed in that case because no evidence was adduced to demonstrate a reasonable basis for holding the relevant belief, i.e. that the relevant belief had genuinely been formed upon a basis which the Court was prepared to accept as reasonable (Czerwinski v Hayes at p 61).

9. As I understand the documents and transcript before me the learned magistrate accepted that the evidence led before him clearly established that the furnishing of a sample of the appellant's breath, as requested, on what was, to him, the sabbath would necessarily require him to act contrary to his religious beliefs in the sense earlier recited. As to this the learned magistrate commented:
    "There is absolutely no doubt in my mind that the defendant
    held the belief that he claims to have held and it is a
    genuine belief, and he has established the 'cause' section
    of his defence.
    I am of the opinion that the defendant's belief was not a
    reasonable one in the circumstances, even though his belief
    was genuine and truly held."

10. In the course of his judgment in Czerwinski v Hayes King CJ had this to say:
    "The phrase 'good cause' is one of wide import. I see no
    reason to circumscribe its meaning as has been done with the
    phrase 'without reasonable excuse' under the corresponding
English provision: R v Lennard (1973) WLR 483; R v John
    (1974) l WLR 624. The phrase is wide enough to comprehend
    any fact or combination of facts which reasonably commend
    themselves to the court, subject only to any limitation
    arising necessarily from the language or evident purpose of
    the section, as good cause for a person to refuse to comply
    with the requirement or direction."

11. A perusal of the decided cases on this issue reveals that the Court has, as I have indicated, accepted that appropriate evidence which establishes the existence of a genuine belief, based on reasonable grounds, that blowing will be injurious to health or that events subsequent to relevant driving which could render a breath analysis suspect as to its accuracy, may well amount to good cause. On the other hand, there is little, if anything, in the way of published authority which bears on conduct based on genuinely held religious beliefs, non observance of which may give rise to deleterious spiritual, rather than physical, consequences.

12. Bearing in mind the nature of the multi-cultural society in which we now live, I would not be prepared to reject out of hand the possibility that serious spiritual distress likely to be caused to a defendant by being compelled to blow contrary to the tenets of that person's religious beliefs may be capable of constituting good cause. A perceived probability, for example, according to a genuinely held belief, that a person might be condemned to eternal damnation by particular conduct, is not a matter to be lightly dismissed, if a reasonable basis for such a belief (eg the specific teachings of a religious sect as actually known to a defendant) was demonstrated.

13. However, as counsel for the respondent has pointed out, the difficulty for the appellant in the present case is that the evidence fell far short of establishing that the teachings of the religious sect to which the appellant belonged did, in fact, proscribe the conduct required by the police officers of him. On the contrary, his subsequent discussions with those in authority in the church rendered it apparent that he would not even have offended against the tenets of his faith, had he blown.

14. The important aspect for present purposes is that, at the time of the alleged offence, the appellant had not been told anything by persons in authority in his church that blowing would be offensive to the relevant sectarian beliefs. The appellant's belief was based on nothing more than his own personal assessment of the effect of the religious principles of his church, as to the validity of which views it seems that the appellant may not have been entirely certain at the time.

15. As I see the situation there is a parallel of concept between the reasoning of King CJ in Bottomley v Symons and the case at bar. As there, what is missing is evidence upon which it could be said that the relevant genuine belief was - in an objective sense - reasonably founded.

16. This was clearly the view which commended itself to the learned magistrate and I am unable to conclude that he was wrong.

17. The appeal must be dismissed.