Stephen Michael Palyga v Robert Henry Marsh No. 4173 Judgment No. SCGRG 93/927 Number of Pages 6 Road Traffic Act

[1993] SASC 4173

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Road Traffic Act - driving with prescribed concentration of alcohol in the blood .099 - certificates of Commissioner of Police pursuant to s.47g as to authority of particular police officer to operate breath analysing instruments, one dated before, and other dated after, alleged offence - no reason to suppose that the earlier authority had lapsed before the date of the alleged offence - evidence justified a finding that the police officer was duly authorised at the date of the offence. Medical Practitioners Act - intern at Royal Adelaide Hospital - limited registration as a medical practitioner pursuant to s.35 of the Act - entered upon general register - medical practitioner within the meaning of that expression in the Road Traffic Act - no reason to suppose that integrity of blood sample taken was compromised - conviction justified by the evidence - appeal dismissed. Road Traffic Act 1961 s.47g; Medical Practitioners Act 1983s.5(1) and Grant v. O'Leary, Judgment Number 3800, unreported, 26 February 1993 - referred to.

HRNG ADELAIDE, 23 July 1993 #DATE 16:9:1993
Counsel for appellant:     Mr B J Jenner
Solicitors for appellant:    Michell Sillar Lynch
   and Meyer
Counsel for respondent:     Mr A D Wainwright
Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal dismissed.

JUDGE1 MULLIGHAN J The appellant was convicted in the Magistrates Court at Adelaide on 7th May 1993 of driving a motor vehicle on Glen Osmond Road, Adelaide, on 19th January 1992 while there was present in his blood the prescribed concentration of alcohol as defined in s.47a of the Road Traffic Act 1961: contrary to s.47b of that Act. It was alleged that the concentration of alcohol was 0.099 grams in a hundred millilitres of blood. He denied the charge and, after a trial, was found guilty and the conviction was recorded. He appeals against that conviction. 2. The appellant was driving a motor vehicle on Glen Osmond Road on the occasion in question and was stopped at a random breath testing station at about 1.00 am. He submitted to an alcotest which indicated that the prescribed concentration of alcohol may have been present in his blood. At the request of a police officer, he then submitted to an analysis of his breath by means of a breath analysing instrument which gave the reading of 0.099. He was informed of his right to have a sample of his blood taken by a medical practitioner and upon exercising that right, he was taken by a police officer, Constable Davis, to the Royal Adelaide Hospital where a sample of his blood was taken by Dr. Worthley. No evidence was placed before the learned Special Magistrate as to the result of any analysis of that sample. 3. The appellant raised three matters at the trial which are the substance of his many grounds of appeal. The effect of these grounds is that the learned Special Magistrate erred in finding the charge proved because:-
     1. there was no evidence to prove that the person who
    operated the breath analysis instrument was authorised by the
    Commissioner of Police to do so;
     2. that police failed to do all things reasonably necessary to
    facilitate the taking of blood because the person who took the
    sample was not a medical practitioner;
     3. it was not proved that the sample of blood was taken in a
    way which did not compromise its integrity;
    and, consequently, the evidence of the breath analysis should
not have been admitted in the exercise of discretion. 4. The prosecution called two witnesses, Constable Davis and Dr. Worthley. The operator of the breath analysis instrument, Constable Caunce, did not give evidence. Various certificates were tendered, as is customary in cases of this nature, with the consequence that, if all of the evidence was admitted, each element of the charge had been proved. 5. At the commencement of the trial, the prosecutor tendered a document under the hand of the Commissioner of Police date 9th March 1992 purporting to be a "Certificate of Authority" given pursuant to s.47g of the Road Traffic Act1961 and s.30f of the Boating Act 1974 in the following terms:- "I, David Alexander Hunt, Commissioner of Police do hereby authorise Richard Adrian Caunce Constable of Police 584/1 to operate breath analysing instruments pursuant to Section 47g of the Road Traffic Act, 1961 and pursuant to Section 30f of the Boating Act, 1974." 6. It may be seen that this certificate was given after the date of the alleged offence. Consequently, at that stage of the trial, there was no direct evidence that Constable Caunce had been duly authorised as at the date of the alleged offence. After the conclusion of the oral evidence called by the prosecution, but before the close of the prosecution case, the prosecutor sought a short adjournment of the trial to enable him to obtain another certificate of authority which, due to oversight, he did not have available to tender. The application was granted and the trial resumed later in the morning. The prosecutor then tendered another document under the hand of the Commissioner of Police given pursuant to s.47g of the Road Traffic Act and dated 18th February 1991 which was admitted into evidence. It is in the same terms as the other certificate of authority except that it contains no mention of s.30f of the Boating Act. 7. It was necessary for the prosecution to prove that Constable Caunce was authorised by the Commissioner of Police to operate the breath analysing instrument on the day of the alleged offence so that the presumptions contained in s.47b(2) and s.47g(1) of the Act applied. Upon the admission into evidence of the two certificates, the evidence disclosed that Constable Caunce was on 18th February 1991 authorised by the Commissioner of Police to operate breath analysing instruments pursuant to s.47g of the Act and that on 9th March 1992, after the alleged offence, he was authorised by the Commissioner of Police to operate such instruments pursuant to both s.47g of the Act and s.30f of the Boating Act. S.47g(3)(a) of the Road Traffic Act is in the following terms:- "47g(3) In proceedings for an offence under section 47(1) or 47(b)(1), 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; ...... is, in the absence of proof to the contrary, proof of the matters so certified." 8. Both of the certificates comply with this provision. Mr. Jenner contended that the second certificate of 9th March 1992 could not have retrospective operation, a proposition which may readily be accepted in view of its terms: see Grant v. O'Leary (Perry J., unreported, 26th February 1993 at p 9, judg. no. S3800). However, Mr. Jenner also contended that the certificate of 18th February 1991 could not be interpreted as having a prospective operation, a proposition which, in my view, is untenable. The certificate is expressed in the present tense and can only be interpreted as an authority to operate breath analysing instruments from that time onwards until the authority is withdrawn or for some other reason is terminated. There may be circumstances from which it can be safely inferred that such an authority has been withdrawn. It is contended that the existence of the second certificate justifies that conclusion as there would be no need for it, with respect to the authority to operate breath analysing instruments pursuant to s.47g, unless the earlier authority had lapsed or had been withdrawn. There is no reason to draw such an inference. I think it is likely that the second certificate was given so that the one document would contain the authority under the Road Traffic Act and the Boating Act. There was no evidence before the learned Special Magistrate which could found an inference that the authority given on 18th February 1991 had ceased to exist by the day of the alleged offence. The learned Special Magistrate contended that:-
    "... the nature of the authorisation indicates that it was
    intended to be an ongoing or a continuing authorisation. There
    is no evidence to show that the authorisation was terminated or
    revoked. Exhibit P4, taken in conjunction with the provisions of
section 47g (3)(a), tends to indicate that the authorisation was
    an ongoing one. It seems to me that exhibit P7, by itself and
    also in conjunction with exhibit P4, is capable of establishing,
    by way of inference, that on the 19 January 1992 Constable Caunce
    was authorised by the Commissioner of Police to operate breath
analysing instruments pursuant to section 47g of the Road Traffic
    Act 1961, as amended." 9. In my view the learned Special Magistrate was undoubtedly correct and the grounds of appeal relating to this matter must fail. 10. The second matter raised in the appeal is also without substance. The appellant did request a blood test and upon doing so the police in attendance at the random breath testing station were obliged to do all things necessary to facilitate the taking of a sample of his blood by a medical practitioner: s.47b. As the appellant did not nominate a particular medical practitioner to take a sample of his blood, the police were obliged to facilitate the taking of the sample by any medical practitioner who was available. In my view, Constable Davis complied with all of the obligations imposed upon the police. He took him to the Royal Adelaide Hospital promptly and he was present when Dr. Worthley took the sample of the appellant's blood. It is contended that Dr. Worthley was not, at that time, a medical practitioner, as he was an intern at the Hospital and consequently the police had not discharged the obligations under s.47b. Even if Dr. Worthley was not a medical practitioner, a contention which I reject for reasons which I shall mention, Constable Davis had discharged the obligations cast upon the police. He took him to the Hospital and into the presence of a person who held himself out as a medical practitioner in circumstances which gave no cause to doubt that such was the case. There was no obligation cast upon Constable Davis by s.47g to enquire as to the qualifications of Dr. Worthley. He had every reason to accept that he was a medical practitioner. 11. Nevertheless the evidence establishes that Dr. Worthley was a medical practitioner at the relevant time. "Medical practitioner" is not defined in the Road Traffic Act but, as might be expected, is defined in the MedicalPractitioners Act 1983 as "a person whose name is registered on the general register (whether or not it is also registered on the specialist register)", s.5(1). "General register" is the register maintained under that Act of persons qualified in accordance with the Act to practise medicine: s.5(1). The registers are kept at the office of the Registrar of the Medical Board and who must cause copies of them to be published in January each year in the Government Gazette: s.44. A person who satisfies the Medical Board that he has the prescribed qualifications and experience, fulfils other necessary requirements and is a fit and proper person must be registered on the general register: s.32. Where a person does not have the necessary qualifications or experience or does not fulfil other requirements prescribed by or under the Medical Practitioners Act, the Medical Board may register the person pursuant to s.35 and in doing so may impose certain restrictions and limitations. 12. Dr. Worthley completed the degrees of Bachelor of Medicine and Bachelor of Surgery at the University of Adelaide in 1991. He was employed at the Royal Adelaide Hospital during 1992. He said he had "with limited registration", which he explained, in his evidence, as follows:- "First of all, I was to be registered for one year and registration would be revised at the end of that time, and two, I was able to practise medicine only at the Royal Adelaide Hospital or another teaching hospital." 13. He went on to say that, at the relevant time, he was "entered upon the general register" under the Medical Practitioners Act. A copy of the Government Gazette of 1st July 1992 was admitted into evidence. It contains requirements for registration and part of the general register which reveals that Dr. Worthley was registered at the relevant time. His registration number contained the letter "L". The publication in the Gazette contains the following:- "Note: Practitioners with Limited Registration only are indicated in the Register by the letter 'L' appearing after their registration number. Such registration is subject to the provisions of s.35 of the MedicalPractitioners Act, 1983." 14. It may be accepted that Dr. Worthley had been registered pursuant to s.35 which was categorised as limited registration. The publication also contained the procedure for registration which included that "recent graduates must produce evidence of having satisfactorily completed 12 months of resident medical officer service (internship) in an approved hospital." On the basis of their evidence, Mr. Jenner sought to erect an argument that Dr. Worthley was not a medical practitioner. There is no basis for the contention that Dr. Worthley was not, at the relevant time, a medical practitioner. He was registered as such and his name had been entered upon the General Register of Medical Practitioners which had been published in the Government Gazette. The limited registration pursuant to s.35 was none the less registration as a medical practitioner and the restrictions imposed upon his capacity to practice do not detract from his status as a medical practitioner. In my view, Dr. Worthley was clearly a medical practitioner as defined in the Medical Practitioners Act and was a medical practitioner within the meaning of that expression in the Road Traffic Act. There is no separate register for those medical practitioners with limited registration. The learned Special Magistrate reached the same conclusion and was correct in doing so. These grounds of appeal must fail. 15. I now turn to the last of the matters raised by the grounds of appeal. In my view there was no basis in the evidence to conclude that the sample of blood was taken in such a way as to compromise its integrity. A statement of Dr. Thomas was admitted into evidence. He is a specialist physician and pathologist. A particular area of speciality practised by him is chemical pathology which is the study and measure of chemical constituents of blood and other bodily fluids. He teaches biochemistry and chemical pathology at the Medical School at the University of Adelaide. According to him, medical students at that school are taught the general procedures for the collection of blood specimens, receiving theoretical and practical instruction, during the sixth year of the course. In his statement, he goes on to say:-
     "7. A doctor knows what he does about the taking of blood
    samples from what he learns in Medical School but particularly
    in his years as an intern when in most hospitals they would be
    called upon on numerous occasions to take blood, that is when
    they particularly gain their practical skills.
     8. Taking blood is a relatively simple procedure and the
    learning of it and the gaining of skill in it is by experience.
     9. There can be a potential effect on the concentration of
    alcohol in the blood in the taking of a sample.
     10. This can occur if an ethyl alcohol swab is used. The
    alcohol in the swab can potentially contaminate the specimen.
     11. It is uncommon in hospital practice to use an ethyl
    alcohol preparation. Normally an isoproponol type swab would be
    used. The isoproponol is not picked up in the measurement of
    alcohol in the blood whereas that would effect the concentration
    of alcohol in the blood if the specimen was contaminated by ethyl
    alcohol in the swab.
     12. How this would happen is that it would be sucked up into
    the needle because the doctor was in a hurry and alcohol on the
    skin would be drawn into the syringe. This would then result in
    a small amount of contamination (one can't be more specific than
    that)." 16. Dr. Worthley was cross-examined about his experience in taking samples of blood. He had only been working at the Hospital for less than three weeks when he took the blood from the appellant. He could not recall how many times he had taken blood from patients but there had been other occasions. He followed a protocol for the taking of blood and used a kit provided for that purpose. He described in detail the procedure which he employed to take the sample of blood from the appellant. He had received instruction at the Hospital as to the procedure to be followed in taking samples of blood in the context of the Road Traffic Act and a manual has been supplied to him containing such information. It is of significance that the kit contains a swab that is treated with cetrimide, not alcohol, so as to the avoid the possibility of contaminating the blood with alcohol. Dr. Worthley had no recollection of the appellant but said that he had no cause to deviate from the protocol and he assumed that he had followed the procedures in the protocol. He acknowledged that if he had not followed the procedure laid down by the protocol in one respect, it is possible that he had not done so in other respects. The only deviation from the procedure put to him was that he had handed a sample of blood to Constable Davis rather than not putting it in a receptacle. No other deviation was suggested to him and he did say that if there was any reason to vary the procedure specified in the protocol, he would recall it. 17. In my view there is simply no reason disclosed in the evidence to doubt the integrity of the sample of blood taken from the appellant. The evidence discloses that the sample was taken by a medical practitioner with sufficient training for that purpose and with specific instruction as to the correct procedures to be followed. There was no evidence to suggest that those procedures were not followed in any relevant way. Furthermore, the evidence did disclose that the sample could not be contaminated by alcohol from the swab and there was no reason to suppose, on the evidence, that it could have been otherwise contaminated. The learned Special Magistrate found no reason to suppose that Dr. Worthley had taken the sample of blood in such a way as to compromise its integrity, a conclusion with which I agree. I reject these grounds of appeal. 18. The appeal is dismissed.