Tianen v Police No. Scgrg-00-543

TIAINEN v POLICE
[2000] SASC 292

Magistrate’s Appeal

1................ MARTIN J. ...... (Ex tempore) The appellant pleaded not guilty to a charge that he failed to comply with the reasonable direction of a member of the police force in connection with a requirement to submit to a breath analysis. He was convicted by a Magistrate and appeals against that conviction primarily on the ground that the finding of guilt was not supported by the evidence.

Section 47E of the Road Traffic Act 1961 (“the Act”) empowers a member of the police force to require a driver of a motor vehicle that approaches a breath-testing station established pursuant to s 47DA of the Act to submit to an alcotest. Sub-section 2(b) provides that where an alcotest indicates that the prescribed concentration of alcohol may be present in the blood, a member of the police force may require the person to submit to a breath analysis. Section 47E(3) is in the following 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.”
There is no dispute that the appellant was stopped at a random breath-testing station while driving a motor vehicle in the early hours of Saturday, 6 March, 1999. He submitted to an alcotest which produced a positive result. The appellant complied with the direction to attend at a breath-analysing van where Constable Porins directed him to submit to a breath analysis. The Magistrate made the following findings as to the events that followed and the state of the breath analysis instrument:
“He then said to him “I now direct you to take a deep breath and to exhale steadily through this mouthpiece into the breath analysing instrument with one continuous breath until I tell you to stop.
Do you understand that?” To which the defendant replied “Yes.”
He produced the mouthpiece for the defendant. He observed the defendant place the mouthpiece into his mouth. The officer was then observing the machine and as a result, the machine did not record a reading.
The police officer then said to the defendant “Blow long and hard please”. Again for the second occasion the machine was interrupted through what appeared to be lack of sufficient air being blown through the machine.
From there the police officer placed a third mouthpiece into the hose instrument. Again the machine was interrupted again through what appeared to be insufficient air passing through the machine.
Porins then advised the defendant that his failure to comply with his direction to submit to breath analysis is an offence and may attract a penalty to which the defendant allegedly replied “I was blowing, wasn’t I?” Porins replied to the defendant, “Not with my directions you weren’t.”
He then said that he was giving the defendant another opportunity (namely the 4th) to submit to the breath analysis. He said he directed him to take a deep breath and to exhale continuously through this mouthpiece into the breath analysis instrument with one continuous breath until he told him to stop. The defendant replied “Yep.” Constable Porins then put a new mouthpiece into the hose. He selected the over-ride function and gave it to the defendant. Again there was little air passing through. In fact, as I understand, .4 of a litre of air passed through. The over-ride function would have allowed a reading at .6 of a litre of air.
At that stage, the officer asked the defendant if there was any reason why he could not blow into the machine.
He said “Have you any reason for failing to comply with my direction in relation to submitting to this breath analysis?”
The defendant replied “No.”
Porins said “In particular, have you any reason of a physical or medical nature for failing to comply with my directions in relation to you submitting to this breath analysis?”
The defendant said “No.”
Porins said “You will be charged for failing to comply with my directions in relation to this test. Do you understand that?
The defendant said “Yes.”
Porins said “It is an offence to fail without good cause to fail to comply with my directions to provide a sample of your breath. It is a defence to a charge of failing to provide a breath sample if the reason for your failure to comply is because of some physical or medical condition. However, you cannot use such a defence unless you forthwith request that a sample of your blood be taken. The blood sample can be taken from you by a medical practitioner of your choice and police will convey you for that purpose. There is not (sic) cost to you involved. Do you understand that.”
Defendant replied “yes.”
A medical practitioner was nominated and arrangements were made for the defendant to undertake a medical examination. Constable Porins’ observations of the defendant at the time was that there was a moderate smell of alcohol on his breath. His facial colour was slightly pale. His attitude was quiet. His eyes appeared slightly dilated and his speech slurred, and in his opinion mildly affected by alcohol. Constable Porins is a relatively experienced breath analysis operator.
Evidence has been given both by Constable Porins and by Sergeant Laslett as to the breath analysis instrument. Constable Porins told me that there had been a number of successful breath analysis tests done that night on that machine and there was no difficulty with any of them.
Sergeant Laslett was called to inform me that within a day or two the machine was in fact brought in for its six monthly testing. The machine was found to be in good working order.”
The appellant has not challenged those findings. Omitted from the passage cited is the third direction that was given after the second unsuccessful attempt. Constable Porins said “blow harder this time”.
No challenge was made to the integrity of the witnesses and the Magistrate was satisfied that each of the witnesses was telling the truth. The appellant did not give evidence. He submitted that the prosecution evidence was insufficient to establish guilt beyond reasonable doubt. The Magistrate found otherwise.
At the outset of his submissions on this appeal, counsel for the appellant submitted that his Honour had fallen into error in not identifying the particular direction or directions in respect of which there had been a failure to comply. However, counsel acknowledged that he had not asked the prosecution to give particulars of the direction or directions upon which it relied, and no complaint in this respect was made before the Magistrate. The trial was conducted on the basis that if the prosecution proved a failure to comply with any one of the directions, the case was made out. On this appeal counsel conceded that if the evidence was sufficient to establish a failure to comply on one occasion, the appeal would fail.
The appellant complained that the Magistrate erred in finding there was evidence to justify a conclusion that the breath analysis instrument was operating correctly at the time that the appellant was required to exhale into it. His Honour expressed his finding in this way:
“There is evidence at least to suggest that the machine was operating correctly and there can only be in this situation two reasons for a reading not being recorded. Either the machine was not operating correctly or, secondly, the defendant was not blowing sufficiently or hard into the machine”.
Later in his reasons, his Honour said that “any suggestion that the machine was malfunctioning in my opinion surely fails”. Notwithstanding his use of the word “suggest” in the passage which I have quoted, I am satisfied that the Magistrate found beyond reasonable doubt that the instrument was operating correctly at the relevant time.
Counsel for the appellant challenged that finding. Firstly, he correctly pointed out that the evidentiary aid found in s 47G(3)(b)(ii) which enables a certificate to be tendered as proof that a breath-analysing instrument was in proper order and was properly operated is not applicable to a prosecution for an offence contrary to s 47E of the Act. If the prosecution wished to prove that the breath-analysing instrument was functioning correctly and was operated correctly, it was necessary for the prosecution to call appropriate oral evidence capable of proving those facts.
The Magistrate found that Constable Porins was a relatively experienced breath analysis operator. He had previously conducted 270 breath analysis tests. Although he was not asked the direct question, it is a reasonable conclusion to draw from his evidence that, in his mind, he was operating the instrument correctly. There was no suggestion in cross-examination that Constable Porins was not operating the instrument correctly. During submissions counsel for the appellant conceded it was open to the Magistrate to find that the instrument was operated correctly.
As to whether the instrument was functioning correctly, Constable Porins gave evidence that he had conducted six tests with that instrument prior to testing the appellant. On each occasion, the instrument appeared to function properly. He described the process followed, including a self-test function operation which the instrument activated. He said that occasionally an instrument will give a prompt that it is not functioning properly, but there was no suggestion of such a prompt on this occasion. After attempting to test the appellant, Constable Porins did not use the instrument again and did not do anything to check that it was functioning correctly.
Constable Porins said he did not detect anything in the operation of the instrument to suggest that it was malfunctioning. In an endeavour to support a conclusion that it was functioning correctly, the prosecution called Sergeant Laslett. Although objection was taken to the evidence of Sergeant Laslett on the basis of a lack of expertise, that objection is not pursued on this appeal. Sergeant Laslett had been a member of the breath analysis squad since 1967. He performed the duties of a breath analysis operator between 1967 and 1970 and then from 1971 to 1996. In 1996 he took over as the officer in charge of the Traffic Technical Resource Section of the Police Department, a section which is responsible for the calibration, servicing and repairs of breath analysing instruments, lasers and speed cameras. Sergeant Laslett has completed an electronic technician’s course which he studied over a period of four years. He has received formal training in relation to breath analyser maintenance from the Department of Electronic Engineering and other training in connection with breath analysing instruments. He has published a number of papers in connection with breath analysis and associated matters.
In 1987 Sergeant Laslett was involved in the introduction of the type of breath-analysing instrument that was used by Constable Porins when he attempted to test the appellant. Prior to the occasion with which this appeal is concerned, he had given evidence in the courts of this State in connection with the instrument under consideration. To the extent that the evidence of Sergeant Laslett involved the giving of expert evidence, in my opinion he was well qualified to do so.
Sergeant Laslett said that if the instrument malfunctioned, it did not possess the capacity to correct the malfunction. He explained that the instrument used with respect to the appellant was, as a matter of practice, serviced every six months. A service includes a full calibration of the instrument to ensure that it is functioning correctly. At the completion of testing, the instrument is put through a quality control test. Service records are kept by the Section. In my opinion those records are business records of the Police Department for the purposes of s 45A of the Evidence Act 1929. At trial objection was taken to the evidence of Mr Laslett on the basis that it involved the giving of hearsay evidence. However, counsel has informed the Court on this appeal that to the extent that the service records would have been admissible as business records, no objection was taken to Sergeant Laslett giving oral evidence of the content of those records as opposed to the records being tendered and explained in evidence by Sergeant Laslett.
According to Sergeant Laslett, the records established that, prior to 6 March, 1999 when Constable Porins used it, the instrument had last been calibrated on 10 September 1998. It was next serviced on 8 March, 1999, two days after Constable Porins had used it in his attempts to test the appellant. At the time of service on 8 March, 1999 it was found to be functioning correctly. As the service records would have been admissible as business records of the Police Department, and the contents of those service records would have been admissible as evidence of the truth of what was contained in those records by virtue of s 45A, the oral evidence of Sergeant Laslett was also admissible in view of the way the matter was conducted before the Magistrate.
The appellant submitted that it was impermissible for the Magistrate to find that at the relevant time the instrument was functioning correctly by reference to the evidence of Sergeant Laslett that it was functioning correctly on 8 March, 1999. Counsel argued that unless the service had occurred immediately after the unsuccessful attempts, the evidence was of no weight. I do not agree. The evidence possessed probative value on the issue as to whether the instrument was working correctly when used in connection with the appellant. In addition, it did not stand alone. As mentioned, Constable Porins had used the instrument without any difficulty on six occasions prior to attempting to test the appellant’s breath. He did not see any signs in the way in which the instrument was functioning to suggest that it was not functioning properly. That evidence, in conjunction with the evidence that the instrument was functioning correctly two days later, was capable of supporting an inference that, when used in connection with the appellant, the instrument was functioning correctly. In my opinion, there is no substance in the ground of complaint. The finding was open to the Magistrate and, in my view, his Honour was correct.
The findings that the instrument was functioning correctly and being operated correctly by Constable Porins lead to a conclusion that the instrument did not give a recording on the occasions when the appellant apparently exhaled into it because an insufficient volume of air passed through the instrument. The evidence of both Constable Porins and Sergeant Laslett explained the manner in which the instrument would interrupt the testing procedure if an insufficient volume of air was flowing through it. Counsel for the appellant suggested that the prosecution had not negatived the possibility that the insufficient volume of air was the result of the appellant not using the mouthpiece correctly. In my view that proposition must be rejected. In the absence of evidence capable of supporting such a possibility, it was open to the Magistrate to conclude that the instrument failed to record a reading because the appellant did not exhale a sufficient volume of air to activate the instrument. This fact is relevant to a determination as to whether the appellant failed to comply with all reasonable directions of Constable Porins. However it does not, of itself, prove that such a failure occurred.
Throughout the testing procedure, Constable Porins concentrated mainly upon a screen on the instrument which indicated whether the testing procedure had been successful. He was not able to say what appearance the appellant gave at the time that the appellant was apparently exhaling into the mouthpiece. In the absence of personal observation of the apparent effort of the appellant, a finding that the appellant failed to comply with all reasonable directions of Constable Porins could only be made if the circumstances to which I have referred and the circumstances of the testing procedure were capable of proving that finding beyond reasonable doubt.
The first direction required the appellant to take a deep breath and exhale steadily through the mouthpiece with one continuous breath until he was told to stop. The instrument interrupted the test because insufficient air was travelling through it. Constable Porins placed a new mouthpiece in the hose and gave the second direction by telling the appellant to “blow long and hard please”. The instrument again interrupted the procedure because of an insufficient flow of air. For the second time, Constable Porins replaced the mouthpiece. He gave the third direction saying, “blow harder this time”. The instrument again interrupted because of a lack of air.
Although Constable Porins did not observe how the appellant appeared to be reacting to each instruction, it is a reasonable inference that the appellant continued to exhale insufficient air to activate the instrument. Following the first instruction, it was a reasonable inference that the appellant understood that he was to take a deep breath and to exhale steadily and continuously until he was told to stop. When the second instruction was given, the appellant must have misunderstood that the manner in which he had exhaled on the first occasion was not hard enough because a result was not obtained and the officer said “blow long and hard”. Similarly, following the second unsuccessful exhalation, it must have been obvious to the appellant that he was still expelling less air than required because the third instruction was to “blow harder this time”.
The third attempt to obtain a reading was also unsuccessful. In my opinion the point had been reached when, in the absence of any other reasonable explanation, it was open to the Magistrate to conclude that if the appellant had complied with the third direction a reading would have been obtained.
The fourth direction must be viewed against the background of the three unsuccessful attempts and the directions to blow hard and to blow harder. It must also be seen in the context of the following conversation which occurred immediately before the fourth direction and exhalation:
“Constable Porins said:       “I advise you that refusal or failure to comply with my directions to submit to a breath analysis is an offence and may attract a penalty. Do you understand that?”
Appellant:          “I was blowing, wasn’t I?”
Constable Porins:      “Not with my directions you weren’t. I now give you another opportunity to submit to breath analysis. I direct you to take a deep breath and to exhale continuously through this mouthpiece into the breath analysing instrument with one continuous breath until I tell you to stop. Do you understand that?”
Appellant:         “Yep”.
During submissions counsel suggested that the appellant’s response, “I was blowing, wasn’t I?” was capable of being viewed as demonstrating uncertainty on the part of the appellant. However, in my opinion it was also capable of being viewed as a facetious response when viewed against the background of what had already occurred.
The fourth direction was in the same terms as the first direction, but was given against a background of events during which the appellant must have been aware that the volumes of his three previous exhalations were insufficient to activate the instrument and to obtain a result. The appellant also knew that Constable Porins was asserting that the appellant had not been blowing hard enough and had not been blowing in accordance with the Constable’s directions in that regard. Following the fourth direction, Constable Porins placed another mouthpiece in the hose of the instrument and selected an override function. While the appellant was exhaling into the mouthpiece, the instrument again interrupted the test.

Constable Porins explained in evidence that when in the normal mode, the instrument requires 16 stars to cross the prompt screen for a sample to be accepted. In the override function, it would work on six stars. The stars indicate the volume of air passing through the instrument. In other words, a lesser volume of air was required to get a result in override mode than the volume required when in automatic. However, the volume was still insufficient.
In my opinion it was open to the Magistrate to find that if the appellant had complied with the fourth direction, a result would have been obtained. It was no answer to say that the terms of the fourth direction were the same as the first. The appellant knew that his previous three efforts were inadequate.
As appears in the passage from the Magistrate’s reasons to which I earlier referred, when asked the appellant did not suggest that he had any reason for failing to comply with the directions, and replied in the negative when asked whether there was any physical or medical reason for failing to comply. The appellant did not suggest in answer to Constable Porins, that he had attempted to comply. He was told he would be charged and acknowledged that he understood that charge.
The Magistrate referred to the submissions of counsel concerning the lack of observation as to the efforts made by the appellant. He also referred to criticism that Constable Porins did not elaborate upon how hard or for how long the appellant should exhale. Undoubtedly it would have been preferable if Constable Porins had made personal observations which he could relate for the assistance of the court. Notwithstanding those criticisms, after correctly considering the entire course of the events between Constable Porins and the appellant, his Honour concluded that the appellant “did wilfully avoid his obligations to exhale into the breath analysis machine in accordance with the directions of Constable Porins”.
Counsel for the appellant submitted that the Magistrate did not ask himself the correct question, namely, whether the prosecution had proved that the appellant did not comply with the directions given. He referred to three statements which he said demonstrated an incorrect approach. First, the Magistrate expressed a finding that the appellant “was not furnishing a substantial sample”. However, that finding was made in the context of his Honour’s finding that the appellant did not blow long and hard into the instrument and in the context of his rejection of the suggestion that the instrument was malfunctioning. His remarks concerning the failure to furnish a substantial sample were directed to explaining why, in the absence of any malfunction, the instrument did not give a result.
The second passage appeared a little later in the judgment when his Honour referred to the question of the appellant giving a sufficient sample. That reference occurred, however, in the context of his Honour’s remarks that the appellant had not been called to give evidence and that the absence of evidence from the appellant allowed the Court to reach certain conclusions more easily. In that context his Honour observed that the appellant was “in a primary position to give evidence as to why he was unable to give a sufficient sample”. That question was obviously relevant to the critical issue as to whether the appellant had failed to comply with the directions of Constable Porins. In my opinion his Honour was not suggesting that whether the appellant gave a sufficient sample was the critical question to be answered.
The third passage identified by counsel as an incorrect test posed by his Honour was:
“Did he wilfully avoid his obligations to exhale into the breath analysing machine”.
Isolating those words has the potential to give an incorrect impression. They appeared in the passage I have already cited in which his Honour found that the appellant wilfully avoided his obligations to exhale into the breath analysing machine “in accordance with the directions of Constable Porins”. In my opinion his Honour was merely expressing in another way his finding that the appellant failed to comply with the reasonable directions of Constable Porins.
In my opinion, when the evidence is viewed in its entirety, it was capable of supporting the conclusion that if the appellant had made a genuine attempt to comply with the instructions to blow harder, sufficient air would have been exhaled into the instrument for the instrument to have given a result. The evidence was capable, therefore, of supporting the view that the appellant, knowing that the volume of air being exhaled was insufficient, and understanding that the directions were to increase the volume of his exhalation, failed to comply with those directions. The course of events in its entirety strongly supports the conclusion reached by the Magistrate.
In addition to the evidence to which I have referred, there was evidence of what was called a ticket tape. The tape was a print-out from the breath analysing instrument recording the volume of air that had passed through the instrument on each occasion. Objection was taken to the admissibility of the tape before the Magistrate. Although the tape was admitted in evidence, the Magistrate did not make any reference to it and does not appear to have relied upon it in reaching his conclusion.
In this Court, counsel for the respondent submitted that the tape was admissible and could be used as evidence to support the prosecution case. If it was admissible as proof of the volumes of air passing through the instrument on each occasion, it was significant evidence. As explained in the evidence and if accepted as accurate, the tape was capable of proving that on the first occasion the appellant exhaled, .4 of a litre of air passed through the instrument. On the second and third occasions the instrument recorded that zero volume of air passed through the instrument. It appears from the evidence of Sergeant Laslett, however, that a reading of zero might not mean that no air whatsoever passed through the instrument. At best it would establish that very little air passed through it. On the occasion of the fourth exhalation, the tape recorded a volume of .4 of a litre. Sergeant Laslett said that a very small puff could create .1 of a litre and was also capable of creating a record of zero.
Although the operation of the instrument was explained by Sergeant Laslett, he was not asked the specific question directed to the accuracy of the tape record of the volume of air. In those circumstances, although it is unnecessary to decide this issue and only brief submissions have been directed to it, I tend to the view that unless the tape was admissible as a business record of the Police Department, it was not admissible as proof of the volume of air that passed through the instrument on each occasion of apparent exhalation.
Similarly, evidence was given of the volume of air represented by each star displayed on the screen. In the absence of expert evidence that the appearance of a star on the screen is an accurate representation of a particular volume of air passing through the instrument, I again tend to the view that evidence as to the volume to be derived from the presence of the star or stars would be inadmissible. However, as I have said the matter was not argued in full and I have not had the opportunity of researching the question.
The other basis upon which the tape could be admissible was as a business record of the Police Department pursuant to s 45A of the Evidence Act 1929. Again the matter was not argued in full. However, on a consideration of s 45A, I tend to the view that the tape would be admissible as a business record. Section 45A(4) defines “business record” and the definition includes a reference to a document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business. The operation of the breath analysis instrument was part of the ordinary course of the business of the Police Department. The tape was produced in order to record the result of the particular operation related to the business of the Police Department.
In my opinion, therefore, if the Magistrate had needed to have recourse to the evidence from the tape, that evidence would have strongly supported his conclusion that the prosecution had proved its case.
The appeal is dismissed.

[2000] SASC 292

22 August 2000