Tonkin v Police - [2006] SASC 145

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TONKIN v POLICE
[2006] SASC 145
Judgment of The Honourable Chief Justice Doyle
17 May 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SO UNDER INFLUENCE OF LIQUOR OR DRUGS AS TO BE INCAPABLE OF CONTROL - PROOF AND EVIDENCE
The appellant was convicted in the Magistrates Court of driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol contrary to s 47B of the Road Traffic Act 1961 (SA) - the appellant appeals against conviction to the Supreme Court - the question is whether evidence tendered at trial is sufficient to rebut the presumption that the results of a breath analysis instrument accurately record the concentration of alcohol in a person's blood pursuant to s 47G(1) of the Road Traffic Act 1961 (SA) - consideration of s 46G(1) of the Road Traffic Act - consideration of the adequacy of evidence tendered to rebut presumption - evidence concerns alcohol elimination rate - no error made out - appeal dismisssed.
Road Traffic Act 1961 (SA) s 47B, s 47G(1), s 47G(1a), s 47G(1a)(1), s 47G(1)(1a)(a), s 47G(1)(1a)(b), s 47G(1)(1ab), referred to.
Evans v Benson (1986) 46 SASR 317; Police v Shelmerdine (2000) 76 SASR 199, applied.

TONKIN v POLICE
[2006] SASC 145
Magistrates Appeal: Criminal

DOYLE CJ: Mr Tonkin was charged with driving a motor vehicle on 21 April 2005 while there was present in his blood the prescribed concentration of alcohol, contrary to s 47B of the Road Traffic Act 1961 (SA) (“the RTA”).
The prescribed concentration is 0.05 grams or more of alcohol in 100 millilitres of blood. (Hereafter I will for convenience express relevant concentrations as a percentage, to avoid constant repetition of the statutory expression, but it must be remembered that at all times the issue is the quantity of alcohol in 100 millilitres of blood).
Mr Tonkin pleaded not guilty. The prosecution and the defence tendered evidence. The evidence tendered by the prosecutor was in the form of certificates, a written statement and a written report from Dr Lokan. The defence tendered a certificate as to the taking of a blood sample from Mr Tonkin, a certificate reporting the analysis of that blood and a report from Dr Sykes, a chemical pathologist. No oral evidence was given. The Magistrate found Mr Tonkin guilty. He appeals against the conviction.
The appeal turns on whether the evidence tendered by Mr Tonkin was sufficient to rebut the presumption under s 47G(1) of the RTA. The presumption is that the concentration of alcohol indicated by a breath analysing instrument as being present in the blood of Mr Tonkin was present in his blood at the time of the analysis and was present throughout the preceding two hours: Evans v Benson (1986) 46 SASR 317 at 322 and at 326.
Section 47G(1a) limits the evidence that can be adduced to rebut that presumption, and also determines the means by which and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tonkin v Police

Details

AGLC: Tonkin v Police [2006] SASC 145
Case: [2006] SASC 145
Decision Date: 17 May 2006

CaseChat Overview and Summary

The appellant, Tonkin, appealed against his conviction in the Magistrates Court for driving while under the influence of alcohol, contrary to s 47B of the Road Traffic Act 1961 (SA). The Supreme Court was tasked with determining whether the evidence presented at trial was sufficient to rebut the presumption that the results of a breath analysis instrument accurately recorded the concentration of alcohol in Tonkin's blood, as provided for under s 47G(1) of the Act. The court also considered s 47G(1a) of the Act, which outlines the permissible forms of evidence to rebut the presumption, and the adequacy of the evidence presented by Tonkin to challenge the presumption.

The legal issue at the heart of this appeal was whether the evidence tendered by Tonkin was sufficient to rebut the presumption that the results of the breath analysis instrument accurately recorded the concentration of alcohol in his blood. The court had to consider whether the evidence concerning the alcohol elimination rate was sufficient to establish that the breath analysis instrument gave an exaggerated reading of the concentration of alcohol present in Tonkin's blood. This required the court to determine if Tonkin had discharged the onus of proving, on the balance of probabilities, that the breath analysis reading was "exaggerated" within the meaning of s 47G(1b) of the Act.

The Supreme Court found that the evidence presented by Tonkin was not sufficient to rebut the presumption that the breath analysis instrument accurately recorded the concentration of alcohol in his blood. The court emphasised that to rebut the presumption, Tonkin had to demonstrate that the breath analysis reading was "exaggerated" in the sense that it was outside accepted margins for error, indicating that the instrument did not function properly or was not operated correctly. The court noted that a finding of exaggeration could not be made merely because a blood alcohol test resulted in a lower reading or because the breath analysis reading placed the offence in a more serious penalty category. The evidence presented by Tonkin did not meet this threshold, and thus the presumption under s 47G(1) remained unchallenged.

The appeal was dismissed, and the conviction in the Magistrates Court was upheld. The Supreme Court confirmed that the evidence presented by Tonkin did not establish, on the balance of probabilities, that the breath analysis instrument gave an exaggerated reading of the concentration of alcohol in his blood. Therefore, the presumption under s 47G(1) of the Act that the breath analysis result accurately reflected the concentration of alcohol in Tonkin's blood remained intact.

Orders

Orders of the court

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Background

Background to the litigation

Section 47G(1a) limits the evidence that can be adduced to rebut that presumption, and also determines the means by which and the manner in which the presumption can be rebutted.Facts and legislation The case is governed by the first three subsections of s 47G, which provide as follows:47G Evidence(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. Ms Downey, counsel for Mr Tonkin on appeal, accepts that the presumption created by s 47G(1) arose in the present case. The issue for the Magistrate was whether the evidence adduced by Mr Tonkin established, on the balance of probabilities, that the breath analysing instrument had given “an exaggerated reading of the concentration of alcohol present” in Mr Tonkin’s blood. Evans v Benson at 324 holds that Mr Tonkin had to establish the required conclusion on the balance of probabilities. Although subs (1) and subs (1a) have been amended since that decision, and subs (1ab) was inserted after that decision, this aspect of the reasoning in Evans v Benson remains relevant. The decision of the Full Court in Police v Shelmerdine [2000] SASC 45; (2000) 76 SASR 199 also establishes that the required conclusion, that the reading was “exaggerated” is not established merely by proving that the analysis of a sample of blood demonstrates (when explained) that the concentration of alcohol in Mr Tonkin’s blood was less than that indicated by the breath analysing instrument. In Shelmerdine Prior J said at [12]-[13]:… It is not correct to make a finding of exaggeration simply because a higher reading than that disclosed by a blood alcohol test resulted or because the breath analysis reading places the offence in a more serious penalty category. The reading prevails until properly rebutted. It was not in this case. "Exaggerated" in the context of this legislation does not simply mean greater but abnormally large or unduly magnified given the previous acceptance by this Court in Benson that a blood analysis was for the purpose of s 47G "intrinsically superior to breath analysis as a means of determining accurately the concentration of alcohol in the blood".The defendant has to show that there was something plainly wrong with the indicated level against the assumption that the blood analysis will be lower and more accurate than that indicated by a breathalyser. The result indicated by the breath analysing instrument must be shown to be outside accepted margins for error consistent with the instrument not functioning properly or some operator error. Martin J agreed with that approach. He referred to the legislative scheme, described it briefly and concluded at [46]:In the context of the scheme as I have described it, I agree with Prior J that "exaggerated" in subpar (b) means abnormally large or unduly magnified in the sense that the result is plainly wrong because it is outside the accepted margins for error and indicates that the breath analysing instrument did not function properly or was not operated correctly by the operator.

Evidence

Evidence Before The Court

The case is governed by the first three subsections of s 47G, which provide as follows:47G Evidence(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. Ms Downey, counsel for Mr Tonkin on appeal, accepts that the presumption created by s 47G(1) arose in the present case. The issue for the Magistrate was whether the evidence adduced by Mr Tonkin established, on the balance of probabilities, that the breath analysing instrument had given “an exaggerated reading of the concentration of alcohol present” in Mr Tonkin’s blood. Evans v Benson at 324 holds that Mr Tonkin had to establish the required conclusion on the balance of probabilities. Although subs (1) and subs (1a) have been amended since that decision, and subs (1ab) was inserted after that decision, this aspect of the reasoning in Evans v Benson remains relevant. The decision of the Full Court in Police v Shelmerdine [2000] SASC 45; (2000) 76 SASR 199 also establishes that the required conclusion, that the reading was “exaggerated” is not established merely by proving that the analysis of a sample of blood demonstrates (when explained) that the concentration of alcohol in Mr Tonkin’s blood was less than that indicated by the breath analysing instrument. In Shelmerdine Prior J said at [12]-[13]:… It is not correct to make a finding of exaggeration simply because a higher reading than that disclosed by a blood alcohol test resulted or because the breath analysis reading places the offence in a more serious penalty category. The reading prevails until properly rebutted. It was not in this case. "Exaggerated" in the context of this legislation does not simply mean greater but abnormally large or unduly magnified given the previous acceptance by this Court in Benson that a blood analysis was for the purpose of s 47G "intrinsically superior to breath analysis as a means of determining accurately the concentration of alcohol in the blood".The defendant has to show that there was something plainly wrong with the indicated level against the assumption that the blood analysis will be lower and more accurate than that indicated by a breathalyser. The result indicated by the breath analysing instrument must be shown to be outside accepted margins for error consistent with the instrument not functioning properly or some operator error. Martin J agreed with that approach. He referred to the legislative scheme, described it briefly and concluded at [46]:In the context of the scheme as I have described it, I agree with Prior J that "exaggerated" in subpar (b) means abnormally large or unduly magnified in the sense that the result is plainly wrong because it is outside the accepted margins for error and indicates that the breath analysing instrument did not function properly or was not operated correctly by the operator.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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