Treloar v Police - [2019] SASC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TRELOAR v POLICE
[2019] SASC 128
Judgment of The Honourable Justice Hinton
24 July 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE - BREATH TEST AND ANALYSIS
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG
The appellant was found guilty by a magistrate of driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol contrary to s 47B(1)(a) of the Road Traffıc Act 1961 (SA) (RTA). At trial the prosecution sought to rely on the presumptions contained in ss 47K(1) and (1ab) RTA to establish that the appellant had driven the motor vehicle with the prescribed concentration of alcohol present in his blood.
At trial the appellant’s defence, in effect, was that a necessary precondition to the enlivenment of the presumptions in ss 47K(1) and (1ab) was not satisfied with the consequence that the presumptions could not be relied upon and that the prosecution failed. More particularly, it was alleged that s 47K(2a) RTA, which required that a person who has submitted to breath analysis and returned a result indicating the presence of the prescribed concentration of alcohol in his or her blood, have delivered to them a copy of the prescribed written notice concerning the right to have a blood sample taken, had not been complied with. On this issue the two police officers in attendance during the breath analysis procedure gave evidence as part of the prosecution case which was at odds with the evidence of the appellant and the one witness he called. There being no evidence independent of the evidence of each witness tending to suggest that the prescribed written notice was delivered, the Magistrate could only resolve the issue by assessing the reliability and credibility of the police officers, the appellant and the witness he called.
In this Court the appellant contended that in undertaking that assessment the Magistrate had regard to inadmissible evidence. The respondent conceded that the Magistrate did have regard to inadmissible evidence but nonetheless contended that on an independent assessment of the evidence the appellant’s conviction should be upheld as no miscarriage of justice had occurred.
Held, allowing the appeal, on an independent assessment of the evidence this Court cannot resolve the issue in dispute without seeing and hearing the witnesses. The appellant’s conviction is set aside and the matter is to remitted to the Magistrates Court for retrial.
Justices Act 1921 (SA), s 177; Magistrates Court Act 1991 (SA) s 42; Motor Vehicles Act 1959 (SA) s 81; Road Traffic Act 1961 (SA) s 47; Road Traffic (Miscellaneous) Regulations 1999 (SA); Supreme Court Civil Rules 2006 (SA) r 286, referred to.
Capasso v Police (1996) 66 SASR 385; Gazepis v Police (1997) 70 SASR 121; Police v Capasso (1997) 190 LSJS 126; Police v Dunstall (2015) 256 CLR 403; Semmens v Police (1999) 202 LSJS 272; Taylor v Hayes (1990) 53 SASR 282, considered.

TRELOAR v POLICE
[2019] SASC 128
Magistrates Appeal
HINTON J:
Introduction

This is an appeal against conviction.
On 7 September 2017 the appellant was charged on complaint and summons with two driving offences. It was alleged that on 12 August 2017 the appellant drove a motor vehicle while there was present in his blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961 (SA) (RTA), contrary to s 47B(1)(a) RTA (count 1), and that, on the same occasion, he contravened a condition of his provisional licence as a result of his blood alcohol content, contrary to s 81A(9) of the Motor Vehicles Act 1959 (SA) (count 2). Following a trial in the Magistrates Court, the appellant was found guilty of count 1 and not guilty of count 2. He now appeals against his conviction on count 1.
At trial the prosecution sought to take advantage of the presumptions contained in ss 47K(1) and (1ab) RTA in establishing that the appellant had driven a motor vehicle with the prescribed concentration of alcohol present in his blood.
The appellant’s defence was, in effect, that a necessary precondition to the enlivenment of the presumptions was not satisfied with the consequence that the presumptions could not be relied upon and the prosecution failed.[1] More particularly, s 47K(2a) RTA, which requires that a person who has submitted to breath analysis and returned a result indicating the presence of the prescribed concentration of alcohol in his or her blood have delivered to them a copy of the prescribed written notice concerning the right to have a blood sample taken, was not complied with. On this issue the witnesses for the prosecution, the two police officers in attendance during the breath analysis procedure, gave evidence at odds with the evidence of the appellant. There was no evidence independent of the evidence of each witness tending to suggest that the prescribed written notice was delivered. The question for the Magistrate was whether the defence had established on the balance of probabilities that the prescribed written notice had not been delivered. That could only be resolved after an assessment of the reliability and credibility of the appellant, the one witness he called, Mr Keynes, and the two police officers. In undertaking this assessment the appellant contends that the Magistrate had regard to inadmissible evidence. The respondent concedes that the Magistrate did have regard to inadmissible evidence but contends, nonetheless, that on an independent assessment of the evidence the appellant’s conviction should be upheld. I would allow the appeal. My reasons follow.
[1] Taylor v Daire (1982) 30 SASR 453 at 463 (King CJ), 473 (Wells J); Police v Semmens (1999) 202 LSJS 272 at 274-276; see also Shearer v Hills (1989) 51 SASR 243.
Background
Invariably in prosecuting persons charged with having committed an offence against s 47B(1) RTA the prosecuting authorities seek to take advantage of the presumptions contained in ss 47K(1) and (1ab) RTA. Section 47K(1) provides:[2]
(1)Without affecting the admissibility of evidence that might be given otherwise than under 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 and throughout the preceding period of 2 hours.
[2] As at 12 August 2017.
And s 47K(1ab) states:
(1ab) If, in any proceedings for an offence, it is proved—
(a) that the defendant drove a vehicle, or attempted to put a vehicle in motion; and
(b) that a concentration of alcohol was present in the defendant’s blood at the time of a breath analysis performed within the period of 2 hours immediately following the conduct referred to in paragraph (a),
it must be conclusively presumed that that concentration of alcohol was present in the defendant’s blood at the time of the conduct referred to in paragraph (a).
Equally invariably, proof of the preconditions that must be established before the presumptions contained in ss 47K(1) and (1ab) RTA are enlivened is effected by resort to the many prosecutorial aids contained in the RTA. In Police v Dunstall (Dunstall) French CJ, Kiefel, Bell, Gageler and Keane JJ conveniently summarised the approach:[3]
In proceedings for an offence, the prosecution may prove by certificate subject to evidence to the contrary: that the operator was duly authorised[4]; that the apparatus used by the operator was a breath analysing instrument[5]; that the instrument was in proper order and was properly operated[6]; that the provisions of the RTA respecting breath analysing instruments and their use were complied with[7]; that the apparatus referred to in the certificate was of a kind approved under the RTA for the performance of alcotests[8]; that the person named in the certificate submitted to an alcotest on the date and at the time stated[9]; that the alcotest indicated the prescribed concentration of alcohol in the blood[10]; that the person named in the certificate submitted to breath analysis by means of a breath analysing instrument on the date and at the time stated[11]; that the instrument recorded the reading stated[12]; that a statement required by sub-s (2) was given to the person[13]; that the prescribed oral advice and the prescribed written notice under sub-s (2a)(a) were given to the person[14]; and that the person did not request a blood test kit, or an approved blood test kit was given to the person, as the case may be[15].
The content of the prescribed oral advice and the prescribed written notice is contained in Sch 1 to the Road Traffic (Miscellaneous) Regulations 1999 (SA) (the Regulations). The operator is required to orally advise a person whose breath analysis reading indicates that the prescribed concentration of alcohol is present in the blood that “[i]f you want to have such a blood test you will have to make your own arrangements and follow certain procedures, using a special blood test kit”[16]. The written notice sets out the procedures for the “optional blood test”. The written advice states that “you must request the breath analysis operator to supply you with an approved blood test kit” and “[y]ou should then proceed promptly to a hospital or a medical practitioner ... of your choice and request that a sample of your blood be taken”[17].
[3] (2015) 256 CLR 403 at [9]-[10].
[4]    Road Traffic Act 1961 (SA), s 47K(3)(a).
[5]    Road Traffic Act 1961 (SA), s 47K(3)(b)(i).
[6]    Road Traffic Act 1961 (SA), s 47K(3)(b)(ii).
[7]    Road Traffic Act 1961 (SA), s 47K(3)(b)(iii).
[8]    Road Traffic Act 1961 (SA), s 47K(3a).
[9]    Road Traffic Act 1961 (SA), s 47K(3b).
[10] Road Traffic Act 1961 (SA), s 47K(3b).
[11] Road Traffic Act 1961 (SA), s 47K(5)(a).
[12] Road Traffic Act 1961 (SA), s 47K(5)(b).
[13] Road Traffic Act 1961 (SA), s 47K(5)(c).
[14] Road Traffic Act 1961 (SA), s 47K(7)(b).
[15] Road Traffic Act 1961 (SA), s 47K(7)(c).
[16] Road Traffic (Miscellaneous) Regulations 1999 (SA), Sch 1 Pt A; see now Road Traffic (Miscellaneous) Regulations 2014 (SA), Sch 1 Form 4 Pt A.
[17] Road Traffic (Miscellaneous) Regulations 1999 (SA), Sch 1 Pt B; see now Road Traffic (Miscellaneous) Regulations 2014 (SA), Sch 1 Form 4 Pt B.
Importantly, where the prosecution adopts the course set out above, no evidence may be adduced in rebuttal to the presumptions if they are enlivened except evidence based on an analysis of a sample of the defendant’s blood that has been taken and dealt with in accordance with the prescribed procedures.[18] Evidence based on such analysis must demonstrate that the breath analysing instrument gave an exaggerated reading of the defendant’s blood alcohol concentration.[19] In Dunstall French CJ, Kiefel, Bell, Gageler and Keane JJ commented that in “practical terms, this requires the defendant to adduce expert opinion evidence based on the results of analysis of the blood sample”.[20]
[18] Road Traffic Act 1961 (SA), s 47K(1a)(a).
[19] Road Traffic Act 1961 (SA), s 47K(1a)(b).
[20] (2015) 256 CLR 403 at [7].
That said, the prosecutorial aids referred to in the quotation from Dunstall and contained in the RTA are, in the main, framed in presumptive terms with each presumed fact proved by certificate being conclusive “in the absence of proof to the contrary”. That expression, “in the absence of proof to the contrary”, imposes a burden upon the defendant which, if taken up, must be discharged to the civil standard in order to succeed.[21]
[21] Evans v Benson (1986) 46 SASR 317 at 323-324 (King CJ, with whom Jacobs, Bollen and Olsson JJ agreed).
In the present case, as mentioned, the appellant contended at trial that the police had failed to comply with the requirements of s 47K(2a) RTA and thus could not take advantage of the presumptions contained in ss 47K(1) and (1ab) RTA. Section 47K(2a) RTA provides:
(2a)If a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith—
(a) give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person’s blood; and
(b) at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.
In Police v Capasso Duggan J, referring to s 47G(2a) RTA, a forerunner to s 47K(2a) RTA, said:[22]
The clear intention of the Road Traffic provisions under consideration in the present case is to provide information to the driver as to the presumption which might be relied upon in any prosecution brought against him under the relevant section and the manner in which that presumption might be challenged. … Naturally, there is no way to compel the driver to read the notice, but he or she must be provided with the document so that the information is available in writing.
In my view a delivery for the purposes of the section will not take place unless the operator of the equipment makes the driver aware of his desire to deliver the notice and takes some action which results in the driver being given immediate access to it, thus enabling the driver to read it if he or she should so desire. Whether or not a sufficient delivery is effected will depend upon the circumstances of the particular case. As I have pointed out, it was not achieved in the present case simply by following after the respondent with the intention of handing him the notice.
The usual procedure will be for the operator to hand the notice to the driver. However I am of the opinion that there would be sufficient delivery if, for example, the operator handed a notice to a third party with a request that it be handed to the driver immediately. In those circumstances the third party would be a mere conduit for the purpose of delivery. The delivery would not be complete until the notice was handed to the driver and there would have to be compliance with the requirement that the completed act of delivery took place “forthwith”. In the present case I am of the view that delivery would have taken place if such a request had been made to the respondent’s daughter and if she had immediately entered the house and handed the notice to her father.
[22] (1997) 190 LSJS 126 at 132-133.
Doyle CJ, who agreed with Duggan J, added:[23]
For the reasons given by Duggan J, in my opinion the appeal should be dismissed. I wish to add just this. It is not appropriate to attempt to say categorically that will amount to a delivery for the purposes of s47 (G) (2a) (a) of the Road Traffic Act. What is a delivery will, as Duggan J says, depend upon the circumstances of the particular case. I simply wish to make it clear that in my opinion it is not, in all cases, necessary that the driver receive the document into his immediate possession or immediate control for there to be a delivery. That, of course, is how delivery will usually take place. But something less than that will suffice in some situations, particularly if the driver refuses to accept the document. To take a simple example, a driver might refuse to handle the document and allow it to fall at the driver’s feet. I have no doubt that in that situation there would be a sufficient delivery. Each case will turn upon its own facts, and all that the Court is deciding in this case is that on the particular facts here delivery did not occur.
[23] Police v Capasso (1997) 190 LSJS 126 at 126.
In Capasso v Police Lander J said:[24]
It seems to me that the intention of Parliament was clear enough, and that is to ensure that each defendant is advised orally in respect of those rights contained in the prescribed advice, and also has delivered to him or her a copy of the information contained in the prescribed written notice. Parliament, in my opinion, intended that there be a communication to every defendant of the same information in relation to that defendant’s rights.
…
The obligation of delivering the written notice rests upon the person operating the breath analysis instrument. … His obligation was, pursuant to s 47g(2a)(a), to deliver to the appellant the prescribed written notice which is the notice in Pt B of Sch I to the Road Traffic (Breath Analysis and Voluntary Blood Test) Regulations 1994 (SA).
[24] (1996) 66 SASR 385 at 391.
Lander J then set out the text of the prescribed written notice. It is unnecessary to do so here. The text is now found in Sch 1 Form 4 Pt B of the Road Traffic (Miscellaneous) Regulations 2014 (SA). It suffices to quote Lander J’s summary:[25]
The effect of the written notice is to advise a person that that person has apparently committed an offence and that the legal effect of a breath analysis result is a presumption that it accurately records the concentration of alcohol in the blood. It brings to the attention of the defendant, as does the previously given oral advice, that the defendant may have a sample of blood taken and analysed. It shows the procedures that the defendant ought to adopt so as to make that blood test admissible to rebut the presumption in s 47g.
Parliament has intended that the defendant be given both the oral and the written advice so that the defendant is in possession of all of the information necessary to consider his or her position in relation to the alleged offence.
[25] Capasso v Police (1996) 66 SASR 385 at 393.
The course of the trial
Consistent with the approach set out in Dunstall quoted above, by the tender of a certificate under s 47K(5) RTA the prosecution in the present case established that the appellant submitted to the analysis of a sample of his breath by means of a breath analysing instrument on 12 August 2017 at 10.09 am and that the instrument produced a reading of 0.083 gm of alcohol in 210 litres of breath.[26] By the tender of a certificate under ss 47K(5) and (7) RTA the prosecution attempted to establish that the requirements and procedures in relation to breath analysing instruments and breath analysis under the RTA, including the requirements under ss 47K(2) and (2a), were complied with.[27] Section 47K(7) RTA provides:
[26] Exhibit P3.
[27] Exhibit P3.
(7) A certificate purporting to be signed by a person authorised under subsection (1) and to certify—
(a)that, on a date and at a time specified in the certificate, a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument; and
(b)that the prescribed oral advice and the prescribed written notice were given and delivered to the person in accordance with subsection (2a)(a); and
(c)that—
(i)the person did not make a request for an approved blood test kit in accordance with the regulations; or
(ii)at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subsection (2a)(b),
is, in the absence of proof to the contrary, proof that the requirements of subsection (2a) were complied with in relation to the person.

As mentioned, at trial the defence case was that the appellant was not provided with any paperwork related to his breath analysis including a copy of the prescribed written notice. Consequently, the written advice not being provided, the presumptions contained in ss 47K(1) and (1ab) RTA were not enlivened.[28]
[28] I have focussed on the asserted failure to provide to the appellant the prescribed written notice as required by s 47K(2a) of the Road Traffic Act 1961 (SA) as that was what the Magistrate identified as the issue in dispute. However, arguably, the defence case also extended to the failure to comply with s 47K(2) of the Road Traffic Act 1961 (SA).
Senior Constable Jones conducted the alcotest and breath test procedures on the appellant. He was called to give evidence as part of the prosecution case. His evidence was to the effect that before leaving the breath testing van the appellant was given a copy of the breath test printout,[29] a copy of the breath analysis statement[30] and a copy of the prescribed written notice. He was also given a notice disqualifying him from driving immediately. In cross-examination it was put to Senior Constable Jones that the appellant left the breath testing van without being in possession of any paperwork. He denied this. He said he specifically recalled this breath test. He placed a copy of the breath analysis statement on the table in the van in front of the appellant and said, “that’s yours”. He said the appellant took the statement.
[29] Exhibit P6.
[30] Exhibit P9.
The following exchange occurred in cross-examination:
QYou read Mr Treloar his blood test rights after advising him of his reading.
AYes.
QBut again you never handed over any document to him did you.
AI did.
QIn fact you read him his rights and at this point in time Mr Treloar had not seen any paperwork from you in relation to the breath analysis procedure.
AAt the commencement of the reading of the blood rights, he had his statement in writing signed and he was given it - that statement, and he had taken possession of that statement in writing. At the conclusion of the blood rights I gave him the written notice of his blood rights. He was given a copy of that and allowed to read it - and appeared to read it.
…
AI gave him a copy and I remember him perusing it - reading it. You’d have to ask him as to whether he read it or not - whether he was able to read it.
QAgain we put it to you that you didn’t actually hand over a copy of this.
AI gave him the written notice.
QIn fact during the breath analysis procedure in the van you didn’t hand any documents to Mr Treloar.
AI gave - I want to be quite clear on this your Honour. He was given a statement in writing - his breath analysis reading. He was given his blood right documentation - the certificate, the blue copy. No doubt about it. And those two items were not present in the van when he left.
In his evidence Senior Constable Jones had said that Senior Constable Robb was present in the breath testing van throughout the breath testing procedure being undertaken. Senior Constable Robb was not sitting with Senior Constable Jones and the appellant in the back part of the van, but was sitting in either the driver’s or passenger seat of the van. Senior Constable Robb signed exhibit P9, the breath analysis statement (which Senior Constable Jones said was provided to the appellant in purported compliance with s 47K(2) RTA), purporting to corroborate the delivery of the prescribed written notice to the appellant by Senior Constable Jones.
In cross-examination it was put to Senior Constable Jones that Senior Constable Robb was not present throughout the breath testing procedure. It was put that Senior Constable Robb left the van to alcotest the appellant’s passenger, Mr Keynes (who said in his evidence that he had requested that he be tested as he and the appellant were on their way to pick up Mr Keynes’ car and Mr Keynes wished to know whether he was fit to drive). Senior Constable Jones agreed that Mr Keynes was alcotested by Senior Constable Robb but was categorical in his evidence that that test did not take place until after Senior Constable Jones had completed the entirety of the breath testing procedure with the appellant in relation to which Senior Constable Robb was present in the van throughout. Further, Senior Constable Jones said that Senior Constable Robb signed the breath analysis statement in the presence of the appellant.
In addition to being breath tested and having his licence immediately disqualified as a consequence of the result, the appellant’s car was impounded. The paperwork essential to impounding his vehicle was completed after the breath test analysis had been concluded and outside the breath testing van. Senior Constable Jones said that he did not see the appellant take the breath test statement and prescribed written notice with him when he left the van, but was adamant that the documents were provided to him prior to doing so.
Both Senior Constable Jones and Senior Constable Robb gave evidence of the layout of the breath testing van. Importantly, the van was not comprised of, in effect, two compartments but one. Thus Senior Constable Robb could move from the driver’s seat to the testing area without having to leave the van (by passing through the gap between the front passenger’s seat and the driver’s seat). Further, the table at which Senior Constable Jones sat with his back to Senior Constable Robb was within a metre of where Senior Constable Robb sat. This evidence suggested that Senior Constable Robb was in a position to overhear the entirety of all exchanges between Senior Constable Jones and the appellant during the course of the breath testing procedure and to see all interaction if he sat, as the appellant said he did, askew.
In his evidence Senior Constable Robb said that he remained present in the breath testing van throughout the entirety of the breath testing procedure. He said he was present when the prescribed written notice was provided to the appellant. However, in cross-examination he said that he had no involvement with the “paperwork” undertaken as part of the testing process.
In cross-examination Senior Constable Robb agreed that Mr Keynes was present and that he asked to be alcotested. The following exchange occurred:
QOkay, and do you recall that that person, Patrick [Mr Keynes], the passenger who was present at the scene asked police if he could have an alcotest.
AYes he did afterwards before they left on foot yes.
QSo he asked and it’s true that you performed that breath analysis.
AWasn’t breath analysis.
QSorry the alcotest.
AIt was an alcotest, yeah I recon [sic] it was.
QYep so you performed the alcotest and your memory is not 100% but you recall that that occurred when the breath analysis, when Mr Treloar the defendant was inside the breath analysis van.
ANo, no that would have been after Mr Treloar had left the van.
QOkay.
AIt [was] … on the street.
QYou say “would have been”.
AWas, is that better, was.
QNot disputing that the alcotest between you and the passenger occurred out on the street.
AYep.
QBecause that was the handheld device.
AYes.
QBut that occurred, the timing of that occurring, you didn’t make any notes of that.
ANo it would however be recorded on the alcotest I believe Senior Constable Jones may have obtained a download of that alco to tell you.
QBut you performed the alcotest.
AYes.
QOkay and is it possible that that alcotest occurred on the street outside the breath analysis van while Mr Treloar and Officer Jones were inside the van.
ANo absolutely not, absolutely not.
QOkay the.
AAs I say, I believe that Senior Constable Jones has the download from that alcotest.
QI’m not asking you what Officer Jones has.
ANo I’m answering your question that download will give you the time that your client submitted to the alcotest and it would give you the time that his friend submitted to the alcotest. The breath analysis instrument will tell you at what time the breath analysis was done and I was present in the van whilst the breath analysis was been [sic] done so looking at the times I cannot have been doing an alcotest and being present in the van.
In re-examination Senior Constable Robb was taken to exhibit P9 (the breath analysis statement purportedly handed to the appellant in compliance with s 47K(2) RTA) for the first time. He agreed that he had signed exhibit P9 indicating that Senior Constable Jones had given the prescribed written notice to the appellant. Further cross-examination then occurred.
QAnd in relation to your signature on the document that you are holding on p. 3.
AYes.
QThat is a signing off that the oral advice was given and that the paperwork in relation to the blood test was given. Is that correct.
AA written notice yeah.
QYep. Now the delivery of that paperwork, do you know what that paperwork looks like.
AOne is an A4 piece of blue paper and the, if you elect to have a blood test kit, that is a smaller piece of blue paper.
QOkay. And in relation to that blue piece of paper, do you recall that the blue piece of paper was placed into the, on the middle of the table between Officer Jones and Mr Treloar.
AI don’t remember where the paperwork was placed no.
QOkay. And do you recall based on the fact that you don’t recall where that paperwork was placed, is it possible that the paperwork was placed in the middle of the table.
AIt’s possible.
QOkay.
AOr it could have been handed to him, I don’t know.
QOkay and there are other papers that must be provided to the driver or the subject of the breath analysis, being the statement in writing. Are you familiar with that document.
AYes.
QThe breath analysis print out.
AYes.
QAnd based on your memory of this, is it possible again that that paperwork was placed into the middle of the table in the breath analysis procedure.
ACould have been yes.
At the conclusion of cross-examination the Magistrate asked:
HIS HONOUR
Q... If something had been left on the table sitting between the two of them, would you have seen that before you took off.
AYes because the, the keyboard and the breath analysis would have to be almost -.
QBattened down.
ARestrained as, yes, yeah.
QYou don’t recall picking any paperwork up off that table or seeing it anywhere else in the van.
ANo, no.
QThank you.
Thus at the close of the prosecution case the question of whether the prescribed written notice had been delivered to the appellant was in issue. Senior Constable Robb’s oral evidence suggested that his purported direct corroboration of the delivery of the prescribed written notice was questionable, however, circumstantially, he having packed the van up and seen no paperwork lying around, his evidence was corroborative of the delivery of the prescribed written notice by Senior Constable Jones.
Further, at the close of the prosecution case Senior Constable Robb had advised the court of a possible way in which the question of whether he had left the breath testing van during the course of the breath testing procedure could be resolved by resort to evidence independent of him and Senior Constable Jones — the printout recording when alcotests were conducted on the relevant day using Senior Constable Jones’ alcolizer (there being no dispute that the equipment, the alcolizer, used to conduct the alcotest on Mr Keynes was in Senior Constable Jones’ possession).
The importance of whether Senior Constable Robb left the van during the breath testing procedure lay in the impact that a finding that he did could have upon any assessment of the credibility and reliability of the officers.
Following the close of the prosecution case there took place a discussion concerning the availability and potential tender of the alcolizer printout. The transcript records that following that discussion the Magistrate re-called Senior Constable Robb. I note that despite being previously released, the Senior Constable was not re-sworn. In any event, upon returning to the witness box the Senior Constable was examined by the Magistrate.
HIS HONOUR
Q… You conceded in your evidence in cross examination that you conducted a breath test on a friend of the defendant’s. Is that correct.
AYes your Honour.
QAnd you said that evidence of that test would be in Senior Constable Jones’s breath tester, correct.
AYes.
QAre you able to recognise any print out that might come from that breath test machine.
AI know what the printout looks like.
QCould you look at the document that the prosecutor is about to give you. What does that tell you.
AYeah that, that’s a partial, it’s not the complete record of the alcotest but that’s certainly information that would be contained on an alcotest printout yes.
QAnd what does it seem to indicate.
AWell it, it gives, I don’t know what all this first part is. I have no idea what that, that’s all about. But -.
QWell let’s just - let’s just go straight to what the issue is here.
AYep.
QDoes it give you a date when the breath test was done.
AYes it does.
QDoes it give a time.
AYes.
QDoes it give a location where you did the breath test.
ANo.
QAll right, so let’s go to the date. What date does it say.
AThey’re all dated 12 August 2017.
QWould it indicate who the breath test was done on.
ANo it doesn’t.
QDoes it give a, is there a time on a breath test that you were referring to.
AYes, time of every test is on here yes.
QOkay, what’s the latest in point of time on 12 August.
AWell the result was at 10.22.
QAnd what was that result.
A0.140 grams of alcohol in 210 litres of breath.
QAnd you’re not able to say whether that’s the test that refers to the defendant’s friend.
ANo, no.
QNo. Are you looking at the time sequence to see how it fits in with the breath test immediately before that.
AYeah well they’re only two on here that have a result next to them. The previous one was the same date 9.40 a.m. with 0.083 grams of alcohol in 210 litres of breath.
QOkay thank you.
AThe rest, the rest - just to clarify. The rest of these entries all relate to when the instrument is turned on or turned off or turns itself off. It records everything.
The printout was not tendered.
It is the evidence given by Senior Constable Robb upon being recalled as to the timing of the two alcotests conducted on 12 August 2017 and the results as taken from the alcolizer printout that the respondent concedes was inadmissible.
Mr Keynes gave evidence in the defence case. For the defence the critical aspect of his evidence was that he claimed to have requested and been alcotested by Senior Constable Robb whilst the appellant was in the van with Senior Constable Jones. In short, his evidence conflicted with that given by Senior Constables Jones and Robb in that, if accepted, the officers were either mistaken or lied in their assertion that Senior Constable Robb was present in the breath test van throughout the testing procedure conducted with the appellant.
In the course of examination-in-chief the Magistrate asked Mr Keynes if, upon being alcotested, he could remember what his reading was. Clearly the Magistrate was attempting to elicit evidence purporting to identify which alcotest result in the alcolizer printout belonged to Mr Keynes. Mr Keynes could not recall precisely his result. He first said it was just over the limit which he nominated as 0.05. He then said his result was greater than 0.08, but by how much he could not say. Whatever it was, he knew, having been tested, that he could not drive.
In cross-examination the prosecutor put to Mr Keynes that he was tested at a time after the appellant had got out of the breath testing van. He denied this. He also did not think that his memory of events was affected by the alcohol he had consumed. In bringing his cross-examination to a close the prosecutor asked:
QIt’s also possible that as Jayden [Mr Treloar] has exited the booze bus that he had in his possession the paperwork that he’s required to have wasn’t he.
ANot that I seen.
QBut it’s possible that he had that in his possession that you hadn’t seen.
AI guess though I hadn’t seen it though, yeah.
QThank you.
The Magistrate then asked Mr Keynes:
QWhen Mr Treloar came out of the van after the breath analysis had taken place, you’ve given evidence that he had no paperwork with him.
AYes that’s correct.
QYou’ve given evidence that once he came out, there was more paperwork that had to be done in relation to the impounding of the vehicle. Do you remember that.
AYes.
QAll right. When you walked off, do you remember if he had any paperwork, that’s the two of you. I understand you went down Port Road -.
AYes.
QTowards the Port Adelaide area.
AYes, yeah.
QDirection.
AYep.
QDid he have any paperwork with him.
AYeah he had those forms that we received from the police officer on the bike.
QSo the police officer on the bike had given him some paperwork.
AYes.
QAnd you say he, when he, how do you distinguish paperwork that he had then between what he was given then as opposed what he might have been given in the van.
ABecause when he exited the van he didn’t have anything on him. He went over to the bike, I watched them all, filled out all the papers and then he left. Those colourful papers.
QWhen the police officer who drove the booze bus did the breath test on you, he didn’t give you any documentation in relation to that test did he.
ANo.
Next the appellant gave evidence. With respect to the breath testing procedure conducted in the breath testing van, the appellant said that after providing two samples of his breath Senior Constable Jones advised him of the result. He did so by reading from a document described as “a little receipt” that was still attached to the breath analysis instrument.[31] He was not given a copy of that document. Senior Constable Jones did take that document from the instrument and place it on the table at which he and the appellant sat, showing the appellant the results. The document remained on the table. It was not given to the appellant and he denied being invited to take it. The appellant then gave the following evidence:
[31] See exhibit P6.
QDid the officer offer you a blood test.
AYes.
QDid you receive any paperwork when you were offered a blood test.
ANo.
QDo you recall that the officer appeared to be reading from a script or document.
AYes.
QOkay and do you recall that there was a blue piece of paperwork that corresponded with that script.
AYes.
QAnd were you given a piece of that blue piece of paper.
ANo.
QWhat happened with that blue piece of paper.
AIn the middle of the table.
QWere you given an opportunity to read it.
AYes.
QWere you given any paperwork inside the van.
ANo.
QWas there any paperwork that you felt you were entitled to retain at the end of the breath analysis procedure.
ANo.
QDid you receive any paperwork outside of the van.
AYes.
QWhere did you receive the paperwork.
AOfficer Jones writ it out on the back of his motor bike.
QOkay and what paperwork did you receive.
AI believe it was stuff to do with my impounding of my car.

Toward the conclusion of his evidence-in-chief the appellant said that Mr Keynes asked to be alcotested and was tested by Senior Constable Robb whilst the appellant was seated in the back of the van with Senior Constable Jones.
In cross-examination the appellant said that when in the breath testing van Senior Constable Robb sat “side saddle” across the driver’s seat and, consequently, was in a position to look directly at the appellant who was seated at the table in the back. He conceded that the “receipt looking” document and the prescribed written notice were placed on the table in front of him, but denied that the documents were so placed for him to have and denied that he left with that paperwork in his possession in addition to that provided in relation to the impounding of his vehicle. In re-examination he repeated that he did not take possession of any document whilst inside the breath testing van. His memory was that the documents referred to remained on the table in the van when he left.
It was never put to the appellant that he was mistaken or was lying in his assertion that Senior Constable Robb left the van to alcotest Mr Keynes. Nor was he questioned about the effect of the alcohol he had consumed on his memory.
The Magistrate’s reasons
In his ex tempore reasons the Magistrate observed that there was only one issue in dispute and that was whether the prescribed written notice had been delivered to the appellant in the breath testing van after the breath analysis had been conducted and the prescribed oral advice administered.[32]
[32] As indicated, this was not correct. The defence case extends to non-compliance with s 47K(2) of the Road Traffic Act 1961 (SA).
The Magistrate observed that exhibit P1, a certificate tendered under s 47K(3a) RTA, showed that on 12 August 2017 at 9.40 am at Malcolm Street, West Croyden, the appellant submitted to an alcotest that indicated that the prescribed concentration of alcohol may have been present in his blood. At 10.09 am an analysis of breath revealed that the appellant had a blood alcohol concentration of 0.083 gm in 210 litres of breath. The Magistrate then referred to Senior Constable Jones’ evidence. He said:
I had the benefit of hearing evidence from the police officer who pulled the defendant aside on the morning of 12 August 2017, namely Senior Constable Jones. There is no doubt he is an experienced police officer and gave his evidence in a clear and concise manner as one would expect of a police officer, especially with such experience. He was cross-examined extensively in relation to what occurred in the van and the timing of a breath test conducted by Robb, that is the person who drove the breath analysis van to the site, in relation to the conduct of the breath analysis on the defendant at the time. His evidence was absolute in that firstly, Robb did not leave the van during the process of the breath analysis testing and his evidence also was very direct and unwavering in relation to the issue of whether the defendant received the documents that he is obliged to provide the defendant, and in particular the statement in writing.
I understand the breath test conducted by Senior Constable Robb to which the Magistrate refers in this passage to be the alcotest conducted on Mr Keynes.
In the next passage of his reasons the Magistrate indicated that he approached Senior Constable Jones’ evidence with caution. He expressed concern at the clarity with which Senior Constable Jones remembered the breath testing of the appellant in contrast to his poor memory of the impounding process that followed.
Turning to Senior Constable Robb, the Magistrate noted that he was a good witness whose evidence was clear on the issue of when he alcotested Mr Keynes. The Magistrate then stated:
On questioning from me, and after hearing evidence from Robb, there came about evidence in relation to the breath tester recording a possible breath test which has been referred to by the witnesses on the morning in question.
A copy of a printout was made available and Senior Constable Robb gave evidence after being recalled by me ̶ and I have already given reasons why I granted permission for him to be recalled ̶ but at 10.22 there was evidence on the printout of someone recording a breath test showing .140 g of alcohol in 100ml of blood. Contrast that with the breath analysis of the defendant at 9.40 a.m. of .083. I will come back to that evidence later on.
Subsequently the Magistrate revealed the use that he made of this evidence. He said:
The time of 10.22 fits in which the time scenario of what occurred on the day this offence occurred. The original breath test occurring at 9.40 and then the other breath analysis occurring at 10.09 so the breath testing of Patrick Keynes it would seem occurred somewhere around 10.22 on the side of the road which falls outside the time frame of when the defendant and his witness indicate that the breath testing was conducted by Robb and I think therefore that they are mistaken about that.
That evidence is not conclusive of anything but on top of that I add the evidence that Mr Keynes himself gave, that he recalls his reading was over .08. Also the defendant cannot remember himself the police officer Robb corroborating the documents by inserting his signature on the documents; so there is lapse in memory both in relation to defence witnesses and the complainant’s witnesses.
In short, the Magistrate has used the evidence of the timing of the alcotests recorded in the alcolizer printout read into evidence by Senior Constable Robb in the course of resolving the dispute between the officers on the one hand the appellant and Mr Keynes on the other as to whether Senior Constable Robb was present throughout the duration of the appellant’s breath testing procedure.
The Magistrate then stated:
I do place some weight on the fact that both the defendant and his witness were under the influence of alcohol at the time. I also take into account the evidence of Senior Constable Robb who gave evidence that there was no paperwork left on that table inside the van when he drove the van away, that he would had to have secured the various bits of equipment and so my findings in relation to that are that the papers were handed to the defendant and that he did take them. As to what happened to them thereafter I do not know. I do not think the defendant and his witness are lying. I just think that their memory was clouded by their consumption of alcohol.
Accordingly the Magistrate admitted all certificates initially received de bene esse into evidence and concluded that count 1 had been proved beyond reasonable doubt.
Consideration
Counsel for the respondent contended that the question for the Court was whether, notwithstanding the error conceded, a miscarriage of justice had occurred. She submitted that the evidence of the times at which the alcotests were conducted was not determinative of guilt, that this Court should give significant weight to the credibility findings made by the Magistrate and to the Magistrate’s conclusion that the appellant and Mr Keynes had suffered lapses in memory due to their consumption of alcohol, and, in the light thereof, after an independent assessment of the evidence, conclude that the appellant was rightly convicted.
The appellant submitted that the matter should be remitted for re-trial.
In my view the respondent’s concession was rightly made. The provenance of the document handed to Senior Constable Robb was not established. The purported record was only a partial record. It contained information that would be on an alcolizer printout, but Senior Constable Robb did not say that it was an alcolizer printout. Further, he did not identify the document as a printout from Senior Constable Jones’ alcolizer. Even if he did, the printout was hearsay, save unless it could be brought within a statutory exception. Then, there was the potential application of the collateral issue rule.
In short, Senior Constable Robb gave evidence of matters not within his own knowledge or personal experience, those matters being printed on a document the authenticity and provenance for which he did not vouch. The evidence was inadmissible.
The right to appeal against a conviction imposed by the Magistrates Court is contained in s 42(1) of the Magistrates Court Act 1991 (SA). The powers available to this Court in the determination of such appeal are contained in ss 42(4) and (5) of the same Act. In Gazepis v Police (Gazepis) Doyle CJ, with whom Lander and Bleby JJ agreed, said:[33]
The powers of this Court on hearing the appeal are to be found in s 42(5) of the Magistrates Court Act 1991 (SA). The power is expressed in a form which is quite common, and includes the power to “confirm, vary or quash the judgment subject to the appeal”.
Such provisions in this State have been interpreted as not requiring or permitting the court to allow an appeal, despite an error in the court below, if the court is satisfied that there has been no miscarriage of justice: see, eg, Newman v Byrne [1969] SASR 350 at 353, per Mitchell J and O'Leary v Daire (1984) 13 A Crim R 404 at 416, per White J. I deliberately refrain from expressing any view upon the question of whether it is incumbent upon the appellant to demonstrate a miscarriage, or incumbent upon the respondent to demonstrate that none has occurred.
[33] (1997) 70 SASR 121 at 129.
I adopt the same approach, including expressing no opinion as to whether s 42(5) of the Magistrates Court Act 1991 (SA) burdens the respondent with having to demonstrate that any error committed is not such as to have caused a miscarriage of justice. The resolution of that issue is ultimately a question of construction about which I did not have the benefit of full argument.
In any event, I have formed the opinion that this appeal must be allowed.
It has long been accepted that an appeal pursuant to s 42(1) of the Magistrates Court Act 1991 (SA) is in the nature of a rehearing. This is reinforced by r 286 of the Supreme Court Civil Rules 2006 (SA). In Taylor v Hayes, in relation to ss 177(1) and (2) of the Justices Act 1921 (SA), the forerunner to ss 42(1) and (5) of the Magistrates Court Act 1991 (SA), Perry J surveyed the authorities regarding this Court’s role before stating:[34]
Grounds of appeal under the Justices Act, when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the magistrate’s findings. While it must give due weight to the advantage held by the magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for rehearing before the same or another court of summary jurisdiction.
Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the magistrate upon which it was open for him to reach the decision the subject of the appeal.
[34] (1990) 53 SASR 282 at 291-292.
In the present case the inadmissible evidence was used by the Magistrate in the resolution of issues of credibility and reliability. Even if I were minded to defer to the Magistrate’s findings as to the credibility and reliability of each of Senior Constables Jones and Robb, the appellant and Mr Keynes, which I doubt is permissible seeing as this Court’s task is to undertake an independent assessment, those conclusions are infected by the use made of the inadmissible evidence.
To sustain the conviction on count 1 it is necessary to assess afresh the credibility and reliability of each of the witnesses called by the prosecution and defence in order to determine whether it is more likely than not that the prescribed written notice was not delivered. However, this Court did not have the benefit of seeing and hearing the witnesses and thus is in no position to undertake such task.
I add; it is difficult to take into account the extent to which the appellant and Mr Keynes had been drinking in assessing their reliability. Alcotest and breath test readings do not provide a basis upon which to conclude that memory and perception were necessarily affected, especially an alcotest which is only indicative. True it is common knowledge and experience that alcohol affects memory, perception and motor skills, but such assessment is ordinarily undertaken on the basis of the common understanding of the effect of the number of drinks and type of drink that a particular witness has had and his or her experience as a drinker. That is because it is the effect of the number and type of alcoholic drink to which a trier of fact, by dint of common knowledge and experience, can relate. I do not consider that a Court is in a position to reason in the same way from the results of a breath analysis expressed in terms of grams per 210 litres of breath, save perhaps in the case of extremes (and not in relation to the alcotest). The appellant was not asked what and how much alcohol he had had to drink nor over what period he had been drinking. The evidence did not support any firm conclusion that his memory and perception were likely affected such that he was truthful but mistaken about his recollection of what happened to the prescribed written notice.
Lastly, the difficulty in assessing the appellant’s credibility and reliability is compounded by the fact that this Court does not have the benefit of the appellant’s evidence on the issue of whether Senior Constable Robb left the testing van at any time during the breath testing procedure.
In short, on an independent assessment of the evidence this Court cannot resolve the issue in dispute as it has not had the benefit of seeing and hearing the witnesses.
Conclusion and orders
In view of my conclusion, no need arises to consider the grounds of appeal asserting that the Magistrate erred in recalling Senior Constable Robb and impermissibly descended into the arena in leading evidence from the Senior Constable upon his recall.
I allow the appeal, set aside the conviction on count 1 and remit the matter to the Magistrates Court for retrial.