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…

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.

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Details

AGLC: Treloar v Police [2019] SASC 128
Case: [2019] SASC 128
Decision Date: 24 July 2019

CaseChat Overview and Summary

The appeal in Treloar v Police concerns a challenge to a conviction under the Road Traffic Act 1961 (SA) for driving under the influence of intoxicating liquor. The appellant argued that a key procedural requirement for the presumptions of ss 47K(1) and (1ab) RTA was not met, as the prescribed written notice concerning the right to have a blood sample taken was not delivered to them. The dispute centred on the credibility and reliability of the evidence provided by the appellant, a witness he called, and two police officers involved in the breath analysis procedure. The Supreme Court of South Australia was tasked with determining whether the appellant's defence was substantiated, and if the Magistrate's reliance on inadmissible evidence affected the outcome.

The court had to decide if the appellant had successfully rebutted the presumptions by showing that the prescribed written notice was not delivered. This required an assessment of the credibility and reliability of the various testimonies. The appellant argued that the Magistrate had considered inadmissible evidence, which the respondent conceded. The central legal issue was whether, despite the error, a miscarriage of justice occurred that warranted the appeal being allowed and the conviction being quashed. The court also needed to address the admissibility of evidence presented by Senior Constable Robb, which the respondent conceded was inadmissible.

The Supreme Court of South Australia found that, on an independent assessment of the evidence, the court could not determine the outcome of the dispute as it had not observed the witnesses. The court held that the appellant's appeal should be allowed, the conviction set aside, and the matter remitted for retrial. The court reasoned that, due to the inadmissible evidence and the inability to independently assess witness credibility and reliability, the appellant's conviction could not be upheld. The court refrained from expressing an opinion on whether the burden lay with the appellant to demonstrate a miscarriage of justice or with the respondent to show that no such miscarriage occurred.

In conclusion, the Supreme Court allowed the appeal, set aside the conviction, and remitted the matter to the Magistrates Court for retrial. The court's decision underscored the importance of procedural compliance and the need for reliable evidence in such cases.

Orders

Orders of the court

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Background

Background to the litigation

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).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.