Willem Staal v SA Police No. SCGRG 93/1384 Judgment No. 4124 Number of Pages 3 Vehicles and Traffic Offences

[1993] SASC 4124

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Vehicles and traffic - offences - Appeal against conviction - prescribed concentration of alcohol - appellant blew into breath analyser on four occasions - two aborted attempts - third attempt recorded zero reading - fourth attempt recorded 0.152 per cent - police did not attempt to refute evidence of appellant - not lawful to require appellant to submit to fourth attempt - probability that breath analyser faulty sufficient to rebut s47g Road Traffic Act presumption - appeal allowed. Road Traffic Acts47g. Jones v Dunkel and Anor (1959) 101 CLR 298 and Flavel v Samuels (1970) SASR 54, applied. Evans v Benson (1986) 46 SASR 317, considered.

HRNG ADELAIDE, 19 August 1993 #DATE 25:8:1993
Counsel for appellant:     Mr P Cuthbertson
Solicitors for appellant:    Stuart Lindsay
Counsel for respondent:     Mr A Wainwright
Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 OLSSON J This is an appeal against conviction, which arises in circumstances which are somewhat out of the ordinary. 2. At about 9.20pm on 25 September 1992 the appellant was driving his motor vehicle south along Hendon Street, Clovelly Park. Police officers on uniform patrol were travelling behind him. They noted that his rear registration light was inoperative. The officers pulled him over and drew attention to the defect. 3. He professed ignorance of the situation, got out of his vehicle and examined the rear of the vehicle. The police officers obtained his particulars. Whilst doing so they detected a smell of liquor on his breath, although there was no overt indication that he was affected by liquor. 4. The police required the appellant to submit to an alcotest. This displayed a positive result and a breath analysis vehicle was summoned. It arrived at about 10.00pm. 5. The evidence of the appellant, which was not refuted, was that, on the first two occasions on which he blew, the breath analysis machine indicated that he had not given a sufficient sample. On the third attempt the operator said that sufficient example had been given, but that the result was shown as a zero concentration. This situation is confirmed by the breath analysis print out which was before the learned magistrate. That print out reads "0.000 per cent. SUFFICIENT SAMPLE". 6. The appellant then said that, under those circumstances, he was going home and went to leave, whereupon another police officer told him that he was required to blow a fourth time. 7. He objected, it being admitted by the police that the third blow had provided a sufficient sample. At the police insistence and under some protest he did blow a fourth time. On this occasion the equipment registered a result of 0.152 per centum. 8. The police operator then issued the appellant with a completed certificate pursuant to section 47g of the Road Traffic Act, showing that result. He was charged, inter alia, with a breach of section 47b on the basis of it. He did not exercise his right to have a blood test taken. 9. When the matter came on before the learned magistrate the appellant pleaded not guilty and evidence was given to the above effect. The prosecution sought to tender and rely on the section 47g certificate. It did not seek to lead any evidence to impugn that given by the appellant as to relevant factual events. Indeed, it is said that the magistrate offered the prosecutor an adjournment to call the breath analysis operator but he elected not to call him. 10. It was argued on behalf of the appellant both that the request for the fourth blow was unlawful and that, in all of the circumstances, it had not been shown that it was more likely than not that the breath analysis equipment was operating reliably that evening. 11. The learned magistrate responded to those suggestions by holding:-
    "That result (ie the zero read out on the third blow) was
    a questionable result (even if it can accurately be described as a
    result) given the positive alco-test result. It seems to me that
    it was, in the circumstances, lawful for the breath analysis
    operator to again direct the defendant to exhale into the breath
analysing instrument." 12. He went on to say that, notwithstanding that the appellant's evidence stood unchallenged, it seemed nonsensical to him that the operator accepted the third read out, but then acquiesced in a direction by another police officer that there be a fourth blow. 13. The learned magistrate thereupon convicted the appellant on the basis of the police certificate, no attempt having been made either to call the breath analysis operator or any other police officer to depose to what had taken place. 14. With all due respect to the learned magistrate, it seems to me that he utterly failed to give consideration to the implication of that situation in terms of the rule in Jones v Dunkel and Anor (1959) 101 CLR 298, I would unhesitatingly infer that the operator, or any other police officer, if called, would not have been able to refute the evidence given by the appellant. 15. Against that background, whilst what fell from the learned Chief Justice in Evans v Benson (1986) 46 SASR 317 at 328 must clearly be borne in mind, what was said in Flavel v Samuels (1970) SASR 54 prima facie applies in this case. On the only evidence before the learned magistrate there had been a sufficient sample and a zero result had ensued. There was no question of there having been an abortive blow on the third occasion. 16. As I have said, the implication of the principle of Jones v Dunkel is that it must be inferred in the instant case that, had the breath analysis operator been called, he would not have been able to refute the appellant's evidence as to what took place, including the evidence that, on the third blow, a proper sample was taken and produced a negative result. On the reasoning in Flavel v Samuels it was not lawful, in the particular circumstances, for any police officer to make a further request. In my view, having regard to what took place, any certificate arising from it should not have been admitted. 17. Alternatively, even if the request was lawful, the inconsistent readings clearly suggest, in absence of evidence to the contrary from the operator or some other witness, that it was more probable than not that the equipment was not working properly and was unreliable. This is lent colour by the undisputed evidence of the appellant that, on each of the first occasions he blew for a very long period of time, yet the equipment reported that there had been an insufficient sample. With all due respect to the learned magistrate there is simply no valid or logical reason to say that, in the circumstances, the reading of 0.152 was any the more accurate than the zero reading. The only extraneous evidence was some smell of liquor on the appellant's breath and a presumptive alcotest result. What must firmly be kept in mind is that the critical issue in this case was not whether the appellant had ingested alcohol. It was whether he had ingested sufficient alcohol to give rise to a reading of 0.152 per cent. That was a different issue altogether, and the state of the evidence, given the prosecutor's election, was that there was very good reason to believe that the breath analysis equipment was not operating properly. It is the only logical probability which arises and is sufficient, in any event, to rebut the statutory presumption which would otherwise arise on a non impugned section 47g certificate. 18. At the end of the day, it was for the prosecution to prove its case beyond reasonable doubt. The presumption arising from the purported certificate having been rebutted, it failed to do so. 19. The prosecution, having failed to accede to the invitation of the learned magistrate, has only itself to blame for the resultant debacle. 20. The appeal must be allowed and the conviction and orders resulting from it set aside.