Yip v Frolich - [2004] SASC 285

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WILKEY
Judgment of The Honourable Justice Nyland
16 September 2004
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - PROOF OF PARTICULAR MATTERS AND RELATIONSHIPS - BREATH ANALYSIS TESTS
Crown appeal against magistrate's dismissal of complaint - refusal to take alcotest s 47E(1)(d) of the Road Traffic Act - strict liability offence - onus of proof - whether defence made out - appeal upheld.
Road Traffic Act 1961, ss 45, 47E, referred to.
Jasinski v Police [2004] SASC 183 (unreported); Czerwinski (1987) 47 SASR 44, applied.

POLICE v WILKEY
[2004] SASC 285
Magistrates Appeal: Criminal

NYLAND J: This is a Crown appeal against the dismissal of a complaint. The respondent was charged on complaint that:
1.On 3 April 2003 at Para Vista in the said State drove a vehicle, namely a motor vehicle on a road namely the car park of State Swim, Modbury North without due care, contrary to s 45 of the Road Traffic Act 1961.
2.On 3 April 2003 at Para Vista in the said State, being a person who was required under s 47E of the Road Traffic Act 1961, to submit to an alcotest, failed to comply with all reasonable directions of a member of the police force in relation to the requirement, contrary to s 47e of the Road Traffic Act 1961.
The respondent pleaded not guilty to both counts. The matter proceeded before a stipendiary magistrate in the Holden Hill Magistrates Court, criminal jurisdiction on 18 May 2004. On 10 June 2004, the learned magistrate delivered written reasons for judgment. He found the respondent guilty of the charge of driving without due care as contained in Count 1 of the complaint, but dismissed the charge against the respondent which related to his failure to take an alcotest as contained in Count 2 of the complaint.
The Crown now appeals against the order of dismissal of Count 2. The grounds of appeal are:
1.That the learned magistrate erred in finding that the prosecution bore the burden of proving that the respondent had not made out the defence provided by s 47E(4)(b) of the Road Traffic Act 1961.
2.That the learned magistrate erred in finding that the respondent had made out the defence provided by s 47E(4)(b) of the Road Traffic Act 1961.
There was no dispute at trial that the respondent’s motor car was involved in a collision with a Commodore motor vehicle in the carpark of the State Swim Centre at Modbury North at about 1.20 pm on 3 April 2003. The respondent, in evidence, gave an explanation as to how his stationary vehicle had moved unaided across the carpark to collide with the Commodore which was also stationary.
The magistrate found that the respondent’s memory of events was less than complete and/or accurate and preferred the evidence of the prosecution witnesses. He found that the respondent was in control of his motor vehicle and had allowed it to collide with the other vehicle. He therefore found Count 1 proved beyond reasonable doubt.
Constable Moyle of the Holden Hill traffic response section attended the carpark at about 1.45 pm together with Senior Constable Devitt. She informed the respondent that as she believed he had been involved in a collision in the preceding two hours he was required to submit to an alcotest. The respondent said that he was not driving the car. Constable Moyle then directed him to take a deep breath and exhale steadily into the mouthpiece with one continuous breath until she told him to stop.
The respondent agreed. Constable Moyle said he took a deep breath in and placed his lips around the mouthpiece. He gave a quick blow and then removed his lips from the mouthpiece. Constable Moyle repeated her request that the respondent blow into the mouthpiece with one continuous breath until she told him to stop, and asked whether he had any problem with that. The respondent said “No”, but again told her that he had not been driving the car. Constable Moyle again held the alcotest up to the respondent who once more did a quick breath into the mouthpiece. Constable Moyle again repeated her request and the respondent again told her that he understood but he was not driving.
The respondent once more only gave a quick breath. As a result, Constable Moyle told the respondent that he had failed to comply with her directions and that he might be reported for failing to comply with the alcotest. The respondent reiterated that he was not driving the car, following which Constable Moyle asked whether there was any medical reason why he might not have been able to blow as directed. She pointed out that it was a criminal offence to refuse or fail to provide a breath sample without good cause. She also told him that it was a defence if he had some physical or medical condition that prevented him from providing a breath sample but only if he asked for a sample of his blood to be taken instead, or could show that the condition prevented the taking of blood.
The respondent told Constable Moyle that he took a lot of medication for a heart problem and he could not blow a lot. Constable Moyle gave him a final opportunity to submit to the test but the respondent again failed to comply with her directions. The respondent told her that he had a heart problem, high blood pressure, anxiety and schizophrenia.
After advising the respondent that he would be reported for failing to comply with her directions, Constable Moyle again explained that it would be a defence to the charge if there was some physical or medical condition which prevented him from providing the sample but repeated that he could not use such a defence unless he forthwith requested a sample of his blood to be taken. Constable Moyle explained that the blood sample could be taken by a medical practitioner of the respondent’s choice and the police would convey him for that purpose at no cost. She asked the respondent whether he requested that such a sample be taken and he said “No, I do not, because I believe you are being prejudicial”.
The respondent at trial did not dispute that he was asked to submit to the test although there was some issue as to the number of tests which were conducted. There was also some dispute as to the place at which the tests were conducted as the respondent maintained that at all times he was seated and that had made it difficult for him to comply. Constable Moyle’s evidence was that the respondent had been asked three times when he was out of his motor vehicle.
The learned magistrate was unable to resolve that issue but indicated that he was inclined to believe that the respondent was seated at least once when he was asked to blow and that he probably did blow at least once when seated in the motor vehicle. He thought, however, that the respondent might have been confused, given his medical condition, and that he was upset about the accident.
The respondent, as part of his case, produced two medical reports. One was from Dr Gauvin, a psychiatrist, which disclosed that the respondent had been suffering from a bipolar disorder which had been in place for some years. Dr Gauvin, having heard the details of what happened with respect to the motor vehicle, and the interaction with police on the day in question, expressed the opinion that the respondent was hypomanic at the time and likely to have had diminished capacity, from a psychiatric viewpoint, to appropriately behave and respond to authority.
Dr Cameron was the respondent’s family doctor. In his report he referred to a long history of psychiatric illness, including severe depression and schizoid traits, as well as the bipolar mood disorder which was diagnosed and treated from July 2003.
The learned magistrate found the following facts proved:
·The respondent was asked to blow into an alcotest device on four occasions.
·The directions given were reasonable.
·The respondent failed to comply on all four occasions.
·The respondent was given clear directions which he understood.
·The respondent tried to comply with the directions given but was unable to do so owing to his mental and physical health.
·The respondent was “given all his s 47E rights to a blood test”.
·The respondent declined to have a sample of his blood taken.
The learned magistrate went on to say that the prosecutor had the onus of proof to disprove beyond reasonable doubt that the respondent had not satisfactorily explained a non-compliance with s 47E(5) to submit a sample of breath and found that the respondent had made out the defence prescribed in s 47E(4)(b). He therefore dismissed the charge as the prosecution had failed to prove Count 2 beyond reasonable doubt.
Section 47E(1)(d) of the Road Traffic Act 1961 (“the Act”) provides that a person driving a motor vehicle who has been involved in an accident may be required to submit to an alcotest or breath analysis or both. As the respondent was involved in an accident whilst driving his vehicle, as found by the learned magistrate, he was lawfully directed to undergo an alcotest and to provide a sample of breath.
Section 47E(3) of the Act provides that a person who refuses or fails to provide a sample of breath in accordance with reasonable directions given by a member of the police force is guilty of an offence. A defence is, however, provided by s 47E(4) of the Act.
Section 47E(4) is in the following terms:
(4)        It is a defence to a prosecution under subsection (3) that –
(a)    the requirement or direction to which the prosecution relates was not lawfully made; or
(ab) the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to –
(i)the consequences of refusing or failing to comply with the requirement or direction; and
(ii)the person’s right to request the taking of a blood sample under section 47F; or
(b)    there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction.”
An offence against s 47E(3) is one of strict liability. As Gray J said in Jasinksi v Police[1]:
“As earlier observed the purpose of “drink driving” legislation is the control of persons driving on the road with excessive amounts of alcohol in their blood for the protection of the public. The problems which result from such conduct give rise to the need for close regulatory control. The offence created by section 47E(3) is a strict liability offence. The word ‘failure’ in section 47E(3) simply connotes an omission. The legislature recognised the need for a statutory defence to avoid injustice in cases of a genuine inability to comply with a direction. Such an inability may arise from a physical or mental condition. The enactment of statutory defences in section 47E evidences the intent of the legislature to provide protection against any possible harsh consequences from the offence being otherwise a strict liability offence.”
[1] [2004] SASC 183 (unreported) [24]
If, therefore, there is a refusal or failure, the offence is complete, subject to the defence provided by s 47E(4). In this case, the respondent relied upon the defence provided in s 47E(4)(b), ie that there was good cause for the respondent’s refusal or failure to comply with Constable Moyle’s direction.
In Czerwinski v Hayes[2], the court considered an earlier version of the present s 47E(4). That was also discussed by Gray J in Jasinksi v Police (supra). In each case the court held that the defendant bore the onus of proving on the balance of probabilities that in the circumstances of the case there was good cause for his failure to comply with the directions of the police. In that respect, therefore, the learned magistrate in this case erred when he decided that the prosecutor had the onus of proof “to disprove beyond reasonable doubt that the [respondent] had not satisfactorily explained his non-compliance with the requirement of s 47E(5) (sic)” to submit to a sample of breath.
[2] (1987) 47 SASR 44
This error on the part of the learned magistrate was compounded by the finding made by him that the respondent had made out the defence provided by s 47E(4)(b).
Although s 47E(4)(b) provides the defence of good cause for the alleged refusal or failure, there are limitations placed by the Parliament on the circumstances in which that defence can be employed.
Before the defence can be employed, any necessary pre-condition set out in s 47E(5a) must be established. That section provides:
“(5a)A person may not raise a defence that the person had good cause for a refusal or failure to comply with a requirement or direction under this section by reason of some physical or medical condition of the person unless—
(a)    a sample of the person's blood was taken in accordance with section 47F; or
(b)    the person made a request as referred to in section 47F(2), but -
(i)a member of the police force failed to facilitate the taking of a sample of the person's blood as required by that section; or
(ii)a medical practitioner was not reasonably available for the purpose of taking such a sample; or
(c)    the taking of a sample of the person's blood in accordance with section 47F was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person.”
In this case, the respondent provided medical evidence to establish good cause for his failure to comply with the directions put to him by Constable Moyle. There is no dispute, however, that the respondent, having been informed of his rights to have a blood sample and of the consequences of failing to do so, declined to avail himself of that right. In so doing, he disqualified himself from relying on the defence in s 47E(4)(b) unless he could demonstrate the remaining three conditions applied. It therefore remained for the respondent to show that the taking of blood was not possible or reasonably advisable by reason of a physical or medical condition: s 47E(5a)(c).
The evidence produced by the respondent does not disclose any physical or medical reason why the respondent could not take a blood test. The evidence contained in the reports of Dr Gauvin and Dr Cameron does not address that issue, nor did the respondent offer any such explanation to Constable Moyle. The tenor of the evidence given by the respondent at trial was that as he believed he had not been driving, he should not have been asked to submit to the test, and he thought it unfair that he should be so asked.
There was, therefore, no evidence before the learned magistrate which would justify a finding on the balance of probabilities that the taking of blood from the respondent was not, in the circumstances, possible or reasonably advisable. In that situation, the respondent failed to satisfy any pre-condition of a s 47E(4) defence and inevitably should have had a conviction recorded against him of an offence under s 47E(3) of the Act.
In the circumstances, the appeal will be allowed and an order made that the matter be remitted to the Magistrates Court for re-hearing.