PARKER v POLICE No. SCCIV-01-1070 [2002] SASC 30

MULLIGHAN J The appellant was found guilty and convicted, after a trial, by a learned Magistrate of having on 5th May 2000 at Hahndorf driven a motor vehicle on Mount Barker Road while there was present in her blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961 contrary to s 47B of that Act. It was alleged that the concentration of alcohol was 0.127 grams in a hundred millilitres of blood. She appeals against that conviction.

A little before 9.30 pm on 5th May 2000 the appellant was driving a motor vehicle on her way home from a meal at the Hahndorf Inn and was stopped at a random breath testing station set up near Hahndorf. An alcotest was conducted at 9.29 pm and returned a positive result. The appellant was taken to the Mount Barker Police Station and underwent breath analysis at 9.56 pm which revealed the blood alcohol level which has been mentioned. The police complied with all requirements under the Act as to the setting up of the station and the administering of the alcotest and breath analysis. The police officer who operated the breath analysing instrument gave to the appellant the oral advice and delivered to her the prescribed written notice as to the operation of the Act in relation to the results of the breath analysis in compliance with s 47G(2a)(a) of the Act.

The learned Magistrate found the appellant understood the oral advice and contents of the written notice. She requested, and was given, an approved blood test kit pursuant to s 47G(2a)(b). She was then taken to the Mount Barker Hospital and the kit was used to take a sample of blood from her by a medical practitioner. That sample was divided, I assume, into approximately equal parts. They were placed into separate phials which were part of the kit. It was agreed at the trial that the medical practitioner received the kit unopened and complied with the necessary requirements and regulations regarding the taking of the sample. One phial was given to the police and the other to the appellant. Whilst at the hospital the appellant was informed that the phial given to the police would be sent to State Forensic Science ("the Centre") for analysis and she would be informed of the result by a notice sent to her by post. She was given the other phial containing part of the sample.

The part of the sample given to the police was subjected to analysis by a scientist at the Centre on 9th May 2000. The blood alcohol level could not be ascertained by the scientist because the blood was denatured and therefore unsuitable for analysis. A copy of the certificate to that effect was sent to, and received by, the appellant shortly thereafter. That scientist was not called to give evidence at the trial. It was agreed at the trial by the parties that no-one at the Centre was prepared to say why that part of the sample had become denatured.

The appellant called Dr Sykes, a chemical pathologist, to give evidence. He has had considerable experience in the testing of blood samples for the presence of alcohol. His employer, Gribbles Pathology, undertakes such tests upon request for the purposes of the Act. He is familiar with the approved blood test kits which are provided by the police to motorists pursuant to s 47G(2a)(b).

Dr Sykes told the learned Magistrate that a procedure must be followed to ensure that the blood taken is preserved and does not deteriorate before analysis is undertaken. There should be an anti-coagulant, usually sodium oxylate or potassium oxylate, in the bottom of the phial. It must be thoroughly mixed with the blood to prevent clotting which compromises accuracy of the analysis. In his work he rejects for analysis any sample which is clotted. He was shown the certificate of the scientist at the Centre to which I have referred and said that the Centre often used the expression "denatured". He said it means unsuitable for analysis because the blood is clotted or there is particular matter in the sample which renders it unsuitable for analysis, but essentially the expression means "clotted".

According to Dr Sykes, the only reasons why clotting could occur when using the kit is if there was no anti-coagulant in the phial, the anti-coagulant has not been mixed with the blood or the blood in the phial has been exposed to extreme temperatures. There was no evidence from which it could be inferred that the sample in the phial sent to the Centre could have been subjected to an extreme temperature. It was taken at Mount Barker at night on 5th May 2000 and, as has been seen, was examined by the Centre on 9th May 2000. Presumably it was sent to the Centre within a day or so of the blood having been taken from the appellant and in the meantime was kept by the police. It is highly unlikely that it would have been exposed to an extreme temperature whilst in the hands of the police or at the Centre. That possibility may be rejected. As to the other possibilities, Dr Sykes said that the absence of an anti-coagulant in the phial does occur from time to time. If denaturing occurs, it will happen over a period of 30 to 45 minutes and in less than an hour before the sample becomes fully clotted. He said that upon close examination of the phial, the anti-coagulant, which is a white powder, if present, can probably be seen before the blood is added but not thereafter.

It seems that the only likely possibilities are that there was no anti-coagulant in the phial which means that the kit was defective in that respect or that the person who took the sample did not shake it adequately or do what otherwise was necessary to ensure that the anti-coagulant and the blood were mixed which means that the use of the kit was deficient. I return to those possibilities shortly.

The learned Magistrate accepted the evidence of the appellant, whom he found to be a witness of truth, that when she returned home from giving the sample of blood, she placed the phial which had been given to her in her refrigerator and awaited the result of the analysis by the Centre. When she received the copy of the certificate from the analyst, the phial was still in the refrigerator. Although she appreciated that she could be charged at any time up to six months from the date of the alleged offence, she received advice from friends and decided some time after receiving the copy of the certificate that the matter was at an end. She then disposed of the phial and it was never submitted for analysis.

Pursuant to the scheme established by Division 5 of Part 3 of the Act, a driver of a motor vehicle stopped at a random breath testing station must submit to an alcotest and, if positive, to breath analysis even though there has not been inappropriate driving. I mention particular provisions of s 47G of significance in the present case. Section 47G(1) states:

"47G. (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.

(1b) No evidence can be adducted as to a blood alcohol reading obtained from a coin-operated breath testing or breath analysing machine installed in any hotel or other licensed premises.

The present position is as set out in s 47G(2a) which provides:

"47G (2a) Where 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."

"An approved blood test kit" is defined in s 47A as meaning "a kit of a kind declared by the Governor by regulation to be an approved blood test kit".

Reg 7 of the Road Traffic (Miscellaneous) Regulations 1999 provides:

"7. For the purposes of the definition of 'approved blood test kit' in s 47A of the Act (Interpretation), the following is an approved blood test kit:

the 'APPROVED "BLOOD TEST KIT" Section 47G(2a)(b) Road Traffic Act, 1961,' produced by Disposable Products Pty Ltd or by Sarstedt Australia Pty Ltd."

Further obligations of the police upon a request being made are set out in s 47FA which provide:

(a) a person submits to a breath analysis conducted under this Act at a place outside Metropolitan Adelaide; and

(b) the person requests a blood test kit as referred to in section 47G(2a); and

(c) it appears to a member of the police force that the person has failed or will fail, despite reasonable endeavours, to make safe and appropriate transport arrangements within the period of two hours after the conduct of the breath analysis to attend at a place at which a sample of the person's blood may be taken and dealt with in accordance with the procedures prescribed by regulation for the purposes of section 47G(1a); and

(d) the person requests of a member of the police force that a member of the police force transport the person, or arrange for the transport of the person, to such a place,

a member of the police force must transport, or arrange for the transport of, the person to such a place.

Metropolitan Adelaide has the same meaning as in the Development Act 1993."

S 47FB provides for the blood sample to be taken by a registered nurse instead of a medical practitioner where a person has submitted to breath analysis outside the metropolitan area.

I mention other regulations relevant for present purposes.

Reg 9(1) provides that the oral advice required to be given for the purposes of s 47G(2a)(a) must be as set out in Part A of Schedule 1. Reg 9(2) provides that the written notice required to be delivered for the purposes of s 47G(2a)(a) must be as set out in Part B of that Schedule. The appellant received both the oral advice and the written notice in accordance with those provisions. Both included the information that the sample would be analysed by the Centre and that she would be notified of the result.

Reg 11 provides for the procedures of a blood test as in the circumstances of the present case, ie a voluntary blood test. Reg 11(a) provides that the driver must cause the sample to be taken by a medical practitioner of his or her choice and must deliver the blood test kit supplied to the driver under s 47G(2a)(b) to the medical practitioner, or registered nurse, for use for that purpose. Reg 11(b) provides that the medical practitioner must place the sample of blood, in approximately equal proportions, in two containers being the containers provided as part of the blood test kit. Reg 11(c) provides that each container must contain a sufficient quantity of blood to enable accurate analysis. Reg 11(d) provides that the medical practitioners must seal each container by application of the adhesive seal bearing an identification number provided as part of the blood test kit. Reg 11(e) provides:

"11(e) it is the duty of the medical practitioner to take such measures as are reasonably practicable in the circumstances to ensure that the blood is not adulterated and does not deteriorate so as to prevent a proper assessment of the concentration of alcohol present in the blood of the person from whom the sample was taken."

The regulation also provides that the medical practitioner must complete various procedures to ensure the identification of the blood sample: see reg 11(d), (f), (g) and (l). Reg 11(f) and (g) provide that a certificate about those matters and one of the containers of the blood sample must be delivered to a member of the police force who must, in turn, deliver that copy of certificate and the blood sample container to the Centre. Reg 11(l) provides that the Centre must analyse the blood in the container as soon as is reasonably practicable by or under the supervision of an analyst. Reg 11(m) provides that analyst must complete and sign a certificate setting out various matters, including the result of the analysis and, inter alia, any factors relating to the blood sample or the analysis that might, in the opinion of the analyst, adversely affect the accuracy or validity of the analysis. Reg 11(n) provides that a copy of that certificate must be sent to the person from whom the blood was taken. Reg 11(q) provides that the person from whom the blood was taken may cause the sample of blood in the container provided to him or her to be analysed to determine the blood alcohol level.

Lastly, I mention s 47G(8) of the Act which provides:

"47G(8) A prosecution for an offence will not fail because of a deficiency of a kit delivered to the defendant in purported compliance with subsection (2a)(b) and the presumption under subsection (1) will apply despite such a deficiency unless it is proved -

(a) that the defendant delivered the kit unopened to a medical practitioner for use in taking a sample of the defendant's blood; and

(b) by evidence of the medical practitioner, that the medical practitioner was, because of a deficiency of the kit, unable to comply with the prescribed procedures governing the manner in which a sample of a person's blood must be taken and dealt with for the purposes of subsection (1a)."

It may be seen that the scope for challenge to the proof of the blood alcohol level by breath analysis is very restricted and may only be undertaken for a limited purpose by analysis of blood where the blood is taken from the driver by a medical practitioner, or in one circumstance a registered nurse, in the presence of a police officer using the approved blood test kit. These provisions provide a limited safeguard to the motorist which includes the obligation on police officers to give the oral and written advice and, in some circumstances, to facilitate the taking of the blood if requested by the motorist.

Blood analysis may not be conducted in any other way and no other type of kit may be used. Parliament has attempted to ensure the integrity of the procedure, by providing that only the kit may be used, it must be provided by the police, it must be given to the medical practitioner or the registered nurse unopened, the blood sample may only be taken by the persons specified and in the presence of a police officer, and the analysis must be undertaken by the Centre at the expense of the Crown. There is no regulation which provides that the driver must deliver the kit to the medical practitioner or nurse unopened, but both the oral and written advice to be given by the member of the police force to the driver includes the direction that the kit must not be opened before being given to the person taking the blood sample: see Schedule 1.

I return to the decision of the learned Magistrate. He found that s 47G(8) had no application to the present case because it was an agreed fact that the kit was delivered unopened to the medical practitioner and that he complied with all of the necessary requirements and regulations in relation to the taking of the sample. He concluded that there was no basis on the evidence which enabled him to decide on the balance of probabilities "exactly" why the sample denatured.

It follows from that agreed fact regarding the medical practitioner that another of the possible causes of the denaturation of the sample may be excluded, namely, that the medical practitioner did not ensure that the blood and the anti-coagulant were adequately mixed because it is agreed that he complied with Reg 11(e). Therefore, it was established that he took such measures as were reasonably practicable to ensure that the blood did not deteriorate. Having excluded the possibility of extreme temperature as a cause of the denaturation, the only possibility remaining on the evidence is that there was no anti-coagulant in the phial, an essential requirement to enable a blood test to be undertaken.

That conclusion is reinforced by the blood sample having been taken by a medical practitioner. It is almost inconceivable that a practising medical practitioner would not know how to take a sample of blood and ensure that it did not denature by adequately mixing the blood with the anti-coagulant in the phial.

In my view, the learned Magistrate should have concluded that the blood denatured because there was no anti-coagulant in the phial. The blood test kit was defective and in a crucial respect. An approved blood test kit as envisaged in the Act and regulations is a kit which has all of the necessary components to enable accurate and reliable blood alcohol testing. If the kit is deficient in a critical respect, it is not an approved blood test kit in accordance with the Act and regulations, even though it may answer the description in Reg 7. Consequently the police officer operating the breath analysis instrument did not comply with s 47G(2a)(b). Of course, that lack of compliance is not the fault of the police officer because he would not have known of the defect in the kit. It was, in my view, none the less lack of compliance.

The appellant was deprived of the benefit of the safeguard given to her by Parliament. She could not challenge the blood alcohol level determined by breath analysis, in the only way permitted by the Act and regulations, which is a matter of considerable importance unless the part of the blood sample given to her was not denatured and could have been analysed at her request.

The only reasonable conclusion on the evidence and the agreed facts, is that the blood in the phial given to the appellant was also denatured. It was placed in the phial by the same medical practitioner, at about the same time, in the same circumstances using the same kit.

The learned Magistrate approached the matter by considering whether the circumstances gave rise to the exercise of discretion to exclude the evidence of the breath analysis on the ground of unfairness to the appellant. He concluded that there was no evidence that the sample of blood in the phial given to the appellant by the medical practitioner was also denatured. As has been seen, I think the learned Magistrate erred in reaching that conclusion. He found that the appellant could have had that part of the sample analysed at not unreasonable cost but she chose to throw the sample away without obtaining legal advice. He concluded that had she done so and it was found that the blood in that phial was also denatured, the prosecution of the charge would not have proceeded and consequently there was no unfairness to her in the circumstances. He said:

"Regrettably what has occurred out of either Ms Parker's naivety and/or her simple willingness to accept the advice of friends and others close to her is she has embarked upon a course of conduct which saw her dispose of a piece of evidence that could have been both critical and extremely determining in the matter before me."

He held that there was no unfairness in receiving the evidence of the blood alcohol level determined by the breath analysis test and he received that evidence, applied the presumption and found the charge proved.

The grounds of appeal raise three principal matters. The first is that the learned Magistrate erred in concluding that the "defence" in s 47G(8) did not apply. The appellant contends that the matters set out in ss 8(a) and (b) had been established. The kit was delivered unopened to the medical practitioner. The evidence of Dr Sykes and the agreed facts permit the inference to be drawn on the balance of probabilities that there was no anti-coagulant in the phial which was given to the police and subsequently to the Centre. Consequently, the medical practitioner was unable to comply with the prescribed procedures in that he could not comply with Reg 11(e). Later I consider whether s 47G(8) applies.

The second matter is that the police failed to comply with their obligation pursuant to s 47G(2a)(b) to deliver an approved blood test kit to the appellant and what was delivered did not amount to an approved blood test kit. Whilst the kit bore the description of the kit approved by reason of Reg 7, it was defective in the sense which has been mentioned and consequently cannot be regarded as an approved kit. I accept that submission.

The third matter is that the learned Magistrate erred in failing to exercise his discretion to exclude the evidence of the blood alcohol level determined by the breath analysis test because the appellant was prevented from adducing evidence in rebuttal pursuant to s 47G(1a)(a) due to the impossibility of analysis of the blood sample because of the deficiency in the kit.

Putting to one side for the moment the provisions of s 47G(8) the consequence of the police officer operating the breath analysis instruments not delivering an approved blood test to the appellant in accordance with s 47G(2a)(b) is that, in this respect, there has not been compliance with the requirements and procedures in relation to breathtaking instruments and breath analysis under the Act and the presumption in s 47G(1) that the concentration of alcohol indicated by the breath analysis instrument was present in the blood of the appellant at the time of the analysis does not apply: Taylor v Daire (1982) 30 SASR 453. In that case the Full Court had to consider different legislation in some respects but s 47G(1) is in the same terms as s 47g(1) in the earlier legislation considered in that case.

In Taylor v Daire it was decided that failure to comply with the relevant requirements and procedures does not affect the admissibility of the breath analysis result but non-compliance means that the presumption in s 47g(1) does not apply: see King CJ at 463 and Wells J at 473.

In my view, the factual basis for this submission is established. As the appellant did not receive an approved blood test kit as envisaged by the Act and Regulations. She was deprived of the safeguard laid down by Parliament

In Police v Jervois; Police v Holland (1998) 70 SASR 429, Doyle CJ, with whom the other members of the Court agreed, accepted, in the absence of argument to the contrary, that Taylor v Daire was correctly decided and that the presumption was only available if there had been compliance with the relevant statutory "requirements and procedures".

The failure to provide a kit at all would be a failure to comply with s 47G(2a)(b) and therefore a failure to comply with a prescribed requirement. The provision of a defective kit stands in the same position. I do not think the presumption could apply subject to consideration of s 47G(8). In my view, the reason for that failure is of no consequence. It does not depend upon fault on the part of the police officer operating the instrument.

I return to s 47G(8). When the Learned Magistrate said that this section had no application to the present case, I expect that he meant that the appellant could not establish the matters set out in s 47G(8)(b). The medical practitioner did not give evidence. There was no evidence from him that because of a deficiency of the kit he was unable to comply with the prescribed procedures referred to in the sub-section.

Whilst I think it is appropriate to draw the inferences based upon the evidence of Dr Sykes and the agreed facts, namely that the blood test kit was deficient due to the absence of an anti-coagulant, there was no evidence from the medical practitioner as to the matters set out in the sub-section. The terms of the sub-section are plain. Where there is a deficiency, the presumption is still to apply unless the prescribed evidence is given by the medical practitioner who took the sample. Presumably Parliament has taken the view that he is the best person to give, and the only person who could give that evidence. It is a technical matter requiring expert evidence from the medical practitioner who took the sample. That medical practitioner was presumably available to give evidence because the parties were able to agree the fact which has been mentioned and seems that he would have provided the information to the parties so that they could reach that agreement.

Even though it may be inferred that the kit was deficient due to the lack of an anti-coagulant in each phial. Section 47G(8) operates to ensure that the prosecution will not fail for that reason because the medical practitioner did not give the necessary evidence as required by s 47G(8)(b).

The consequence is that the decision in Taylor v Daire does not apply in the circumstances of the present case and the presumption in s 47G(1) applies.

The failure to observe other statutory requirements and procedures stands in a different position, because s 47G(8) has no application in those circumstances. For example if the oral advice or the written notice was not given or a driver was not taken to a place where a sample of blood may be taken in the circumstances specified in s 47FA, the decision in Taylor v Daire would apply.

I turn to the question of discretion. As there was no unlawful conduct on the part of the relevant police officer it is doubtful that the public policy discretion arose in the circumstances. That is the discretion discussed in R v Ireland [1970] HCA 21; (1970) 126 CLR 321 and Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 and applied in cases of this nature as may be seen from the line of cases beginning with French v Scarman (1979) 20 SASR 333 and discussed in Harrison v Wojtasik (1988) 147 LSJS 379 and in subsequent cases including Tann v Schild (1990) 54 SASR 523. In those cases there had been some breach of obligation on the part of a relevant member of the police force and the public policy discretion was exercised.

If the blood test kits were inadequately tested there is no reason to attribute responsibility to the police or any other part of the Executive. There is no evidence to enable responsibility for the deficiency in the kit to be determined. On the state of the evidence, I can see no basis for the public policy discretion to be agitated. However, it is now clear that the general discretion to exclude evidence in order to ensure a fair trial, including what is sometimes called "real" evidence is firmly established: see the discussion of the cases by, and the conclusions of, Martin J, with whom the other members of the Full Court agreed in R v Lobban (2000) 77 SASR 24 and in particular to his summary at 51.

In my view, a person is unable to have a fair trial if deprived of a statutory safeguard about a matter central to the charge. As has been seen, in the circumstances, the appellant had no way of challenging the breath analysis reading without a blood alcohol analysis using the blood test kit given to her. As it was defective, she was deprived of the opportunity to challenge the evidence or even establish that it was accurate.

For these reasons the learned Magistrate had a general discretion to reject the evidence of the blood alcohol level as determined by breath analysis.

It appears from his reasons that the learned Magistrate accepted that he had such a discretion but declined to exercise it in favour of the appellant because she chose not to have the part of the blood given to her analysed. It was submitted on behalf of the respondent that the appellant was not unfairly deprived of an opportunity to defend herself. She had chosen not to avail herself of that opportunity notwithstanding the oral and written advice given to her. The question also arises as to whether the appellant had discharged the onus upon her to prove on the balance of probabilities a sound factual basis for the discretion to be exercised in her favour.

It is to be remembered that the learned Magistrate found the appellant to be a truthful witness and he accepted her reason for disposing of the part of the sample given to her. When she did so, there was no prosecution on foot and no intimation that a charge would be laid. The blood found to be denatured was part of the same sample. As the learned Magistrate accepted, it would be unthinkable that a prosecution would proceed if all of the blood was unsuitable for analysis. I do not think it was unreasonable for the appellant to have accepted that the matter was at an end when she received the certificate from the Centre. She received no indication from the police, who would also have received a copy of the certificate, to the contrary. This is not a case of an accused choosing not to place relevant evidence before the Court.

Furthermore, upon the conclusion which I have reached, it is very likely that the portion of the sample given to her would also have been denatured and consequently any analysis of that portion would also have been impossible.

The discretion fell to be exercised by the learned Magistrate and there cannot be any interference with the way in which it was exercised unless he was in error. I think error has been established. The learned Magistrate proceeded on the basis that there was no reason to conclude that the part of the blood sample in the possession of the appellant had also denatured. That approach is wrong in my view. He said that the evidence established that it was within the control of the appellant to have the part of the sample in her possession analysed. That conclusion is also wrong as the evidence and the agreed facts permit the inference on the balance of probabilities that the blood in her possession was also denatured.

In my view, the learned Magistrate was incorrect in concluding that there was no unfairness to the appellant and he exercised his discretion on a wrong basis. The discretion must be exercised afresh. The failure to provide an approved blood test kit to the appellant which was suitable for its purpose given the limited scope for challenging the result of the breath analysis deprived her of the essential safeguard provided by Parliament with the consequence that she could not have a fair trial. In the circumstances, the discretion should only be exercised in one way and that is to exclude the evidence of the breath analysis.

I have considered whether the provisions in s 47G(8) that the prosecution should not fail except in the circumstances therein prescribed operate to exclude the general discretion to exclude evidence in order to ensure a fair trial. That discretion is a fundamental safeguard in our system of criminal justice and can not be excluded by legislation unless the intention of Parliament to do so may be clearly discerned from the legislation. That intention is not to be seen in s 47G(8).

47. There is otherwise insufficient evidence to support the conviction. A re-trial is obviously inappropriate.

I allow the appeal, set aside the conviction and order that the complaint be dismissed.