Bardelmeyer v Whitely

[1991] HCATrans 135

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M4 of 1991

B e t w e e n -

GERRIT BARDELMEYER

Applicant

and

PAUL WHITELEY

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 6 JUNE 1991, AT 4.26 PM

Copyright in the High Court of Australia

Bardelmeyer 1 6/6/91

MRS. GILLESPIE-JONES:  May it please the Court, I appear

for the applicant. (instructed by John A. Clements

Pty)

MR H.C. BERKELEY, QC, Solicitor-General for Victoria: If

the Court pleases, I appear with my learned friend,

MR B.M. DENNIS, for the respondent. (instructed by

the Victorian Government Solicitor)

MASON CJ: Yes, Mr Solicitor. Mr Gillespie-Jones.

MR GILLESPIE-JONES:  Your Honours, this is a short point and

it is outlined in the applicant's outline of

argument that I have sought to have handed up to

Your Honours. I apologize for the state it comes

in but the computer had a mind of its own and, as
such, there is plenty of space for ticks and

crosses on the right-hand side of the page.

Your Honours, this is an appeal from a single

judge of the Victorian Supreme Court and it is

submitted that it is the decision from which we are
appealing is directly in conflict with earlier

decisions of the same court.

DAWSON J: Is there still no appeal to the Full Court?

MR GILLESPIE-JONES: That is correct, sir.

DAWSON J: Still?

MR GILLESPIE-JONES: This is the only place we can go. It

is submitted that this is an important case because

10,000 people last year were convicted of this -

not convicted, but dealt with, either acquitted or

convicted of this offence last year.	So it has got
quite wide ramifications.

BRENNAN J:  What is it that excludes the appeal to the

Full Court?

MR GILLESPIE-JONES:  Your Honour, as I understand it, an

unsuccessful litigant before a single judge cannot appeal to the Full Court under the old Magistrates

Court Act.	It has now been repealed but that is
the -

DAWSON J: And it has been amended now. There is an appeal

under the new Act.

MR GILLESPIE-JONES: Yes, that might well be the case, Your

Honour, but under the old system one could only get

to the Full Court from a master who referred it or

from a single judge who referred it to the

Full Court.

Bardelmeyer 2 6/6/91

BRENNAN J: Well, does it mean that the next of these cases

that comes up, there will be a right of appeal to

the Full Court?

MR GILLESPIE-JONES:  I think that might be the case,

Your Honour, but I cannot say that I have turned my

mind to it.

MASON CJ: Could we ask the Solicitor what he has to say

about that at this stage.

MR BERKELEY: It is not a ground for special leave,

Your Honours, but I understand - my learned junior

tells me that as from 1 September 1991 it is

possible to go from a single judge to the

Full Court if you are not successful on an order to

review.

MASON CJ:  So that our entreaties made over many years have

at last been yielded to?

MR BERKELEY: Well, mine too, Your Honour, I promoted this

about five years ago.

MASON CJ:  We have been saying it for longer than that,

Mr Solicitor, but no doubt your voice is heard more

closely and more loudly than ours.

MR BERKELEY:  No, Your Honour. My heart was torn but

politicians are made of sterner stuff.

BRENNAN J: Did you say 1990 or 1991?

MASON CJ:	1991.
MR BERKELEY:	Thank you, Your Honour, last year.

BRENNAN J: Last year.

MR BERKELEY:	Yes.
MASON CJ: Yes, Mr Gillespie-Jones.
MR GILLESPIE-JONES:	Your Honours, basically, this Court has

looked at this particular section before but I

would seek Your Honours' indulgence to briefly go

to - - -

MASON CJ: Yes, it did not actually whet our appetites to

look at it again, I must say, Mr Gillespie-Jones.

MR GILLESPIE-JONES:  I can understand that, Your Honour, and

indeed - I	will come to that later on. I would
refer Your	Honours to section 49(1) of the Road
Safety Act	which says, amongst other things, that:

Bardelmeyer 3 6/6/91

A person is guilty of an offence if he or

she -

(f) within 3 hours after driving or being in

charge of a motor vehicle furnishes a sample

of breath for analysis by a breath analysing

instrument under section 55(1) and -

(i) the result of the analysis as recorded or

shown by the breath analysing instrument

indicates that more than the prescribed

concentration of alcohol is present in his or

her blood.

And, furthermore, in section 49(4):

It is a defence to a charge under

paragraph (f) of sub-section (1) for the

person charged to prove that the breath

analysing instrument used was not on that
occasion in proper working order or properly

operated.

That is the only statutory defence to the charge,

so far as I am aware. The Road Safety Regulations

provide, however - regulation 302(3)(a) - as

follows:

It is a requirement for the proper operation

of a breathalyzer that the authorised operator

of the breathalyzer -

(a) before a person's breath is analysed, and

after completing such analysis, ascertains that the breathalyzer is in proper working

order by testing it with a standard alcohol

solution -

and ''standard alcohol solution" is defined under

regulation 105 as:

'Standard alcohol solution' means a solution

of ethyl alcohol and distilled water in the
proportion of 4.26 millilitres of ethyl

alcohol in 1000 millilitres of solution.

BRENNAN J: That regulation, that is made under a power

which authorizes the making of that regulation?

MR GILLESPIE-JONES: Yes, Your Honour. There is a power in

Road

the Act which I am told is section 95 of the regulations under that particular section.

Now, the problem in this particular case, or

the question that arises in this particular

application, it is submitted, deserves the grant of

Bardelmeyer 4 6/6/91

special leave is: what effect does the breach of

this particular regulation entailed? Mr Justice

Ormiston, in the case of Bogdanovski v Buckingham,

found that if there was non-compliance proved then

that would be a defence under section 49(4). His

Honour, Mr Justice Beach, in this particular case,

said that that was not, in fact, the case.

If I can take Your Honours to the actual factual problem. It is to be found at page 58 of

the appeal book. The informant in this particular

case, when asked what the standard alcohol solution

was, said - at the top of page 58 of the appeal
book:

"4.58 mls of alcohol per 1000 mls of water". When asked if he was certain he replied, "it

might be 4.25 mls of alcohol or it might be

around that figure in a litre of water" -

then, later on, down the page:

he agreed that he did not know -

what -

the composition of the purported standard

alcohol solution -

was - around line 22. Therein lies the problem.

BRENNAN J:  What was the question to which he gave that

first answer?

MR GILLESPIE-JONES: This is based on the affidavit on the

order to review, Your Honour, and in that it is put that these are his answers in cross-examination and

that is the best we have.

BRENNAN J: Yes, but I mean, it is one thing if he is asked,

"Do you know what the regulations prescribe as to

the concentration?". That is one possible question

that may have been asked. The other is: "What was

the percentage of alcohol in this concentration?"

MR GILLESPIE-JONES: Exactly, Your Honour, yes.

BRENNAN J: Well, we do not know what it means, do we?

MR GILLESPIE-JONES: Well, yes, in my submission, what is

laid out on page 58 and page 57 is really -

BRENNAN J: If you look at paragraph (v) on page 58, he

says:

Bardelmeyer 6/6/91

that he did not know the composition or

proportions of the purported standard alcohol

solution.

MR GILLESPIE-JONES: Yes, Your Honour.

BRENNAN J:  It seems that what he did was, is that he took a

bottle and used it; he did not know what was in it.

Is that the situation?

MR GILLESPIE-JONES: That is the situation, Your Honour,

and, in my submission, that is the problem.

DAWSON J:  And it is quite clear from Justice Beach's

judgment that each of the witnesses concerned did

not know what was in the solution which they used.

MR GILLESPIE-JONES:  That is correct. He said that it was

unnecessary for them to know.

DAWSON J:  And any answers they gave about the proper

proportions of the solution were theoretical; they

did not relate to the solution in this case.

MR GILLESPIE-JONES: Well, I am not sure about the latter.

DAWSON J: Well, they did not know what was in it.

MR GILLESPIE-JONES: They did not know what was in it.

DAWSON J:	No.
BRENNAN J:	Was the bottle labelled or sealed?
MR GILLESPIE-JONES:	The question of hearsay, or otherwise,

was not directly raised, Your Honour, either before

the magistrate or before the supreme court nor in

Mr Justice Beach's judgment but, in my submission,

because of the reading of the actual regulation,

the words "ascertained by testing", in my

submission, the operator should not rely upon what

is written on a bottle in any event.

DAWSON J: But the point of the case is that each of the

witnesses gave evidence that the analysing

instrument was in proper working order.

MR GILLESPIE-JONES: That is correct.

DAWSON J:  And that averment was proof of the fact in the

absence of evidence to the contrary.

MR GILLESPIE-JONES: That is correct.

DAWSON J: Yes. And the failure to observe the procedures

may or may not prove that the instr~ment was in

proper working order.

Bardelmeyer	6	6/6/91
MR GILLESPIE-JONES:	No, with respect, Your Honour.	The

submission is that where there is a proven breach

of regulation - because of the operation of the

regulation and the operation of section 49(4) - a

statutory defence is made out. It is not - and,

indeed, Mr Justice Ormiston draws the distinction

between this particular section and section 81 of

the previous Act - the Motor Car Act.

BRENNAN J:	What is the averment provision?
MR GILLESPIE-JONES:	I believe section 58(4) - I am indebted

to my friend. But the submission in relation to

that, Your Honour, is that here there is evidence

to the contrary to rebut those particular facts in

so far as one has the sworn evidence of a policeman

as to his lack of his ascertaining by testing and,

in my submission - - -

BRENNAN J: But that just leaves you in the position of not

knowing what the situation is apart from the

averment.

MR GILLESPIE-JONES: In my submission, not, Your Honour.

What it leaves one with is a proven breach of

regulation 302 because we have proved that there

has not been any ascertaining by testing that the

machine is in proper working order.

MASON CJ: But how do you get a question of general

principle out of this, Mr Gillespie-Jones?

MR GILLESPIE-JONES:  Your Honour, the submission is this:

Mr Justice Ormiston said that where there is a

proven breach of these regulations then a defence

is made out under section 49(4). Mr Justice Beach

said that that was not the case. In my submission,

this is the only defence to this particular charge.

By its very nature it does not depend on the actions of a defendant. It depends primarily on the actions of those bringing the charge against him. The statement of general principle is that if

one proves a breach of these regulations then a

defence is made out under this particular section.

BRENNAN J:	What is the breach that you have proved here?
MR GILLESPIE-JONES:	The breach, it is submitted, is that

there has been no ascertaining by testing the

machine.

DAWSON J: Well now, let us stop there. Each of the

witnesses gave evidence that he tested the machine.

MR GILLESPIE-JONES: Yes.

DAWSON J:	And tested it with an alcohol solution.
Bardelmeyer	6/6/91
MR GILLESPIE-JONES: Yes.
DAWSON J:	So it all comes down to whether the solution was

or was not a standard alcohol solution.

MR GILLESPIE-JONES: Not necessarily, Your Honour. It is

submitted that there are two questions here.	The
first is whether the solution was, in fact, a
standard alcohol solution.	The second is, has the

policeman, the operator, ascertained that to be so.

Now, in my submission, it is the ascertaining and

the testing that is the requirement independent of

what is in the solution.

DAWSON J:  Each witness gave evidence that the instrument

was in proper working order and properly operated

by them and that would cover the testing, would it

not?

MR GILLESPIE-JONES: In my submission, not, because of the

framing of the regulations and section 49(4). It

produces a code, in my submission. The regulations

in relation to this particular matter differ to

those under the Motor Car Act, Your Honour, where

there is the inclusion of the words - - -

DAWSON J:  If you go to section 49, the only defence you can

raise is that the analysing instrument was not on

the occasion in question in proper working order or

properly operated. The witness gave evidence that

the analysing instrument was on that occasion in

proper working order and properly operated and to

displace that there had to be evidence to the

contrary.

MR GILLESPIE-JONES: Yes.

DAWSON J:	What is the evidence to the contrary?
MR GILLESPIE-JONES:	The evidence to the contrary is the

proven breach of section 302(3)(a).

DAWSON J:	In that the solution may or may not have been the standard solution.
MR GILLESPIE-JONES:	Not that, Your Honour, but that the

operator had not ascertained by testing the

breathalyser with the standard alcohol solution.

DAWSON J: But he gave evidence that he did do those

things - that is the averment - and the onus is

upon you, or your client, to establish that he did

not.

MR GILLESPIE-JONES:  Your Honour, it is submitted that when

the operator says, "I don't know what's in the

bottle; I just put it into the machine", or words

Bardelmeyer 6/6/91

to that effect, there is a proven breach of

regulation 302(3)(a) in that the defendant has

proved a failure of a requirement for the proper

operation of a breathalyser.

DAWSON J:  He did test the machine. He did it with an

alcohol solution but we do not know whether it was

standard or not. His averment was that he did it

properly and the onus then shifts to you.

MR GILLESPIE-JONES:  The important thing, in my submission,

Your Honour, is that he did not know whether it was

a standard solution or not.

DAWSON J:	Who?
MR GILLESPIE-JONES:	The operator.
BRENNAN J:	Your proposition really is, that absent his

knowledge that it is a standard alcohol solution,

he cannot ascertain that the breathalyser is in

proper working order.

MR GILLESPIE-JONES: Precisely.

BRENNAN J: Well now, the argument against you is that he

swore that he did the requisite things and did

ascertain it and then it transpires that he does

not know whether it was a standard alcohol solution

and does that destroy the effect of his first

assertion?

MR GILLESPIE-JONES: In my submission, yes. He does not - I

am sorry.

BRENNAN J:	I was just going to say, in other words you join issue with the judgment at page 51; that is the
paragraph which is critical, is it not? Line 15:

once the operator of the breathalyser makes

the appropriate averment, that averment

retains its validity unless and until the

defence has established evidence to the

contrary to the satisfaction of the

magistrate.

MR GILLESPIE-JONES: Precisely, Your Honour. We say that we

have established evidence to the contrary.

DAWSON J: And, just to see where we stand, you do not

dispute the decision, I think of Mr Justice Little,

that in making the averment the witness does not

have to have personal knowledge of the compliance

with the regulation that his belief is sufficient?

MR GILLESPIE-JONES: In my submission, I adopt what

Mr Justice Ormiston said about that particular line

Bardelmeyer 9 6/6/91

of authority and say that it does not bear on the

proper interpretation of section 49(4).

DAWSON J: It may or it may not.

BRENNAN J:	How would a police officer ever know what the concentration of alcohol is in the solution?
MR GILLESPIE-JONES:	He would do precisely what the operator

did in Bogdanovski's case in 1989, Your Honour. He

would make it up, and that is what he did, and that

is why the appellant lost on that particular

ground.

BRENNAN J:	He would make up a solution.
MR GILLESPIE-JONES:	He just pipetted it into a litre of

water.

BRENNAN J:	I see.
MR GILLESPIE-JONES: That is what happened.	Your Honours

will see from my outline of argument that in

Bogdanovski's case, just at the bottom of the first page, the applicant failed on this ground on the

basis that the operator had shortly, prior to the
breath test, prepared his own solution that

complied with the regulations and that any

departure was insignificant and the page numbers

are cited in relation to that, whereas in Binting's

and Clifford's case, the applicants succeeded

because they were able to show that there had been

an insufficient ascertaining instead of standard

used on the occasion in question.

DAWSON J: So, you are saying that the operator cannot aver

that the machine was properly operated and in
proper working order unless he had prepared the
alcohol solution himself and that if he took the
standard bottle with "standard alcohol solution" on

the outside that would not be enough

notwithstanding that he believed it was the

standard solution.

MR GILLESPIE-JONES:  I think I am being led along the garden

path, with respect, by Your Honour. The submission

is this: If there is no contest with the Crown

case and the evidence is led,a then he can rely on

his averment. If he is cross-examined and he

adduces evidence that he had no idea what was in

the standard alcohol solution then, in my

submission, the defendant is entitled to succeed

because of section 49(4) together with the

regulations having proved the breach of the

regulation. That is the basis upon which it is

put.

Bardelmeyer 10 6/6/91

BRENNAN J: There is another problem too, is there not, and

that is that if he does what was done in

Bogdanovski's case he has got to have knowledge

that what is in the bottle marked "ethyl alcohol

and distilled water" respectively are in truth

ethyl alcohol and distilled water?

MR GILLESPIE-JONES: All I can say is that ordinarily,

Your Honour, were it to be that an ordinary

policeman gave this evidence he would be howled
down because he was not an expert. This is saved

because of the framework of the Act. It allows him

to give that evidence.

BRENNAN J: What, 58(4) allows him to give it, do you mean?

MR GILLESPIE-JONES: Yes, he can give that evidence and, in

my submission, where the regulation which defines,

of course, "standard alcohol solution" to be a

certain percentage then requires him to test it

with that particular solution, in my submission, it

makes his evidence admissible as to making that

particular inquiry and that particular test. That

is the basis upon which it is put. He gives his

evidence pursuant to the statute and the regulation

so he does not really have to be an expert

otherwise we would be going back to the year dot, I

suppose. That is the thrust of it, Your Honours.

Would Your Honours require me to go to the

actual conflicts between the decisions of Mr

Justice Ormiston and Mr Justice Beach? I shall.

Mr Justice Beach, in this particular case - and

Your Honours referred me to page 50.	Your Honours,
at page 50, line 7, it is said:

Nor is it necessary for the operator to establish that all relevant regulations have

been complied with. That much is clear from

the following passage in the judgment of

Gray J. in Wyllie v Sewell -

and His Honour then goes to quote Wyllie v Sewell

at page 50 and a line of authority, Hindson v

Monahan, Wyllie v - it should be Wyllie v

Nicholson - and Lloyd v Thorburn is cited with

approval.

Now, the submission in relation to that is that those cases relate to the repealed legislation

and relate to prosecution proofs, not defence

proofs, and relate to legislation that was of an

entirely different character to that before the

Court here. That was the view of

Mr Justice Ormiston in Bogdanovski's case where

firstly, Your Honours, at page 921, at line 5 -

Bardelmeyer 11 6/6/91

BRENNAN J:  What is the reference?

MR GILLESPIE-JONES:  I am sorry, Your Honours: Bogdanovski

v Buckingham, (1989) VR 878 at 897.

BRENNAN J:	Do we have that case, Mr Gillespie-Jones?
MR GILLESPIE-JONES:	I do, sir.
BRENNAN J:	No, but do we have it?

MR GILLESPIE-JONES:  I am indebted to my friends. I

mentioned it to the library and I handed up my list

of authorities to the library so I thought it would

be here.

BRENNAN J: Perhaps you could read it to us.

MR BERKELEY:  We have got two we can hand up, anyway,

Your Honour. One is underlined so that

Your Honours will know which passages we think are

important.

MASON CJ:  Thank you, Mr Solicitor. What page is it,

Mr Solicitor?

MR GILLESPIE-JONES:  Page 921, Your Honour. Your Honours

will remember that in Bogdanovski's case the

appellant lost on the facts because he could only

show that the departure from the prescribed

standard was insignificant and I say that in

relation to this. But His Honour says, at line 20:

Certainly, if the regulations lay down

requirements fqr the operation of

breathalyzers, then they should be satisfied,

and if non-compliance is proved then I would

consider that a defence had been made out

under s. 49(4).

Nor am I impressed by the argument that

the regulations relate only to proper

operation and not to ensuring that the operator to ascertain that the breathalyzer is in "proper working order" by testing it with the standard alcohol solution.
instruments are in "proper working order".

Notwithstanding the earlier use of the words

"proper operation" it is perfectly apparent

that the regulation is directing the operator

to the task of ensuring that the breathalyzer

is in proper order. Of course, merely because

the instrument has not been tested with the
standard alcohol solution does not establish

that the breathalyzer was not in proper

working order, nor would it do so if the wrong

Bardelmeyer 12 6/6/91

solution had been used. Something more in

each case would have to be shown to make out

the defence.

That is why I say that the question about

insignificance or otherwise is important in reading

this.

On the other hand, it seems clearly to be

within the regulation-making power to require operators to make tests both before and after the particular breath analysis relied upon.

The purpose may be to ascertain whether it is

in proper working order, but the operator is

required by regulation to take these steps

and, if he fails to do so, there would be a

failure to operate the machine properly within

the meaning of sub-s. (4). I can see no

inconsistency between the two requirements of

the sub-section nor that certain steps may not

lawfully be required by regulation to be

carried out to achieve both purposes. Failure to comply with sub-reg. (3)(a) therefore would

establish that the instrument was not properly

operated on the relevant occasion.

Then His Honour goes on to say, in relation to the

authorities that were relied on by Mr Justice Beach

at page 50 of the appeal book:

As I have stated previously, the

applicant's difficulty is that he has failed

to establish that the operator on the relevant

occasion did not use a standard alcohol
.solution before and after the breath analysis,
for it was not ·shown that the solution used
did not comply with the definition of standard

alcohol solution.

So he went down on the facts:

This ground is therefore rejected. I would

add only that the authorities relied upon by

the respondent on this ground, and in

particular Lloyd v Thorburn (1974) V.R. 12,

did not bear on the proper interpretation of

s. 49(4), as they concerned the admissibility

and weight of evidence given by virtue of the

certificate given under the formers. 80F(2)

of the Motor Car Act.

DAWSON J:  We are not here concerned with a

certificate ..... We are concerned with evidence

given by a witness.

MR GILLESPIE-JONES: Yes, and 80F(4).

Bardelmeyer 13 6/6/91

DAWSON J:	Your real point is not that there was evidence to the contrary but that there never was any real
evidence given by the person concerned; that, in
effect, his denial that he knew what he was talking
about, as it were, nullified his evidence. Is not
that the point you make?

MR GILLESPIE-JONES: Yes, in so far as the defendant has

proved a breach of the regulations, therefore, he

has shown that the machine was not properly

operated and rebuts, perhaps, the averment. But,

in my submission, the averment - because of the

addition of section 49(4) in the Road Safety Act of

1986 - is not really to the point.

DAWSON J: Well, you have used the word "averment", but

section 58(4) does not, and I have used the word

"averment". It does not speak of averments. It
speaks of evidence as to facts and if a man gives

evidence as to facts and then in cross-examination

he admits he does not know what the situation was,

can you say that the evidence as to those facts

stands? That is the argument you are putting, is

it not?

MR GILLESPIE-JONES:  I think that has got to be right,

Your Honour. Your Honours, in the case of Binting

v Wilson and Clifford v Davis, which Your Honours

have, at page 17 - - -

MASON CJ:  What page is this - 17?

MR GILLESPIE-SMITH: Page 17, Your Honour. At the top of

the page - it was put in one of the cases that

there ought to be a test of substantial compliance

with the regulations - His Honour said as follows:

However I cannot accept that the test is

whether there has been substantial compliance

with the regulations, at least in the way the

learned Magistrate expressed it. It is one

thing to conclude that the difference between

the prescribed contents and that of the actual

solution is minimal or insignificant, but it

is another to apply a general rule that the
defendant must establish that the alteration

would have produced an unreliable result. I have already said in Bogdanovski's case that

the object of the requirements of the Act and
the regulations is that those matter
prescribed by the regulations should be
observed. It would be unreasonable to read
down those requirements by insisting only on

some indefinable lesser standard, namely

substantial compliance, for that would be to

disregard the language of the Act and the

regulations. Again I emphasize that minute

Bardelmeyer 14 6/6/91

differences may in certain circumstances be
overlooked, but if there is anything other
than an insignificant departure from the
prescribed standard, then the defence will be

made out under s. 49(4). Having regard to his

factual findings the learned Magistrate could,

as I read the evidence, only have found

non-compliance of a kind which amounted to

proof of the relevant defence. He should

therefore have dismissed the information on

this amended ground.

BRENNAN J:  Now, is not the problem which you have in this

case the same one as that which Mr Justice Ormiston

referred to in Bogdanovski's case at the bottom of

page 921, namely:

for it was not shown that the solution used
did not comply with the definition of standard

alcohol solution.

MR GILLESPIE-JONES: In my submission, not.

DAWSON J: That was what I was putting to you, that, in

fact, it is a different problem. You look at the

totality of the evidence of the witnesses, is what

you are saying, is it not, and if he said in one

breath the machine was properly operated but then

in cross-examination demonstrates he had no basis

for saying that at all and did not really know what

he was talking about, then you cannot say, under

section 58(4), that he has given evidence that the

breath analysing instrument was properly operated
by him on the occasion in question. That must be

your argument.

MR GILLESPIE-JONES: Indeed, Your Honour.

DAWSON J: Well, do not let me force it on you, but - - -

MR GILLESPIE-JONES:  No, that is correct, Your Honour, but,

Your Honour, it is put that the - - -

DAWSON J: At any rate it is an answer to the point perhaps

that was made.

MR GILLESPIE-JONES:	Yes.
BRENNAN J: The question really is:	is there any conflict,

rightly or wrongly, between Bogdanovski's case and

what Justice Beach said in this case?

MR GILLESPIE-JONES: Is there any conflict?

BRENNAN J: Yes.

Bardelmeyer 15 6/6/91

MR GILLESPIE-JONES: Yes, Your Honour. Bearing in mind what

has just been said about prudent breaches of

regulations in what I have just read out and what
Mr Justice Beach says at page 50, line 6:

Nor is it necessary for the operator to establish that all relevant regulations have

been complied with.

And then he goes on to rely on the authorities

under the repealed legislation.

BRENNAN J: Perhaps my question should have been more

narrowly phrased because if one looks at the ratio

of this judgment, at page 51 - that paragraph I

drew your attention to before - it seems to me that

the question that has been postulated by

Justice Beach is precisely the same question as

that which was postulated by Justice Ormiston.

Both may be wrong but they seem to me to be both

the same.

MR GILLESPIE-JONES: With respect, not, and the secret, in

my submission, goes back to page 48 of the appeal

book, where Mr Justice Beach asks himself a

hypothetical question - line 8 - where the

answer saying, "No 11 :  submissions are put forward, and he comes to an

It would seem to me that that submission presupposes that a breathalyser operator must

possess the necessary expertise to analyse the

solution before he uses it to test the

breathalyser, and test the solution to ensure

it complies with Regulation 105 before he

tests the breathalyser, thereby enabling him

to swear positively that the solution he used

to test the breathalyser complied with

Regulation 105.

But can that be so?

In my opinion the answer to the question

posed must be, "No".

Now, in Clifford's case, it was because of the

concessions made by the operator in
cross-examination as to his lack of knowledge that
the applicant succeeded. If Your Honours would

look at page 16 of the judgment, in the third

paragraph:

Again I am faced with a factual

conclusion:  "The standard alcohol solution

used was not as is required in its

components". I doubt that ther~ was little

more basis for this conclusion than in

Bardelmeyer 16 6/6/91

Bogdanovski's case, but again the evidence is

more detailed and the operator's concession
more explicit. Thus it is not appropriate on

an order to review for this Court to conclude

that there was no evidence to support the

Magistrate's finding.

So, His Honour has not only said that the

breathalyser operator must possess the necessary
expertise to ascertain for the purposes of the
regulation but if he does not, then that provides

the defendant with a defence.

Your Honours, that is what I intend to say

about the conflict. As to who is right and who is

wrong, in my submission, Mr Justice Ormiston is

right and Mr Justice Beach is wrong. The

submission is that Mr Justice Beach applied an

incorrect line of authority. I referred the Court

to the passage in Bogdanovski but in relation to

Clifford and Binting, at page 14 and 15, His Honour

was referred to an unreported decision of

Mr Justice Gray in Radley v Hannah - half-way down

the page - given on 23 December 1981. He says, in

the last paragraph:

Unfortunately also the offence with which

Gray, J. was concerned was different from the

present offence, being in respect of a charge
pursuant to s.81A of the Motor Car Act 1958,
the equivalent provision to the offence

pursuant to paragraph (b) of the present

s.49(1). More importantly neither legislative

scheme considered in those decisions had a

provision similar to sub-section (4) of s.49.

That sub-section, although reversing the onus of proof provides a defence if it can be shown

that the breathalyzer used was not then "in proper working order or properly operated".

Gray, J.'s observations, which I have no

reason to doubt, were not directed to such a

provision, but to the method of proving an

offence of having in excess of the prescribed

percentage of alcohol in a person's blood.

Now, in my submission, that is the objection

that I have to relying on the decision of

Mr Justice Little and, in my submission also,· it is that reservation that Mr Justice Ormiston has

because of the totally different nature of the

legislation. In my submission, you cannot import

the old cases to decide the meaning of

section 49(4) when it has only come into existence

in 1986. Likewise, in my submission, you cannot

import the old regulation cases where the

regulations under the old Act were different in

character to the regulations under this Act.

Bardelmeyer 17 6/6/91

The regulations, Your Honours, under the old

Act did not have the words - firstly, there was no

requirement - in addition to there being no section

49(4) there were no words, under the old set of

regulations, "it is a requirement for the proper

operation of a breathalyzer". Those were not in
the old regulations and, as such, the old

regulations were not part of the legislative

framework. One could breach the old regulations

until one was blue in the face and it did not

matter. Indeed, in Hindson v Monahan - it is an

old case but the reason why it is on my list is to

show how the old legislation operated - page 95, at

line 53:

Another answer, perhaps more annihilating, is

that, notwithstanding that sub-section (3)(b)

enables evidence to be given by persons
qualified as prescribed, that the instrument

was properly operated and in relation to it

all regulations made under the section with

respect to breath analysing instruments were

complied with, there is in fact nowhere in the

section or in the Act any requirement that the

regulations have· to be complied with.

So that was the situation under the old Act but

under the new Act things have changed, in my

submission.

BRENNAN J:  Mr Gillespie-Jones, this is a case which really

turns upon the construction of words in the

regulation and it is a regulation made under the

Traffic Act dealing with, as you have said, a

frequent matter of experience in driving law and

there is now a right of appeal to the Full Court of

the Supreme Court of Victoria. Ought we not to

leave it to that court to solve these questions of

interpretation?

MR GILLESPIE-JONES: In my submission, no, and the reason is

this: Firstly, there is no path for this applicant

to go to the Full Court. Secondly, whilst saying

that the avenue is there, when the avenue might be

exercised, or if it will, is another matter and if,

for example, the avenue is exercised in five years

time it means an awful lot of cases, with respect,

will be decided on either one of two principles

and - - -

BRENNAN J: Well, either this case is not so important

because it will not be governing any cases in the next five years or that dismal hypothesis will be

proved false.

MR GILLESPIE-JONES:  One would hope not, Your Honour, but

this is Victoria and it is a depressed State,

Bardelmeyer 18 6/6/91

Your Honour. What the submission is, is that what

might or what might not happen in the future is a

matter over which, with respect, this Court can or

cannot say. It is pure speculation, but it may

well be that there is no authoritative decision of the Full Court in the future for some considerable

period of time. By that stage, because of the very

nature of these cases, it might well be that many

thousands of people have been wrongly convicted.

It is put on the basis that because it is such a

common offence and because the interpretation of

this particular section and regulation does not

depend on the conduct of a defendant but on the

conduct of those who were to enforce the law, then

this Court ought to give an authoritative

determination. That is the basis upon which it is

put.

Your Honours, as I said to Your Honours

before, the breach of this particular regulation is

regulation 302(3). It is not regulation 105.

MASON CJ:	You made that point.
MR GILLESPIE-JONES:	I am sorry, I am indebted to

Your Honour.

Your Honours, save to say that His Honour

Mr Justice Beach's interpretation would give no

meaning to the words "it is a requirement for the proper operation of a breathalyzer" and the words "ascertained by testing it with a standard alcohol

solution", Your Honours that is all I have to say.

If it is the situation that Mr Justice Beach's

construction is to be applied, then if it is to be

shown that at any particular point in time an

applicant must prove what the level of the standard

alcohol solution is, it is something that is, for

all practical purposes, absolutely impossible.

Not only that, if there is evidence from an

operator that he did not make up a standard alcohol

solution but one that was, say, .02 out, then the

defendant would succeed in the defence under

section 49(4), but if the operator said, "Look,

I've got absolutely no idea what was in the

solution", then the defendant would fail and that,

in my submission, is absolutely ridiculous.

MASON CJ: Thank you, Mr Gillespie-Jones. The Court need

not trouble you, Mr Solicitor.

It is only in exceptional circumstances that this Court grants special leave to appeal from a

decision of a single judge of a Supreme Court.	No
such exceptional circumstances are present here.
The question concerns the interpretation of a

Bardelmeyer 19 6/6/91

regulation and there is now a right of appeal from

the decision of a single judge to the Full Court of

the Supreme Court where the question will no doubt

be ultimately resolved.

The application for special leave to appeal is

therefore refused.

AT 5.20 PM THE MATTER WAS ADJOURNED SINE DIE

Bardelmeyer 20 6/6/91