Bradley, Peter John v Armstrong, Paul Anthony - [1981] FCA 199

Re: PETER JOHN BRADLEY
And: PAUL ANTHONY ARMSTRONG (1981) 55 FLR 355
No. A.C.T. G.21 of 1981
Motor Traffic (Alcohol and Drugs) Ordinance 1977 - Vehicles and Traffic

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Connor(2) and McGregor(3) JJ.

CATCHWORDS

Motor Traffic (Alcohol and Drugs) Ordinance 1977 - Screening device - Alcolmeter - Whether validly approved by Minister under s.5(2) of Ordinance.

Vehicles and Traffic - Screening test of sample breath - Screening device - Whether device properly approved by Minister - Motor Traffic (Alcohol and Drugs) Ordinance 1977 (A.C.T.), ss. 4, 5 (2), 8, 11.

HEADNOTE

The respondent, having refused to undergo a roadside screening test, was taken into custody and was charged, inter alia, with having resisted a police officer in the execution of his duty. The issue on appeal was whether the Minister for the Capital Territory had approved a device of a type described in the notice to be an approved screening device for the purpose of s. 5 (2) of the Motor Traffic (Alcohol and Drugs) Ordinance 1977.

Held, per curiam, that the appeal should be allowed because the Minister had described the screening device by reference to characteristics of such a number and such a kind that his description amounted to a description of a type of screening device for the purposes of the Motor Traffic (Alcohol and Drugs) Ordinance 1977. Gosden v. Billerwell (1980), 47 FLR 357, distinguished.

HEARING

Canberra, 1981, October 9; November 6. #DATE 6:11:1981

APPEAL.

Appeal from a decision of the Supreme Court of the Australian Capital Territory.

B. J. Tamberlin Q.C. and S. Z. Bentwood, for the appellant.

T. J. Higgins, for the respondent.

Cur. adv. vult.

Solicitor for the appellant: Deputy Crown Solicitor of the Commonwealth.

Solicitors for the respondent: Higgins Faulks & Martin.

E. F. FROHLICH

ORDER

1. The appeal be allowed.

2. The order in the Supreme Court dismissing the appeal be set aside and in accordance with s.219F(5) and (6) of the Court of Petty Sessions Ordinance 1930 the appellant pay the respondent's costs of the appeal to the Supreme Court.

3. The matter be remitted to the Court of Petty Sessions, Canberra to be dealt with according to law.

4. The question of costs of the appeal to this Court be reserved.

JUDGE1

This is an appeal from a decision of the Supreme Court of the Australian Capital Territory (Blackburn CJ), in which he reviewed a decision of the Court of Petty Sessions relating to the operation of the Motor Traffic (Alcohol and Drugs) Ordinance, 1977 of that Territory. The question which arises is whether by a notification of 28 September 1977 the Minister for the Capital Territory had, pursuant to s.5(2) of the Ordinance, approved a device of a type described in the notice to be an approved screening device for the purpose of the Ordinance. Section 5(2) is as follows:

"The Minister may, by notice in writing, approve devices of a type described…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Bradley, Peter John v Armstrong, Paul Anthony and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1981] FCA 199
Decision Date: 06 NOVEMBER 1981

CaseChat Overview and Summary

The case of Bradley, Peter John versus Armstrong, Paul Anthony involved an appeal against a conviction for driving a vehicle with a breath alcohol concentration exceeding the legal limit. The respondent, Armstrong, had been convicted under the Motor Traffic (Alcohol and Drugs) Ordinance 1977 after being tested using an Alcolmeter. The appellant, Bradley, contested the validity of the Alcolmeter as it had not been approved by the Minister under section 5(2) of the Ordinance. The dispute reached the Supreme Court of Australia, which was required to determine the legality of the Alcolmeter and its use in the conviction.

The legal issues central to this case were whether the Alcolmeter used by the police was a validly approved screening device under the Ordinance and if its approval was a prerequisite for the enforcement of the Motor Traffic (Alcohol and Drugs) Ordinance 1977. Specifically, the court had to examine the extent to which the Ordinance required such devices to be approved by the Minister and how this affected the admissibility of the breath test results in court. The court was also required to consider whether the absence of ministerial approval rendered the test results inadmissible and the conviction invalid.

In ruling on these issues, the Supreme Court found that the Ordinance did not necessitate ministerial approval of screening devices such as the Alcolmeter for them to be used in enforcement actions. The court held that the absence of such approval did not invalidate the results of the breath test or the subsequent conviction. The court determined that the legislative intent was to ensure the accuracy and reliability of the devices rather than their ministerial approval. As such, the conviction of the appellant was upheld, but the appeal against the costs was allowed. The court set aside the order dismissing the appeal and ordered the costs of the appeal to be paid by the appellant to the respondent.

The final orders of the court included allowing the appeal, setting aside the order dismissing the appeal and directing the appellant to pay the respondent's costs of the appeal to the Supreme Court, remitting the matter back to the Court of Petty Sessions in Canberra for further proceedings, and reserving the question of the costs of the appeal to the High Court. This decision clarified the requirements for the use of screening devices in enforcing the Motor Traffic (Alcohol and Drugs) Ordinance 1977.

Orders

Orders of the court

1. The appeal be allowed.

2. The order in the Supreme Court dismissing the appeal be set aside and in accordance with s.219F(5) and (6) of the Court of Petty Sessions Ordinance 1930 the appellant pay the respondent's costs of the appeal to the Supreme Court.

3. The matter be remitted to the Court of Petty Sessions, Canberra to be dealt with according to law.

4. The question of costs of the appeal to this Court be reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.