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 in the notice to be approved screening devices for the purposes of this Ordinance if he is of opinion that -

(a) devices of that type have been designed and made for the purpose of indicating, when a sample of the breath of a person is exhaled into the device, whether alcohol is present in the blood of the person and, if so, of giving an indication of the concentration of alcohol in the blood of the person; and

(b) devices of that type are suitable devices for the use in tests under Part II of this Ordinance."

The notification in question was as follows:

"IN pursuance of sub-section 5(2) of the Motor Traffic (Alcohol and Drugs) Ordinance 1977, I ANTHONY ALLAN STALEY, Minister of State for the Capital Territory, being of opinion -

(a) that devices of the type described in the Schedule have been designed and made for the purpose of indicating when a sample of the breath of a person is exhaled into the device, whether alcohol is present in the blood of the person and, if so, of giving an indication of the concentration of alcohol in the blood of the person; and

(b) that devices of that type are suitable devices for use in tests under Part II of that Ordinance,

HEREBY APPROVE devices of the type described in the Schedule to be approved screening devices for the purposes of the Motor Traffic (Alcohol and Drugs) Ordinance 1977.

SCHEDULE

An instrument on which is written, in addition to other matter, the word 'ALCOLMETER' and the words 'LION LABORATORIES LTD.' being an instrument that incorporates a meter having a graduated scale below which the symbol '%' and the words 'BLOOD ALCOHOL' appear.

DATED this twenty-eighth day of September 1977."

I personally cannot doubt that the Minister has done what s.5(2) requires. He has described the type of device partly by reference to marks on it and partly by reference to a feature of its operation.

It is submitted that this Court is bound by an earlier decision of the Court, Gosden v Billerwell (1980) 31 ALR 103, to hold otherwise. I imagine that it would only be in exceptional circumstances that a Full Court would depart from the ratio decidendi of an earlier decision of a Full Court of this Court. I am of the view, however, that there was not a ratio decidendi in Gosden v Billerwell which binds us in this case.

The earlier decision was given in relation to s.5(1) of the Ordinance, which deals with approved breath analysing instruments. That sub-section requires ministerial approval of a type of instrument described in the notice. The notice purported to describe the instrument in a schedule as follows:

"An instrument of a type known as "Breathalyzer" to which is affixed a label bearing in addition to other material, the expressions 'Model 1000' and 'US Patent 2,824,789'."

It was held by a majority (Sheppard and Kelly JJ, Brennan J dissenting) that the description was not of a type of breathalyzer. The features which led the majority to this view were that:

(a) "Breathalyzer" was a generic term; and

(b) to describe an instrument by reference to it having a label affixed (on which was certain descriptive matter) was not adequate.

Sheppard J rejected the view that the notice should be understood as referring to a manufacturer's label, although he expressed the view that the result would have been the same had that construction been followed. He was of the view that the reference to the label was deliberate, as being a help to a member of the police force in identifying the instrument, and hence being in a position to give a certificate under s.41(a)(iii) or s.41(b)(iii) of the Ordinance. It went to the matter of evidence. Both their Honours were of the view that what was on the label could only be regarded as descriptive of the label itself; one was therefore left with the description as being one of a breathalyzer with label.

In considering the argument that the Minister might have dropped the reference to label (manufacturer's or not) and referred to model and patent number, Sheppard J said that difficulties of proof would not then have been insuperable, and he referred to the use of expert evidence. He did not hold, or say, that "type" could only be described by reference to inherent or technical characteristics. Kelly J did not say or imply anything which would mean that a description such as that used in the present case would be inadequate, and I do not think Sheppard J did so.

It does seem to me that the Minister is deliberately blending type description with evidentiary considerations. This is I believe the source of the difficulty in the present case. The problems could have been avoided if the "type" had been more fully described, perhaps in more technical terms, and there had been a separate provision in the Ordinance making external indicia prima facie proof of the type. However, a point is reached, and sometimes soon reached, when designation of type comfortably accommodates itself to proof. Even when applying the rules of evidence it is often permissible to describe an object (or a person) as being a type, or coming into a category, as a conclusion from external marks, or external appearance (see Wigmore on Evidence, Revised edn. (1979) para 411). One disadvantage, which may be more theoretical than real, associated with the way the notice is drawn is that if one of the indicia goes, the device will not comply with it.

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

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

In case counsel should wish to argue a question concerning costs, related to the operation of the Ordinance just mentioned, the question of costs of the appeal to this Court should be reserved.

JUDGE2

The respondent was charged in the Court of Petty Sessions, Canberra with resisting the appellant in the execution of his duty, the appellant being a member of the Australian Federal Police and also the informant in the Court of Petty Sessions. The appellant, a senior constable, gave evidence before the learned Magistrate that, in company with Constable Froome, he intercepted the respondent while driving a motor vehicle. Following certain observations he made he told the respondent that he had reasonable cause to suspect that the respondent had alcohol in his body and that he required the respondent to undergo a screening test on a device on which was written the word "ALCOLMETER" and the words "LION LABORATORIES LTD." and which incorporated a meter having a graduated scale below which the symbol "%" and the words "BLOOD ALCOHOL" appeared. The respondent refused to undergo the test. Following this refusal the appellant and Constable Froome took the respondent into custody. The learned Magistrate found that the respondent was taken into custody pursuant to s.11 of the Motor Traffic (Alcohol and Drugs) Ordinance 1977 which enables a member of the Police Force to take a person into custody for the purpose of having a breath analysis carried out if that person has refused to undergo a screening test. The learned Magistrate found that the respondent resisted the appellant. The learned Magistrate held that the instrument profferred for the screening test had not been validly approved by the Minister under s.5(2) of the Ordinance and that the respondent was not obliged to submit to the screening test. He therefore held that he had not been validly taken into custody and he dismissed the information.

The informant appealed to the Supreme Court of the Australian Capital Territory from the decision of the learned Magistrate. Blackburn C.J. dismissed the appeal holding that the case was indistinguishable from Gosden v. Billerwell (1980) 47 F.L.R. 357, 31 A.L.R. 103, a decision of this Court. The present appeal is from the decision of Blackburn C.J.

The one question we were asked to decide is whether the Minister validly approved the screening device. The enabling provision in the Ordinance is s.5(2):-

"The Minister may, by notice in writing, approve devices of a type described in the notice to be approved screening devices for the purposes of this Ordinance if he is of opinion that -

(a) devices of that type have been designed and made for the purpose of indicating, when a sample of the breath of a person is exhaled into the device, whether alcohol is present in the blood of the person and, if so, of giving an indication of the concentration of alcohol in the blood of the person; and

(b) devices of that type are suitable devices for use in tests under Part II of this Ordinance."

The Minister purported to approve the Alcolmeter by means of the following notice in writing which was published in the Gazette:-

"AUSTRALIAN CAPITAL TERRITORY

Motor Traffic (Alcohol and Drugs) Ordinance 1977

APPROVAL OF SCREENING DEVICES

IN pursuance of sub-section 5(2) of the Motor Traffic (Alcohol and Drugs) Ordinance 1977, I, ANTHONY ALLAN STALEY, Minister of State for the Capital Territory, being of opinion -

(a) that devices of the type described in the Schedule have been designed and made for the purpose of indicating, when a sample of the breath of a person is exhaled into the device, whether alcohol is present in the blood of the person and, if so, of giving an indication of the concentration of alcohol in the blood of the person; and

(b) that devices of that type are suitable devices for use in tests under Part II of that Ordinance,

HEREBY APPROVE devices of the type described in the Schedule to be approved screening devices for the purposes of the Motor Traffic (Alcohol and Drugs) Ordinance 1977.
----------

SCHEDULE

An instrument on which is written, in addition to other matter, the word 'ALCOLMETER' and the words 'LION LABORATORIES LTD.' being an instrument that incorporates a meter having a graduated scale below which the symbol '%' and the words 'BLOOD ALCOHOL' appear.

Dated this twenty-eighth day of September 1977.

A.A. STALEY

Minister of State for

the Capital Territory."

By way of description of the device, therefore, the Minister has said that it is a device:-

(a) on which is written the word "ALCOLMETER",

(b) on which is written the words "LION LABORATORIES LTD.",

(c) that incorporates a meter having a graduated scale,

(d) on which the symbol "%" appears below the meter, and

(e) on which the words "BLOOD ALCOHOL" appear below the meter.

The question is whether the description of the device by means of these five separate characteristics, which must all appear in combination, can be said to constitute a description of a type of device. It is easy enough to exemplify a description of something which does not describe a type. To use the words "the premises known as 54 Station Street" is to describe an individual piece of real estate, a description which plainly does not describe any type. To offer a prize for the best rendition of "a symphony written by Ludwig Van Beethoven" plainly does describe a type of music. Such a description, amongst other things, provides sufficient information as to the characteristics of the subject matter to enable a decision to be made as to whether any individual musical work is or is not included in the type. In between these examples, each of which is clearly on one side or the other, there will be many a description so close to the border-line that difficulty may be experienced in deciding whether or not it does describe a type. It will generally be a matter of degree. In such a case I think it a legitimate aid to consider the legislative setting in which the description occurs. Thus in Arthur Sanderson (Great Broughton) Ltd. v. Vickers (1964) 108 S.J. 425 a Divisional Court consisting of Lord Parker C.J., Phillimore and Winn JJ. had to consider a question under s.67(1) of the Road Traffic Act 1960 (U.K.), 40 Halsbury's Statutes of England (2nd Edn.) at p.856. It provided, inter alia, that vehicles authorised to be used under a carrier's licence were to be trailers not exceeding such maximum number as specified in the licence. It was further provided that different types of trailers might be distinguished in the licence and that a maximum number might be specified in the licence for trailers of each type. The trailers authorised in the carriers licence under consideration authorised the use of eight trailers of a specified unladen weight but with no other description. It was contended on appeal that the licencing authority, by merely specifying the unladen weight, had not specified the type of trailer. Lord Parker C.J., with whom the other two members of the Court agree, said:-

"Type and unladen weight were not mutually exclusive terms and type includes both the type of trailer and the unladen weight."

Consequently it was held that the description of the trailer solely by reference to its weight was nevertheless the description of a type of trailer. In the legislative setting I think, with respect, that the Court was plainly correct in so holding.

In the present case I think it legitimate to have regard to two aspects of the legislative setting. The first is that the Minister was of the opinion that a screening device possessing the five characteristics set out above was designed and made for the purpose of giving the appropriate indication of the alcohol in the blood of the person to be tested and was suitable for use in the relevant tests. The second is that the result of a test on such a screening device is not evidence against the person tested, who can be convicted only on the basis of a subsequent test administered by a member of the Police Force who has completed a course of instruction to the satisfaction of the Commissioner of Police and who certifies that the breath analysis instrument he used was of the approved type and in proper working order - see ss.4(1), 6(1), 41(a)(iii) and (iv).

Free of authority, I think that the Minister has described the screening device by reference to characteristics of such a number and such a kind that his description amounts to a description of a type of screening device for the purposes of the Ordinance. I come to this conclusion on the footing of the five given characteristics. I think the legislative setting strengthens the conclusion but is not essential to support it.

I turn, therefore, to consider whether we are bound to come to a different conclusion by the decision in Gosden's Case. This decision was given some fifteen months ago. I approach the question on the basis that, if we thought its ratio covered this case, we would follow and apply it unless there were some quite exceptional circumstances indicating that we should not do so. In my opinion there are no such circumstances. The question, therefore, is whether the ratio in Gosden's Case governs this case. Gosden's Case was concerned with the purported approval by the Minister of a breath analysis instrument under s.5(1) of the Ordinance. The description of the instrument was as follows:-

"An instrument of a type known as 'Breathalyzer' to which is affixed a label bearing, in addition to other material, the expressions 'Model 1000' and 'U.S. Patent 2,824,789'."

The majority of the Court, Sheppard and Kelly JJ., held that these words did not describe a type of breath analysis instrument. It was conceded that the words "of a type known as 'Breathalyzer'" were not a sufficient specification of a type. As Kelly J. pointed out at F.L.R. p.375, A.L.R. p.120, there are at least two models of the instrument known as the breathalyzer. Sheppard J. concluded, at F.L.R. p.373, A.L.R. p.118, that the vice of the notice is that it purports to notify a type of instrument not by reference to a type at all but by reference to what is on a label which is affixed to it. Kelly J., at F.L.R. 376, A.L.R. 121, expressed in substance the same view. In effect the majority view was that the label had to be disregarded and what was left was insufficient to describe a type.

In this case, on the other hand, the Minister has described the device by reference to a meter incorporated in it having a graduated scale and by further reference to one symbol and three sets of expressions, which must be written on the device, specifying, in the case of one of the expressions as well as in the case of the symbol, where it must be placed in relation to the meter. I think these matters sufficiently distinguish this case from Gosden's Case.

I would allow the appeal. I agree in the orders proposed by Fox J.

When the matter comes on again before the learned Magistrate it may become necessary to investigate further both the facts and the law in relation to the question whether the respondent resisted the appellant in the execution of his duty, as alleged in the information. Constable Froome said in the Court of Petty Sessions that the respondent "pushed my hand away which contained the alcolmeter". That is the only act of physical resistance which appears to be mentioned in the evidence; but apparently no charge is based upon it. I am unable to find in the appellant's evidence any evidence that the respondent offered any physical resistance to him. The learned Magistrate, nevertheless, stated that he was satisfied on the evidence that the respondent "then and there resisted as Constable Bradley attempted to take him into custody . . . ". The solicitor, who appeared for the informant in the Court of Petty Sessions, made an affidavit on 30 December 1980 in support of the application for the order nisi to review the decision. Paragraph 11 says:-

"The informant's case further alleged that the defendant whilst in custody resisted one of the police".

Blackburn C.J. in the Supreme Court stated in his reasons that:-

"the respondent . . . was arrested under s.11 of the Ordinance, and while in custody he resisted the appellant".

Unless some evidence was given or some admission made which does not appear in the appeal book, there appears to be no evidence that the respondent resisted the appellant unless the refusal to undergo the screening test is regarded as an act of resistance.

There may be a question whether the peaceful submission to arrest following upon a refusal to undergo a screening test, even on a validly approved screening device, constitutes resisting a member of the Police Force in the execution of his duty within the meaning of s.64(1) of the Australian Federal Police Act 1979. This offence is now an indictable one for which a term of imprisonment for two years may be imposed. Section 11 of the Ordinance enables a member of the Police Force to overcome a person's refusal to undergo the screening test by immediately taking that person into custody for the purpose of having a breath analysis carried out. Section 22 of the Ordinance makes it an offence to refuse to provide a sample of breath for breath analysis. Section 23 of the Ordinance makes it an offence to refuse to permit a sample of blood to be taken. Sections 26 and 27 provide penalties for breaches of ss.22 and 23 of fines only. The Ordinance does not make it an offence to refuse to undergo a screening test.

JUDGE3

On 29 April 1980, upon the information of Senior Constable PETER JOHN BRADLEY (Informant) and before the Court of Petty Sessions of the Australia Capital Territory (Court) PAUL ANTHONY ARMSTRONG (Defendant) was charged, inter alia, as follows -

"That he in the Australian Capital Territory on the 26th day of April in the year 1980, did resist Peter John BRADLEY, then being a member of the Australian Federal Police, in the execution of his duty."

The informant's case in respect of the charge above alleged that following certain observation of erratic driving of a motor vehicle by the defendant on the date charged he was required to undergo a roadside screening test pursuant to s.8 of the Motor Traffic (Alcohol and Drugs) Ordinance 1977 (the Ordinance). That section reads -

"8. A member of the Police Force may require a person to undergo a screening test in accordance with the directions of that member where -

(a) the person is the driver of a motor vehicle on a public street or in a public place and the member of the Police Force has reasonable cause to suspect that the person has alcohol or a drug in his body; or

(b) . . . . . . . "

Screening test is defined in s.4 thus -

"Screening test" in relation to a person, means a test of sample of the breath of the person carried out for the purposes of this Ordinance by means of an approved screening device."

The informant alleged that the device he proposed to use to carry out the screening test had written on it, in addition to other matter, the word "ALCOLMETER" and the words "Lion Laboratories Limited" and that the device incorporated a meter having a graduated scale below which the symbol "%" and the words "blood alcohol" appeared.

Thereupon the informant requested the defendant to blow into the device. He refused to do so whereupon the informant took the defendant into custody pursuant to s.11 of the Ordinance.

The learned Magistrate in the Court of Petty Sessions said that he would be satisfied on the evidence that upon the occasion of the informant attempting to take the defendant into custody he then and there resisted; that the custody referred to was that described within the terms of s.11 of the Ordinance.

The contention on behalf of the defendant was that the device which he refused to use when required to do so by the informant, was not a properly approved device within the terms of the Ordinance referred to (to which more specific reference will be made later) whereupon the informant had no right to take him into custody pursuant to s.11 whereby the defendant could not be said to resist the said informant in the execution of his duty as charged.

The learned Magistrate upheld the submission made on behalf of the defendant that the device referred to earlier was not a properly approved device and therefore dismissed the information.

On behalf of the informant, and pursuant to s.219C of the Court of Petty Sessions Ordinance 1930 of the said Territory, an Order Nisi was sought calling upon the defendant to show cause why the decision of the Court of Petty Sessions should not be reviewed on the ground of prima facie error or mistake on the part of that Court whereby the said decision of that Court should not in law have been made.

The application for the Order Nisi to review was heard by the learned Chief Judge of the Australian Capital Territory who, on 30 June 1981, discharged the Rule Nisi with costs.

Against that decision the informant has appealed to this Court.

The substantial issue argued before us has been as to whether the so called screening device is one which has been (properly) approved by the Minister pursuant to sub-s.(2) of s.5 of the Ordinance. Reliance has been placed on the decision of Gosden v. Billerwell 31 A.L.R. 103 (Gosden) where the Court by majority (Brennan J. as he then was dissenting on this point) held a s.5(1) notice in writing was invalid. There the notice in writing stated -

"I . . . . . . . . . . .
HEREBY APPROVE instruments of the type described in the Schedule to be approved breath analysing instruments for the purposes of the Motor Traffic (Alcohol and Drugs) Ordinance 1977."

The SCHEDULE read -

"An instrument of a type known as "Breathalyzer" to which is affixed a label bearing, in addition to other material, the expressions "Model 1000" and "U.S. Patent 2824,789"

In his judgment, Sheppard J. as to this issue, said at p.115 -

"In my opinion it is not an appropriate notification of a type of instrument to specify the instrument, not by reference to its make or model, but by reference to what is on a label which is affixed to it. A consequence of holding that the type of instrument could lawfully be notified (approved) in this way would be to permit a person other than the Minister to select, from time to time, and thus approve, the type of instrument which was to be an approved instrument for the purposes of the legislation. The passive voice is used; the affixing of the label could be carried out by the manufacturer, his agent or someone in the police force. Once the label was affixed, the instrument, so long as it could reasonably be described as a breathalyzer, would become an approved instrument for the purposes of the legislation."

and later, p.116 -

"In my opinion the notice is invalid because it fails, within the meaning of s.5(1), to approve an instrument "of a type"."

and later, p.118 -

"In my opinion a reasonable person would not, as I have said, think that he was doing more than certifying that the instrument. . . .bore a label on which were the required words and figures
. . . . . . .
The vice of the notice here is that it purports, as I have said, to notify a type of instrument not by reference to type at all but by what is on a label."

Kelly J. referred to the definition of "type" in an Oxford Dictionary. He said at p.121 --

"On analysis, I think that the only words which can be said to "describe" the instrument in the sense in which the word "describe" is used in s.5(1) are the words "of a type known as "breathalyzer" to which is affixed a label" The words following are words descriptive of the label, not of the instrument. Unless, therefore, the mere affixing of a label can be said to describe a particular type of breathalyzer by showing the general form, structure or character distinguishing it, it seems to me that the notice is not apt to describe the instrument and therefore is invalid.

Assuming the label to have been affixed by the manufacturer of the instrument or by a distributor appropriately in the course of trade so that it may be described as having been regularly affixed, I think that the task of description of the type of instrument is not performed by the Minister's notice but by the manufacturer or distributor through the affixing of the label.

I am prepared to find that the Minister intended by his notice that the label to which he referred should be a label regularly (in the sense used above) affixed, but I am unable to see that the presence of a label on an object can describe the general form, structure or character distinguishing the particular kind of object."

We have been pressed to accept that Gosden is on all forms with the instant case and that we are bound by it.

In Gosden, however, the section which notice in writing was intended to implement was s.5(1). Here we are concerned with s.5(2).

The Gosden notice in writing itself is, I suggest, materially different to the Notice before us referrable to s.5(2). And the judgments quoted of the majority were preoccupied with the Notice of approval which purported to approve (sic) -

". . . not by reference to its make or model but by reference to what is on a label which is affixed to it."

(See per Sheppard J. at page 5 supra).

Kelly J. did not agree that "the presence of a label" on an object can describe the general form, structure or character distinguishing the particular kind of object.

It will be noticed that their Honours were concerned with a Notice significantly different in wording; and with the area of it where different.

The relevant NOTICE OF APPROVAL OF SCREENING DEVICES is before us. There the Minister expresses his opinion that devices of the type described in the Schedule, made for the purposes there set out are suitable for devices for use in tests under Part 11 of that Ordinance. The Notice proceeds to approve devices of the type described there. The description is of an "instrument" and includes that -

(i) on it there are words written in capitals ALCOLMETER, LION LABORATORIES LTD.;

(ii) it incorporates a meter with a graduated scale and a symbol "%";

(iii) other words, in the vicinity of the "%" mark, also in capitals, BLOOD ALCOHOL.

The words are not (as in Gosden) on any thing which might be so impermanent (if that is significant) as a "label"; they are on the device itself. To me the description thus in the Notice of the article is quite distinctive.

An Alcolmeter is now a well known device, see e.g. the judgment of O'Brien J., C.J. of Cr.D. (below). Its purpose can be derived, if it were necessary to do so, from a consideration of the whole of the Notice. Similarly, the content of the Notice, I suggest, is evidence that the Minister held the opinion to which it refers. (cf. Land Realization Co. Ltd. v. Postmaster-General (1950) 1 Ch. 435 at 440 per Romer J.

I have not sought to resolve this matter without seeking whatever aid is afforded by the Gosden judgments. Because of the difference in wording in the Notice, reasoning of their Honours while appropriate for their task would not assist except in a negative way, to an evaluation of the problem here; though I consider that the decision I reach is consistent with the reasoning of Brennan J. (ibid pp.107-118) and of O'Brien C.J. of Cr. in Rose v. Livingstone & Anor.; Rose v. Howe, unreported, heard 13 February 1981 in the Supreme Court of New South Wales Criminal Division at e.g. p.25 et seq.

However, quite apart from any reliance on these cases, I am of the opinion that in the Notice before us the Minister has by notice in writing approved devices of a type described in it to be approved screening devices for the purposes of the Ordinance and that the opinion he has expressed in the Notice conforms with what is referred to in s.5(2) thereof.

The Order I propose is -

1. The Appeal be allowed.

2. The Order to review be made absolute.

3. The matter be remitted to the Court of Petty Sessions for determination.