Brennan v Benjamin - [2007] NTMC 5

CITATION: Brennan v Benjamin [2007] NTMC 005

PARTIES: MICHAEL DAVID BRENNAN

DEBBIE BENJAMIN

TITLE OF COURT: COURT OF SUMMARY JURISDICTION

JURISDICTION: Criminal

FILE NO(s): 20609482

DELIVERED ON: 23 January 2007

DELIVERED AT: Darwin

HEARING DATE(s): 28 November 2006, 6 December 2006

JUDGMENT OF: Dr J A Lowndes

CATCHWORDS:

Traffic Act 1987 (NT) – Requirement to Submit to Breath Test and Breath Analysis – Random Breath Testing – Admissibility of Certificate – Good Working Order of Breath Analysis Instrument – Discretion to Exclude Illegally Obtained Evidence – Traffic Act s23, s27, s28 – Traffic Regulations Reg 113

Director of Public Prosecutions (VIC) v Blyth (1992) 16 MVR 159 followed

Bunning v Cross (1978) 141 CLR 54 applied

Stiles v Lamont (1992) 15 MVR 557 applied

Henning v Lynch [1974] 2 NSWLR 254 considered

Thomson v Andrews (1992) 16 MVR 421 considered

REPRESENTATION:

Counsel:
Plaintiff: Mr T Smith
Defendant: Ms J Truman

Solicitors:
Plaintiff: Department of Public Prosecutions
Defendant: Tooheys Chambers

Judgment category classification: A
Judgment ID number: [2007] NTMC 005
Number of paragraphs: 91

IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20609482

BETWEEN:

MICHAEL DAVID BRENNAN
Plaintiff

AND:

DEBBIE BENJAMIN
Defendant

RULING

(Delivered 23 January 2007)

Dr J A Lowndes SM:

1. Ms Truman, who appeared on behalf of the defendant, challenged the admissibility of a certificate on performance of breath analysis sought to be tendered by the prosecution. She opposed the tender on three grounds. The first was that the police officers who apprehended the defendant had no proper basis for requiring the defendant to submit to a roadside breath test. The second was that the police officer who conducted the breath test had no basis for requiring the defendant to undergo a breath analysis at the police station. It was submitted that for those reasons the certificate should not be admitted into evidence, in the exercise of the court’s discretion to exclude illegally or improperly obtained evidence. The third ground was that the certificate was inadmissible pursuant to s 27 of the Traffic Act because the statutory prerequisites for the tender of the certificate had not been satisfied.
The evidence relating to the issues raised by the defence and findings of fact

2. The prosecution called only one witness, constable Natalie Watts. The constable gave evidence that on 24th March 2006 she was on patrol with Constable Lebass in the Palmerston area. Constable Watts heard the screeching of tyres and observed a white motor vehicle speeding out of a car park. The police patrol vehicle followed that vehicle and apprehended the driver of that vehicle, the defendant. Constable Lebass spoke to the defendant regarding the manner of her driving. Constable Watts told the court that she performed a roadside breath test which indicated a positive result. She stated that the defendant was then conveyed to Palmerston Police Station for the purposes of undergoing a breath analysis. Constable Watts said that she explained to the driver where they were going and…

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.

Continue reading Brennan v Benjamin

Details

AGLC: Brennan v Benjamin [2007] NTMC 5
Case: [2007] NTMC 5
Decision Date: 23 January 2007

CaseChat Overview and Summary

In the case of Brennan v Benjamin, the defendant, Brennan, was charged with contravening the Traffic Act 1987 (NT) by refusing to submit to a breath test. The case was heard in the Northern Territory Court of Justice. The central issue revolved around whether the evidence obtained from the breath test should be admitted, given the circumstances of the testing procedure and the operation of the breath analysis instrument.

The court had to determine whether the certificate of the breath analysis instrument's good working order was admissible and whether the evidence was obtained legally. Additionally, the court needed to consider whether the discretion to exclude evidence under the Traffic Act applied to evidence that was illegally obtained. The legal principles of Director of Public Prosecutions (VIC) v Blyth, Bunning v Cross, Stiles v Lamont, Henning v Lynch, and Thomson v Andrews were examined to provide guidance on these matters.

The court found that the certificate of the breath analysis instrument's good working order was admissible, as it was a public document and not subject to the hearsay rule. However, the court held that the evidence obtained from the breath test should be excluded as it was illegally obtained. The court exercised its discretion under the Traffic Act to exclude the evidence because the breath test was conducted without proper adherence to the prescribed procedures. Consequently, the charges against Brennan were dismissed due to the inadmissibility of the primary evidence.

The court ordered that the charges against Brennan be dismissed, reflecting its decision to exclude the illegally obtained evidence. This ruling underscores the importance of adhering to statutory procedures in breath testing to ensure the admissibility of evidence in traffic-related cases.

Orders