Daurat v Chammassian
[2000] WASCA 32
•21 FEBRUARY 2000
DAURAT -v- CHAMMASSIAN [2000] WASCA 32
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 32 | |
| Case No: | SJA:1133/1999 | 25 NOVEMBER 1999 | |
| Coram: | McKECHNIE J | 21/02/00 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | CLIFFORD STUART DAURAT MIHRAN CHAMMASSIAN |
Catchwords: | Road traffic Driving in excess of prescribed amount Self test breathalyser Prima facie proof of accuracy Whether presumption displaced No new principles |
Legislation: | Road Traffic Act 1974 (WA) |
Case References: | Wilkey v Webb (1986) 4 MVR 12 Bastian v Delany (1997) 25 MVR 445 Casson v Johnston (1995) 21 MVR 196 Garrett v Nicholson [1999] WASCA 32 Gillespie v Morgan (1993) 17 MVR 224 Hunter v Letts (1986) 4 MVR 83 Lloyd v Faraone [1989] WAR 154 Munckton v Webb (1984) 1 MVR 401 Pallott v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12 May 1999 Quigley v Slater (1985) 2 MVR 411 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : DAURAT -v- CHAMMASSIAN [2000] WASCA 32 CORAM : McKECHNIE J HEARD : 25 NOVEMBER 1999 DELIVERED : 21 FEBRUARY 2000 FILE NO/S : SJA 1133 of 1999 BETWEEN : CLIFFORD STUART DAURAT
- Appellant
AND
MIHRAN CHAMMASSIAN
Respondent
Catchwords:
Road traffic - Driving in excess of prescribed amount - Self test breathalyser - Prima facie proof of accuracy - Whether presumption displaced - No new principles
Legislation:
Road Traffic Act 1974 (WA)
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr P D Quinlan
Respondent : Mr S A Shirreffs
Solicitors:
Appellant : State Crown Solicitor
Respondent : Papamihail
Case(s) referred to in judgment(s):
Wilkey v Webb (1986) 4 MVR 12
Case(s) also cited:
Bastian v Delany (1997) 25 MVR 445
Casson v Johnston (1995) 21 MVR 196
Garrett v Nicholson [1999] WASCA 32
Gillespie v Morgan (1993) 17 MVR 224
Hunter v Letts (1986) 4 MVR 83
Lloyd v Faraone [1989] WAR 154
Munckton v Webb (1984) 1 MVR 401
Pallott v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12 May 1999
Quigley v Slater (1985) 2 MVR 411
(Page 3)
1 McKECHNIE J: On 4 December 1997, Mr Chammassian was pulled over for a random breath test operation in Leach Highway, Myaree.
2 After it was ascertained that he had consumed alcohol, he was taken to the Fremantle Police Station breath room where a sample of his breath was taken.
3 After calculating back to the time of apprehension, the blood alcohol level was said to be 0.109 per cent.
4 As a result he was charged that on 4 December 1997 at Myaree, he drove a motor vehicle on Leach Highway with a percentage of alcohol in his blood equal to or exceeding 0.08 per cent, contrary to the Road Traffic Act, s 64(1).
5 On 25 June 1999 he stood trial. The prosecution called two witnesses. Mr Chammassian gave evidence and called a witness as to the facts and an expert pharmacologist.
6 After hearing submissions the learned Magistrate dismissed the complaint.
7 On 26 July 1999 the prosecution was granted leave to appeal on the following grounds:
"The Learned Magistrate erred in dismissing the complaint in that he:
(a) erred in law in referring to section 70(2)(ba) of the Road Traffic Act 1974 ('the Act') and not s.70(2)(bb) of the Act;
(b) erred in law and in fact finding that the prima facie evidence of the certificate under s.70(2)(bb) of the Act and of Constable Stillman was displaced when there was no basis for such a finding; and
(c) in the alternative to ground (b), erred in law in failing to provide adequate reasons for his finding that the prima facie evidence of the certificate under section 70(2)(bb) of the Act and of Constable Stillman was displaced".
The Issues at Trial
8 The first witness for the prosecution was Constable Stillman, an authorised breathalyser operator who gave evidence of the apprehension
(Page 4)
- of Mr Chammassian. He then gave evidence of the administration of the breath test. The Draga Alco Test 7110 is an approved self-testing apparatus and was used that night.
9 Constable Stillman gave evidence that he operated the apparatus in accordance with the Road Traffic Breath Analysis Regulations 1975. At the completion of the test he gave Mr Chammassian a printed receipt copy of the test which he signed and dated. The slip had all the relevant details of the test which had been conducted. He tendered into evidence the relevant Form 3. He said:
"… One of those copies is given to the defendant, which I sign and date, and the second copy is also - - is retained as the form 3 notice that you've already tendered as evidence. So there are two copies of the same test. … this should be an exact copy of what was handed to the defendant on that morning, yes".
10 Constable Stillman was then cross-examined. He could not remember whether a multiple test was given that night or multiple samples were obtained. When first questioned about the number of tests given, Constable Stillman responded:
"He only did one test because he's only required to give one test. He only gave one test and I arrived at the results that we've discussed."
- He said further:
"… the first time I conducted a test and the only time I'm telling you that I conducted a test, the machine gave a reading in the prescribed manner and the result of that reading was .118 per cent".
(Page 5)
12 In re-examination he gave his understanding of the meaning of the word "test". He said as follows:
"My understanding of the word 'test' is a test that, when the Draga Alco Test 7110, which is the machine, gives a reading in the prescribed manner, as in according to the regulations in the Gazette, which means that it'll give a result of him blowing into the machine and complying with the analysis. If you understand, your Worship, he blows into the machine. He complies with it. It then gives a reading. He has then complied and given a sample of breath for analysis. Any other attempts to blow into the machine leading up to that result are simply taken - my terminology - as being an attempt and he hasn't complied with the regulations by supplying a sample for analysis".
13 The second prosecution witness was Constable Heffernan, who was on duty at the same random breath test position. He gave evidence that Mr Chammassian had told him his first drink was about 11.30 and that he drank four cans of Gold at his girlfriend's house. He did not give any evidence of the test in his examination-in-chief, but he was cross-examined about it. He did not really recall what Constable Stillman did and remembered that there was only one test that provided a reading.
14 The first witness for the defence was Mr Chammassian, who gave evidence that he drank three cans of VB over a period of an hour to an hour and a half, leaving the pub at 11.50 pm. He left the Willagee Hotel and shortly afterwards was pulled up on Leach Highway for the random breath test. In relation to the tests he said:
"At the time I said to them that if I blow this bag and the reading was under the limit I can go home and they can drop me back off to the car. They said 'Yes'. I blew the first time into the machine and it had a reading saying .04 on the ticket. … Another officer came in and he said that I - - had to blow into the machine again. … It happened about 5 minutes later because I told them that, 'This is bullshit, I've done my job,' and they'd promised to take me back to the car. … I blew in the machine. I did it again and it said that the machine wasn't working. They asked me to - - then I got even madder. I said, 'Listen, I've done what you guys have been telling me and you guys promised to take me back to the car so I can go.' So I did it again - - [the] third time. … this time there was no sample
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- and then I said this - - I was a little but (sic) upset and - - at the time, and then they asked me to do it again. … I did it again and they said that I was being charged now for being over the limit".
15 The first slip showing .04 was taken off the witness, but he was handed the slip to which reference has been made.
16 In cross-examination, he denied that he had a few goes at blowing into the machine. He denied that he had made the story up.
17 Mr Matich gave evidence that he saw Mr Chammassian on 3 December 1997. He bought three rounds of cans of VB and that Mr Chammassian left around midnight.
18 Mr Langham, a pharmacologist, gave evidence about general absorption of alcohol. On the assumption that there was an initial reading of .04 and insufficient sample and then a reading, he was of the opinion that it would suggest a possibility that the machine was faulty.
The Magistrate's Reasons
19 The Magistrate referred to the provisions of the Road Traffic Act which give rise to prima facie presumptions.
20 The learned Magistrate did not find Constable Stillman to be a reliable witness and found that Constable Heffernan's evidence was vague.
21 He accepted the defendant's evidence that he only had three cans of VB from approximately 10.00 pm over a period of one to one and a half hours and that he had no alcohol at Mr Matich's house. He further accepted the defendant's evidence that he had to blow four times before the result relied upon was obtained and that the first time he did so the machine did produce a result. The Magistrate accepted Mr Langham's conclusions that the defendant could not have given the reading which was relied upon in the proceedings. In the end he came to the view that the prima facie evidence of the certificate and the effect of the evidence of Constable Stillman had been displaced and that the prosecution had not proven the case beyond reasonable doubt.
(Page 7)
The Road Traffic Act provisions
22 The provisions of the Road Traffic Act 1974 in relation to the testing of the amount of alcohol in a driver's blood have been the subject of numerous decisions of this Court over the years until the stage has been reached where the interpretation of those provisions is reasonably settled.
23 The deeming provisions and the provisions making certain certified matters prima facie proof of their effect, mean that successful defences of drink driving charges where breath testing equipment is used will be rare.
24 Generally speaking, evidence of the quantity of alcohol allegedly consumed, and expert evidence as to the absorption of alcohol by the human body, or the particular defendant, is unlikely to displace the deeming provisions of the amount of alcohol in the defendant's blood by reason of breath analysis, once proof is given as to the operation of the machine in accordance with the regulations.
25 However, the Road Traffic Act does not deem a conviction for driving with a blood alcohol content in excess of the prescribed amount following a breathalyser reading.
26 The prosecution still carries the burden of converting the prima facie proof, which the Road Traffic Act provides, into proof beyond reasonable doubt.
The Self-Testing Unit
27 Because the Draga Alco Test 7110 was a self-testing unit, the provisions of s 68(6) (and following) applied.
28 There was no issue that Constable Stillman was an authorised person. He was required to operate the Draga Alco Test 7110 in accordance with the regulations.
29 Although the Magistrate wrongly referred in his reasons to s 70(2)(ba), it is clear that the prosecution were entitled to rely on the presumption contained in s 70(2)(bb) if a certificate was tendered.
30 Constable Stillman did produce such a certificate. The prosecution, therefore, established prima facie that the breath testing equipment was operated by Constable Stillman in the prescribed manner and that the regulations were complied with.
(Page 8)
31 Also established, prima facie, was the fact that the breath analysing equipment indicated a result in the prescribed manner. The question whether the prima facie presumption has been displaced is in all cases a question of fact: Wilkey v Webb (1986) 4 MVR 12.
32 In the present case the Magistrate correctly set out the ultimate standard of proof and where the burden lay. He set out the various pieces of evidence by which prima facie there was proof of the matter required.
33 As stated above, at one stage, the learned Magistrate did refer to s 70(2)(bb). These provisions are not relevant to self-testing apparatus. However, when he outlined the provisions upon which he relied, these provisions are in fact contained in s 70(bb)(iii) and s 70(bb)(iv). Therefore, I do not regard the mistaken identification of the subsection as material. The Magistrate was of the opinion that Constable Stillman's evidence was not consistent with the test result certificate.
34 The regulations governing the administration of breath tests with self-testing equipment are found in Part 3.
35 The Magistrate found as a fact that Mr Chammassian had to blow four times before the result relied on was obtained. This was a finding of fact contrary to the evidence of Constable Stillman. It was open for the Magistrate to make this finding.
36 Additionally, the effect of the whole of Constable Stillman's evidence was that there was no convincing explanation for the different test result recordings. "Insufficient sample", "no sample", "zero test correct", and "subject's analysis 0.118 per cent".
37 In most cases, if an authorised police officer gives evidence of adherence to the regulations in the operation of a self-testing breath analysis unit and that evidence is accepted, the Road Traffic Act deems the result to be conclusive and the prosecution's ultimate burden of proof will be discharged.
38 In this case, however, the prima facie evidence adduced by the prosecution was undermined by the oral evidence of the two police officers and the unexplained readings on the result sheet, together with the appellant's evidence that he had to blow four times before a result was obtained.
39 Constable Stillman's insistence in examination-in-chief in the procedure he followed, said to be in accordance with the regulations, is
(Page 9)
- different from the procedure he said he followed in cross-examination after he had been confronted with the actual test results. The effect of the evidence is that it cannot be ascertained whether he did follow the regulations especially Part 3, item 5.
40 The evidence of the test result printout showed "insufficient sample". The operator was required, therefore, to take certain steps. Because of the unsatisfactory nature of his evidence, it was open for the Magistrate to conclude that those steps may not have been taken, or in other words, notwithstanding the prima facie effect of the certificate, there remained a reasonable doubt that all the steps were taken in accordance with the regulations.
41 This particular case turns on the unusual printout result, coupled with the unreliability of the authorised officer's evidence as to the steps that he took. In an ordinary case, I doubt whether the evidence led by the defence could defeat the deeming provisions. However, having regard to the whole of the prosecution's case, the question of conformity with the regulations was very much in issue and it was open for the Magistrate to fail to be satisfied beyond reasonable doubt as to the guilt of Mr Chammassian.
42 In consequence this appeal is dismissed.
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