Dickenson v Fletcher - [1989] TASSC 39

Serial No 35/1989
List "A"

CITATION: Dickenson v Fletcher [1989] TASSC 39; A35/1989

PARTIES:  DICKENSON
  v
  FLETCHER

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 11/1989
DELIVERED ON:  28 August 1989
JUDGMENT OF:  Neasey J

Judgment Number: A35/1989
Number of paragraphs: 14

Serial No 35/1989
List "A"
File No LCA 11/1989

DICKENSON v FLETCHER

REASONS FOR JUDGMENT NEASEY J

28 August 1989

This is a notice to review an order made by Magistrate Mr Dockray in June of this year at Launceston, whereby his Worship convicted the applicant on a complaint charging two offences. One was under s6(1) of the Road Safety (Alcohol and Drugs) Act 1970 ("the Act") of driving a motor vehicle on a public street with alcohol present in the blood in a concentration greater than the prescribed concentration. The other was a charge under s19A(1) of the Act of driving a motor vehicle on a public street whilst disqualified.

The applicant challenges the conviction under s6(1). The principal ground relied upon is that the magistrate was in error in holding that a prima facie case had been proved by the close of the prosecution evidence. It is contended that there was no prima facie proof that the instrument upon which the breath analysis had been taken was a "breath analysing instrument" within the meaning of s2(1) of the Act. The ground is not framed in those terms, but that is the substance of it. The basic argument is that it had not been proved that the breath analysing instrument satisfied that part of the definition in s2(1) which reads, "(being apparatus of a type approved by the Governor by notice in the Gazette)". The relevant approval appears in Statutory Rule No 90 of 1988. In the substantive part it reads:–

"1 — This notice may be cited as the Road Safety (Alcohol and Drugs) (Approval of Instrument) Notice 1988.
2 — I approve the type of apparatus specified in Schedule 1 to this notice for use as a breath analysing instrument for the purposes of the Road Safety (Alcohol and Drugs) Act 1970.
SCHEDULE 1
Breath Analysing Instrument.
The type of apparatus bearing thereon (among other things) the expression 'Alcotest 7110'."

It was submitted that this notice was not a valid approval of "a type", within the definition of "breath analysing instrument". A series of cases in other States and the ACT was cited in support. Principal reliance was placed upon Gosden v Billerwell (1980) 47 FLR 357. Other cases cited were:– Bradley v Armstrong (1981) 39 ALR 118; Gipp v Richardson [1982] VR 1031; and Taylor v Daire [1982] 30 SASR 453. However, as there is relevant authority in this State, and in addition there are important differences between the legislation in the above cases and our local provisions, I shall first refer to Tasmanian authority.

The most important difference between the provisions in the above cited cases and those of our Road Safety Act

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 Dickenson v Fletcher

Details

AGLC: Dickenson v Fletcher [1989] TASSC 39
Case: [1989] TASSC 39
Decision Date: 28 August 1989

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Dickenson v Fletcher revolves around a conviction issued by Magistrate Mr Dockray against the applicant, Dickenson. Dickenson was convicted of two charges: driving a motor vehicle with alcohol present in his blood at a concentration greater than the prescribed limit under section 6(1) of the Road Safety (Alcohol and Drugs) Act 1970, and driving while disqualified under section 19A(1) of the same Act. Dickenson challenges the conviction on the grounds that the magistrate erred in finding a prima facie case based on the prosecution's evidence. Specifically, Dickenson argues that it was not proven that the breath analysis instrument used met the criteria of a "breath analysing instrument" as defined by the Act.

The central legal issue before the court was whether the approval notice issued by the Governor, which identified the type of breath analysis instrument by the expression "Alcotest 7110", was a valid approval of a type within the meaning of the Act. The court considered various authorities, both from other states and territories as well as from Tasmanian cases. The court found that the approval notice was valid and that the section 25(2) of the Act provided prima facie evidence that the instrument was of an approved type and in proper working order, unless such evidence was thrown into doubt by other evidence. The court held that the approval notice was sufficient to describe a type of apparatus and that it was up to the defendant to prove otherwise. Therefore, the appeal against the conviction was dismissed.

Regarding the sentence imposed, Dickenson argued that the four-week imprisonment term was manifestly excessive. The court found that the magistrate was justified in imposing a short term of imprisonment due to Dickenson's history of repeated offenses related to driving under the influence and while disqualified. The court concluded that the sentence was not manifestly excessive and dismissed the remainder of the application.

Orders