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

1. 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.

1. 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'."

1. 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.

1. The most important difference between the provisions in the above cited cases and those of our Road Safety Act is that there is no suggestion or mention in those cases of the existence of a provision similar to s25(2) of the Road Safety Act, s25(2) provides:–

"(2)     In any proceedings to which this Division applies a certificate certifying –

(a)     .....

(b)     .....

(c)     that the apparatus used by him to carry out the breath analysis was a breath analysing instrument within the meaning of this Act and that that instrument was in proper working order;

(d)     .....

(e)     .....

(f)     .....

(g)     .....

is prima facie evidence of those particulars."

1. In the present case, a "certificate of approved operator (s25(2))" was tendered before the magistrate, which certified, inter alia:–

"that the apparatus used by me to carry out the breath analysis was a breath analysing instrument within the meaning of the Act and that that instrument was in proper working order".

Since a breath analysing instrument within the meaning of the Act is one which satisfies the definition in s2(1), it follows that the effect of s25(2)(c) was that at the end of the prosecution evidence there was prima facie evidence that the instrument did satisfy the definition, and was therefore "apparatus of a type approved by the Governor by notice in the Gazette". At the hearing before the magistrate, it was submitted at the end of the prosecution evidence that there was no case to answer, but after reserving and considering the matter Mr Dockray held to the contrary; whereupon the applicant offered no evidence and was convicted on both charges.

1. The meaning and effect of s25(2), relative to the production of prima facie evidence, was fully considered by the Full Court in Stonehouse v Strickland [1981] Tas R 359. In a joint judgment by Nettlefold and Everett JJ and myself, we held that:–

"To say that particular testimony constitutes 'prima facie evidence' of a fact which has to be proved is to say that it is sufficient to prove that fact according to the criminal standard of proof unless the existence of the fact is thrown into a state of reasonable doubt by other evidence" – ibid, at pp363 and 364.

We also said:–

"When a court is considering evidence which the Road Safety (Alcohol and Drugs) Act 1970 provides is to be prima facie evidence of a given fact (eg that a breathalyser was in proper working order), in relation to the issue whether that prima facie evidence is capable of proving the fact beyond reasonable doubt if the evidence proceeds no further, the question is whether the prima facie evidence itself (eg the existence of the fact) has been thrown into a state of reasonable doubt; or in the words of Hood J in Bunker v Mahoney, [1917] VLR. 65, whether 'the prima facie evidence is shaken by any evidence to a contrary effect'. In the case of prima facie evidence produced pursuant to s25(1), such a state of reasonable doubt is not created by raising doubts as to the training, qualifications, skills or technical knowledge of the approved operator. If prima facie evidence is produced pursuant to s25(1) that the instrument was in proper working order, then that evidence is sufficient to prove that fact beyond reasonable doubt unless countervailing evidence is produced tending to show that it was not in proper working order. Again, if it is sought to throw doubt upon prima facie evidence that the instrument was operated in the prescribed manner, which entails its being tested with a standard alcohol solution, doubt is not thrown upon the operator's statement that he operated it in the prescribed manner by showing that he did not know of his own knowledge that the solution was standard alcohol solution. It would be necessary for the defence to provide some evidence tending to show that it was not standard alcohol solution. Admittedly, in the average run of cases it would be difficult if not impossible for the defence to throw such prima facie evidence into doubt by producing evidence to a contrary effect, but in our view that is precisely the result which the legislation was intended to produce. The statutory scheme is designed and intended of itself to produce evidence of an accurate test result if carried out as prescribed." – ibid, p367.

The substance of what was said there applies with equal effect to s25(2), and to the principal question involved in the present motion. I have cited the above passage at length because it emphasises the strength of the prima facie presumptions enacted by s25. See also, as to "prima facie evidence", Strickland v Packett, per Cox J, 781982.

1. Of course, if the prima facie effect of the evidence before the magistrate, that the apparatus used satisfied the definition in s2(1), was thrown into a state of doubt, then the court would have had to decide whether a conviction was possible at the stage the submission was made, according to the principles of May v O'Sullivan (1955) 92 CLR 654. As pointed out in Stonehouse v Strickland, (supra), usually there would be an evidentiary onus upon the defendant to produce some countervailing evidence, but it would be possible to raise a relevant doubt by pointing to some internal omission or contradiction in the legislation or in the implementation of it, or the like, which was capable of rebutting the prima facie effect of the certificate under s25(2). This in substance was the argument relied upon by the applicant here. He contended that, notwithstanding the effect of the certificate in providing prima facie evidence that the apparatus complies with the definition, demonstration of the defect in the purported approval by the Governor raises a substantial doubt. This argument requires examination.

1. The essence of the applicant's contention is that the approval notified in Statutory Rule No 90 of 1988 does not satisfy the definition, because it does not describe a "type" of apparatus in terms which show on their face that a type is being described. Principal reliance was placed upon the majority judgments in Gosden v Billerwell, (supra). But in my opinion, Gosden's case is distinguishable because there the notice itself was required to describe a "type" of breath analysing instrument for the purposes of the Ordinance. The relevant section provided as follows:–

"5(1)   The Minister may, by notice in writing, approve instruments of a type described in the notice to be approved breathalysing instruments for the purposes of this Ordinance ...............".

1. The two majority judges in Gosden's case held that the particular description was insufficient to describe a "type", whereas the third judge, Brennan J, held to the contrary. The ratio of the decision is so described in Bradley v Armstrong, (supra), at p120.

1. In the present case, a valid notice is not required to describe a type of breath analysing apparatus. It is required to be a notice in which the Governor approves a type of such apparatus. The notice states that there is a type of apparatus, specified in Schedule 1, which is approved for use as a breath analysing instrument for the purposes of the Act. It then identifies what it says is the type of apparatus referred to; as "bearing thereon (among other things) the expression 'Alcotest 7110'". What the notice does, therefore, is to state the existence of a type of relevant apparatus and identify it. Since s25(2) provides prima facie evidence that the instrument used complied with the definition, it must follow in my opinion that the further effect of s25(2) was to provide prima facie evidence that the Governor's description of the apparatus as a "type" was accurate. It would be for the defendant to show otherwise. The identification is sufficiently clear and precise to perform its function. The notice is saying that examples of this type of apparatus "bear thereon" a number of "things", i.e. words, numbers or marks; but in particular bear the designated word and number. Since the number appears on examples of that type, it is obviously not a serial but some kind of identifying number. In my opinion, given the uses and strength of the s25(2) presumption, the approval contained in Statutory Rule No 90 is valid and effective.

1. That conclusion accords with the authority of an earlier decision of this court, Stevens v Fletcher [1981] Tas R 99, which relates to a closely similar matter. Crawford J was there concerned with an earlier approval by the Governor, by Statutory Rule No6 of 1971, of a breath analysing instrument for the purposes of the Act. The submission made was of a similar kind; that is, that the contents of the[i] statutory rule were "too broad and did not specify a type". The definition of "breath analysing instrument" under s2(1) was the same then as now. The statutory notice stated:–

"I approve the type of apparatus specified in the 1st Schedule to this notice for use as a breath analysing instrument for the purposes of the Act".

The schedule then, under a heading "Breath Analysing Instrument", specified:–

"the type of apparatus bearing thereon (among other things) the word 'Breathalyser' and the expression US Patent No 2,824,789."

The submission of the applicant was that this was not approval of a "type", and Gosden v Billerwell (supra) was cited. His Honour preferred the reasoning of the minority judge, Brennan J, in that case and applied it; holding that the approval was valid. His Honour also referred to the effect of s25(2)(c), saying:–

"So by that certificate the learned magistrate had prima facie evidence that the apparatus used by the person by whom the certificate purports to have been signed was a breath analysing instrument within the meaning of the Act, and that was prima facie evidence that it bore the word and the other expression mentioned in the Governor's notice. There was no evidence before him to show that (and I am referring now to the reasons of Brennan J) 'Breathalyser' and the patent number were not put on by the manufacturer or authorised to be put on by the manufacturer, and therefore he was entitled to rely on the prima facie evidence which he had. Therefore, he was entitled to come to the ultimate finding which he did." – (supra) at p104.

There is no essential difference between the reasoning in that case and in the present one, in my view.

1. I need not discuss in detail the other interstate and territory cases cited to me by counsel for the appellant. Similar considerations apply to those I have addressed in relation to Gosden's case. The first ground of appeal fails. The conviction was correct.

1. The remainder of the application is against the sentence of four weeks imprisonment imposed in respect of the offence of driving while disqualified. It is claimed that it was manifestly excessive. I am not so persuaded. The learned magistrate pointed out that the applicant's conviction was his fourth of that kind, and that on the previous occasion in April 1987 he was disqualified for three years, having then been driving with a high breathalyser reading. The present concentration of 0.101 was relatively low, his Worship said, but the applicant was a repeated offender against the breathalyser legislation, who had flouted the penalty requiring that he should not drive on a public street. This was a serious offence which justified a short sentence of imprisonment, in my opinion, and the learned magistrate did not exceed the bounds of his jurisdiction in imposing penalty, or exercise his discretion erroneously – see Whittle v McIntyre [1967] Tas SR 263 (NC).

1. The application will be dismissed.

tasInLaw edit: This section appears in the electronic version, but not in the paper version of the Supreme Court Judgment.

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