DPP v Luff
[2001] VSC 260
•2 August 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7065 of 2000
| DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of JAMES MARTIN COLE) | Appellant |
| v | |
| RORY EUAN LUFF | Respondent |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 July 2001 | |
DATE OF JUDGMENT: | 2 August 2001 | |
CASE MAY BE CITED AS: | DPP v Luff | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 260 | |
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Appeal by an informant under section 92 Magistrates’ Court Act 1989 - Offences under the Road Safety Act 1986 – driving with more than the prescribed concentration of alcohol – defence that breath analysing instrument was not properly operated – which party bears the onus of proof as to the operation of, and result obtained from, the breath analysing instrument - reading of blood alcohol level – proof by certificate under section 55 Road Safety Act 1986 – compliance with regulations.
Jurisdictional issues – determining whether the informant “wishes to appeal” pursuant to section 92(2) Magistrates’ Court Act 1989.
Justices Act 1958 – section 155.
Magistrates’ Court Act 1989 – section 92.
Road Safety Act 1986 – sections 49, 53, 55, 58.
Road Safety (Procedures) Regulations 1988 – Regulations 303, 304, 314.
Binting v Wilson (unreported, decided on 19 December 1989).
Dalzotto v Lowell (unreported, decided on 18 December 1992).
Day v Hunter [1964] VR 845
DPP v Hart (1992) 16 MVR 433
Furze v Nixon (2000) 32 MVR 547
Hess v Clarebrough (unreported, decided on 3 November 1982).
Matosic v Hamilton (1991) 13 MVR 171
Taylor v Armour [1962] VR 346
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms S Pullen | Solicitor for Public Prosecutions |
| For the Respondent | Mr P Billings | Wilmoth Field & Warne |
HER HONOUR:
Introduction
This is an appeal under section 92 of the Magistrates’ Court Act 1989 (“the Magistrates’ Court Act”) from an order made on 6 September 2000 in the Magistrates’ Court at Melbourne dismissing two charges against the respondent under paragraphs 49(1)(b) and (f) respectively of the Road Safety Act 1986 (“the Act”).
The relevant provisions of the Act are sections 49, 53, 55 and 58, all of which appear in Part 5 of the Act, and the relevant portions of which read as follows at the time of the events giving rise to this proceeding:
49.Offences involving alcohol or other drugs
(1)A person is guilty of an offence if he or she -
.. .
(b)drives a motor vehicle or is in charge of a motor vehicle while more than the prescribed concentration of alcohol is present in his or her blood; or
.. .
(f)within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under section 55(1) and -
(i)the result of the analysis as recorded or shown by the breath analysing instrument indicates that more than the prescribed concentration of alcohol is present in his or her blood; and
(ii)the concentration of alcohol indicated by the analysis to be present in his or her blood was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle;
.. .
(4)It is a defence to a charge under paragraph (f) of sub-section (1) for the person charged to prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated.
53.Preliminary breath tests
(1)A member of the police force may at any time require -
.. .
(c)any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident;
.. .
to undergo a preliminary breath test by a prescribed device.
55.Breath analysis
(1)If a person undergoes a preliminary breath test when required by a member of the police force . . . under section 53 to do so and -
(a)the test in the opinion of the member . . . in whose presence it is made indicates that the person's blood contains alcohol;
.. .
any member of the police force . . . may require the person to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose may further require the person to accompany a member of the police force . . . for the purposes of section 53 to a police station or other place where the sample of breath is to be furnished and to remain there until the person has furnished the sample of breath and been given the certificate referred to in sub-section (4) or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner.
.. .
(4)As soon as practicable after a sample of a person's breath is analysed by means of a breath analysing instrument the person operating the instrument must sign and give to the person whose breath has been analysed a certificate in the prescribed form produced by the breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in his or her blood.
58.Evidentiary provisions - breath tests
(1)If the question whether any person was or was not at any time under the influence of intoxicating liquor or if the question as to the presence or the concentration of alcohol in the blood of any person at any time or if a result of a breath analysis is relevant -
.. .
(c)on a hearing for an offence against section 49(1) of this Act -
then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given of the concentration of alcohol indicated to be present in the blood of that person by a breath analysing instrument operated by a person authorised to do so by the Chief Commissioner of Police under section 55 and the concentration of alcohol so indicated is, subject to compliance with section 55(4), evidence of the concentration of alcohol present in the blood of that person at the time his or her breath is analysed by the instrument.
(2)A document purporting to be a certificate in the prescribed form produced by a breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in the blood of a person and purporting to be signed by the person who operated the instrument is admissible in evidence in any proceedings referred to in sub-section (1) and . . . is conclusive proof of -
(a)the facts and matters contained in it; and
(b)the fact that the instrument used was a breath analysing instrument within the meaning of this Act; and
(c)the fact that the person who operated the instrument was authorised to do so by the Chief Commissioner of Police under section 55; and
(d)the fact that all relevant regulations relating to the operation of the instrument were complied with; and
(e)the fact that the instrument was in proper working order and properly operated; and
(f)the fact that the certificate is identical in its terms to another certificate produced by the instrument in respect of the sample of breath and that it was signed by the person who operated the instrument and given to the accused person as soon as practicable after the sample of breath was analysed -
unless the accused person gives notice in writing to the informant not less than 28 days before the hearing, or any shorter period ordered by the court or agreed to by the informant, that he or she requires the person giving the certificate to be called as a witness or that he or she intends to adduce evidence in rebuttal of any such fact or matter.
(2A)A notice under sub-section (2) must specify any fact or matter with which issue is taken and indicate the nature of any expert evidence which the accused person intends to have adduced at the hearing.
.. .
(2D)A certificate referred to in sub-section (2) remains admissible in evidence even if the accused person gives a notice under that sub-section but, in that event, the certificate ceases to be conclusive proof of the facts and matters referred to in that sub-section.
.. .
(4)Evidence by a person authorised to operate a breath analysing instrument under section 55—
(a)that an apparatus used by him or her on any occasion under that section was a breath analysing instrument within the meaning of this Part;
(b)that the breath analysing instrument was on that occasion in proper working order and properly operated by him or her;
(c)that, in relation to the breath analysing instrument, all regulations made under this Part with respect to breath analysing instruments were complied with—
is, in the absence of evidence to the contrary, proof of those facts.
It is common ground that the “regulations made under this Part with respect to breath analysing instruments” are Regulations 303, 304 and 314, of the Road Safety (Procedures) Regulations 1988, which at the relevant time read as follows:
Interval before taking of sample
303.It is a requirement for the proper operation of a breath analysing instrument that the authorised operator does not require a person to undertake a breath analysis until the operator is satisfied that the person has not consumed any intoxicating liquor for a period of at least fifteen minutes before the analysis.
Mouthpiece
304.It is a requirement for the proper operation of a breath analysing instrument that the authorised operator—
(a)provide a fresh mouthpiece for use by each person submitted to breath analysis; and
(b)use only a mouthpiece which has been kept in a sealed container until required for carrying out the analysis.
Certificate under section 55(4)
314.A certificate given in accordance with section 55(4) is in the prescribed form if it includes—
(a)the serial number of the instrument; and
(b)the sample number; and
(c)the location of the test; and
(d)the name and date of birth of the person tested; and
(e)the surname of the operator; and
(f)the results of the self tests conducted before and after the analysis of the sample provided; and
(g)the results of zero tests conducted before and after the analysis of the sample provided; and
(h)the date and time the test was taken; and
(i)the concentration of alcohol in grams per 100 millilitres of blood indicated by the analysis to be present in the blood of the person tested.
On 6 October 2000 Master Wheeler ordered that the questions of law raised by this appeal were:
Did the Magistrate misdirect herself as to:
(a)the onus of proof as to the operation of and the result obtained from the breath analysing instrument; and
(b)the circumstances in which the “conclusiveness” of a certificate given pursuant to section 55 of [the Act] can be disregarded?
The lapse of time between the hearing on 24-26 May 2000 and the determination on 6 September 2000 of the proceeding in the Magistrates’ Court was such that in accordance with routine procedures the tape of the hearing was destroyed before the decision of the Magistrate was handed down. That being so, the evidence as to what was said at the hearing is contained in the affidavits of the prosecutor, Senior Constable Higginbotham, and two representatives of the solicitors for the respondent who attended the hearing on different occasions. Transcript of a tape of the occasion of the delivery of the decision is exhibited to the affidavit of Senior Constable Higginbotham.
The events giving rise to this proceeding occurred at about 12.30 a.m. on 5 December 1997, when a car driven by the respondent in Osborne Street South Yarra left the road and caused property damage. Constable (now Senior Constable) Cole conducted a preliminary breath test of the respondent, who then accompanied police officers to the Prahran police station. Senior Constable Charlesworth, an authorised operator of a breath analysing instrument, was introduced to the respondent at 2.43 a.m. and asked him a number of questions. At 3.07 a.m. a breath analysis was conducted by Senior Constable Charlesworth. Certificates were printed out which showed a blood alcohol concentration of 0.189%, which is more than the prescribed concentration. It is not suggested that that reading was due solely to the consumption of alcohol after driving the vehicle in terms of sub-paragraph 49(1)(f)(ii) of the Act, and that provision may be ignored.
As well as the charges under paragraphs 49(1)(b) and 49(1)(f) of the Act, which were dismissed, the respondent was also charged with careless driving, failing to stop after an accident, failing to give his name and address and failing to report an accident. He was convicted on the four latter charges and ordered to pay an aggregate fine of $500 and statutory costs of $53.
Jurisdiction
Mr Billings, for the respondent, submitted at the outset that the appeal was incompetent, because there was no evidence before the Court that the informant wished to appeal. This appeal, as previously noted, is brought under section 92 of the Magistrates’ Court Act, and sub-sections 92(1) and (2) read:
(1)A party to a criminal proceeding (other than a committal proceeding) in the Court may appeal to the Supreme Court on a question of law, from a final order of the Court in that proceeding.
(2)If an informant who is a member of the police force wishes to appeal under sub-section (1), the appeal must be brought by the Director of Public Prosecutions on behalf of the informant.
Mr Billings relied on the absence from the affidavit material of any specific statement that the informant “wishes to appeal” in terms of sub-section 92(2).
The heading of Master Wheeler’s Order of 6 October 2000 describes the appellant as “The Director of Public Prosecutions (on behalf of James Martin Cole)”. Senior Constable James Martin Cole deposes in his affidavit of 27 November 2000 that he is the informant in this matter. In that affidavit he describes actions undertaken by him in relation to documents to be served on the respondent in connection with this proceeding.
Mr Castle, in his affidavit of 4 October 2000, deposes to the following effect:
1.I am a solicitor employed in the Office of Public Prosecutions, Victoria . . .
2.The Informant, James Martin Cole, is a Senior Constable of Police and is the Informant in respect of the following charges wherein the Respondent, Rory [Euan] Luff, was the Defendant:
. . .
3.The Director of Public Prosecutions has been asked by the Deputy Commissioner (Operations) of Police to bring an appeal on behalf of the informant under Section 92(1) Magistrates Court Act 1989 from the final order made on 6 September 2000 by Ms J Crowe, Magistrate whereby she dismissed Charges 1 and 2 in this matter.
4.I have been directed by the Director of Public Prosecutions to bring an appeal on behalf of the informant under Section 92(1) Magistrates Court Act 1989 from the final order made on 6 September 2000 by Ms J Crowe, Magistrate whereby she dismissed Charges 1 and 2 in this matter.
Senior Constable Higginbotham deposes in his affidavit of 4 October 2000 that on 24 May 2000 he appeared in the Magistrates’ Court at Melbourne before Ms Crowe to prosecute the respondent on the six charges which have been referred to, and that Senior Constable Cole was the informant and was among the witnesses called by him to give evidence.
Sub-section 155(1) of the Justices Act 1958 (“the Justices Act”) entitled “any person who feels aggrieved by” an order of a court of petty sessions to apply for an order to review in respect of that order. Sub-section 155(4) of that Act relevantly provided that the expression “any person who feels aggrieved” included “any informant to an information . . . who is dissatisfied in respect of an order . . . given . . . by . . . any court of petty sessions”. In Day v Hunter [1964] VR 845 an application for an order to review was brought by an informant in respect of orders of a Magistrate dismissing six informations laid by him. A submission was made to the Full Court (Herring CJ, Sholl and Adam JJ) that that Court lacked jurisdiction because there was no admissible evidence to the effect that the informant was aggrieved by the orders of the Magistrate.
The court said at 847:
But the whole objection is, in our opinion, founded upon a misunderstanding of the requirements of s155(1). It has been taken on previous occasions before single judges, and overruled, but it is desirable that this Court should now finally dispose of it. What the sub-section expressly requires to be shown by affidavit is a prima facie case of error or mistake in the court below. It says nothing about proof by affidavit that the applicant feels aggrieved by the decision which he seeks to review. Nevertheless, if his "feeling aggrieved" is a condition of the jurisdiction of the Supreme Court to grant an order nisi, no doubt that must appear in some satisfactory way to the Court.
And, after setting out sub-section 155(4):
The terms of this sub-section make it clear that there is no magic in the words "any person who feels aggrieved" and that so far as criminal and quasi criminal matters are concerned, any party to the proceedings in the court below falls within them if he is dissatisfied with the decision given in that court. Consequently, if the informant or defendant in any such proceedings seeks an order to review the decision given therein, he takes his place as a "person who feels aggrieved", because by so doing he shows in the most unequivocal manner his dissatisfaction with the decision sought to be reviewed. What brings him within the class is the fact that he is a party to the proceedings below and, therefore, really interested therein, combined with the fact that he has shown by his application for an order nisi to review his dissatisfaction with the order sought to be reviewed. In these circumstances, a statement on oath in the affidavit in support of the application for the order nisi to the effect that the applicant is a "person who feels aggrieved" really carries the matter no further, and is quite unnecessary.
The present argument is, consequently, as we have indicated, entirely misconceived. In the present case the orders nisi were obtained by the informant below and there is no question that he was and is a "person who feels aggrieved" in the circumstances of this case. His informations were all dismissed and he showed his dissatisfaction with the orders of dismissal by seeking orders to review them. In the light of s155(4) no other conclusion can possibly be open.
In the present case, it can be assumed that the Deputy Commissioner (Operations) of Police did not of his own accord initiate the request to the Director of Public Prosecutions to bring this appeal on behalf of the informant (see paragraph 3 of the affidavit of Mr Castle cited in paragraph 10 above). The informant was the person within the Victoria Police responsible for the matter. It can be inferred that it was he who was initially responsible for the matter being brought to the attention of the Deputy Commissioner in order that the procedure laid down by sub-section 92(2) of the Magistrates’ Court Act for an appeal might be set in motion.
There is no requirement in section 92 of the Magistrates’ Court Act that the appellant be “aggrieved” or “dissatisfied” and no provision in the same terms as sub-section 155(4) of the Justices Act. However, while that provision required that a person seeking to apply for an order nisi to review must be “dissatisfied in respect of” the order sought to be reviewed, the corresponding requirement in section 92(2) of the Magistrates’ Court Act is that the informant “wishes to appeal”. The Full Court in Day v Hunter found that the informant in that case had “shown by his application for an order nisi to review his dissatisfaction with the order sought to be reviewed”. In the matter before me, the informant has similarly shown by his initiation of the appeal process laid down by the Magistrates’ Court Act that he wishes to appeal. No other conclusion is possible on the facts. The observations of the Full Court in Day v Hunter are apposite. A statement on oath that Senior Constable Cole “wishes to appeal” is unnecessary. The submission of Mr Billings that the Court does not have jurisdiction to hear the matter therefore fails.
Ground (a)
As has been said, certificates showing the respondent’s blood alcohol concentration were printed out in the morning of 5 December 1997 by a breath analysing instrument operated by Senior Constable Charlesworth. By virtue of paragraph 58(1)(c) of the Act each of those certificates is, on the hearing of the two charges under sub-section 49(1) to which this appeal relates, and subject to compliance with sub-section 55(4), evidence of the concentration shown, namely 0.189%. Senior Constable Charlesworth complied with sub-section 55(4) by giving one of those certificates to the respondent.
By virtue of sub-section 58(2) the certificate, if purporting to be signed by the operator, is conclusive proof of the matters set out in that sub-section, unless the accused person gives a notice in accordance with that sub-section requiring the person giving the certificate to be called as a witness. It is not suggested that the certificates were not signed by Senior Constable Charlesworth. A notice in accordance with the sub-section was given in this case and accordingly, by virtue of sub-section 58(2D), the certificate, while remaining admissible, ceased to be conclusive proof of those matters.
The dispute in this case arises from the fact that sub-section 49(4) effectively enables the questions of whether the breath analysing instrument was, when the sample of the respondent’s breath was analysed, “in proper working order or properly operated” to be put in issue. It is not suggested here that the instrument was not in proper working order; which leaves for consideration the question of whether it was “properly operated”. Since the service of the notice under sub-section 58(2) the certificate is no longer conclusive evidence on the point. However, by virtue of sub-section 58(4), evidence of a person authorised to operate a breath analysing instrument (as was Senior Constable Charlesworth) is proof, in the absence of evidence to the contrary, that the instrument was properly operated and the relevant regulations (see paragraph 3 above) complied with. There was no evidence to the contrary.
Each of regulations 303 and 304 sets out a “requirement for the proper operation” of the instrument, so that evidence of compliance with those regulations is necessary for a finding that the instrument was properly operated.
Senior Constable Charlesworth, in evidence in chief, was given leave to refer to notes made by him at the relevant time on a pro forma supplied by the Traffic Alcohol Section of the Victoria Police. With assistance from those notes he gave evidence that (inter alia) the breath analysing instrument was properly operated by him and all regulations with respect to breath tests were complied with.
In cross-examination he was asked what regulations he had complied with and replied, “I don’t know the exact regulations and what they say”. Later he was asked, ”You didn’t comply with the regulations, did you?” to which he replied “I can’t say”. In re-examination he was asked, “Can you tell the Court what you actually did immediately prior to the breath test to conform with the regulations?” and replied, “I can’t say”.
The Magistrate, in her reasons for decision, referred to that evidence and said of the respondent at page 5 of the transcript:
I am perfectly satisfied that he is the driver. I am not however perfectly satisfied that he had a breath alcohol reading of .189.
She then set out the relevant evidence of Senior Constable Charlesworth and the circumstances of his giving that evidence and continued:
. . the reality is if he doesn’t know what regulations he complied with, I can’t be satisfied he complied with the regulations. He doesn’t know what they are, he couldn’t say what they are. It leaves me in the position where I cannot be satisfied that the test result obtained was obtained as a result of a properly operated machine by an authorised officer and those .05 charges will be dismissed accordingly. . . . I have no difficulty in finding that the defendant was the driver on the night and the remaining charges are found proved.
The submission of the appellant was that there was no onus on the prosecution to prove that the breath analysing instrument used was properly operated. Sub-section 49(4) placed the onus on the defendant to prove that the instrument was not properly operated if he was to establish a defence under that section. By in effect requiring compliance with the regulations (as a component of proper operation) to be proved by the prosecution, the Magistrate had misdirected herself as to the onus of proof regarding the operation of the instrument and this was an error of law. The defence had not established that the regulations were not complied with, and accordingly the defence to the charge under paragraph 49(1)(f) provided for in sub-section 49(4) had not been established.
In support of this submission, Ms Pullen relied on the judgment of the Court of Appel (JD Phillips, Batt and Buchanan JJA) in Furze v Nixon (2000) 32 MVR 547. That judgment was delivered after the conclusion of the hearing of the present matter in the Magistrates’ Court, but before the delivery of the decision, and it would seem likely that it was not brought to the attention of the Magistrate. At 556 the Court said:
. . . in our opinion it was no part of the prosecution case to prove that on the relevant occasion the breath analysing instrument was either in proper working order or properly operated. . . .[After setting out sub-section 49(4)] This seems to be a plain legislative prescription casting upon the person charged the onus of proving that the breath analysing instrument was not, on the relevant occasion, in proper working order or properly operated. We have said why, in our opinion, the certificate which was tendered in evidence was not . . . even prima facie evidence that the machine was properly operated; but in the light of s 58(4), if the contrary was to be proved, it was a matter for the appellant.
Similarly, in DPP v Hart (1992) 16 MVR 433 at 434 Hampel J said:
Dismissing the information [the magistrate] held that the breath analysis instrument had not been shown by the prosecution to have been operated properly within the requirements of s 49(4) of [the Act].
It is clear . . . that the magistrate did not apply the correct onus of proof which is clearly enunciated in subs (4). It was not for the prosecution to establish that the instrument was properly operated, but for the defence to prove that it was not.
In the present case there was evidence from the operator that the instrument was properly operated (see paragraph 20 above). The fact that in May 2000 the operator did not know the terms of the regulations which he swore that he had complied with in December 1997 does not demonstrate that in December 1997 he was not aware of what he was doing by way of compliance. Indeed, as O’Bryan J said in Hess v Clarebrough (unreported, decided on 3 November 1982) at 11 of a slightly different situation:
. . . there is no basis for concluding that because a person has not read the regulations he has not complied with them.
Ormiston J said in Binting v Wilson (unreported, decided on 19 December 1989) at 9-10, on an analogous point:
In my opinion the averment by each of the operators retained its validity unless and until the defence has established evidence to the contrary to the satisfaction of the Magistrate. It is not sufficient that the defence elicits or calls contrary evidence, unless that evidence has sufficient relevance, cogency and weight to satisfy a Magistrates’ Court, on the balance of probabilities, that the apparatus was not a “breath analysing instrument” as defined.
And see to similar effect the judgment of Ashley J in Dalzotto v Lowell (unreported, decided on 18 December 1992) at 16-19 and the judgment of Beach J in Matosic v Hamilton (1991) 13 MVR 171 at 181 adopting Binting v Wilson. There was not, in this case, evidence upon which the Magistrate could find, on the balance of probabilities, that the instrument was not properly operated so as to establish, under sub-section 49(4), a defence to the charge under paragraph 49(1)(f).
The submission of the respondent was that this was a simple case, where the Magistrate, having heard the evidence and observed the demeanour of Senior Constable Charlesworth, had not been satisfied beyond reasonable doubt that the elements of the offences had been made out. In terms of the well-known passage from the judgment of the Full Court (Gavan Duffy, Sholl and Adam JJ) in Taylor v Armour [1962] VR 346 at 351, “there was evidence upon which the magistrate might, as a reasonable [person], come to the conclusion to which [she] did come”. However, be that as it may, it is clear from the authorities cited above that the matter as to which the Magistrate was not satisfied was not a matter which was required to be proved by the prosecution. Her lack of satisfaction was therefore irrelevant to the issues before her. It was not an element of either offence that the machine be properly operated.
Mr Billings also submitted, as a preliminary question, that ground (a) in the Order of Master Wheeler did not specify whether it applied to either or both of the charges. He properly drew attention to the passage in Furze v Nixon at 559-560 distinguishing between the two offences.
Ms Pullen submitted in reply that because of the specificity of the penalty provisions in section 49 and Schedule 1 of the Act, it was necessary, on a charge under paragraph 49(1)(b), to be able to prove the precise concentration of alcohol in the blood of the defendant, although the paragraph required only a finding of “more than the prescribed concentration of alcohol”. That was the connection between the two provisions; evidence of the facts relevant to a finding of guilt under paragraph (f) was, for that reason, necessary to a finding of guilt under paragraph (b).
In any case, it is clear from the passages cited above from the reasons for decision of the Magistrate that both charges were dismissed on the same ground. The proper operation of the instrument could have been relevant only to a defence under paragraph (f). That being so, it does not appear to me that that matter was relevant to the Magistrate’s consideration of the charge under paragraph (b). Relevant or not, she took it into account in the consideration of that charge, and dismissed both charges on the same ground. That being so, the question in ground (a) can be seen, in the circumstances of this case, as relevant to the consideration of both charges.
For the reasons given, I find that the Magistrate misdirected herself as to the onus of proof regarding the operation of the breath analysing instrument. Counsel may wish to make submissions as to the orders to be made consequent upon that finding. It is not necessary to consider the second question of law raised in the Master’s Order.
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