Ferguson v Police No. Scgrg-97-1650 Judgment No. S6577

[1998] SASC 6577

FERGUSON V POLICE

Magistrates Appeal

LANDER J

This is an appeal against a conviction entered in the Adelaide Magistrates Court against the appellant in relation to a charge that on 12 March 1997 at Norwood he drove a motor vehicle on Kensington Road whilst there was present in his blood the prescribed concentration of alcohol as defined in s42(a) of the Road Traffic Act.  It was alleged that the concentration of alcohol was 0.103 grams in 100 millilitres of blood.

The appellant pleaded not guilty but he was convicted and fined $500 with court costs and he was disqualified from holding or obtaining a drivers licence for a period of six months commencing on 7 February 1998.

The appellant appeals against the conviction only and the grounds of appeal are:-

“1The learned Special Magistrate erred in finding that the person operating the breath analysis instrument forthwith gave the defendant the prescribed oral advice in accordance with Section 47G(2a)(a).

2The learned Special Magistrate erred in finding that the person operating the breath analysis instrument delivered to the defendant the statement in writing specifying:

2.1the concentration of alcohol indicated by the analysis to be present in the blood expressed in grams in 100 millilitres of blood; and

2.2the date and time of the analysis.

as required by Section 47G(2) of the Road Traffic Act 1961.

3The learned Special Magistrate failed to give any or any proper consideration to the failure by the prosecution to call a relevant witness namely Constable Patterson.

4The defendant was deprived of a fair trial by the inappropriate intervention of the learned Special magistrate in the questioning of Constable McArthur (sic) and the weight which the learned Special Magistrate placed on the answers given in response thereto.”

At about 9:00pm on 12 March 1997 the appellant was driving his motor vehicle on Kensington Road when he was required to stop at a breath testing station.  There is no contest that the station was lawfully established and the appellant was obliged by law to submit to a breath analysis test.         The test was carried out at 9:40pm by an authorised person using an approved instrument which was in proper order and properly operated.  The test showed an alcohol reading of 0.103 grams in 100 millilitres of blood.

The respondent sought to rely upon the provision of s47G for the purpose of establishing the offence of driving a motor vehicle while there was present in the appellant’s blood the prescribed concentration of alcohol as provided for in s47B of the Road Traffic Act.

Section 47G is an aid to the proof of the elements of the offence of s47B, and in particular the prescribed concentration of alcohol as defined in s47A of the Road Traffic Act.  It creates presumptions of proof which, if various subsections of the sections are satisfied, shift the evidential onus to the driver of the motor vehicle to displace.

I set out s47G.

“(1) Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis.

(1a)No evidence can be adduced in rebuttal of the presumption created by subsection (1) except-

(a)evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I or in accordance with the procedures prescribed by regulation; and

(b)evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.

(1ab)If it is proved in proceedings that a concentration of alcohol was present in the defendant's blood at the time of a breath analysis, it must be conclusively presumed that that concentration of alcohol was present in the defendant's blood throughout the period of two hours immediately preceding the analysis.

(1b) No evidence can be adduced as to a blood alcohol reading obtained from a coin-operated breath testing or breath analysing machine installed in any hotel or other licensed premises.

(2)As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying-

(a)the concentration of alcohol indicated by the analysis to be present in the blood expressed in grams in 100 millilitres of blood; and

(b)the date and time of the analysis.

(2a)Where a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith-

(a)give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person's blood; and

(b)at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.

(3)A certificate-

(a)purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments; or

(b)purporting to be signed by a person authorised under subsection (1) and to certify that-

(i)the apparatus used by the authorised person was a breath analysing instrument within the meaning of this Act; and

(ii)the breath analysing instrument was in proper order and was properly operated; and

(iii)in relation to the breath analysing instrument, the provisions of this Act with respect to breath analysing instruments were complied with, is, in the absence of proof to the contrary, proof of the matters so certified.

(3a)A certificate purporting to be signed by a member of the Police force and to certify that an apparatus referred to in the certificate is or was of a kind approved under this Act for the purpose of performing alcotests is, in the absence of proof to the contrary, proof of the matter so certified.

(3b)A certificate purporting to be signed by a member of the Police force and to certify that a person named in the certificate submitted to an alcotest on a specified day and at a specified time and that the alcotest indicated that the prescribed concentration of alcohol may then have been present in the blood of that person is, in the absence of proof to the contrary, proof of the matters so certified.

(3c)A certificate purporting to be signed by a member of the Police force and to certify that a breath testing station had been established pursuant to section 47DA at a place and during a period referred to in the certificate is, in the absence of proof to the contrary, proof of the matters so certified.

(4)Subject to subsection (6) a certificate purporting to be signed by an analyst, certifying as to the concentration of alcohol, or any drug, found in a specimen of blood identified in the certificate expressed in grams in 100 millilitres of blood is, in the absence of proof to the contrary, proof of the matters so certified.

(5)Subject to subsection (6) a certificate purporting to be signed by a person authorised under subsection (1) and to certify that-

(a)a sample of the breath of a person named in the certificate was furnished for analysis in a breath analysing instrument; and

(b)a concentration of alcohol expressed in grams in 100 millilitres was indicated by that breath analysing instrument as being present in the blood of that person on the day and at the time stated in the certificate; and

(c)a statement in writing required by subsection (2) was delivered in accordance with that subsection;

is in the absence of proof to the contrary, proof of the matters so certified.

(6)A certificate referred to in subsection (4) or (5) cannot be received as evidence in proceedings for an offence -

(a)unless a copy of the certificate proposed to be put in evidence at the trial of a person for the offence has, not less than seven days before the commencement of the trial, been served on that person; or

(b)if the person on whom a copy of the certificate has been served under paragraph (a) has, not less than two days before the commencement of the trial, served written notice on the complainant or informant requiring the attendance at the trial of the person by whom the certificate was signed; or

(c)if the court, in its discretion, requires the person by whom the certificate was signed to attend at the trial.

(7)A certificate purporting to be signed by a person authorised under subsection (1) and to certify -

(a)that, on a date and at a time specified in the certificate, a sample of the breath of a person named in the certificate was furnished for analysis in a breath analysing instrument; and

(b)that the prescribed oral advice and the prescribed written notice were given and delivered to the person in accordance with subsection (2a)(a); and

(c)that -

(i)the person did not make a request for an approved blood test kit in accordance with the regulations; or

(ii)at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subsection (2a)(b),

is in the absence of proof to the contrary, proof that the requirements of subsection (2a) were complied with in relation to the person.

(8)... A prosecution for an offence will not fail because of a deficiency of a kit delivered to the defendant in purported compliance with subsection (2a)(b) and the presumption under subsection (1) will apply despite such a deficiency unless it is proved -

(a)that the defendant delivered the kit unopened to a medical practitioner for use in taking a sample of the defendant’s blood; and

(b)by evidence of the medical practitioner, that the medical practitioner was, because of a deficiency of the kit, unable to comply with the prescribed procedures governing the manner in which a sample of a person’s blood must be taken and dealt with for the purposes of subsection (1a).

(9)The provisions of this section apply in relation to proceedings for an offence against this Act or any other Act subject to the following exceptions:

(a)subsections (1a) and (1ab) apply only in relation to proceedings for an offence against section 47(1) or 47B(1);

(b)subsection (3)(b)(ii) does not apply in relation to an offence against section 47E(3).”

The effect of s47G is that, provided s47G(2) and (2a) have been complied with, it must be presumed in any proceedings for an offence under s47B of the Act, in the absence of proof to the contrary, that the concentration of alcohol indicated as being present in the blood of the defendant by the breath analysing instrument was present in the blood of the defendant at the time of the analysis. A court must presume, therefore, that in the circumstances where subss (2) and (2a) have been complied with that the concentration of alcohol indicated in the blood was present at the time of the analysis. Of course, as it is only a statutory presumption, the person charged can adduce evidence to rebut that presumption. In attempting to rebut the presumption a person charged can only adduce the evidence referred to in s47G (1a).

The section further provides assistance for the proof of the offence by the provision of certificates which, in the absence of proof to the contrary, prove the matters certified.  It is not necessary for the purpose of this decision to refer to those matters which may be proved by certificates given under subss (3), (3a), (3b), (3c) and (4).

Section 47G (5) provides for the proof by certificate of the delivery of the statement in writing required by subs (2). However, that certificate, like the certificate under s47G(4), and unlike the certificates under subss (3), (3a), (3b) and (3c), is not admissible if the person on whom a copy of the certificate has been served has, not less than two days before the commencement of the trial, served written notice on the complainant or the informant requiring the attendance at the trial of the person by whom the certificate was signed: s47G(6)(b). In this case the appellant did object as provided for in s47G(6)(b).

Section 47G(7) provides for a further certificate which, in the absence of proof to the contrary, establishes that the requirements of subss (2a) were complied with in relation to the person charged.

In this case, because of the objection taken under s47G(6)(b), the respondent was obliged to prove beyond reasonable doubt that there had been compliance with s47G(2). However, it was entitled to rely upon the certificate given under s47G(7) as proof of compliance with s47G(2a) and the presumption arising from that certificate could only be displaced by the appellant proving on the balance of probabilities that there had not been compliance with s47G(2a).

Therefore if the respondent could establish beyond reasonable doubt the matters in s47G(2) and the appellant was not able to establish on the balance of probabilities that there had not been compliance with s47G(2a) then the respondent was entitled to rely upon the presumption created in s47G(1).

If, on the other hand, the appellant was not able to establish beyond reasonable doubt that there had been compliance with s47G(2) or the appellant was able to establish that on the balance of probabilities that there had not been compliance with s47G(2a), then the presumption under s47G(1) would not arise and the charge would have to be dismissed.

The learned Magistrate found that the respondent had discharged its onus under s47G(2) and the appellant had failed to establish its onus under s47G(2a) and therefore concluded that the charge had been proved.

Section 47G(2)

The respondent was obliged to prove beyond reasonable doubt that as soon as practicable after the defendant had submitted to the breath analysis the Police Officer operating the instrument delivered to the appellant a statement in writing specifying the concentration of alcohol indicated by the analysis to be present in the blood expressed in grams and 100 millilitres of blood and the date and time of the analysis.

There are two matters that must be established for there to have been compliance with s47G(2). First, the respondent must establish the delivery by the Police Officer to the appellant of a statement in writing and secondly must establish that that statement in writing contained the information in s47G(2)(a) and (b).

The first mentioned matter would be established if the oral evidence of the Police Officer or officers was accepted.  The second mentioned matter could only be established by proof of the contents of the document which was delivered to the appellant.  That could be done by tendering the document which was delivered to the appellant.  If that document was not available to the respondent then the second mentioned matter could only be established if secondary evidence of the document was admissible, or if there was some further evidential aid to prove the contents of that document.

Of course, the respondent did not have in its possession any documents which had been handed to the appellant. It was not able therefore to tender the original document handed to the appellant in compliance with s47G(2). In those circumstances it had to prove the document by secondary evidence of that document or by the use of a statutory evidential aid. It sought to do both.

Prior to the hearing the respondent gave the appellant a notice to produce the document delivered to the appellant in purported compliance with s47G(2), and the certificate handed to the appellant in purported compliance with s47G(5). The document delivered to the appellant pursuant to s47G(2) was not produced at trial. There is no obligation upon the recipient of a document under s47G(2) of the Road Traffic Act to produce that document in compliance with a notice to produce.

However, the consequence of the non-production of that document is that the respondent could lead secondary evidence of the contents of the document. A copy of the document handed to the appellant pursuant to s47G(2) becomes admissible at common law if a notice to produce the document is served upon the appellant prior to trial and the document is not produced in consequence of a call for its production at the trial: Morgan v Babcock and Wilcox Ltd (1929) 43 CLR 163. That meant that the respondent could either tender a copy of the document which had been handed to the appellant or call a Police Officer who could give evidence as to contents of the document.

In this case the respondent sought to tender a copy of the document.  That copy was, in my opinion, admissible.

In my opinion the document was also admissible pursuant to s45c of the Evidence Act 1929, even if the respondent had not given a notice to produce.

The document is a carbon copy of the original document.

Section 45c of the Evidence Act provides:

“(1)   A document that accurately reproduces the contents of another document is admissible in evidence before a court in the same circumstances, and for the same purposes, as that other document (whether or not that other document still exists).

(2)... In determining whether a particular document accurately reproduces the contents of another, a court is not bound by the rules of evidence and, in particular-

(a).... the court may rely on its own knowledge of the nature and reliability of the processes by which the reproduction was made;

(b).... the court may make findings based on the certificate of a person with knowledge and experience of the processes by which the reproduction was made;

(c).... the court may make findings based on the certificate of a person who has compared the contents of both documents and found them to be identical;

(d).... the court may act on any other basis it considers appropriate in the circumstances.

(3)    This section applies to reproductions made-

(a)  by an instantaneous process;

(b)by a process in which the contents of a document are recorded (by photographic, electronic or other means) and the reproduction is subsequently produced from that record; or

(c) in any other way.

(4)... Where a reproduction is made by an approved process, it will be presumed that it accurately reproduces the contents of the document purportedly reproduced unless the contrary is established.

(5)... The above reference to an approved process is a reference to a process prescribed by regulation for the purposes of this subsection.

(6)... Where a court admits or refuses to admit a document under this section, the court must, if so requested by a party to the proceedings, state the reason for its decision.

(7)... A person who gives a certificate for the purposes of this section knowing it to be false is guilty of an indictable offence. Penalty: Division 5 imprisonment.”

It is a document that accurately reproduces the contents of another document and therefore is made admissible by s45c (1) for the same purpose as the original document would have been admissible, i.e., in order to establish the second mentioned matter under s45G (2) of the Road Traffic Act. 

The Court, in determining whether the document sought to be tendered is a true copy of the original document, is not bound by the rules of evidence and may take judicial notice of the nature and the reliability of the process of copying.

This document is a reproduction made by an instantaneous process, namely carbon copy, and is a document to which the section applies: s45c(3).

I agree with Perry J that a copy of a statement in writing delivered under s47G(2) would be capable of being tendered under s45c: SA Police v Oakes (South Australian Supreme Court, delivered 19 February 1996; Judgment No. S5464 per Perry J)

Mr Edwardson, who appeared for the appellant, objected to the tender of the document on another ground.  He said that the form of the document made it inadmissible.  I set out the document:

“Statement In Writing Pursuant To Subsection (2) Of Section 47G Of The Road Traffic Act, 1961

I, S/C McCarthur (Name) being a person authorised under Subsection (1) of Section 47G of the Road Traffic Act, 1961, to operate Breath Analysing Instruments, do hereby certify:

1...... that on the 12th day of March 1997, at 9.49 am /pm I analysed a sample of breath furnished by Anthony John Ferguson (Name) of 439 Kensington Road Rosslyn Park at Kensington Road Norwood

by means of a Breath Analysing Instrument, within the meaning of the Act, and that the concentration of alcohol indicated by the analysis to be present in the blood of the said abovenamed person whose breath was analysed was 0.103 grams of alcohol in a hundred millilitres of blood.

2...... that on the 12th day of March, 1997, at 9.51 am/pm I handed to Anthony John Ferguson (Name) this statement

S/C276070

................................ (Name)     ............................ (Rank)  ................”

The numbers and words in bold type are in hand writing.  The other numbers and words are typewritten.

Mr Edwardson argued that the statement in writing, which has to be handed to a person who has been required to submit to an analysis of his or her breath, has to specify the concentration of alcohol indicated by the analysis to be present in the blood and the date and time of the analysis. This document, Mr Edwardson argued, contained further information which made it inadmissible. In that respect he referred to paragraph two of the document which provided the further information purporting to be a certificate from the Police Officer that on the 17th day of March 1997 at 9.51pm he handed to Anthony John Ferguson the statement. Section 47G(2) does not provide for that information to be supplied to the person who has submitted to breath analysis.

However the inclusion of that information does not, in my opinion, render the rest of the document inadmissible for the purpose of establishing the provision of the information in s47G(2). To comply with s47G(2) there needs only to be delivered to the person whose breath has been analysed a statement in writing specifying the concentration of alcohol indicated by the analysis to be present in the blood expressed in grams and 100 millilitres of blood and the date and time of the analysis.

There are a number of matters contained in this document which are not required to be contained in any document which is handed to a person under s47G(2). For example, this document purports to be a certification but the Act does not require the document to be certified. It also shows that it is a certificate of Senior Constable McCarthur who says that he is a person authorised under s47G(1) to operate breath analysing instruments. That is not required to be provided in the statement in writing. It indicates the person, his address and the place at which he submitted to breath analysis, again all of which is not required to be provided.

However the provision of that further information, like the certificate of delivery of the document, does not in my opinion render the document inadmissible.

There is one further thing that I should say about paragraph two of the statement in writing. Whilst paragraph two did not render the document inadmissible under s47G(2), in my opinion, it did not advance the respondent’s case in seeking to establish compliance with s47G(2) and the delivery of the statement in writing to the appellant.

It cannot be used as proof of delivery of the statement to the appellant because to do so would be to render a self serving statement admissible for the purpose of establishing a fact in issue.

It might become admissible by virtue of the provisions of s45b of the Evidence Act as an apparently genuine document purporting to contain a statement of fact. However, ordinarily one would have thought that the court would not admit the document for the purpose of establishing that fact because the person by whom the document was prepared could and should be called by the respondent to give evidence of the matters contained in the document. It would ordinarily be rejected under s45b as no more than a self serving statement: R v Martin (1997) 68 SASR 419 per Doyle CJ at 443. If the statement in paragraph 2 has any evidentiary weight it is very slight. I think it would be appropriate to proceed on the basis that paragraph two does not advance the respondent’s case in seeking to establish that there was a delivery by the respondent to the appellant of the document required under s45G (2).

The learned Magistrate admitted the copy of the certificate said to be given under s45G (2) and in my opinion he was right provided that he was prepared to accept the Police Officer’s evidence that this document was a true copy of the document handed to the appellant at 9:51pm on 12 March 1997. That further matter was also challenged on this appeal.

The respondent called two Police Officers, Sergeant Kenyeres and Senior Constable McCarthur.

Mr Edwardson criticised the respondent for failing to call Senior Constable Patterson who was apparently supervising at the random breath testing station.  Sergeant Kenyeres said in his evidence that he was under the supervision of Senior Constable Patterson.  There is no evidence, in my opinion, that Senior Constable Patterson could have given any relevant evidence in support of the respondent’s case.  That single reference to Senior Constable Patterson’s involvement does not allow it to be said that the Court ought to infer from his absence that he would not have given evidence supporting the respondent’s case: Jones v Dunkel (1959) 101 CLR 298.

Sergeant Kenyeres was granted leave to refer to notes he made to notes of conversations at the time.  He said that he asked the appellant to blow into the alcotest unit which gave a positive reading indicating that it was likely that the appellant was driving with a positive concentration of alcohol being 0.05 or above.  He therefore required the appellant to submit to breath analysis test.  He called for a breath analysis unit to attend.  He had some further conversation whilst waiting upon the breath analysis unit and he remembered, although he did not make a note of it, that the appellant told him that his mother had died and that he had been consoling his father.

Senior Constable McCarthur, who was a member of the breath analysis unit arrived but there was a delay in testing the appellant because the appellant was chewing gum.  He asked the appellant to spit out the gum and to wait another twenty minutes before he was subjected to the breath analysis test.  He said that the appellant was unhappy about having to wait.

During the time that the appellant was required to wait, Senior Constable McCarthur said a woman friend by the name of Glenda Watson, whom the appellant had called on his mobile phone, arrived.

The appellant then went inside the van and submitted to a breath analysis test.  Sergeant Kenyeres waited outside and after the test was conducted he was called in and was present when Senior Constable McCarthur read the procedure for requiring a blood test kit.  Sergeant Kenyeres said he signed the note to that effect.

He said that the appellant was given some certificates whilst he was present but he was not able to say what those certificates were.  The appellant did not request a blood test kit.  Sergeant Kenyeres left the van with Mr Ferguson and told him that he would be reported for a blood alcohol concentration of 0.103 per cent and gave him his rights.  The appellant said that he did not wish to say anything in answer to the charge.

In cross examination he was shown Senior Constable McCarthur’s brief and identified his own signature on those documents which in fact indicated that he was present when the statement in writing under s47G(2) was handed to the defendant. He acknowledged that the notes did not record that he was present when the oral advice was being given to the appellant but maintained that he was present during the conversation in relation to the blood rights.

Senior Constable McCarthur said that he had been qualified as a breath analysis officer for seven and a half months.  He also made notes and said that he was unable to remember accurately any conversation without reference to those notes.  He said that he would have to refer to the documents to refresh his memory of that night and leave was given for him to do so. 

He said the result of the breath analysis test was 0.103 grams of alcohol in 100 millilitres of blood and which result was displayed on the screen of the testing instrument. The instrument provided two copies of a print out, one of which he kept and the other was given to the appellant. He said that after that result had been obtained, he recorded the result on a statement in writing and gave the appellant the print out and the statement in writing. He said he retained a copy of the statement in writing. He had no independent memory of having handed the appellant the statement in writing pursuant to s47G(2) of the Act but he said he could be sure he did it because that is the procedure and he had made notes that the document had been handed to him.

He also said that he gave the oral advice required under s47G(2a) and delivered to the appellant the prescribed written notice in Schedule I under that subsection. He said he also made notes that he had given oral advice on that occasion.

He said he then asked the appellant if he wanted a blood test and the appellant said “No”. He completed the certificate under s47G(5) of the Act which he handed to the appellant retaining a copy for himself. He asked the appellant whether he wished to read the notes and the appellant said “No”.

At that stage the prosecutor tendered the notice to produce given to counsel for the appellant and called for the production of the statement in writing under s47G(2) of the Act. Counsel for the appellant then said that the document was not produced. He then sought to tender the copy of the s47G(2) certificate to which counsel objected.

Following upon that objection further evidence was led from Senior Constable McCarthur in relation to the document.  He identified the copy document as being a copy of the document which was handed to the appellant.  He also identified the handwriting appearing on the copy document as being his.  He said the handwriting appearing on the copy was transferred to the copy by carbon.  He said that the original document which was handed to the appellant was yellow, and the copy which was sought to be tendered was pink. 

He used the document for the purpose of refreshing his memory that on 17 March 1997 at 9:51pm he handed to the appellant the statement under s47G(2) of the Act.

Counsel for the appellant examined Senior Constable McCarthur on the voir dire in relation to the admissibility of this document.  She put to him that his notes did not show the colour of the document given to the appellant and the colour of the document retained nor that the pink document was underneath the yellow document.

He was asked:

“Q.... You are unable to say the pink piece of paper before you is in identical terms to the statement that you handed to Mr Ferguson because you have no recollection.

A...... That’s right.”

He was then asked some further questions by the Magistrate and he said that he did write out the original, which transferred his handwriting to the copy.  He has no recollection of doing this but that is what he does in every case.  Also he said that in every case he handed the original, the yellow copy, to the driver.  He was then asked:

“Q.... Because it’s carbonated, the original is in the same wording as the carbonated copy.

A...... That’s right.”

I think there was sufficient evidence to establish, as the learned Magistrate found, that the pink copy was a true copy of the yellow copy.  In those circumstances, in my opinion, the document was admissible.

That by itself does not complete the obligations of the respondent in relation to s47G(2) of the Road Traffic Act because the learned Magistrate also needed to find that the yellow original of that pink copy was delivered to the appellant.  For a determination of that issue regard has to be had to the evidence of the appellant and Ms Watson.

On 12 March 1997, the appellant was living with his father.  He left his father’s house to visit a Ms Watson because she suffers badly from chronic fatigue, migraine headaches and she was stressed “to the maximum”.  He was stopped as he was driving along Kensington Road.  After he was stopped and had submitted to the alcotest, he rang his friend Glenda Watson and asked her to attend at the Random Breath Testing Station.  He said that she did and gave him some gum.  When a Police Officer noticed him chewing gum, he asked him to spit it out and the appellant was then told he would have to wait a further twenty to thirty minutes before he could submit to the breath analysis test.  After twenty minutes he entered the van and Sergeant Kenyeres and Ms Watson remained outside.  In fact Ms Watson did not go into the van at any time.  He said he submitted to the test and after taking the test he was told the reading and he was then supplied with documents.  He said he retained those documents and later gave them to James (sic).

He said after receiving those documents the Police Officer read some more notes and asked him a series of questions.  He was unable to remember what the Police Officer had said.  He was able to say, however, that he had not read Schedule 1 of Part A, i.e. the prescribed oral advice required by s47(2a).

He said in cross examination that he did not believe that Sergeant Kenyeres was ever in the van.  It was not suggested to Sergeant Kenyeres, in his cross examination, that his evidence was inaccurate when he said he was present in the van during the time I have mentioned.

The appellant said that he was given two pieces of paper which he gave to his lawyer.  In cross examination he continued to maintain that he did not receive the oral advice regarding blood rights.

The appellant was prepared to concede that he was not able to remember everything about the night and that his memory was not at good at the time of trial as it was shortly after the incident.

Ms Watson gave evidence in support of the appellant’s case.  She confirmed that she had given him the gum which the Police Officer asked him to spit out.  She was then asked this:

“Q.... Do you remember any further conversation after the chewing gum episode between the Police Officer and Tony?

A...... No, not a great deal, because basically I was too distressed myself to notice what they were really talking about in depth.  I know I was upset about the whole incident and I went to my car and sat down for a while, so I felt like a smoke and had one where he couldn’t see me.”

She confirmed in cross examination that on this night she was distressed and she became agitated during the wait for the breath analysis test and she was concerned about the appellant.

She said that the appellant entered the van and sat down and she said to one of the Police Officer’s that she wanted to hear what was going on.  She said she tried to enter the van but she was stopped.  However she stayed at the steps of the van and she was able to see into the van.  She said that after the appellant had submitted to the test he was handed pieces of paper.  One was a white slip and another was a yellow slip.  The yellow slip was definitely given to him inside the van.  She was not able to remember how many pieces of paper were handed to the appellant but she was fairly certain one of them was a yellow one.  She was asked whether he was advised of his blood rights and she said:  “Absolutely not”.

She admitted, in evidence, that she was unable to remember everything that had occurred.

Senior Constable McCarthur said that he handed to the appellant the original of the statement in writing under s47G(2) of the Act. He said it was a procedure which he always followed. The document he said he handed over was yellow. The appellant did not deny that he had received a statement in writing under s47G(2). His witness confirmed that he received a yellow document.

The learned Magistrate was satisfied beyond reasonable doubt that Senior Constable McCarthur had delivered to the appellant the statement in writing pursuant to s47G(2).

In my opinion that finding is right. The evidence suggests that there was a delivery of a yellow statement in writing. In my opinion the learned Magistrate was right to conclude that the respondent had proved beyond reasonable doubt compliance with s47G(2).

Section 47G(2a)

As I have already indicated, because of the provisions of s47G(7) the certificate of Senior Constable McCarthur certifying the matters under s47G(2a) would, in the absence of proof to the contrary, be proof that he had complied with s47G(2a) in relation to this appellant.

The onus was therefore upon the appellant to establish, on the balance of probabilities, that there was non-compliance with s47G(2a) in some respect.

It was the appellant’s case, as the evidence to which I have referred shows, that Senior Constable McCarthur had failed to give him the prescribed oral advice under s47G(2a)(a).

On the other hand, both Senior Constable McCarthur and Sergeant Kenyeres maintained that Senior Constable McCarthur gave the appellant the prescribed oral advice.

In cross examination Senior Constable McCarthur was shown his notes which contain some typing and some handwriting.  There are standard questions and statements contained on the document and some handwritten responses.  The document apparently contained a statement:

“I read to the subject in the presence of the above named member, the advice and part A of Schedule 1 Pursuant to  Section 47G2(A) (sic) of the Road Traffic Act.”

The document also contained the assertion:

“In the presence of the above named member, I delivered to the subject Part B of schedule 1 pursuant to section 47G2(AA) (sic) of the Road Traffic Act 1961.”

He agreed that he had not made any handwritten notation in respect of either of those sentences.

It was put to Senior Constable McCarthur that he did not in fact read to the appellant the advice in Part A of Schedule 1, i.e. the prescribed oral advice under s47G(2a). He said that was not correct.

In respect of that issue the Magistrate found that he was not satisfied on the balance of probabilities that the blood rights were not given to the appellant.

In essence he accepted the evidence of Senior Constable McCarthur and Sergeant Kenyeres, but he did not accept the evidence of the appellant and the evidence of Ms Watson in so far as it might have supported the appellant’s evidence. 

The Magistrate had the advantage of hearing the witnesses and assessing their evidence having regard to their demeanour. 

I cannot say that the learned Magistrate was wrong about his conclusion.  I cannot say that there was evidence in the appellant’s case which compellingly required a finding that the blood rights had not been given.  Nor can I say that there was evidence in the respondent’s case which required the rejection of the respondent’s evidence.

In my opinion the finding was open to the learned Magistrate and I am not prepared to interfere with it.

The appellant had the obligation to prove on the balance of probabilities that the blood rights were not given to him. The learned Magistrate was not so satisfied and the presumption therefore under s47G(7) operated.

In those circumstances, it is my opinion that the learned Magistrate was right to conclude that the respondent had made out its case and that the appellant should be convicted.

The appeal must be dismissed.