Forrester v Nicholas

In the matter of Forrester v Nicholas, the appellant, Forrester, sought to appeal a conviction for driving with a medium range blood alcohol content. The conviction was made by the Magistrates’ Court of Victoria, and the appeal was heard by the Court of Appeal. The primary issue before the Court was whether a failure to comply with the requirement in regulation 58(2) of the Road Safety (General) Regulations 1998 (Vic) precludes the admissibility of a breath analysis result. The appellant argued that the regulation does not operate as a condition precedent to the admissibility of a breath analysis result, and that the court should exercise its discretion in determining whether to admit the evidence.

The Court of Appeal held that the failure to comply with regulation 58(2) does not preclude the admissibility of a breath analysis result. The court reasoned that while regulation 58(2) is an important procedural requirement, it is not a condition precedent to the admissibility of a breath analysis result. The court noted that the regulation is designed to ensure the accuracy and reliability of the test result, and that the failure to comply with the regulation may be considered in determining whether to admit the evidence. However, the court held that the decision to admit the evidence is ultimately a matter for the court’s discretion, and that the court may admit the evidence if it is satisfied that the failure to comply with the regulation does not affect the reliability of the test result.

The Court of Appeal dismissed the appeal, holding that the Magistrates’ Court was correct to admit the breath analysis result despite the failure to comply with regulation 58(2). The court held that the Magistrates’ Court had exercised its discretion appropriately and had not erred in admitting the evidence. The court noted that the appellant had not demonstrated that the failure to comply with the regulation had affected the reliability of the test result, and that the Magistrates’ Court was entitled to rely on the evidence in finding the appellant guilty. The Court of Appeal made no orders as to costs.