Gosden, R.B. v Billerwell, M.R

[1980] FCA 103

Re: ROBERT BEAUMONT GOSDEN
And: M.R. BILLERWELL (1980) 47 FLR 357
No. ACT FC.19 of 1979
Vehicles and Traffic

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Brennan(1), Sheppard(2) and Kelly(3) JJ.

CATCHWORDS

Vehicles and traffic - driving with prescribed concentration of alcohol - notice purporting to approve type of instrument for carrying out breath analyses by reference to what is on label affixed to instrument - proper construction of notice - whether notice a valid exercise of power conferred on Minister by the Ordinance - whether operator of breathalyzer used "solution of standard alcohol" to check operation of instrument before and after test - no substance found in other grounds upon which validity of breathalyzer test challenged - Motor Traffic (Alcohol and Drugs) Ordinance 1977 (A.C.T.) ss. 5, 12, 19, 41, 42 and 43 - Regulations made thereunder; regulations 3, 4, 5 and 10.

Vehicles and Traffic - Motor traffic - Breathalyzer - Appeal against conviction - Alcohol solution used in test - Whether alcohol solution used in breathalyzer test of prescribed concentration - Minister's approval of type of instruments - Whether Minister's purported approval valid - Motor Traffic (Alcohol and Drugs) Ordinance 1977 (A.C.T.), ss. 5, 19, 41, 42, 43 - Motor Traffic (Alcohol and Drugs) Regulations, regs. 3, 4, 5, 10.

HEADNOTE

The appellant was convicted in the Court of Petty Sessions of an offence created by s. 19 of the Motor Traffic (Alcohol and Drugs) Ordinance 1977 ("the Ordinance"), which related to the use of a breathalyzer. His appeal against the conviction was dismissed by the Supreme Court of the Australian Capital Territory. He appealed to the Federal Court of Australia. The appeal was based on grounds which included the allegation that the alcohol used in the test may not have been of the prescribed concentration and that the Minister's purported approval dated 28th September, 1977, and made pursuant to s. 5 (1) of the Ordinance was invalid. The relevant part of s. 5 (1) reads as follows: "5. (1) The Minister may . . . approve instruments of a type described in the notice to be approved breath analysing instruments."

Held, per curiam, that the appeal should be allowed because on the evidence in the instant case there was a possibility that the alcohol solution used in the analysis carried out on the breath of the appellant may not have been a solution of standard alcohol as defined by reg. 3 (2) of the Motor Traffic (Alcohol and Drugs) Regulations.

Per Sheppard and Kelly JJ., Brennan J. dissenting, that the notice by which the Minister, pursuant to s. 5 (1) of the Ordinance, purported to approve instruments as breath analysing instruments for the purpose of the Ordinance was invalid because it failed to approve an instrument "of a type" within the meaning of s. 5 (1) of the Ordinance.

HEARING

Canberra, 1980, April 2-3; July 22. #DATE 22:7:1980

APPEAL.

Appeal to the Federal Court of Australia against the dismissal of an appeal to the Supreme Court of the Australian Capital Territory against a "breathalyzer" conviction in the Court of Petty Sessions.

A. S. Gillespie-Jones and P. J. Sheils, for the appellant.

B. Sully Q.C. and J. Buxton, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Gillespie-Jones & Associates.

Solicitor for the respondent: L. J. McAuley, Deputy Crown Solicitor.

E. F. FROHLICH

ORDER

1. The appeal be allowed.

2. The Order of the Supreme Court of the Australian Capital Territory be set aside, and in lieu thereof it be ordered that the appellant's conviction before the Court of Petty Sessions be set aside and the charge dismissed and that the respondent pay to the appellant his costs in the Supreme Court of the Australian Capital Territory.

3. The respondent pay to the appellant his costs of the appeal to this Court other than the costs of the second day of hearing.

Appeal allowed.

JUDGE1

This is an appeal from a judgment of Connor J. in the Supreme Court of the Australian Capital Territory, dismissing an appeal by the present appellant against his conviction for an offence created by s.19 of the Motor Traffic (Alcohol and Drugs) Ordinance. The section reads:

"19. A person who -

(a) has been the driver of a motor vehicle on a public street or in a public place;

(b) has, in accordance with the provisions specified in this Ordinance, been required to provide a sample of his breath for breath analysis; and

(c) has provided a sample of his breath for breath analysis,

is guilty of an offence if the result of the breath analysis as recorded or shown by the approved breath analysing instrument used in the analysis is or exceeds .08."

An offence against s.19 occurs at the time when the result of the breath analysis is recorded or shown, not when the offender is driving a motor vehicle. There is a complex of provisions which define the conditions for requiring a driver to undergo breath analysis. If those conditions are fulfilled, then, pursuant to s.12, a driver may be required to provide a sample of his breath for breath analysis and he is amenable to conviction for an offence under s.19 if the result recorded or shown by the breath analysing instrument is or exceeds .08. The figure is an absolute figure: it is not a proportion of alcohol in the blood, it is merely a reading recorded or shown by the instrument. Clearly the legislature intended to avoid controversies as to the equation between the proportion of alcohol in fact in a driver's blood, and the result recorded or shown by the instrument. If the reading is or exceeds .08, the offence is established, and it is not to the point to argue that the blood level was or might have been different either at the time of the breath analysis or at an earlier time when the offender was driving a motor vehicle.

So absolute a provision invites examination of the Ordinance and Regulations and of the evidence tendered to prove that the conditions have been fulfilled and that the requirements for carrying out the analysis have been complied with. Burt J. (as he then was) in Beauglehole v. Smith (1972) W.A.R.61, described a conviction under a provision similar to s.19 as "a test tube verdict", and went on to say (at p.62):
"Between the measurement and the verdict there is no room for judgment. But the method whereby the measurement, and hence the verdict, is reached is of course controlled by the law - by the Act and by the Regulations made under it. And if that method is departed from the result which is produced, whatever scientific validity it may have, has, in my opinion, no statutory significance."

Section 42(2) of the Ordinance modifies the application of that statement to the Ordinance; nevertheless, the approach to the operation of the breath analysis provisions of the Ordinance is accurately stated.

The grounds of appeal raise none of the matters which must be proved under paragraphs (a) and (b): the appeal relates to the use of the breath analysis instrument which, in the appellant's case, recorded a reading which was said to be .217. It is an element of an offence under s.19 that the instrument by means of which an analysis of a breath sample is carried out is "an approved breath analysing instrument", that is, "an instrument of a type approved by the Minister under section 5" (ss.12 and 4(1)), and therefore Ministerial approval must be shown whenever the question is put in issue (Scott v. Baker (1969) 1 Q.B.659). If the point is not taken then, as Lord Parker C.J. pointed out in connection with approval of apparatus under the U.K. legislation (ibid. at p.673):
"it may well be that . . . that will amount to an admission by the defence that the Secretary of State has approved the device in issue."

Although approval was not raised as an issue before Connor J. in the way in which the appellant now seeks to raise it by amendment of his grounds of appeal, the question is of general importance and it is desirable that the Court give the necessary leave and deal with the issue accordingly.

Section 5(1) confers on the Minister the relevant power to approve:
"5. (1) The Minister may, by notice in writing, approve instruments of a type described in the notice to be approved breath analysing instruments for the purposes of this Ordinance if he is of opinion that -

(a) instruments of that type have been designed and constructed for the purpose of analysing the concentration of alcohol in a sample of a person's breath and showing or recording a result that represents the concentration, in grams per 100 millilitres of blood, of alcohol in the blood of that person; and

(b) instruments of that type are suitable for use in analyses under Part II."
Although the language of s.4(1), which refers to "instruments of a type approved by the Minister", does not correspond with the terms in which the power is conferred by s.5(1), it is clear that a particular instrument acquires the character of "an approved breath analysing instrument" by virtue of its being of the type described in the Minister's notice. The relevant notice was published in the Government Gazette of 12 October 1977 reading as follows:
"AUSTRALIAN CAPITAL TERRITORY

Motor Traffic (Alcohol and Drugs) Ordinance 1977

APPROVAL OF BREATH ANALYSING INSTRUMENTS


IN pursuance of sub-section (5) of the Motor Traffic (Alcohol and Drugs) Ordinance 1977, I, ANTHONY ALLAN STALEY, Minister of State for the Capital Territory, being of opinion -

(a) that instruments of the type described in the Schedule have been designed and constructed for the purpose of analysing the concentration of alcohol in a sample of a person's breath and showing or recording a result that represents the concentration in grams per 100 millilitres of blood, of alcohol in the blood of that person; and

(b) that instruments of that type are suitable for use in analyses under Part II of that Ordinance,

HEREBY APPROVE instruments of the type described in the Schedule to be approved breath analysing instruments for the purposes of the Motor Traffic (Alcohol and Drugs) Ordinance 1977.

____________________________

SCHEDULE

An instrument of a type known as 'Breathalyzer' to which is affixed a label bearing, in addition to other material, the expressions 'Model 1000' and 'U.S. Patent 2,824,789'.

Dated this twenty-eighth day of September 1977.

A.A.STALEY

Minister of State of the Capital Territory"

Clearly enough, the Minister did not approve of all instruments known as Breathalyzers: his approval was restricted to Breathalyzers to which an appropriate label is affixed. It was submitted that the Minister has purported to approve any Breathalyzer to which any person (including, of course, a police officer) chooses to affix a writing bearing the prescribed expressions.

To construe the Minister's approval in this way is to attribute to him an absurdity, namely, an approval of instruments not according to the characteristics of a type, but according to the adventitious affixing of a shibboleth. Upon this construction of the Minister's notice, any Breathalyzer might be converted into an approved breath analysing instrument by the simple act of writing the prescribed expressions on a piece of paper and tying it to or sticking it on a Breathalyzer. So construed, the purported exercise by the Minister of his power under s.5(1) is invalid.

I do not construe the Minister's notice in this way. He purports to exercise the power conferred upon him by s.5(1) and, if the language of his notice so admits, it should be construed as effecting the object which he sets out to attain, that is, to approve instruments of a type. Instruments are of a type when they possess common features of function, design or manufacture, and the question is whether common features of these kinds can be identified by an appropriate label affixed to the instruments. The labelling of manufactured goods by, or with the authority of, a manufacturer is a common means of describing the function, design or manufacture of those goods. Sometimes the manufacturer labels goods as being of a particular model in a series (adopting criteria of his own devising for the purpose). A label which attributes a model number to goods can be authentically affixed to them only by or with the authority of the manufacturer who adopts the criteria for distinguishing one model from another. Then the label conveys the manufacturer's classification, and the goods may become recognized according to the labelled classification by those who deal in the goods, by those who use them or by those among whom they are distributed. Labelling is the usual means of identifying manufactured goods, and of classifying them by type. When the classification of goods by model becomes common knowledge among those who deal in them or use them or to whom they are distributed, those who possess that knowledge are competent to identify particular goods as being goods of the model which is commonly recognized. But until a model becomes commonly recognized, only the manufacturer can authoritatively classify goods as being a particular model. A manufacturer's label may effect that classification.

The Minister's approval contemplated that Breathalyzer instruments would be identified by label, that is, by a label describing by model and U.S. Patent numbers the instruments which he intended to approve. Such a label is one affixed by or with the authority of the manufacturer, by way of manufacturer's description.

There is an evidentiary difficulty about labels. If it be necessary, for the purposes of a criminal prosecution, to prove that goods are of a kind described in an affixed label, the label is not by itself proof of the facts stated in it with respect to the goods: Patel v. Comptroller of Customs (1967) A.C.356; Comptroller of Customs v. Western Lectric Co. Ltd. (1967) A.C.367. A label is mere hearsay, however commonly it is relied on in the ordinary commerce of life. It does not prove itself, either as having been affixed by the manufacturer, or as stating truly the facts which it bears on its face. Yet when a label appears to be a manufacturer's label, it is commonly relied on as showing both its origin and the truth of its assertions. Nevertheless, a label could not be used to prove that a particular Breathalyzer is in fact a model 1000. If the Minister had approved "a Breathalyzer model 1000", the terms of his approval would have necessitated proof that instruments used for the purposes of the Ordinance answered the description "model 1000". A "model 1000" is not shown to be a commonly recognized and notoriously known model of a Breathalyzer, and an instrument answering that description could be identified in evidence only by those who had adopted the term to describe a Breathalyzer with particular distinguishing features. The evidentiary burden of proving, on each occasion when a machine is used for the purpose of breath analysis under s.12 of the Ordinance, that the machine is a model 1000 Breathalyzer would be practically impossible to discharge. No doubt this consideration accounts for the Minister's refraining from expressing his approval in terms of "a Breathalyzer model 1000". And by giving his approval in the terms contained in his notice, he accords to the machine's label the identifying function which is denied to a label by the rules of evidence, but which is generally accorded to manufacturer's labels in the ordinary course of dealing with and describing manufactured goods. Indeed in Wylie v. Nicholson (1973) V.R.596 at p.603, there is an illustration of the use to which a label may be commonly put when the rules of evidence are not strictly insisted upon. There McInerney J., in reference to the Governor-in-Council's approval of a breath analysing instrument said:
"The instrument approved in para.1 of that approval was an instrument with the name 'Breathalyser' and bearing thereon the expression 'U.S.patent No. 2824789' - from which it may be inferred that the instrument was the subject of letters patent granted in the U.S.A. and bearing that number."

I construe the Minister's approval as relating to instruments to which there are affixed what appear to be manufacturer's labels identifying the instruments as model 1000. I do not consider his approval as extending to instruments to which some other kind of label is affixed, perhaps by some person who has no authority from the manufacturer. If a label affixed to an instrument appears to be a manufacturer's identification label - a question to which the fabric, size, position and mode of affixing are relevant - and if the label bears the prescribed expressions, a member of the Police Force may certify, pursuant to s.41(a)(iii) of the Ordinance, that the machine is an instrument of the type described in the Minister's notice. Such a certificate is, of course, only prima facie evidence of the matters stated in it and of the facts on which they are based, and it would be open to show that the affixed label is not a manufacturer's identification label, but an unauthorized addition to the instrument. In the absence of evidence which removes the prima facie effect of a certificate describing the type of instrument used in an analysis, the certificate furnishes sufficient evidence to support a finding that the instrument is of the type described.

And so the Minister's notice in writing, in the context of the Ordinance under and for the purpose of which it was given, adopts the same approach to the identification of Breathalyzer instruments as men commonly adopt in identifying manufactured goods: the prima facie identification of the goods in accordance with the labelled description. On its true construction, the Minister's approval does not purport to permit the transformation of an unapproved machine into an approved machine by affixing a label without the manufacturer's authority. Two subsidiary questions were raised by the amendment to the grounds of appeal, namely, that the instrument used in the appellant's case was not shown to be in existence at the time when the Minister's notice was published, and that it was not shown then to have labels affixed to it.

There is no substance in either of these subsidiary contentions. An instrument is an approved instrument if and whenever it answers the description in the Minister's notice, construing that notice in the way to which I have referred. The Minister's approval is not in terms or by implication limited to instruments made or answering the description at the time when the notice is published.

It is necessary now to consider the several grounds of appeal taken in the notice of appeal. The grounds will be considered seriatim.
Ground 1 reads:


"1. His Honour erred in finding that the operator of the breath analysing instrument had used an instrument to which was affixed a label bearing 'U.S. Patent 2,824,789' as required by regulation 3(i) of the Motor Traffic (Alcohol and Drugs) Regulations, the uncontradicted evidence being that the label did not have the required commas between the numbers of the patent."
There is no substance in this ground. The Minister's notice requires that a particular U.S. Patent number be on the label indicating a manufacturer's claim that the instrument conforms to the relevant patent specification. The notice does not require that the number be printed or written in a particular way.
Nor is there substance in Ground 2, which reads:


"2. His Honour erred in finding that the breath analysing instrument recorded or showed a result equal to or exceeding .08 as required by Section 19 of the Motor Traffic (Alcohol and Drugs) Ordinance when in fact the uncontradicted evidence was that there was no decimal point on the face of the breath analysing instrument but only a small cross."

It is obvious on inspection of the instrument that the small cross appearing on the face of the instrument serves as a decimal point and the evidence is that a trained operator so regards it. It is clear that the result as recorded or shown in the instant case exceeded .08.
Ground 3 reads:


"3. His Honour erred in finding that substantial compliance with the provisions of the Motor Traffic (Alcohol and Drugs) Ordinance and the regulations made thereunder was sufficient to ground an offence by the Appellant against the provisions of the Ordinance."
It is unnecessary to consider Ground 3 having regard to the construction placed upon the Ordinance in dealing with grounds 1 and 2.:
Grounds 4, 5 and 6 should be considered together:


"4. His Honour erred in finding that the tests required by Schedule 1 of the Motor Traffic (Alcohol and Drugs) Regulations had been carried out on the breath analysing instrument with a solution of standard alcohol, in that the uncontradicted evidence was that, although 1.21 grams of ethyl alcohol per litre of solution may have been put in by the analyst approved by the Minister of State of the Capital Territory, unless the temperature at the time the solution is made up is specified, the proportion will be different at any other temperature.

5. His Honour erred in holding that the Motor Traffic (Alcohol and Drugs) Regulations did not provide for each individual test carried out on a breath analysing instrument to be carried out from a solution taken from a sealed container to which was affixed a label as prescribed by regulation 10 of the said Regulations.

6. His Honour erred in finding that the solution used in the standard alcohol tests prescribed in Schedule 1 of the Motor Traffic (Alcohol and Drugs) Regulations had been taken from a sealed container to which was affixed a label as prescribed by regulation 10 of the said Regulations."
A "solution of standard alcohol" is defined by reg.3(2) of the Motor Traffic (Alcohol and Drugs) Regulations as follows:
"A reference in Parts 1 and 2 of Schedule 1 to a solution of standard alcohol shall be read as a reference to a solution of ethyl alcohol and distilled water in the proportion of 1.21 grams of ethyl alcohol per litre of solution."
It was submitted that this regulation is "meaningless" and "impossible to comply with". The submission stems from the evidence of Mr. Roberts, a consulting chemist and licensed analyst, who said inter alia:
"If each of your ingredients, the alcohol and the water, are at a particular temperature and you mix them you will have a certain weight proportion in that solution. If both materials are at different temperatures, different temperatures to the first temperature because the thermal expansion of alcohol is different to the thermal expansion of water, a volume measurement at a different temperature will give a different weight proportion in the solution."
Of course, reg. 3(2) does not speak of the mixing of ingredients, it defines the weight of ethyl alcohol in a litre of solution, but the evidence shows that the strength of the solution or the concentration of ethyl alcohol of a specified weight varies with the temperature of the solution; and I suppose, to a lesser extent, with the pressure upon the surface of the solution. But those considerations have no relevant consequences, for the constitution of the solution is defined by the Regulations and a solution which conforms to the specification of the Regulations may be used for any purpose which the Regulations prescribe. It may be that in the absence of a specification of temperature and pressure, a scientist would assume that some standard temperature and pressure are to be understood for the purpose of putting up a solution of standard alcohol. Mr. Roberts' evidence is not entirely clear as to whether there is no standard temperature assumed for this procedure, whether the use of volumetric flasks assumes a temperature of 20 degrees C, or whether some other temperature should be assumed. In the absence of any scientific assumption, a solution - or, if it matters, a range of solutions - constituted as specified when measured within the range of ordinary room temperatures and ordinary atmospheric pressures complies with the requirements of the Regulations.

The respondent was entitled to rely upon the various certificates given under s.41 of the Ordinance and tendered. Those certificates and Gazette No. S219 of 12 October 1977, which was also tendered, evidenced that an analyst appointed by the Minister under s.6 of the Ordinance put up a standard solution as defined by reg.3(2) in a sealed container, that that solution was labelled in a way which could be made the subject of a certificate under reg.10(2), that such a certificate was issued, and that in carrying out the required tests on the instrument the approved operator, Constable McEwen, used a solution taken from the sealed and labelled container. In the absence of evidence to the contrary, the certificates provide sufficient proof of those facts. The evidence of Mr. Roberts to which reference has thus far been made was scientifically interesting, but irrelevant to any issue arising under the Ordinance. His Honour was entitled to act upon the certificates as to the constitution and use of the solution of standard alcohol, and ground 4 fails.

Grounds 5 and 6 turn upon the composition of the alcohol solution at the time when it was used in connection with the testing of the appellant's sample of breath. The authorized operator of the instrument, Constable McEwen, stated that he replenished the standard alcohol solution used by him in connection with the instrument in question on the night of 25/26 February 1978. Constable McEwen took the solution from its sealed container, and placed it in a device called a simulator which is used in connection and integrally with the Breathalyzer. As appears from Parts 1 and 3 of Schedule 1 to the Regulations, it is necessary for an approved operator to use a solution of standard alcohol twice in connection with any one analysis of breath: once to check the operation of the instrument before the sample of breath is analyzed, and once to verify its operation subsequently. Constable McEwen gave evidence that the standard solution poured into the simulator was used for 5 analyses and, therefore, must have been used 10 times before it was discarded. He did not know how often it had been used before the analysis of the appellant's breath sample. On Constable McEwen's evidence, there is a possibility that the alcohol solution used in respect of the analysis carried out on the breath of the appellant may have been used up to 8 times before using it to check the operation of the instrument and before analyzing the sample of the appellant's breath. Was the solution at that time a solution of standard alcohol as defined? It may not have been, for the reason explained by Mr. Roberts:
"Every time air is passed through the standard alcohol solution it actually removes some of the alcohol from the solution and so each time a quantity of air is passed through the solution the concentration of that standard alcohol solution drops fractionally. Depending on the actual quantities of air used in the standard alcohol test, the volume of air blown through the simulator, 10 standard alcohol tests - if you blew a quantity of air through similar to the quantity of air that is exhaled in one breath, which ought to be the checking procedure - in other words one should use similar quantities of air through the simulator to the quantity of air that the subject will blow to have a properly valid test - if one used that sort of volume of air, 10 such tests would deplete the alcohol or something like 5% in the solution, by something like 5%."
If the solution ceased to be a "solution of standard alcohol" as defined in the Regulations by the time when a sample of the appellant's breath was to be analyzed, Constable McEwen could not have carried out the testing of the instrument required by reg.4 (the before test) and reg.5 (the after test) which provide:
"4. The approved operator shall not use an instrument of the type described in regulation 3 in the analysis of a sample of the breath of a person, unless in carrying out the procedures specified in Part 1 of Schedule 1 -

(a) the temperature shown on the thermometer immersed in the solution of standard alcohol immediately before the air was passed into the chamber was not less than 33.8 degrees Celsius or more than 34.2 degrees Celsius; or

(b) the result of the analysis, as shown by the instrument, of the air passed through the solution of standard alcohol was not less than .093 and was not more than .106.

5. The analysis of the sample of the breath of a person carried out by an instrument of the type described in regulation 3 shall be disregarded for the purposes of the Ordinance unless, in carrying out the procedures specified in Part 3 of Schedule 1, the result of the analysis, as shown by the instrument, of the air passed through the solution of standard alcohol was not less than .093 and was not more than .106."
If the solution used in connection with the analysis of the sample of the appellant's breath was not a "solution of standard alcohol" as defined, reg.4 forbade the use of the instrument and reg.5 required the analysis to be disregarded. Regulations having these respective operations are made under powers conferred in that behalf by s.12(3)(b) and (c) of the Ordinance. Regulation 10(3), which provides for the operator to certify that "he used a solution taken by him from a sealed container to which was affixed a label marked in the manner specified in the certificate" is a useful evidentiary provision when a solution of standard alcohol is taken from a suitably labelled container and used immediately. But it is of no assistance in proof of performance of the tests specified by regs. 4 and 5 when the solution is exposed to contamination or variation before the tests are performed.

When the tests prescribed by regs.4 and 5 are not carried out or do not yield the results specified in those regulations, there is no room for the application of s.42(2). That provision empowers the Court to abstain from dismissing a charge for non-compliance with some provision of the Ordinance or Regulations where the Court "is satisfied that the result which would have been obtained if there had been compliance with every provision" relating to the carrying out of the breath analysis "would have been not less than the result obtained in the analysis". Unless the respective tests specified in the Regulations are carried out and yield the results specified, the prohibition upon use of the instrument (reg.4) and the requirement that the reading be disregarded (reg.5) would deny to the figure recorded or shown by the instrument the character of a "result obtained in the analysis".:

In the present case, the evidence of Constable McEwen did not show that the tests specified in regs.4 and 5 were carried out, because on the whole of the evidence, it could not be found that the solution of standard alcohol with which he had replenished the simulator that night had remained a solution of standard alcohol during each of the tests. The result of .217 is not therefore a "result of the breath analysis" for the purpose of s.19.

Grounds 5 and 6 sufficiently raise, albeit not with precision, the question whether the solution used for the purposes of regs.4 and 5 in the instant case was a solution of standard alcohol. As the result of the procedures adopted for analyzing a sample of the appellant's breath was not proved to be a "result of the breath analysis" for the purpose of s.19, nor a "result obtained in the analysis" for the purpose of s.42, the appeal must be allowed, the conviction set aside, and the charge dismissed.

There is a further circumstance which casts doubt upon the composition of the solution used. Asked what was in the simulator before he poured in the solution of standard alcohol from the sealed container, Constable McEwen said, "There was an old standard solution". It is not clear that the "old standard solution" was cleaned out from the simulator before the fresh solution of standard alcohol was introduced. Constable McEwen evidently thought that he could check the standard solution by the results obtained from its use, for he said:
"When I done the standard, I got the correct results that is required as per the regulations. Therefore it indicated to me it was of the correct quantity."

Whatever may be said of the scientific validity of this conclusion, it does not prove that when the simulator was used in connection with the analysis of a sample of the appellant's breath, it contained a solution of standard alcohol as defined in reg.3(2).
Ground 7 reads:


"7. His Honour erred in holding that if the breath analysing instrument passed the tests prescribed in the first Schedule of the Motor Traffic (Alcohol and Drugs) Regulations then the instrument could be used notwithstanding defects the instrument may have had at levels outside those tested."
This ground also is without substance. If an approved instrument is tested as regs.4 and 5 require and the tests yield the results therein specified, the statutory conditions upon using it to record or show a result for the purposes of s.19 are fulfilled. It is immaterial that the instrument shows or is said to show, on some other tests, results which are scientifically unsatisfactory.

The matters of relevance when a prosecution is instituted under the Ordinance are determined by the issues which the provisions of the Ordinance and Regulations throw up for determination. A prosecution is not the occasion for a scientific excursion into fields which are not marked out by statutory terms; and it makes no difference that the legally irrelevant excursion is undertaken to propound a theory that the instrument is scientifically unsatisfactory. With Willes J.,
". . . I utterly repudiate the notion that it is competent to a judge to modify the language of an Act of Parliament in order to bring it in accordance with his views as to what is right or reasonable."
(Abel v. Lee (1871) L.R.6 C.P.365 at p.371).

Grounds 8 to 12 of the appellant's grounds of appeal are based upon the notion that, although the instrument requires an ampoule to be inserted to refract light and thereby to make it operate, the omission of the Ordinance or Regulations to specify the kind of ampoule or the manner of its use is fatal to the prosecution. The notion is erroneous. The insertion of an ampoule is not an unauthorized alteration of an approved instrument. Additions to approved instruments which do not materially alter their operation have not been held to invalidate the carrying out of breath analyses (Wylie v. Nicholson, supra, at p.603; Trenamon v. Calvert, ex p. Calvert 1976 Qd.R.42 at p.44), and a fortiori additions which are required to make them work are not to be held to contravene some implicit prohibition on their use. If something needs to be done or used to make the instrument operate, then that thing may be done or used, for the statute authorizes whatever is necessary to allow the instrument to perform the function for which it is designed and constructed. In the United Kingdom, when a question arose as to a constable's duty to follow the maker's instructions in using a testing device, Lord Pearson said (in Director of Public Prosecutions v. Carey (1970) A.C.1072 at p.1089):
"Clearly the device is meant to be used in accordance with the maker's instructions because that is the proper way to use it."
Whatever should be done or used to make the Breathalyzer operate in the proper way is impliedly authorized by the Ordinance and Regulations to the extent that it does not conflict with their express provisions.

In the result, the appeal should be allowed, the conviction set aside and the charge dismissed. The order of the Supreme Court should be set aside and in lieu thereof it should be ordered that the appellant's conviction before the Court of Petty Sessions be set aside and the charge dismissed and that the respondent pay the appellant's costs in the Supreme Court. The appellant should have his costs in this Court except that, having regard to the large number of issues which he raised and on which he failed, he should not have the costs of the second day of hearing. As to that day there should be no order as to costs.

JUDGE2

I have read the judgment of Brennan J. and agree with the orders which he proposes. With one exception I agree also in his reasons for judgment. That exception concerns the validity of the notice by which the Minister, pursuant to s.5(1) of the Ordinance, purported to approve instruments as breath analysing instruments for the purposes of the Ordinance. Section 5(1) of the Ordinance and the notice which is in question are set out in the judgment of Brennan J. and I do not set them out again.

The question is whether the words in the schedule to the notice are such as to show that the Minister has approved an instrument "of a type" within the meaning of s.5(1). The submission of the appellant is that the words are inadequate or inappropriate for this purpose because they purport to specify the type of instrument which is the subject of the approval, not by reference to its type, but by reference to what is shown upon a label which is affixed to the instrument. Both counsel agreed that a notice by which approval was given to an instrument "of a type known as 'Breathalyzer'" - see the opening words of the schedule - would not be a sufficient specification of a type so that one has to look to the words which follow to ascertain the type of instrument which is purportedly approved by the notice. I share counsel's agreement in this respect. In consequence the question in effect is whether the words of the schedule which follow the word 'Breathalyzer' constitute a sufficient notification of a type of instrument for the purposes of s.5(1).

The relevant meaning of "type" in the Shorter Oxford Dictionary is the general form, structure or character distinguishing a particular kind, group or class of beings or objects; hence a pattern or model after which something is made.

In my opinion it is not an appropriate notification of a type of instrument to specify the instrument, not by reference to its make or model, but by reference to what is on a label which is affixed to it. A consequence of holding that the type of instrument could lawfully be notified (approved) in this way would be to permit a person other than the Minister to select, from time to time, and thus approve, the type of instrument which was to be an approved instrument for the purposes of the legislation. The passive voice is used; the affixing of the label could be carried out by the manufacturer, his agent or someone in the Police Force. Once the label was affixed the instrument, so long as it could reasonably be described as a breathalyzer, would become an approved instrument for the purposes of the legislation.

Counsel for the respondent saw the difficulty with which these considerations confronted him. His principal submission was that the words in the schedule to the notification should be read as if the words "by the manufacturer or distributor (of the instrument)" were added after the words "to which is affixed". Thus only instruments to which the relevant label had been affixed by the manufacturer or distributor would be approved instruments. Once the notice was construed in this way its substance and effect, so it was submitted, would be no different from a notice which specified the type of instrument to be one which was in fact a "Model 1000" and subject to U.S.Patent 2,824,789. Plainly there could be no question concerning the validity of a notice of approval which was so worded.

In the submission of counsel for the respondent to give the words of the schedule to the notice the meaning which their literal construction yields would be to construe the notice in a capricious and arbitary fashion and contrary to the obvious intention of its draftsman. I do not agree with that submission. I do not myself perceive why the words which the respondent says should be read into the schedule should be supplied. If the draftsman had intended them to be present he would have used them. Moreover, there is a reason why it might be thought that the draftsman did intend the words to bear their apparent meaning; in other words, did intend to notify the type of instrument by reference to what was on a label affixed to it.

In a prosecution for an offence under s.19 of the Ordinance the onus is upon the prosecution to establish that the instrument upon which the defendant's breath was tested for alcohol was an approved instrument. Proof is facilitated by the provisions of s.41(a)(iii) and s.41(b)(iii) of the Ordinance. The former provision provides that in any proceeding in a Court a certificate purporting to be signed by a member of the Police Force and stating the type of instrument used in the analysis is prima facie evidence of the matters stated in the certificate and of the facts on which they are based. Section 41(b)(iii) is to a similar effect. Section 43(1) provides that a person charged with an offence may give notice in writing to the Commissioner of Police that he will require the attendance for the purpose of giving evidence orally at Court on the hearing of the charge each or any person by whom a certificate under s.41 has been given. Notwithstanding the giving of such a notice and that the persons referred to in the notice give evidence, the certificates remain admissible in evidence and have such probative value as the Court determines consistently with the other evidence before the Court.

Police officers would have little difficulty in certifying, pursuant to s.41, that an instrument was of an approved type if it were appropriate for the Minister to notify his approval of the instrument, not by reference to its make or model number, but by reference to what was stated on a label affixed to it. In my opinion the draftsman of the notification which is in question selected the words of the schedule thereto with care. He did so to enable police officers the more easily to certify the instrument to be an approved instrument. If they were cross-examined as the result of notice given pursuant to s.43, they would, in those circumstances, the more easily be able to resist the cross-examination. In other words, the reason for the form of the schedule to the notice is to facilitate proof.

Once that is understood there is no reason for giving the notification any meaning other than the plain and ordinary one which its words indicate it has. There is no room for bringing into play a rule of construction such as is found in the maxim ut res magis valeat quam pereat, or, for that matter, the provisions of s.46(b) of the Acts Interpretation Act 1901. The words of the schedule have only one meaning. Either they represent a valid exercise of power or they do not. In my opinion the notice is invalid because it fails, within the meaning of s.5(1), to approve an instrument "of a type".

I would add that my decision would have been no different if the words sought to be read into the schedule by the respondent, "by the manufacturer or distributor," had been added after the words "to which is affixed". Much of the vice which I believe the notice has would remain. What those who claim validity for the notice must do in order to uphold it is not simply to read in the words which it is said ought to be understood as being present; the schedule has to be read as if it said, "being a 'Model 1000' the subject of U.S. Patent 2,824,789".

Such a construction would do violence to the language of the draftsman. It is language which he could easily have used but did not. Few police officers concerned with providing certificates under s.41 or giving evidence by reason of the operation of s.43 would understand its meaning to be that it required them to certify that the instrument used was in fact a "Model 1000" the subject of U.S. Patent 2,824,789. They would continue to give certificates - I hasten to say in the utmost good faith - thinking that they were doing no more than certifying that the instrument had a label affixed to it which bore the required words and figures.

Mention was made of the difficulty of proving that a particular instrument was a Model 1000 and the subject of U.S. Patent 2,824,789. That is a matter to which I have already referred. But the evidence in the present case establishes that some selected police officers undergo a course of training in the use of breathalyzers. Such a person, provided his training covered the matter, would be able to give admissible evidence that a particular instrument was a Model 1000 and was the subject of the relevant patent. His course of instruction would qualify him to do so. Likewise he could give a certificate to the same effect. In this regard he would stand in no different position from an experienced mechanic who could give evidence that a vehicle was of a particular make and model number or an expert on fire-arms who could depose as to the make and model of a gun used in the commission of a crime.

In any event the fact that there may be difficulties of proof (I do not consider that any difficulties are insuperable) is no reason for giving to the notice a construction which its words will not bear. I have already referred to the fact that to give the notice here a construction far removed from that which its ordinary words appear to have may mislead police officers who will not, when giving a certificate, have their minds directed to the real matter as to which they are required to certify. Would they really understand that they are certifying that the label borne by a particular instrument not only bore the relevant words and figures but was also placed there by the manufacturer. Just how any person (police officer or not) could certify that a label was (query, appeared to be) that of the manufacturer I am not sure. But assuming it be thought that such an exercise could be done, the question I ask is whether he would, if he had regard only to the words of the Ordinance and the notice, realise that that was what was required of him. What I am endeavouring to stress is that by reason of the certification provisions of the Ordinance and the need for the provisions of any notice to be plainly understood by those who will be called upon to give certificates, any construction far removed from that which it might be thought the words plainly bear ought not to be attributed to the draftsman who ought not to be presumed to have intended to divert the minds of those who are to certify from the matters with which they are really to be concerned. In my opinion a reasonable person would not, as I have said, think that he was doing more than certifying that the instrument in question bore a label on which were the required words and figures. That conclusion confirms me in the view that the notice ought not to be construed as the respondent contends.

I would finally draw attention to the provisions of s.8C(6) of the Traffic Ordinance for the Northern Territory of Australia. It provides that the member of the police force there referred to shall not carry out a breath analysis except with a device of a type known as "Breathalyzer" and stamped with or to which is affixed a prescribed mark. There it is the legislation itself (not a notice purportedly made pursuant to it) which provides for the breathalyzer to be identified by reference to a stamp or label which is affixed to the instrument, cf. Nichol v. Thompson 12 A.L.R. 528. I only mention that circumstance in order to show that there are methods by which what is done here can lawfully be done. The vice of the notice here is that it purports, as I have said, to notify a type of instrument not by reference to type at all but by reference to what is on a label.

The invalidity of the notice is and has always been, in my opinion, fatal to this prosecution. The point under consideration was not taken either before the magistrate or before the judge whose decision is now under appeal. It was not taken in the grounds of appeal to this Court and the question remains as to whether leave should now be given to the appellant to rely upon it. In my opinion that leave should be given because nothing could have been done in the way of leading evidence or the making of submissions in either of the Courts below in order to overcome the problem. The validity of the notice was an essential element upon which the prosecution had to rely. The critical time for its validity was the date of its publication in the Gazette, 12th October, 1977. The respondent cannot be prejudiced by the taking of the point for the first time in this Court. His counsel did not say that he was.

I would therefore give leave to the appellant to amend his grounds of appeal in order to raise the point and, having done so, would find the notice invalid.

JUDGE3

I have had the advantage of reading the judgments of Brennan and Sheppard, JJ. I agree with the orders they propose. I agree, too, with the reasons given and the conclusions reached by Brennan, J. concerning grounds 1 to 12 inclusive of the appeal. In view of the orders proposed and a concession made by counsel for the respondent at the hearing of the appeal to this Court, ground 13 requires no further consideration.

At the hearing of that appeal counsel for the appellant sought leave to add a fourteenth ground of appeal in the following terms: -
"14. The machine used by the approved operator upon the Appellant was not shown to be an approved breath analysing instrument within the meaning of Sections 4 and 5 of the Ordinance because

(a) it was not shown to be an instrument which existed on the 28th day of September 1977;

(b) it was not shown on the 28th day of September, 1977 to be an instrument to which was affixed the labels referred to in the approval of the Minister (Exhibit C) although the instrument itself may have been in existence on that date;

(c) the notification in writing purporting to be an approval in writing of the said machine (Exhibit C) was not a valid exercise by the Minister of the power contained in Section 5 of the Ordinance because the notice did not describe a type of instrument."

The Court heard argument on the additional ground but reserved its decision as to whether leave to add it should be granted.

Section 5(1) of the Motor Traffic (Alcohol and Drugs) Ordinance 1977 ("the Ordinance") is in the following terms: -
"5.(1) The Minister may, by notice in writing, approve instruments of a type described in the notice to be approved breath analysing instruments for the purposes of this Ordinance if he is of opinion that -

(a) instruments of that type have been designed and constructed for the purpose of analysing the concentration of alcohol in a sample of a person's breath and showing or recording a result that represents the concentration, in grams per 100 millilitres of blood, of alcohol in the blood of that person; and

(b) instruments of that type are suitable for use in analyses under Part II."
Power is therefore conferred on the Minister to approve a particular instrument and thereby to confer upon it the character of "an approved breath analysing instrument". The approval is only effective, however, when the instrument is of a type described in the notice given under s.5(1).

As he was required to by s.7 of the Ordinance, the Minister caused the relevant notice to be published in the Commonwealth of Australia Gazette. The notice was as follows: -
"AUSTRALIAN CAPITAL TERRITORY

Motor Traffic (Alcohol and Drugs) Ordinance 1977

APPROVAL OF BREATH ANALYSING INSTRUMENTS

IN pursuance of sub-section 5(1) of the Motor Traffic (Alcohol and Drugs) Ordinance 1977, I, ANTHONY ALLAN STALEY, Minister of State for the Capital Territory, being of opinion -

(a) that instruments of the type described in the Schedule have been designed and constructed for the purpose of analysing the concentration of alcohol in a sample of a person's breath and showing or recording a result that represents the concentration, in grams per 100 millilitres of blood, of alcohol in the blood of that person; and

(b) that instruments of that type are suitable for use in analyses under Part II of that Ordinance,

HEREBY APPROVE instruments of the type described in the Schedule to be approved breath analysing instruments for the purposes of the Motor Traffic (Alcohol and Drugs) Ordinance 1977.

________________

SCHEDULE

An instrument of a type known as 'Breathalyzer' to which is affixed a label bearing, in addition to other material, the expressions 'Model 1000' and 'U.S. Patent 2,824,789'.

Dated this twenty-eighth day of September 1977.

A. A. STALEY

Minister of State for the Capital Territory"

There are really three fresh grounds of appeal in the proposed fourteenth ground. Although I think the propositions formulated in sub-paragraphs (a) and (b) fail, leave to add the ground ought to be granted in view of the importance of the question raised in sub-paragraph (c).

As to sub-paragraph (a), I think that if an instrument meets the description set out in the notice of approval it matters nothing that it did not exist at any particular date or at the date of the approval. If, for example, a Minister of State had been authorised by an appropriate Ordinance to approve a particular type of motor vehicle for a particular purpose and had approved as that type the T-Model Ford when only the first 100 T-Model Ford motor cars had been manufactured, I can see no reason why his approval should not remain valid in respect of a T-Model Ford manufactured and appropriated to the particular purpose years after the approval.

As to sub-paragraph (b), I point out that it is ambiguous but, giving it that interpretation which is more favourable to the appellant, I am yet unable to see any reason why it could succeed. I see no requirement in the Ordinance that it was necessary on the day of the notification by the Minister that there be affixed to a particular machine the label referred to in the notice of approval.

As to sub-paragraph (c), the question is whether there was in the notice given by the Minister an approval of instruments of a type described in the notice. It is, I think, insufficient that the instrument in question be described as a type known as "Breathalyzer" because, as appears from the Regulations made under the Ordinance, there are at least two models of the instrument known as the Breathalyzer. It is to be noted that the word seems to have passed into the common currency of the English language. See The Concise Oxford Dictionary, 6th Edition, 1976, where the word is defined without any indication that it is regarded as a trade mark or name. It is similarly defined in the 1972 supplement to The Shorter Oxford English Dictionary. The question then is whether the adjectival phrase "to which is affixed a label bearing, in addition to other material., the expressions 'Model 1000' and 'U.S. Patent 2,824,789'." is a sufficient addition to enable it to be said that the instrument is of a "type described in the notice".

Relevantly, "type" is defined in The Shorter Oxford English Dictionary as "the general form, structure or character distinguishing a particular kind, group or class of beings or objects; hence a pattern or model after which something is made."

On analysis, I think that the only words which can be said to "describe" the instrument in the sense in which the word "describe" is used in s.5(1) are the words "of a type known as "Breathalyzer" to which is affixed a label". The words following are words descriptive of the label, not of the instrument. Unless, therefore, the mere affixing of a label can be said to describe a particular type of Breathalyzer by showing the general form, structure or character distinguishing it, it seems to me that the notice is not apt to describe the instrument and therefore is invalid.

Assuming the label to have been affixed by the manufacturer of the instrument or by a distributor appropriately in the course of trade so that it may be described as having been regularly affixed, I think that the task of description of the type of instrument is not performed by the Minister's notice but by the manufacturer or distributor through the affixing of the label. I am prepared to find that the Minister intended by his notice that the label to which he referred should be a label regularly (in the sense used above) affixed, but I am unable to see that the presence of a label on an object can describe the general form, structure or character distinguishing the particular kind of object.

It may be noted that in The Shorter Oxford English Dictionary, the word "describe" is defined as meaning "to set forth in words by reference to characteristics". In turn, "characteristic" is defined as "a distinctive mark; a distinguishing quality or peculiarity". It follows, therefore, that using the language of s.5(1) in accordance with those meanings, it may be said that "the Minister may, by notice in writing, approve instruments having a general character distinguishing their particular kind, the distinguishing qualities or peculiarities of which are set forth in words in the notice".

While I am fully alive to the danger of attempting to interpret legislation by collating the meanings of the individual words used without reference to the overall purpose of the legislation in question, I think that, nevertheless, the apparent ordinary meaning is, in this case, the correct one. The extended interpretation just set out seems to me to support the view I have earlier expressed. It is not legislation but an instrument purporting to exercise a power granted by legislation which is being interpreted and, while one is naturally anxious to accord to such an instrument a meaning which will make it fully effective and operative, this can not be done, in my opinion, where to do so would strain the language.

I would agree with Sheppard, J. that the invalidity of the notice is and always has been fatal to the prosecution and with his subsequent comments. For these reasons, I would give leave to the appellant to amend his grounds of appeal by adding ground 14 and would make the orders proposed.