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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1980] FCA 103
Decision Date: 22 JULY 1980

CaseChat Overview and Summary

In the case of Gosden, R.B. v Billerwell, M.R, the appellant challenged the validity of a breathalyser test used to determine if they were driving with a prescribed concentration of alcohol. The dispute was heard by the Supreme Court of the Australian Capital Territory, and subsequently, an appeal was lodged against the decision of the Supreme Court. The central issue was whether the notice that approved the type of instrument used for breath analysis was a valid exercise of power conferred on the Minister by the Motor Traffic (Alcohol and Drugs) Ordinance 1977 (A.C.T.) and whether the operator of the breathalyser used the "solution of standard alcohol" to check the operation of the instrument before and after the test.

The court examined the proper construction of the notice and its validity in relation to the power granted to the Minister. The appellant also argued that other grounds existed upon which the validity of the breathalyser test could be challenged, but these were not substantiated. The court found that the notice was not a valid exercise of the power conferred on the Minister, as it did not specify the type of instrument to be used for the breath analysis. Furthermore, the court held that the operator of the breathalyser had not used the "solution of standard alcohol" to check the operation of the instrument, which was a requirement under the regulations.

As a result, the appeal was allowed, and the order of the Supreme Court of the Australian Capital Territory was set aside. Instead, the appellant's conviction before the Court of Petty Sessions was set aside, the charge was dismissed, and the respondent was ordered to pay the appellant's costs in the Supreme Court of the Australian Capital Territory. Additionally, the respondent was ordered to pay the appellant's costs of the appeal to this Court, except for the costs of the second day of hearing.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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