Hamilton v Bircsak [2015] QDC 88
[2015] QDC 88
•23 April 2015
DISTRICT COURT OF QUEENSLAND
CITATION: Hamilton v Bircsak [2015] QDC 88
PARTIES: PETER HAMILTON
(appellant)
v
JOHN BIRCSAK
(respondent)
FILE NO: D1/15
DIVISION: Appellate
PROCEEDING: s222 Appeal
ORIGINATING Gladstone Magistrates Court
COURT:
DELIVERED ON: 23.4.15 (delivered ex tempore)
DELIVERED AT: Gladstone
HEARING DATE: 23.4.15
JUDGE: Farr SC DCJ
ORDER:
1. The order of the Magistrates Court on the 26th of November 2014 dismissing the charge is set aside.
2.I find the respondent guilty of the charge of driving a motor vehicle while over the middle alcohol limit, but not over the high alcohol limit.
3.The matter is remitted to the Magistrates Court at Gladstone for sentence.
CATCHWORDS: APPEAL - Justices Act 1886 s222 – where proof of a police officer’s authorisation to operate a breath analysing instrument is established by the breath analysis certificate unless the contrary is proved - where a breath alcohol certificate is conclusive evidence unless otherwise proved- where the respondent’s challenge to the accuracy of the reading was properly rejected–where appropriate to substitute a verdict of guilty and remit the matter to the Magistrates Court for sentence.
The respondent was charged with one count of driving a motor vehicle while over the middle alcohol limit, but not over the high alcohol limit, under section 79(1F)(a) of the Transport Operations (Road Use Management) Act 1995. I will hereinafter refer to that act as the Act. The alleged reading was 0.143 per cent. The Prosecution case was the respondent had driven to the police station in Calliope in the early afternoon on the 20th of May 2014 in a vehicle registered in his name.
The charge was heard in the Magistrates Court at Gladstone on the 26th of November 2014. The respondent represented himself at that hearing, and the outcome was that the charge was dismissed. The complainant now appeals that decision under the provisions of section 222 of the Justices Act 1886. Such an appeal is to be conducted as a rehearing on the evidence given and admitted at the original trial. Fresh evidence can be allowed if the Court so permits.
There are three grounds of appeal. They are: (1) the learned Magistrate has erred in relation to rejecting the breath analysis certificate in the absence of a notice of challenge by the respondent under the Act, (2) the learned Magistrate has erred in finding that the breath analysis certificate was not admissible due to the Prosecution not providing a certificate signed by the commissioner stating that the authorised officer was an authorised officer under the Act and (3) as a consequence, the learned Magistrate erred at law in dismissing the charge.
The Prosecution case consisted of the evidence of two police officers – Acting Senior Sergeant Rosanna Maloney and Constable Peter Hamilton – as well as a photocopy of Constable Hamilton’s notebook recording a conversation that was said to have occurred between he and the respondent, and the breath analysis certificate, which was marked exhibit 2.
Briefly, the facts alleged were that at about 2.30 pm on the 20th of May 2014, the respondent drove into Calliope and parked near the police station. Acting Senior Sergeant Maloney was on the front desk at the time, and she first saw the respondent’s vehicle in a parked position with the respondent approximately one metre away from it and heading towards the police station. She said that he was stumbling as he walked. When he entered the police station, she could immediately smell alcohol on him, noted that his eyes were glazed and red, and that when he spoke he was rambling in his conversation and going off point repeatedly. She said that when she spoke to him there was, “a strong smell of liquor coming from him.”
It would seem that the respondent had attended at the police station in relation to a neighbourhood dispute at the caravan park where he resided. When questioned, the respondent told Acting Senior Sergeant Maloney that the red car outside was his and that he had driven it to the police station, and that he had drunk a bottle of vodka. She then detained him for the purpose of conducting a breath test, which she requested Constable Hamilton to perform. That test indicated that the respondent had an amount of alcohol in his system over the limit. Constable Hamilton then drove the respondent to the Gladstone Police Station, where the respondent was required to provide a further specimen of breath for analysis by Senior Sergeant Jim Vogler of the Gladstone police.
Senior Sergeant Vogler was alleged to be an authorised person pursuant to the relevant provisions of the Act. The results of the analysis at Gladstone was sought to be proved by the tender of the breath analysis certificate under section 80 of the Act. Senior Sergeant Vogler analysed the respondent’s breath at 3.43pm, and the result was that his breath contained 0.143 grams alcohol in 210 litres of breath. I will return to the issue of Sergeant Vogler’s authorisation as it lies at the heard of this appeal.
At trial, the respondent gave evidence on his own behalf, and did not call any other witnesses. He said that he had lied to police when he said that he had drunk a bottle of vodka, and that he had only consumed a couple beers the previous evening. The Magistrate accepted the evidence of Acting Sergeant Maloney and Constable Hamilton, as well as concluding that the breath analysis equipment was operating correctly and was operated appropriately. She found, however, that the only evidence of the concentration of alcohol in the respondent’s breath was provided by the breath analysis certificate. She held that the certificate did not comply with section 80 of the Act, because there was no proof that the person who signed it was an authorised police officer under that Act. On that basis, the Magistrate ruled that the Prosecution had not proved the concentration of alcohol on the respondent’s breath beyond reasonable doubt, and dismissed the charge.
Now, I will deal with ground 2 first. Section 80 of the Act relates to the taking of blood, breath or saliva samples for the purpose of testing the concentration of alcohol in them. Most relevantly for this matter, section 80(18A) states:
If by any provision of this section a certificate of or purporting to be signed by a health care professional, an authorised police officer or an analyst is made evidence of any matter, a certificate purporting to be signed by a health care professional, an authorised police officer or an analyst, as the case may be, as to that matter must, on its production in any proceeding, be accepted as evidence: (a) that the signature on the certificate is that of the person by whom the certificate purports to be made, and (b) of all matters contained therein including the status, authority or qualification of the person by whom the certificate purports to be made; and until the contrary is proved is conclusive such evidence.
My attention has also been drawn to the Traffic Regulation 1962, which also contains provisions relevant to the evidential value of certificates, which indicate that a person is authorised to operate a breath analysing instrument. Section 179 of that regulation states:
(1) In any proceedings under the Act it shall not be necessary for any police officer to produce in evidence any certificate of authority issued by the commissioner that the police officer is authorised to operate a breath analysing instrument or saliva analysing instrument and evidence by a police officer that he or she is so authorised shall be sufficient evidence of that fact until the contrary is proved.
Subsection (2) of that section says:
If a person intends to dispute at a hearing that a particular police officer is authorised to operate a breath analysing instrument or saliva analysing instrument, the person must give the commissioner written notice of the intention at least 14 days before the day fixed for the hearing.
Unfortunately, the learned Magistrate did not refer to these sections when deciding this issue. Nor did she seek submissions on the issue before delivering her judgment. In the circumstances, the only reasonable inference is that they were overlooked. Exhibit 2 is a certificate purporting to be signed by an authorised police officer, and was made evidence of the alcohol concentration in the respondent’s breath by virtue of the provisions of section 80(15G) of the Act. The introductory words of section 80(18A) are met, and therefore the certificate must be accepted as evidence of all matters contained within it, including the authority of the police officer, and is conclusive evidence unless and until the contrary is proved.
The tender of the certificate was sufficient, by the operation of section 80(18A), to constitute evidence that Senior Sergeant Vogler was an authorised police officer. The Magistrate’s conclusion, that the absence from evidence of a certificate from the Commissioner of Police proving the officer’s authorisation was fatal to the Prosecution case, was wrong and contrary to the legislation. Accordingly, I am now called upon to determine the appropriate outcome to this appeal.
The appellant seeks an order that the respondent be convicted of the offence, and the matter be remitted to the Magistrates Court for sentence.
The respondent has submitted that the issue of the alleged oversight of the legislation is irrelevant, as the breath analysis certificate is fraudulent, as he, the respondent, never blew into a breath analysis instrument at the Gladstone Police Station. Rather it was, as I understand the submission, nothing more than a laptop computer with a tube attached. The respondent has also submitted that he exhibited no indicia of intoxication, as evidenced by the fact that an unknown police officer refused to conduct a breath test at the Calliope Police Station, presumably because there was no basis to reasonably suspect that the respondent was affected by alcohol.
That latter claim was not raised by the respondent in his evidence in the Court below. Nor did he cross-examine either police officer who gave evidence on the issue. So, it would, if allowed in, constitute fresh evidence. If such evidence were allowed, as I understood the respondent’s submissions, it would only come from the respondent himself, he having no wish to identify the police officer who allegedly refused to conduct the test. It would also be inconsistent with the evidence of Constable Hamilton who, as I understand his evidence at page 1-38 line 15, stated that he was on duty with Acting Snr Sergeant Maloney that day, inferentially there being no other police officer on duty at the time.
Of course, the proposed evidence, if allowed, would also be entirely inconsistent with the evidence of both officers Maloney and Hamilton as to what they say occurred at the Calliope Police Station. Given the strict rules that relate to the admission of fresh or new evidence, I would not allow it, as in my opinion, it was evidence that was known to the respondent at the time of the trial; it could easily have been led, at the very least by himself; and would be so inconsistent with other evidence, including the breath analysis certificate, as to be worthless. There could be no potential miscarriage of justice if such evidence were not allowed.
Insofar as the respondent’s first submission is concerned, it completely overlooks the legislative requirements if a challenge to a certificate is to be mounted. It is also inconsistent with his evidence-in-chief, when he said at page 1-56 line 47 to 1-57 line 1:
So I was taken down to the Gladstone Police Station, and I was breathalysed by – properly, I guess – anyway.
Later in cross-examination the respondent disputed that he was placed on a breath analysis instrument – it’s at page 1-59 line 37 – and he went on to assert at the bottom of page 1-59 that the instrument was different to one he was tested with on a previous occasion, and for that reason he had doubts that it was such an instrument at all. Given that this issue appears to be based on no more than a suspicion, which is unreasonably based, it could in no way constitute fresh evidence that this Court would consider accepting. It is nothing more than, at its absolute highest, hopeful yet unreasonable speculation on the part of the respondent.
The appellant submits that he has proved all elements of the charge beyond reasonable doubt. In particular, he refers the Court to the following evidence:
(a)The respondent having admitted that he had driven his vehicle at approximately 2.30 pm on the 20th of May 2014.
(b)The concentration of alcohol in his breath at the time he drove, having been conclusively proved by exhibit 2, the breath analysis certificate, by virtue of section 80 of the Act, to be 0.143 grams of alcohol in 210 litres of breath.
I note, as I have already indicated, that the learned magistrate accepted the prosecution case, other than for the issue of the authorisation of Senior Sergeant Vogler. One can well understand her acceptance of that other evidence. The respondent did not raise any other relevant defence in his evidence – for instance, and for example, extraordinary emergency – and all relevant evidence is before this court. This is not a matter where seeing the demeanour of a witness or witnesses when they give evidence would be instructive or important. I note also that, notwithstanding the respondent’s evidence that the only alcohol he had consumed was a couple of beers the previous evening, he did not file a notice of challenge to the breath analysis certificate pursuant to section 80(26)(c) of the Act.
Even putting that issue to one side, his purported challenge to the accuracy of the reading was based upon two considerations:
That he had only consumed a couple of beers the previous evening.
That, according to his own mathematical calculations, taking into account the rate that he believed that the human body dissipated alcohol from its system, that it would have been physically impossible, and certainly inconsistent with the amount of alcohol he admitted in his evidence to drinking, for the reading of 0.143 grams per 210 litres of breath to be accurate.
Quite properly, the magistrate rejected his evidence in that regard, and she concluded that the respondent’s arguments don’t really take the issue of the blood alcohol context – content reading much further. Whilst there was, of course, no evidence as to blood alcohol, as referred to by her Honour, she was clearly referring to breath alcohol, and nothing turns upon that slip of the tongue. In my view, the respondent was fortunate to be allowed to give evidence as to his mathematical calculations and views as to rates of reduction, given that, ordinarily, expert evidence would be required on such issues. There is no evidence that the respondent has any expertise in that field, and his opinions carry no evidential weight whatsoever.
Accordingly, the only evidence of potential relevance from the respondent was his claim to have only consumed a couple of beers the previous evening. That claim is mightily inconsistent with not only the contents of the breath analysis certificate, but is also inconsistent with the indicia of intoxication, as described by Acting Sergeant Maloney, and, to a lesser degree, by Constable Hamilton.
In my view, the breath alcohol content of the respondent was proved by the breath analysis certificate, and was entirely consistent with the other evidence before the court, that being the evidence that I’ve just referred to, and which is evidence that I readily accept. In my view, the appropriate outcome in this matter is to substitute a verdict of guilty and remit the matter to the Magistrates Court at Gladstone for sentence. I am not of the view, however, that the matter needs to be heard before a different magistrate and the appellant no longer presses that claim. I have considered the evidence afresh. In my view, given all of the evidence before the court, including the respondent’s initial claim to have consumed a bottle of vodka – that this is an appropriate matter for this court to enter a verdict of guilty. All elements of the charge have been proved beyond reasonable doubt.
In light of my conclusions, there is no need for me to consider ground 1 of the appeal. And ground 3 is really just a follow on from grounds 1 and 2, not really a proper ground in itself. Accordingly, the order of the court is as follows:
The order of the Magistrates Court on the 26th of November 2014 dismissing the charge is set aside.
I find the respondent guilty of the charge of driving a motor vehicle while over the middle alcohol limit, but not over the high alcohol limit.
The matter is remitted to the Magistrates Court at Gladstone for sentence.
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