Horton v White - [2002] TASSC 57

[2002] TASSC 57

CITATION: Horton v White [2002] TASSC 57

PARTIES:  HORTON, Graeme Roy
  v
  WHITE, Graeme Ross

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 14/2002
DELIVERED ON:  28 August 2002
DELIVERED AT:  Hobart
HEARING DATES:  7, 9 August 2002
JUDGMENT OF:  Slicer J

CATCHWORDS:

Traffic Law - Offences - Particular offences - Alcohol and drug related offences - Tasmania - Test and analysis procedure - Breath analysing instrument - Apparatus "approved by the Governor by notice in the Gazette" - Meaning of "designed to ascertain".
Road Safety (Alcohol & Drugs) Act 1970 (Tas) s2

Project Blue Skies Inc & Ors v ABA (1998) 153 ALR 490, applied.
Moore v Lambert A6/1974; Smith v Brazendale [1980] Tas R 83, followed.
Aust Dig Traffic Law [81]

REPRESENTATION:

Counsel:
             Applicant:  S J N Brown
             Respondent:  J P Ransom
Solicitors:
             Applicant:  Simon Brown
             Respondent:  Director of Public Prosecutions

Judgment Number: [2002] TASSC 57
Number of Paragraphs: 30

Serial No 57/2002
File No LCA 14/2002

GRAEME ROY HORTON v GRAEME ROSS WHITE

REASONS FOR JUDGMENT SLICER J

28 August 2002

The applicant contends that a breathalyser machine manufactured or programmed in a way which is "biased" in favour of the motorist, is not an "apparatus … designed for ascertaining by analysis … the concentration of alcohol …" as required by Parliament, because inherently it will provide a lesser reading.

Following a motor vehicle accident the applicant, as a driver, was required by police to undertake a breath analysis which returned a reading of .210 grams of alcohol in 100 millilitres of blood. At the hearing he challenged the reception of that evidence on the basis that the instrument used for analysis was not an apparatus provided for by statute.

He relied on evidence, placed before the court, of the Director of Forensic Science Services, Tasmania, who was also a supervising analyst appointed under the Road Safety (Alcohol & Drugs) Act 1970 ("the Act"). The instrument used to analyse the blood alcohol concentration of the applicant was an Alcotest 7110, manufactured by the Drager Corporation. The methodology employed is based on a scientific principle known as "Henry's Law". The law is a statement of recognition that blood will deffusate through the membrane of the lung and combine with the air in that lung. An equilibrium is reached within .3 of a second when the number of molecules which will pass through the membrane to the air is equivalent to the number of molecules passing from the air into the blood. Analysis of the air sample ought be proportionately equivalent to a corresponding concentration of an identified chemical, in this case, alcohol. Alcohol molecules radiate energy at a specific wave length (9.5 microns) which is detectable though an infra red recognition instrument. At a given temperature, the ratio of the alcohol molecules ought be constant. Scientific experimentation has established that the ratio constant is considered to be one part per breath sample to 2,100 parts per blood sample. The…

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.

Continue reading Horton v White

Details

AGLC: Horton v White [2002] TASSC 57
Case: [2002] TASSC 57
Decision Date: 28 August 2002

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Graeme Roy Horton appealed against a decision of a learned magistrate who had dismissed his challenge to the validity of a breath analysis test result. Horton contended that the breathalyser machine used in his case was not an "apparatus … designed for ascertaining by analysis … the concentration of alcohol …" as required by Parliament, because it was inherently biased in favour of the motorist. The Alcotest 7110 machine used to test Horton's breath was calibrated based on an assumption of a ratio of one part per breath sample to 2,100 parts per blood sample. This ratio, based on scientific experimentation, was considered to give the benefit of the doubt to the subject. The Director of Forensic Science Services testified that the machine was designed to ascertain the concentration of alcohol in a person's breath, and while there was some variation in the results, the machine was not capable of making an objectively certain determination in respect of all subjects.

The legal issues in the case were whether the Alcotest 7110 met the statutory criteria for being an approved breath analysing instrument, and whether the magistrate erred in admitting the test result into evidence. The court had to determine the meaning of the words "design" and "ascertain" within the context of the Road Safety (Alcohol & Drugs) Act 1970. The court held that the magistrate was correct in his reasoning and conclusion that the Alcotest 7110 was designed to ascertain a particular result, notwithstanding that the purpose might not necessarily be achieved or, indeed, be achievable.

The court also held that the purpose and consequence of the legislation must be taken into account in interpreting the statutory language. The court found that Parliament had accepted the possibility that differing results might be obtained by different methodologies, and had provided a deemed "actual concentration" in the case of a breath analysis properly carried out. The court concluded that the Alcotest 7110 was an evidentiary device to be used in support of proof of a substantive offence, and was in that context capable of being approved by the Governor by notice in the Gazette.

The motion to review was dismissed, and the court held that there was no error in the inference made by the learned magistrate from the evidence of the scientific officer that the apparatus met the purpose for which it had been designed. The device was one capable of being approved by the Governor by notice in the Gazette. The court found that the variation in the results was, at least in part, caused by the calibration performed by the approved analyst, and that the fact that the scientific officer chose to adjust and set the machine so that it produced a result which favoured the citizen, was no reason for concluding that the apparatus was not designed to achieve a particular purpose.

Orders