Horton v White
[2002] TASSC 57
•28 August 2002
[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 scientific principle recognises that there is variation of the constant between individuals, a recognition extended to most, if not all, areas of human biology and physiology.
The Director gave evidence that experiments based on statistical variation had shown that the ratio should be closer to 1 in 2,300:
"… but for the purpose of the Alcotest 7110 we are very happy to take the 1 in 2,100 ratio because that gives the benefit of doubt to the subject. There are few subjects likely to be less than 2,100. Most of the subjects will be above 2,100 and more than likely around 2,300."
He conceded that in a given case the ratio could be above 1 in 2,300, but that the calibration of the Alcotest was fixed on an assumption of the ratio 1 to 2,100. The software based on that assumption then calculates:
"… the amount of alcohol from the fact that the instrument has previously been calibrated by an equivalent .100 or .060 standard, so the software is able to then calculate an alcohol concentration."
The evidence of the Director was that:
"In fact the individual essentially gets a reading lower than they should otherwise get."
He conceded that theoretically a person with an exchange ratio of 1 to 2,000 would:
"… get a reading which would be higher than the actual concentration of alcohol in their blood"
but remained:
"… confident that … the Alcotest 7110 won't overestimate the true blood alcohol reading."
The particular machine had been calibrated on 3 April 2001 and used to test the applicant on 1 December of the same year.
The software and the calibration tests are further programmed or set to the further advantage of the person tested. The Director stated:
"The principle of which I am operating under is that I don't want the instrument to overestimate the true blood alcohol reading. There are a couple of other factors involved here and one must appreciate that not all measurements are accurate and the Alcotest 7110 specifications indicate that there is a maximum error of .003, below .1 percent and 3 percent above that. Now, the software will compensate for this by deducting --- Well, can I just go back and say the significance of that point 003 error means that without compensation the reading could on a .100 standard give a reading somewhere between .097 and .103 and that would be normal scientific measurements. There are always variations. To compensate for that .003 is deducted before the reading is given, which means that with a .100 standard the actual reading the instrument may give could be as low as .094 or at the maximum 100."
In summary, he stated that:
"The Alcotest 7110 is a scientific instrument that will and can provide an accurate reading in a scientific sense but one must realise that any series of measurements made by any measurement instrument at all does have variation. For example, if ten people were asked to measure the length of a table with the same tape you would end up with several different results, but the average of those results would be close to the true length of that table. Now, I believe the instrument is an accurate instrument from that point of view if one understands the scientific error, however, in my calibration of the instrument I am quite happy to calibrate slightly under the true value to give that extra surety that the reading will not exceed the true blood alcohol reading. Its [sic] been shown when people do have a blood test taken over a large series that there's good correlation between the blood test and the breath test, given all the factors of time and calibration of the instrument and so on."
and pointed out that:
You have the same problems with analysing the blood of a person. You can analyse the blood of a person several different times and you may end up with several results. There is still some variation and the average of those results will be close to the true value. There's still a level of uncertainty if you like. Its [sic] true that with the Alcotest 7110 this level of uncertainty may be just a little bigger, a little larger, and also as you pointed out before, the assumed ratio of 1 to 2,100 instead of the actual ratio of an individual which is impracticable to determine in doing a breathanalysis."
The Act, s2(1) provides:
"2 ¾ (1) In this Act, unless the contrary intention appears ¾
'breath analysing instrument' means any apparatus that is designed for ascertaining, by analysis of a person's breath, the concentration of alcohol present in his blood (being apparatus of a type approved by the Governor by notice in the Gazette)."
The Alcotest 7110 has been so approved.
The applicant contended that since the machine had been designed to provide an analysis which did not ascertain the actual concentration, it was not one capable of meeting the criteria stated by Parliament.
The learned magistrate, consistent with an earlier ruling (Parr v Jordan, 25 January 2002), rejected the argument. He conducted a textual analysis of the words "design" and "ascertain" and, accepting the evidence of the Director, found that:
"… as a result of compromises made in the selection of the ratio of blood-alcohol concentration, the intrinsic unreliability of all scientific measuring instruments and policy decisions that determine instrument calibration standards, the Alcotest 7110 is not capable of making an objectively certain determination in respect of all subjects"
and concluded that:
"… an apparatus can be designed to ascertain a particular result notwithstanding that the purpose might not necessarily be achieved or, indeed, be achievable."
The learned magistrate was correct in both his reasoning and conclusion.
The motion to review claims error on the ground that:
"The Learned Magistrate erred in law in admitting into evidence the result of a breath analysis of a sample of the Applicant's breath provided by the Applicant pursuant to a direction given pursuant to S 10(1) of the Road Safety (Alcohol and Drugs) Act 1970 in that the Learned Magistrate:
(a) Erred in fact in finding that the Alcohol [sic] 7110 device was designed for ascertaining the concentration of alcohol present in the blood of a subject by analysis of the subject's breath.
(b) Erred in fact in inferring from the evidence of Mr Stephen Dolliver that the device was so designed.
(c) Erred in law in finding that the device is capable of being approved by the Governor by notice in the Gazette.
(d) Erred in law in reaching the conclusion that the device was so capable of being approved by the Governor by an application of the principle of statutory interpretation that a Court may have regard to the consequence of a particular interpretation."
The learned magistrate gave meaning to the word "ascertain" within the context of the legislation, rejecting the approach of Perry J in Panapoulos v Nominal Defendant (SA) (1990) 11 MVR 175, when he said, at 186:
"One must be careful in having regard to dictionary definitions in the process of construing an Act of Parliament. However, consistently with that definition, and the ordinarily understood meaning of the word, in order for the identity of a vehicle to be 'ascertained' within the meaning of s 115, in my view the identity must be established clearly enough for the identity to be 'certain' or 'definite'.
This does not mean scientific certainty. The word 'ascertained' where it appears in the section, must be construed consistently with its context and with the object of the section."
The learned magistrate accepted that in the context of the Act:
"… the word 'ascertain' is used in the context of the approval of a scientific instrument, its purpose being to identify an objective fact, the existence of which can have serious penal consequences."
He noted that Parliament had provided a different test for the term "breath test" by stating in the Act, s2:
"'breath test' means a test for the purpose of indicating the concentration of alcohol present in a person's blood, carried out on that person's breath by means of a device (not being a breath analysing instrument) of a type approved for the purposes of such a test by the Governor by notice in the Gazette."
However, he correctly stated that Parliament had accepted scientific variation by its enactment of s23(2) and (7) which provide for a deemed "actual concentration" in the case of "a breath analysis … properly carried out". The learned magistrate added that a similar conclusion would be reached by the application of the "purposive" statutory test.
This Court accepts both the reasoning and conclusion of the learned magistrate.
The motion to review, however, refines the argument and invites additional response.
Purpose and consequence of legislation
Language cannot be ignored nor its usage contorted to give effect to purpose. But the purposive guide to interpretation serves to put the language in context and permit meaning to be derived from various meanings which may be obtained from a word or phrase. As Perry J observed in Panapoulos (supra), a word "must be construed consistently with its context and with the object of the section". The preamble to the Act states that it is one:
"… to protect the public against the risks inherent in the driving of vehicles after consumption of intoxicating liquor or drugs; and for related purposes."
Parliament accepted the possibility that differing results might be obtained by different methodologies when it provided a "deeming provision", whilst permitting a basis for challenging accuracy (s23(2)) and recognised that there might be difference between the results of analysis of breath and blood (s23(3)). Its scheme recognises variations in result because of the passage of time (s10(3)). Terms employed by Parliament need not be given a narrow literal meaning if the consequence is to render a scheme unworkable or impossible (Moore v Lambert A6/1974) or fails to take account of Parliament's attempt to avoid evidentiary difficulties (Smith v Brazendale [1980] Tas R 83). The issue in this case is that of an evidentiary not of substantive nature.
The approach to language and its consequence is as stated by Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, in the following terms:
"… obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."
Parliament did not seek to specify the make or model of particular apparatus, nor limit change in technology. It permitted approval or certification by way of proclamation and stated the purpose for which the machine was to be used. The apparatus was an evidentiary device to be used in support of proof of a substantive offence. It is in that context (Project Blue Skies Inc & Ors v ABA (1998) 153 ALR 490) that the language of Parliament ought be considered.
The test of consequence results in a similar approach to interpretation. Given that different results might be obtained from the same person within minutes, or vary according to temperature, physiology or metabolism, it is impossible to conceive of an apparatus capable of fixing an exact measurement unless specifically configured for the specific characteristics of that person at the precise time of testing.
Designed to ascertain
One matter overlooked in the argument is that the variation was, at least in part, caused by the calibration performed by the approved analyst. The fact that, as a matter of policy, the scientific officer chooses to adjust and set the machine so that it produces a result which favours the citizen, is no reason for concluding that the apparatus was not designed to achieve a particular purpose.
The word "design" has a wide range of meanings, which might be interpreted according to its legal context (Edwards Hot Water Systems v S W Hart & Co Pty Ltd (1983) 49 ALR 605; Shacklady v Atkins & Anor (1994) 126 ALR 707) and the fact that the design is dictated solely by function does not preclude it from being a "design" within the framework legislation such as patent legislation (Ogden Industries Pty Ltd & Ors v Kis (Australia) Pty Ltd (1981) 45 ALR 129). In Freeman v Brown [2002] TASSC 47, Crawford J referred to cases such as South Sydney Municipal Council v James (1977) 35 LGRA 107 and Wilson v West Sussex County Council [1963] 2 WLR 669, but concluded, at 3, that:
"Because the interpretation of a statutory provision depends on its own terms and context, they have not been of great assistance."
He did, however, note that in Tysoe v Bucknall [1933] VLR 341, Gavin Duffy J pointed out that the word "designed" was capable of meaning manufactured, or made, or of a design, or intended. In Freeman, Crawford J rejected (in relation to an argument based on the words "designed for use" used in the Fisheries (Rock Lobster) Rules 1997 at 35), at 3:
"… any notion that the definition of a rock lobster pot depends on the use intended for it at the relevant time by the person who is in possession of it, for that would strain the language of the definition."
The word "design" has been given a variety of meanings in areas of construction (Independent Authority v EMI Electronics Ltd (1980) 14 BLR 1) and intellectual property (Dalgety Austlake Operations Ltd v F F Sealy Nominees Pty Ltd (1986) 10 FCR 403) and in general terms can be said to be a process intended to achieve a result. Oxford, (3 Ed) includes the meanings "to indicate", "to purpose intend have in view", "delineate", while Webster (1971 Ed) adds "plan", "a project", "the object of a plan or purpose; the end in view; the adaptation of means to a preconceived end". The Alcotest 7110 apparatus was constructed to achieve an object and was an adaptation of means in accordance with scientific principle. Variation of the calculations produced a result different from that which could have been achieved if the machine had been programmed to accept a different assumption of scientific principle, but that variation, based on assumption, was permitted by the "designer". Mathematical calculation could be applied to the result which, in turn, would provide a more statistically accurate reading. The assumption on which the analysis was based in no way affected the working of the apparatus. The assumption, not the apparatus, was intended to take into account statistical variation and apply probability because of difference between individuals.
The word "ascertain" likewise has a range of meaning, ranging from "to make subjectively certain", to "make objective certain". Oxford, (3 Ed) includes the meanings "to assure, inform, appraise, to decide, fix limit". Webster includes "to make certain, to make sure or find out by trial or examination, to establish; to determine with certainty".
Parliament in its enactment provided for "a procedure carried out by a breath analysing instrument" by an "apparatus designed for ascertaining, by analysis … the concentration of alcohol" (the Act, s2). The word "procedure" is the governing word employed by Parliament. The procedure required the use of an apparatus. The apparatus permitted variation of result according to assumptions based on scientific knowledge. The evidence obtained by the procedure was, subject to other requirements (both procedural and substantive), to be admissible in a court required to determine whether a person had committed an offence. Parliament deemed such evidence to be conclusive unless the contrary was shown "on the balance of probability" and further provided that the evidence so obtained was to be regarded as evidence of a blood alcohol concentration at the time of driving; an evidentiary device not in accord with scientific principle. The procedure required by Parliament permitted the inclusion of an assumption which, as the scientific evidence given in this case revealed, favoured the citizen. The apparatus proclaimed fulfilled the purpose for which it was employed by a methodology for which it was "designed".
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 is one capable of being approved by the Governor by notice in the Gazette.
The motion to review is dismissed.
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