John Eder Riley v Garth Christian Seip

JOHN EDER RILEY v GARTH CHRISTIAN SEIP
[2008] ACTSC 72 (12 August 2008)

APPEAL FROM MAGISTRATE – driving offence – drive motor vehicle with a prescribed concentration of alcohol in the blood – Drager breath analysing instrument – breathalyser reading certification prima facie evidence of the presence of the concentration – reliability of breathalyser - calibration of machine
EVIDENCE –– evidence of intoxication – evidence of alcohol consumption – prosecution to prove accused had driven motor vehicle with prescribed concentration of alcohol in blood – evidential burden on accused to cast reasonable doubt on result obtained

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 19, 41(1)B
Criminal Code 2002 (ACT), ss 36, 58(7)
Evidence Act 1998 (Cth), s 144

Perkins v Pohla-Murray (1983) 51 ACTR 3
Harrington v Zaal (1992) 106 FLR 175
Looper v Forbes (1992) 112 ACTR 29; 111 FLR 449
Green v Tongs (2005) ACTSC 7
Saxe v Kellett [1970] VR 600

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 111 of 2007

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              12 August 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCA 111 of 2007
AUSTRALIAN CAPITAL TERRITORY    )          

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:JOHN EDER RILEY

Appellant

AND:GARTH CHRISTIAN SEIP

Respondent

ORDER

Judge:  Higgins CJ
Date:  12 August 2008
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The orders made by the learned Magistrate are confirmed save that the disqualification order and time for payment will date from 12 August 2008.

1. This is an appeal from a decision of Magistrate Burns handed down on 14 December 2007 convicting the appellant upon a charge that he:

… on 20 August, 2004 did drive a motor vehicle, on a public street, with level 2 alcohol in his blood.

1. The facts alleged to support that charge were that on 19 August 2004 police attended an accident scene on the Monaro Highway at Hume in the Australian Capital Territory.  The only vehicle involved was the appellant’s Jeep Grand Cherokee, ACT registration YBU 94K.

1. The appellant was present at the accident scene.  The collision had been reported to police at 11.37 pm and police attended at 11.47 pm.  The appellant was subjected to a roadside screening test.  It proved positive.

1. In consequence, the appellant was taken to Tuggeranong Police Station and required to provide a sample of breath for analysis.

1. The sample was purportedly analysed by a Drager Alcotest 7110 instrument. A result of 0.067g/100ml was recorded. According to a certificate pursuant to s 41(1)(B) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (RT (A & D) Act) the sample of breath was provided at 00:30 hours on 20 August 2004 and the analysis was completed at 00:31 hours on that day.

1. The respondent, Constable Rab Seip, noted that during the period of time he had the appellant under observation the appellant’s “face was flushed, he had watery eyes, his speech was very confused, and that he made a…